Common Law Powers
Members of an Garda Síochána have powers and duties of the common law to investigate crime. They are obliged to keep the peace, prevent crime and protect persons and property from injury.
A member of an Garda Síochána is entitled to approach members of the public and communicate with them. He need not have any particular suspicion or justification.
Statutory Search Powers
Certain types of offences require the exercise of search powers. In particular, offences relating to firearms, drugs, stolen property are likely to require the exercise of such powers. Search and investigation powers are provided for in numerous statutes. The search powers differ slightly depending on the wording of the relevant statute.
Generally, the relevant statute provides that where a member of an Garda Síochána has reasonable cause to suspect that a person possesses the relevant thing e.g. drugs, stolen property, offensive weapons, that there is the power to search that person and to detain him as necessary for such search.
There may be power to search any vehicle, vessel or place where it is suspected the thing may be found. The person in charge of such a vehicle or place may be required to cooperate in the search.
It is generally provided that it is an offence to impede or obstruct a search. A vehicle or vessel may be required to be kept stationary. A computer may be required to be operated and used. The things concerned may be seized and taken away.
There may be power to require the person to accompany the member of Gardaí to a Garda Station for the purpose of the search. Where a person refuses to cooperate, he may generally be arrested without a warrant. Vehicles and things found may be detained for the purpose of investigation and a prospective prosecution.
Constitutional Right to Liberty
Standard search powers have been upheld by the High Court and Supreme Court as Constitutional, in the context of stolen goods. It involves the reconciliation of personal rights with the requirements of the common good.
The courts recognise, that a person must not be subjected to unnecessary harassment, distress or embarrassment in the exercise of search powers. If this were to occur, it may be an abuse of the person’s Constitutional rights and very exceptionally, he may have a right of redress.
The person searched appears to have a right to be informed of the statutory power under which the relevant search is being conducted. Although a search is less intrusive than arrest, the court appear willing to apply the same principle. This does not arise if the search is consented to.
Gardaí have powers to undertake random checks on vehicles. A person driving a vehicle may be obliged to stop it and keep it stationary for as long as necessary to enable a Garda to discharge his duty. In the context of this power, it is not necessary that the Garda has suspicion that any offence has been committed. However, the power must be exercised in good faith.
This power to require a person to stop has been enhanced by a power to operate checkpoints to detect intoxicated driving. This latter power was enacted in 2006. The checkpoint must be authorised by an officer of the rank of inspector or higher. The authorisation must give details of the date ,place and time where the checkpoint is to operate. Proof of the prior authorisation is necessary in a prosecution where a drink driving offence is detected.
A search warrant is an authorisation in writing to undertake a search. The legal provisions for the grant of a search warrant will be set out in the relevant legislation. The legislation will set out the requirements and basis for issue of a warrant.
A warrant is usually required to authorise a search of private property because this is seen as an extensive intrusion into Constitutional rights. This applies in particular to a dwelling house, because of the Constitutional guarantee of the inviolability of the dwelling.
The process for the issue of a warrant involves an independent judicial (or other) decision-maker who at least in principle, vouches for the basis of the evidence and suspicion before granting the warrant. The application for a warrant is not heard in public.
Issue of Warrant
The person issuing the warrant must have a basis to satisfy himself that it is required. Generally, this is on the basis of sworn evidence made by the applicant for the warrant. The issuer of the warrant must be satisfied that the requisite statutory provisions apply.
The requirement for the warrant must itself be assessed and it should not be granted automatically. There must be a reasonable ground for believing that the relevant evidence would be found in the place named in the warrant.
Because a warrant authorises intrusion into Constitutionally protected rights of privacy, property and freedoms the statutory provisions regarding the issue of a warrant are to be strictly interpreted. In a prosecution, the defence may require the prosecution to prove the validity of the search warrant.
Many statutory provisions require that the applicant for the warrant swear the information which is the basis of the warrant. This usually requires reasonable belief or reasonable suspicion that the requisite evidence will be found in the place for which the warrant is requested. The belief must have a rational basis.
Recent legislation has provided a general power for the District Court to issue a warrant where an arrestable offence is involved. There must be reasonable grounds for suspecting that evidence of or relating to the commission of an arrestable offence is to be found in a particular place.
Conducting the Search
The warrant authorises a named member of the Gardaí accompanied by other members as he thinks fit, to enter the property at any time or times within one week of the issue, on production if requested of the warrant and if necessary by the use of reasonable force.
A person present may be required to give his name and address. A person who fails to do so or gives information which the member of the Garda Síochána reasonably believes to be to be false or misleading or who attempts to obstruct the member in the execution of his duties may be arrested without warrant and may be found guilty of such offence in a summary prosecution.
Some statutory provisions allow a Peace Commissioner to issue a warrant. Although some former powers of the Peace Commissioner have been found unconstitutional, the power to issue a search warrant has not been so found.
Peace commissioners have been appointed since the foundation of the State. The office was created when the justices of the peace and resident magistrate were replaced by District judges. They are not legally qualified.
The 2006 Criminal Justice Act introduced provisions for the purpose of the preservation of a crime scene. Evidence at such a place may be preserved. Members of an Garda Síochána may take steps as are necessary to preserve evidence relating to an arrestable offence. He must obtain a direction from a superintendent or higher rank to designate the place as a crime scene. The direction authorises members of the Garda Síochána to take steps necessary to preserve search for and collect evidence at the scene.
Steps that may be taken include, delineating the area concerned, ordering people to leave, preventing entry, securing the scene, searching, examining and photographing the scene. The scene may be maintained for up to 24 hours. This period may be extended for a further 24 hours by a District judge on an application of a superintendent. Further extensions require an application to and approval of the High Court. Conditions may be imposed on the continuation of an order.
It is an offence to interfere with Gardaí in the exercise of their duties in relation to a crime scene.
The Criminal Justice (Search Warrant) Act, 2012, updated the former search warrant provisions in the Offences against the State Act 1939 which was struck down by a Supreme Court decision. It also amended certain provisions of the Misuse of Drugs Act and the Criminal Justice (Drug Trafficking) Act.
The legislation applies to offences under the Offences against the State Act. In broad terms, these are scheduled offences that may be tried before the Special Criminal Court, treason and related attempts conspiracies and incitement.
A District Court judge may issue a warrant to search a place. He must be satisfied by information on oath by a member of Garda Siochana of the rank of sergeant or above, but there are reasonable grounds for suspecting that evidence of are relating to the commission of an offence to which the provision applies, is to be found in that place.
Garda Superintendent Wattant
A member of An Garda Siochana of superintendent rank may issue a search warrant to a sergeant or higher rank. The superintendent may issue a warrant only where he/she is satisfied that the warrant is necessary for the proper investigation of an offence to which the provisions apply and he is satisfied that circumstances of urgency giving rise to the need for the immediate issue of a warrant which would render it impracticable to apply to a District Court judge.
The issuing officer must be independent of the investigation concerned. He must not be in charge or involved in the investigation.
The power to issue a warrant is without prejudice to any other power conferred by statute to issue a warrant for the purpose of searching of any place or person.
A superintendent who issues a warrant must record in writing the grounds on which he issued the warrant as soon when it issues or as s soon as reasonably practicable thereafter, record in writing the grounds on which the warrant was issued, including how he or she was satisfied as to the required matters.
Terms of Warrant
The warrant permits entry, search of both the place and persons found, seizure of anything found at the place or in possession of a person present at the place.
The seizure power relates to items which the member from Garda Siochana reasonably believe to be evidence related to the commission of an offence to which the provision applies. The right to enter is subject to an obligation to produce the warrant or a copy of it, if requisite. Entry may be involved with reasonable force if required.
A warrant may permit multiple entries within a week of the date of its issue. The maximum duration of 48 hours applies for superintendent issued warrants. A member from Garda Siochana or the Defence Forces acting under the authority of a warrant under the provisions may require any person present where the search is being carried out to give his name and address.
Execution of Warrant
There is a power of arrest if the person obstructs or attempts to obstruct the personnel in carrying out his duties, fails to give his name and address or gives a false and misleading name and address.
It is a summary offence for a person to obstruct or attempt to obstruct a member acting under the authority of a warrant to fail to comply with the requirement to provide name or address when requested or to give a false and misleading name. The maximum penalty is a class A fine or imprisonment up to 12 months.
Drugs Trafficking Offences
Amendments are made to the power in the Misuse of Drugs Act for a judge or peace commissioner to issue a search warrant in relation to drug offences. The Criminal Justice (Drug Trafficking) Act, 1996, is amended to allow a superintendent of rank or higher to issue a warrant under the Misuse of Drugs Acts in circumstances of urgency require the immediate issue of a warrant and where it would be impracticable to apply to a District Court or peace commissioner. A number of additional safeguards are provided.
Only a superintendent who is independent of the investigation may issue the warrant. Independent has the same meaning as above. The superintendent must record the grounds on which he issues the warrant at the time or as soon as reasonably practicable thereafter.