Powers of Detention, Arrests, and Treatment of persons in custody

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1 Powers of Detention, Arrests, and Treatment of persons in custody This document is provided as general guidelines only. The document includes a summary of the following: Powers of detention Periods excluded in calculating the detention period Powers of arrest Powers of re-arrest Treatment of Persons in custody Please note this is not exhaustive, but does include the legislation most commonly used. Individuals with specific legal issues should contact their solicitor. Comprehensive details on each piece of Irish Legislation is available on line at:

2 Powers of Detention Section 4 Criminal Justice Act Hours - Maximum Period of Detention 6 Hours Granted by Member in Charge (MiC) 6 Hours Extended by Superintendent 12 Hours Extended by Chief Superintendent NB. Please note S4 CJA 1984 is a power of detention not a power of arrest. Powers of arrest are attained from other pieces of legislation, as outlined further on in this document Section 30 Offences Against the State Act Hours - Maximum Period of Detention 24 Hours Granted by Arresting Member 24 Hours Extended by Chief Superintendent 24 Hours Application by Superintendent at the District Court Usually involving firearms or explosives offences. Normally used for murder enquiries, and the investigation of terrorist / subversive offences. Section 2 Criminal Justice (Drug Trafficking) Act Days / 168 hours - Maximum Period of Detention 6 Hours Granted by Member in Charge (MiC) 18 Hours Extended by Chief Superintendent 24 Hours Extended by Chief Superintendent 72 Hours Application by Chief Superintendent to District Court 48 Hours Application by Chief Superintendent to District Court Usually involving offences under the Misuse of Drugs Act Sec 15 or 15A, Possession for Sale or Supply. Other offences are on the schedule for this detention. Section 50 Criminal Justice Act Days / 168 hours - Maximum Period of Detention 6 Hours Granted by Member in Charge (MiC) 18 Hours Extended by Superintendent 24 Hours Extended by Chief Superintendent 72 Hours Application by Chief Superintendent to District Court 48 Hours Application by Chief Superintendent to District Court

3 For the following offences; murder involving the use of a firearm or an explosive murder to which section 3 of the Criminal Justice Act 1990 applies [capital murder] an offence under section 15 of the Firearms Act 1925 (as substituted by section 42 of the Criminal Justice Act 2006) [possession of firearms or ammunition with intent to endanger life or cause serious injury to property] an offence under section 15 of the Non-Fatal Offences against the Person Act 1997 [false imprisonment] involving the use of a firearm Periods Excluded in calculating the detention period Appendix 1 Clock Stop During Detention The clock will stop running in relation to the detention periods outlined above in the following situations: If the Member In Charge (MiC) authorises suspension of questioning for a specified period between midnight and 8am to allow the detainee to rest, then that rest period will be excluded when calculating the period of detention. If the person is detained under Section 4 CJA 1984 the prisoner must consent to the suspension of questioning. If the detainee is in need of medical attention and is taken out of the Garda station the period that the detainee is absent from the station will be excluded when reckoning the period of detention. Where detainee is taken to a court in connection with an application relating to the lawfulness of his detention, the time during which he is absent from the station for that purpose will be excluded when reckoning the period of detent Powers of Arrest Statutes conferring a power of arrest Numerous statutes create a power of arrest in relation to specific offences these include (note that this is by no means an exhaustive list): Criminal Law Act 1997, s 4 Misuse of Drugs Act 1977, s 25 Criminal Justice (Public Order) Act 1994, s 24 Firearms and Offensive Weapons Act 1990, s 14 Criminal Law (Sexual Offences) Act 2006, s 3(8) Criminal Damage Act 1991, s12 Note: Section 4 of the Criminal Law Act 1997 is the most widely used Power of Arrest. It covers any offence which carries a penalty on indictment of 5 years or more.

4 An arrestable offence is defined in section 2(1) of the Act as: an offence for which a person of full capacity and not previously convicted may, under or by virtue of any enactment or the common law, be punished by imprisonment for a term of five years or by a more severe penalty and includes an attempt to commit any such offence Section 42 Criminal Justice Act 1999 Gives the power to arrest a prisoner* in prison and bring to a Garda station for detention based on an application made to the District Court by a member of the Garda Síochána not below the rank of Superintendent where there are grounds to suspect that such prisoner has committed an offence other than that for which he has been imprisoned. *("prisoner" means a person who is in prison on foot of a sentence of imprisonment, on committal awaiting trial, on remand or otherwise) Powers to re-arrest Section 10 Criminal Justice Act 1984 Gives the power to re-arrest based on an application made to the District Court by a member of the Garda Síochána not below the rank of Superintendent that further information has come to the knowledge of the Garda Síochána since the initial arrest. Treatment of Persons in Custody Treatment of Persons in Custody Regulations The treatment of persons in custody regulations are the regulations which cover a prisoners legal entitlement. They are derived from Regulation 8, Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Síochána Stations) Regulations, 1987 and A copy of these rights is supplied to all persons in custody on entering the Garda station when their details are entered in the Custody Record (C84), the form handed to the prisoner is the C72(S). It outlines the following; Legal Advice Medical Treatment Telephone Calls and Personal Visits Searches Provision of Meals The taking of Photographs, Fingerprints and other bodily samples Please find a complete copy of the C72(s) attached. The above document is provided as guide only and was reviewed on 17 March 2009.

5 GARDA SÍOCHÁNA Information for Persons in Custody Regulation 8 - Criminal Justice Act, 1984 (Treatment of Persons in Custody in Garda Síochána Stations) Regulations, 1987 and 2006 Only rights as required and as appropriate to the arrest/detention need be read over the person Member in Charge I am the member in charge of this station and I am responsible for overseeing the application of the Criminal Justice Act, 1984 (Treatment of Persons in Custody in Garda Síochána Stations) Regulations, 1987 and 2006 in respect of your treatment while in custody and for that purpose will visit you from time to time. Any matters relating to your treatment should be brought to my attention as member in charge. Reason for Arrest You will have been informed of the offence or offences for which you have been arrested. Notification to other Persons If you are eighteen or over, you may, on request, have a solicitor and another person named by you notified that you are in custody in a particular station. If the person first nominated cannot be contacted, you may nominate another person. If you are under eighteen, your parent or guardian (or, if you are married, your spouse) will be notified and asked to attend at the station without delay. If your parent or guardian (or, if you are married, your spouse) cannot be contacted you will be given an opportunity to ask for another person, reasonably named by you, to be contacted. Non-Irish Nationals If you are a foreign national you may communicate with a diplomatic or consular representative of your own country who is either in the State or accredited to the State on a non-residential basis, or a diplomatic or consular representative of a third country which may formally or informally offer consular assistance if your country has no resident representative in the State. Your consul will be notified of your arrest if you so wish. If you are a national of the United States of America your consular representative will be notified of your arrest unless you request otherwise. Legal Advice You may communicate privately with a solicitor either in writing or by telephone, or consult with the solicitor in the station. Visits, Telephone Calls etc. You may, if you wish, (a) receive a visit from a relative, friend or other person with an interest in your welfare and (b) make a telephone call or send a letter, provided that (i) the member in charge is satisfied that it will not hinder or delay the investigation of crime and (ii) in the case of a visit, it is practicable for the visit to be adequately supervised. C.72(S) Searches

6 If you are to be searched, the reason for the search will be explained to you. Meals There is no charge for meals supplied. However, if you wish to have a meal of your own choice it will be supplied, if practicable, but at your own expense. Bail You may be released on bail if the member in charge considers it prudent to do so and no warrant directing your detention is in force. If you are not given bail, you may apply for it when you come before the Court. Legal Aid This is dealt with on application to the court and may be granted in certain circumstances. Examination by a Doctor You have the right to request a medical examination by a doctor, including one of your own choice. Photograph for the purpose of Identification If you have been arrested under any power conferred by law, a member of the Garda Síochána, when authorised by a member not below the rank of Sergeant, may take your photograph for the purpose of assisting with your identification in connection with any proceedings that may be instituted against you for the offence in respect of which you are arrested. Refusal to allow your photograph to be taken for the purpose of identification is an offence. Fingerprints, Palm prints, Photographs and Tests If you have been arrested/detained under: (Tick box as appropriate) section 30 of the Offence Against the State Act 1939 as amended, or section 42 of the Criminal Justice Act 1999 as amended, or section 4 of the Criminal Justice Act 1984 as amended, or section 2 of the Criminal Justice (Drug Trafficking) Act 1996 as amended, or section 50 of the Criminal Justice Act 2007, a member of the Garda Síochána, when authorised by a member not below the rank of Inspector, may take your fingerprints, palm prints or photograph. A member may also make/conduct tests to see if you have been in contact with a firearm or explosive substance and for that purpose may take swabs from your skin or samples of your hair. Reasonable force may be used if you fail to cooperate and allow your photographs or fingerprints and palm prints to be taken. Such a power will not be exercised except on the authority of a member not below the rank of Superintendent. You will be informed of the intention to exercise such power and that the authorisation of the Superintendent has been given. Photographs or fingerprints and palm prints taken by force shall be taken in the presence of a member not below the rank of Inspector. The taking of such photographs and fingerprints must be video recorded. In any other case if you volunteer, a member may take your fingerprints, etc. with your written consent and, if you are under eighteen, the written consent of your parent/guardian. Taking of Bodily Samples If you have been arrested/detained under: (Tick box as appropriate) section 30 of the Offence Against the State Act 1939 as amended, or section 42 of the Criminal Justice Act 1999 as amended, or section 4 of the Criminal Justice Act 1984 as amended, or section 2 of the Criminal Justice (Drug Trafficking) Act 1996 as amended, or section 50 of the Criminal Justice Act 2007,

7 a member of the Garda Síochána when authorised by a member not below the rank of Superintendent, may take or cause to be taken (e.g. by a doctor) from you bodily samples for forensic testing. In these cases certain types of samples may not be taken without written consent. In those cases and if you are seventeen or over your written consent will be required and if you are under fourteen the sample(s) in question may be taken with the written consent of your parent or guardian. If you are fourteen or over but under seventeen your written consent and that of your parent or guardian will be required. Failure to provide written consent may have certain legal consequences which will be explained to you. In any other case if you volunteer, a member may take your bodily sample with your written consent and, if you are under eighteen, the written consent of your parent/guardian. Inferences Where sections 18, 19 and 19A of the Criminal Justice Act 1984 as amended or section 2 of the Offences Against the State Act 1998 as amended have been invoked in relation to an arrestable offence, in regard to inferences, you will be afforded a reasonable opportunity to consult a solicitor and the questioning must be recorded by electronic or similar means unless you consent in writing to it not being so recorded. Identification Parades If you take part in an identification parade- (a) you will be placed among a number of other persons who are, as far as practicable, of similar height, age, general appearance, dress etc. (b) you may have a solicitor or friend present at the parade; (c) you may take up any position you wish in the parade and, after a witness has left, change your position in the parade, if you wish, before the next witness is called; (d) you may object to the member conducting the parade regarding any of the persons on the parade or the arrangements for it. Medical Treatment If you are - (a) injured, (b) under the influence of intoxicating liquor or drugs and cannot be roused, (c) fail to respond normally to questions or conversation (otherwise than own to the influence of intoxicating liquor alone), (d) appear to the member in charge to be suffering from a mental illness, or (e) otherwise appear to the member in charge to need medical attention, the member in charge shall summon a doctor or cause him/her to be summoned, unless your condition appears to the member in charge to be such as to necessitate immediate removal to a hospital or other suitable place. Medical advice shall be sought if you claim to need medication relating to a heart condition, diabetes, epilepsy or other potentially serious condition or the member in charge considers it necessary if you have in your possession any such medication. Human Rights The Garda Síochána shall at all times respect your personal rights and your dignity as a human being and shall not subject you to ill-treatment of any kind.