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Traveller Legal Resource Pack 7 - The Gardaí

Pack Contents:

Role of the Gardaí

The Gardaí carry out all police functions in Ireland, such as criminal investigations, enforcement of road traffic law and the maintenance of public order. The Gardaí have extensive powers in exercising their functions.

Garda Powers

To Stop and make inquires

The Gardaí can approach any member of the public and make reasonable inquires. For example, they can ask for the production of identification or your address or where you are going. In addition, the Gardaí have the power to stop motorist even where there is no reasonable suspicion that an offence has been committed.

The power to make inquiries must be done in a reasonable manner. There is no general power to arrest and take a person in to custody for questioning without a charge. However, certain laws provide that you can be arrested and brought to the Garda station for questioning but in such cases you must be suspected of having committed a serious crime (a crime which is punishable by 5 years imprisonment or more).

Search of the person

In general, the Gardaí need a warrant to search you in cases where there is a reasonable belief that a serious offence has been committed1. There are certain laws that give the Gardaí the power to search you and/or your vehicle without a warrant such as the Misuse of Drugs Act and the Criminal Law Act 1997.

In most cases the name of the person must be on the warrant. However, there are some laws that give the Gardaí powers to enter premises and search persons thereon. If a person is stopped and searched under any statutory power they must be given the following information:

Reason for the action
The legal power the Gardaí are using to carry out the action

All searches must be carried out in a fair and in a non-oppressive manner

Property searches

In most cases any property searches must be on foot of a properly issued warrant. Regard should be had to Article 40.5 of the Constitution which states: ‘The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law”. The Gardaí many only enter without a warrant to ‘safeguard life and limb’.

The Gardaí have the power to search premises without a warrant where someone has been arrested for the purpose of taking any dangerous weapons in to custody or any other item found on that person.

Arrest

The most commonly used power of arrest is under section 4 of the Criminal Law Act 1997. Where a member of the Gardaí has a reasonable suspicion that an arrestable offence has been committed, the Gardaí may arrest without warrant anyone suspected to be guilty of the offence.

If you are arrested and charged with a crime you must be told what crime you are being charged with and you must be cautioned (informed of you right to remain silent and if you do say anything it may be taken down and given as evidence). Once arrested a person must be brought to the Garda station without undue delay.

As stated above there is no general power of arrest to merely question the person but certain laws now provide that you can be arrested without a warrant and brought to the Garda Station for questioning if you are suspected of having committed a serious crime.

Detention

There are different rules for dealing with a person who is detained for questioning than for dealing with a person who is detained and charged.

Detention without charge

Section 4 of the Criminal Justice Act, 1984 is the most commonly used section for detention without charge. Once arrested you are brought to a Garda station and detained for questioning if the member in charge has reasonable grounds to believe it is necessary for the investigation of the offence. A person can be detained for up to six hours, and this may be extended to a further six hours by a Garda not below the rank of Superintendent. You are entitled to a rest period between the hours of twelve midnight and eight in the morning which brings the total number of hours of detention to twenty.

Detention with Charge

If you are detained after charge, the charge should be explained to you and you should be given a charge sheet (a document outlining the charges against you). You will be formally charged and cautioned.

It is possible that you could be released on station bail which allows for the member in charge to release you pending the court hearing or brought before the District Court as soon as practicable and then released on bail if granted.2

Rules governing detention

There are regulations contained in the Criminal Justice Act, 1984 that set out a person rights in detention which include:

Right to be given information setting out your rights while in detention
Right to remain silent but there are exceptions to this right
If charged the right to be given details of the charges against you
An extensive record must be kept about the detention
Right to access to a solicitor

Accessing rights:

In all cases you should:

Give your name and address if asked by the Gardaí
Ask the Gardaí to identify themselves
If applicable ask what powers the Gardaí are using in the particular circumstance
Ask for a warrant and a copy of it. It the Gardaí do not have a warrant check that the powers they are using are correct. Every warrant should contain your name and address, the Gardaí name, signed and dated by an authorised officer
If you have any concerns about how the Gardaí have exercised their powers seek legal advice immediately
You are entitled to make a complaint against the Gardaí if they have abused your rights in any way

In cases of evictions with notices the role of the Gardaí is to keep the peace. They should have no active involvement in the eviction. In such circumstances Traveller groups should:

Identify yourself to the Gardaí and explain your role
Ask the Gardaí to identify themselves
Ask to speak to the superintendent or member in charge and explain that the families are awaiting accommodation and have no where to go
It is important to remember when an eviction is taking place the role of the Traveller group is to monitor the situation to ensure no violation of Travellers rights and to provide a calming influence on what can be a tense situation
Take detailed notes
Seek legal advice

In cases of evictions under the Trespass Law the Gardaí have an active role in that they can ask Travellers to move immediately. In such cases the Traveller group should:

Seek a meeting with the superintendent to explain the circumstances of the family and inform them of the actions being carried out to seek an alterative
Seek more time for the family so an alternative solution can be found
Seek legal advice

For further information contact:

The Garda Commissioner established the Garda Racial and Intercultural Office in April 2000. This office is responsible for co-ordinating, monitoring and advising on all aspects of policing in the area of ethnic and cultural diversity.

Community Relations Section:
Harcourt Square,
Dublin 2.
Tel: 01 6663150
Email: agecard@iol.ie

In addition, the Gardaí have a Human Rights Office which has a consultation brief with NGOs and community group’s nation wide and raises awareness of human rights issues within the Garda organisation.

Human Rights Office:
Garda Training College,
Templemore,
Co Tipperary.
Tel: 0504 35498
Email: ghrights@eircom.net

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