Arrests are the apprehending or restraining of a person to bring that person to a District Court within a reasonable time. You can not be arrested for the purpose of gathering evidence or ‘helping the Gardai with their enquiries’. You must be told why you are being arrested, for example, because you are suspected of having stolen goods. However, if you are arrested under Section 30 of the Offences Against the State Act 1939, you do not have to be told exactly why you are being arrested, you need only be told that you are being arrested under that section. If you go voluntarily to a Garda station to assist the Gardai with their enquiries and are subjected to questioning or interrogation, you must be told and it must be clear to you that you are free to leave the station at any time unless you are arrested. Often an arrest is on foot of a warrant. However, a warrant is not always necessary.
Arrests without a warrant
You may be arrested without a warrant when a Garda, with reasonable cause, suspects that an arrestable offence has been committed and that you are guilty of the offence. An ‘arrestable offence’ is an offence for which the penalty, for a person who has no previous convictions, can be 5 years imprisonment or more. Specific laws give the Gardaí specific powers of arrest as well. For example, a Garda can arrest you under the Road Traffic Acts without a warrant if he/she suspects that you are committing an offence in relation to drinking and driving.
Entry and search of a premises to carry out arrests
If a Garda has obtained a warrant to arrest you, he or she may enter and search any premises where he or she suspects you to be. He or she must identify himself or herself, demand entry and state why he or she is there. If the Garda is refused entry, he or she may break open outer and inner doors to get in. When a Garda does not have an arrest warrant, he or she may enter and search any premises where he or she, with reasonable cause, suspects you to be. However, if the premises is a dwelling and he or she does not have the permission of the person who lives in the dwelling,
The Garda cannot enter unless :
- You live at the dwelling
- The Garda has seen you inside or entering the dwelling or
- The Garda, with reasonable cause, suspects that before he or she can get an arrest warrant, you will either abscond or you will obstruct the course of justice or
- He or she, with reasonable cause, suspects that before he or she can get an arrest warrant, you will commit an offence
Manner of Arrest
Force can only be used to make an arrest if it is absolutely necessary. When a Garda arrests you, he or she will actually touch your body or otherwise restrain your liberty. If you are arrested on a criminal charge, you must be informed at the time you are arrested of the charge unless this is very clear. After you have been charged, the Garda must caution you with the following words: “You are not obliged to say anything unless you wish to do so, but whatever you say will be taken down in writing and may be given in evidence.” When you are brought to the Garda station, details of the offence must be set out in a ‘charge sheet’. A copy of the details must be given to you. The Garda will formally charge you by reading each charge over to you and you will be cautioned after each charge is read out. The Garda must keep a note of any reply you make.
Search of the Arrested Person
A Garda may search you after your arrest and take
- articles that he or she believes to be connected with, or evidence relating to, the offence charged or
- articles that he or she believes to be connected with, or evidence relating to, some other offence or
- articles that you might use to injure another person or property or to escape
Procedure after Arrest
Once you are charged and cautioned, you must be:
- released on bail by the member in charge of the station (a form of bail known as station bail)
- transferred from the Garda Station to the District Court as soon as reasonably possible. If you are arrested after 5 p.m. you may be brought to the District Court as early as possible before noon the following day. At the District Court, you may be released on bail or remanded in custody by the judge.
Only in certain specific circumstances may you be detained in a Garda Station for a length of time before being brought to court. Under the Criminal Justice Act 1984, you may be detained in a Garda Station for up to 12 hours. The offence of which you are suspected must be one that may be punished by imprisonment for at least 5 years. The 12 hour period runs from the time of your arrest but you may agree to a rest period between 12 midnight and 8 am and this will not be included in the 12 hours. In general, if you are arrested you do not have to say anything. However, if you are detained under the Criminal Justice Act 1984 you must tell the Gardai your name and address. The Gardai have no general power to take fingerprints or make forensic tests. They may do these things if you consent or if they have specific power under specific laws, for example, under the Offences Against the State Act or the Criminal Law (Jurisdiction) Act of 1976. Under Section 30 of the Offences Against the State Act you may be detained for up to 48 hours before being brought to Court. If you are detained you must be informed of your right to consult a solicitor.
Immunity from Arrest
- Ambassadors and their suites and other diplomatic agents who represent foreign governments while living in this country cannot be arrested.
- Members of each House of the Oireachtas cannot be arrested while going to, returning from and within the confines of either House of the Oireachtas, except in the case of treason, felony or breach of peace.
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