Article 40.4.1 provides that no citizen shall be deprived of his liberty, save in accordance with law. A person may be arrested if he is suspected of an offence, for the purpose of procuring his attendance at court and, subject to conditions and limits, for the investigation of more serious offences. It is not clear, under statutory powers to what extent a person may be arrested simply to be questioned about an offence if there is no sufficient or reasonable suspicion that he has committed an offence.
Arrest is the apprehension or restraint of a person in exercise of lawful authority for the purpose of bringing him within the criminal process. At common law and historically, arrest was a process for ensuring a person’s attendance in court. It must be for of proper purpose. The existence of a secondary purpose will not necessarily invalidate the arrest, but it may be invalidated if the ostensible purpose is colourable or principal objective is one that is invalid.
At common law, the power of arrest was for the purpose of securing a person’s attendance before court to enter charges. This reflects the presumption of innocence. There was no common law power of questioning.
There is a general power of arrest in respect of an offence which is subject to imprisonment for five years or more. There are also numerous powers of arrest in the context of particular pieces of legislation. Powers of arrest are granted in many cases in relation to minor offences arise where there is a doubt as to the name and address or identity given of the person concerned.
Warrant for Arrest
There is a very wide range of legislation providing for arrest with or without warrant. Where a warrant is required, a judge or police commissioners or in some cases, a senior Garda Commissioner Officers may issue the warrant. The issue of such warrants by Peace Commissioners has been held to be valid.
When the arrest warrant is being applied for, sufficient details must be furnished so that the decision-maker can comprehend the base, the suspicions concerned. The issue of a warrant may not be a simple formality or rubber stamping.
Warrants must have the basis of their jurisdiction on their face. This will generally require the minimum statutory provision and may require more. The general provision is that a warrant issued by the District Court lasts for six months. A warrant for committal must be executed without due delay or will otherwise expire.
Entry on a dwelling house engages the prohibition, the provisions of Article 40.5 of the Constitution which provide, “a dwelling house of every citizen is inviolable and shall not be forcibly entered, save in accordance with law.”
There must be express statutory powers to enter property to effect an arrest. Most schemes of legislation provide in addition to powers of arrest without warrant, that warrants are to issue for entry upon property, either all property or dwelling houses.
Gardai and other State officers may enter property with the consent or express or implied of the owner.
There is statutory power to enter and search a premises including a dwelling for the purpose of arresting a person on foot of a warrant of arrest or an order of committal. A member of the Garda Síochána may enter (if need be, by use of reasonable force) and search any premises (including a dwelling) where the person is or where the member, with reasonable cause, suspects that person to be.
Arrest for Questioning
The European Convention on Human Rights prohibits arrest for the questioning, but Ireland has derogated from this provision.
Originally, Section 30 of the Offences against the State Act was widely used for the purpose of arrest for questioning. It was interpreted as permitting arrest for this purpose. However, following enactment of more specific legislation, it was held that the prolonged period of custody permissible did not afford a power to arrest and detain for questioning for this period.
The Criminal Justice Act, 1984 allows for extensive powers of detention for the purpose of questioning. The Criminal Justice (Drug Trafficking) Act 1996 And Criminal Justice Act 2007 permits detention for up to seven days for questioning in relation to serious offences.
Procedure on Arrest
A person who is arrested at common law must be informed promptly of the reason for his arrest and any charge. This is also required by the European Convention and the Irish Constitution. A person is entitled to be informed of the nature and description of the statutory power being invoked.
At common law and under International Conventions, a person who he is arrested is to be brought promptly before a judge. A prisoner is generally brought before a judge of the District Court. This is reflected in general, criminal procedure. Generally, a person should be brought before a District judge as soon as may be. If he is arrested after 5 p.m., he should be brought before a District judge before 12 noon the following day
Conditions of Detention
A person who is detained for the purpose of questioning is usually subject to the Criminal Justice Act 1984 and regulations made thereunder. See generally the sections on criminal procedure in that regard.
In DPP v. Healy, the Supreme Court held that a person who is detained by the Gardai may request the solicitor and has a constitutional right to see and take advice from the solicitor. Any deliberate restriction of access is in breach of constitutional rights and statements made in the period may be inadmissible.
Where an arrest is made on the basis of a putative suspicion that is not held and is a pretext for the real or other reason, it is invalid. Where a person was arrested pending, coming into force of an extradition treaty, it was held to be invalid in Trimbole v. Government of Mountjoy Prison.
Trimbole was arrested on a charge of possession for firearms, which was invalid because there was no genuine basis for the suspected offence. He was arrested again outside the precincts of the court on foot of an extradition warrant for the extradition, on the day the extradition arrangement between Ireland and Australia became effective. The High Court held that the detention was the result of a deliberate, conscious violation of his constitutional rights. Hs rearrest was tainted by the illegality of the original arrest.
A person may be lawfully incarcerated on committal to prison. Persons may be committed to prison under the prisons legislation. Children may be detained in a detention schools or centre (aged 18 years under). Convicted persons who are mentally incompetent may be detained in psychiatric institutions.
Persons who are incarcerated retain constitutional rights that are not inconsistent with incarceration. See generally the sections on sentencing and prisons.
Detention is permitted by the European Convention on Human Rights in order to enforce a specific legal obligation. Accordingly, an attachment and committal are permissible for breach of a court order.
The European Convention Protocol and UN Covenant prohibits detention on the grounds of inability to fulfil a contractual obligation. This principle has been long reflected in the Debtors Act (Ireland) 1872.
The original provisions of the Enforcement of Court Orders Act were found unconstitutional as they were insufficient protections and procedures in place before the possibility of a committal order for failure for noncompliance.
There is no inherent power for the authorities or Gardai to hold persons in protective custody for their own safety. It is unlikely that such a principle would be permitted under the Constitution.
Persons may be committed to detention on foot of an order for short periods, subject to review to prevent them from doing damage to themselves. This would appear to be permissible, even if the person suffers from mental incapacity. The detention must be for a short and fixed period only and under court supervision. The cases which support this proposition have not been approved by the Supreme Court and remain controversial.
See generally the sections on children and juvenile justice in relation to circumstances in which persons may be detained but for — it is subject of special care orders. The HSE may provide minimum — special care units or arrange for their provision. A child may be detained there on conviction.
Provision for internment still (technically) exists under the Offences against the State (Amendment) Act 1940 which was decided in the early part of the Second World War on a basis which would no longer be upheld. The Act is however immune from later challenge. Internment may be permissible in an emergency where applicable. See generally the section on emergencies and military courts.
Mental Health Reasons
The former system of detention under the Mental Treatment Act 1945 which provided for the detention on the authority of medical officers was found consistent with the Constitution. The system has been replaced by the Mental Health Act 2001 so as to be consistent with the requirements of the European Convention on Human Rights, which are more stringent.
In Croke v Smith 1998, the Supreme Court said —
It is obvious that an object of law to punish criminal behaviour. Different considerations will apply when the impugned law has a totally different objective such as the welfare of persons whose liberty is restricted. But this objective does not justify any restriction designed to further it. On the contrary, the State’s duty to protect the citizen’s rights become more exacting in the case of the weak and vulnerable citizens such as those suffering from mental disorder.
“Such legislation should contain adequate safeguards against abuse ….. in the interests of those whose welfare, the legislation is designed to support,”
Immigration and Deportation
The European Convention on Human Rights allows persons to be detained pending deportation. The Immigration Act permits non-nationals unlawfully in the State to be arrested without warrant and detained pending a deportation order.
The power of administrative detention was upheld by the Supreme Court in the context of the Illegal Immigrants Trafficking Bill 1999 reference. There will always be cases where the immigrant has gone through or had the opportunity to go through all the application and appeal procedures for asylum or for leave to remain in the country on humanitarian grounds, but still attempts to evade the execution of deportation order…… the powers of detention between the making of the deportation order and in advance of the deportation order may well be necessary in some instances.”
Earlier Bail Position
The presumption of innocence implies that persons should not generally be incarcerated pending a finding of guilt. At common law, persons may be detained in custody to secure their attendance at trial. Bail involves the entry of securities to attend to appear in court on the requisite dates to answer the charge.
The grant of bail is an inherent discretionary. The refusal or bail is not the same as imprisonment after conviction. At common law, it is for the purpose of preventing the evasion of justice by a personal absconding, whether in criminal or extradition procedures.
Famously in the State (People) v O’ Callaghan, the Supreme Court held that it was a constitutional right to bail which could be denied only in exceptional circumstances. The same principles applied in respect of persons being held with a view to extradition. People v Gill/land.
The basic ground for refusing bail was the probability of the applicant evading justice. The likelihood of interference with a witness was a valid factor. The O’ Callaghan case did not permit the possibility of preventing as person from committing further offences as a criteria. Preventative justice was not permissible. The likelihood of a committing further crimes was ruled out as a possibility as a form of preventative justice. It was only in cases of grave emergency and in order to preserve peace, order and safety of the State, that this could be justified.
The Bail Act
Following a referendum, the Constitution was amended to provide:
provision may be made by law for the refusal of bail by a court to a person charged with a serious offence, where it is reasonably considered necessary to prevent the commission of a serious offence by that person. The Bail Act 1997 followed and allows court taking to account possibility that the person may commit other offences while on bail.
The Bail Act provides that account shall be taken of the nature and seriousness of the charge, the accused’s failure to answer bail on previous occasions, nature and strength of evidence, sentence likely to be imposed, likelihood of interfering with witnesses, that the accused has been charged with a serious offence and there is a significant likelihood that if released on bail, he may commit a serious offence; the objections of the DPP and police authorities, substance and reliability of bailsmen.
Excessive bail is a denial of bail. Accordingly, the amount of bail should not be such that the accused cannot find a party who would meet it or its terms.
In Hel’henrynat v AG provisions of the Fisheries Act which required that when a boat was seized while allegedly involved in illegal fishing, security had to be given to the maximum fine costs and value of forfeiture. The Supreme Court held that the section did not involve bail and reversed the High Court’s finding in that regard.