Know Your Rights! GENERAL INFORMATION You can be stopped by a garda and arrested on the street, or at your home or place of work. If this happens, you should stay calm, not panic and remember the following things: • You are entitled to ask the garda to identify him or herself. Ask for their identity number and, if they are in plain clothes, their identity card. If you are asked for your name and address you should give these to the garda. • You are entitled to be told why you are being stopped, and under what power. If the garda is not exercising a lawful power to stop you, you are entitled to go. • If you are asked to go with a garda to the Garda Station, you should ask if you are being arrested. You are not obliged to go with gardaí to "help them with their enquiries" or for questioning, if you are not under arrest. If you do go with them voluntarily, you are entitled to leave at any time and they should tell you this. • If you are told that you are being arrested, ask what for and under what power. You can be arrested to be charged and brought before a court and you can be arrested and detained for questioning. • If you are arrested make sure that you tell a friend or relative and tell them what Garda Station you are being taken to. You are entitled to contact your solicitor and you should do this immediately. If you do not know a solicitor, the garda Member in Charge of the station will call one for you. • When your solicitor arrives, make sure you tell him or her all the details of your arrest. POWERS OF ARREST When can I be arrested? Must I have committed an offence? You do not have to have committed an offence to be arrested. There are a wide variety of powers under which you can be arrested. Most of these provide that you can be arrested if a garda suspects that you have committed an offence. Normally you would then be arrested and detained for questioning. You may not be arrested if the garda does not suspect you have committed an offence, but believes that you could help with an investigation into someone else’s offence. What happens when I am arrested? This depends on whether you are arrested for the purpose of being charged, or arrested and detained for questioning. The main purpose of arresting someone is to charge them with a crime and bring them before a District Court within a reasonable time. While gardaí have no general power to arrest you for questioning or to gather evidence, certain statutes have created powers under which you can be arrested and then detained at a Garda Station for a specified length of time for the purposes of questioning and, under certain sections, the taking of samples. The procedure to be followed if you are arrested and charged is different to the procedure to be followed if you are detained for questioning. Arrest and Charge If you are arrested so that you can be charged with a crime, you must be told what crime you are being charged with unless this is very clear from the circumstances. After you have been charged, you must be cautioned. This means that the garda must say to you: "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. " At the Garda Station, the details of the crime with which you have been charged must be set out in a "charge sheet".You must be given a copy of this. You will then be formally charged and cautioned after each charge is read out. The gardaí must make a note of any response you give to the charge or charges. After you have been charged and cautioned you must either be released on bail or brought before the District Court as soon as possible. Arrest and Detention for Questioning Detention for questioning is permitted under a number of statutes. For example, you can be detained for up to 12 hours for questioning under Section 4 of the Criminal Justice Act 1984. Under this power a garda can arrest you if you are over 18 and the garda reasonably suspects that you have committed a crime serious enough to be punished by a five year jail sentence. This means that it applies to most crimes except very minor ones. You can also be detained for questioning for up to seven days under section 2 of the Criminal Justice (Drug Trafficking) Act 1996. This is if the garda suspects that you have committed an offence of drugs trafficking or you are concealing drugs on your person. To detain you for up to seven days you will need to be brought before a judge. You can be detained for up to 72 hours under section 30 of the Offences Against the State Act 1939. It is important to be aware that this Act does not only apply to politically motivated offences. It also applies to a number of more "ordinary" offences, such as numerous firearms and weapons related offences. If you are arrested and detained for questioning, you will be taken to a Garda Station and detained there for a maximum of the period allowed under the section under which you are arrested. There are strict rules and regulations in relation to being detained in a Garda Station. These are explained in the section "Detention". Do members of the Garda need a warrant to arrest me? No, although you can be arrested under a valid warrant, a warrant is not required under certain statutes, like the Criminal Law Act 1997. This Act is very widely used and applies to offences which are punishable by five or more years imprisonment. This means that it applies to most crimes, except very minor ones. You can also be arrested without a warrant at common law, if a garda reasonably believes or suspects that you have committed treason, a serious offence or a breach of the peace. It does not matter whether you have actually committed the offence or not. If you are arrested at common law, you must be brought before a court as soon as is practicable. You may not be detained for questioning if you are arrested at common law. If you are arrested without a warrant, you are entitled to be told in ordinary, easily understandable language why you are being arrested, unless this is obvious to you from the circumstances. Arrest under the Criminal Justice (Public Order) Act 1994 This Act covers a wide range of public order offences and gives the Garda extensive powers to deal with such offences. The Act creates some more minor offences, such as intoxication in a public place, disorderly conduct in a public place and threatening, abusive or insulting behaviour in a public place. It also creates more serious offences such as riot, violent disorder and affray, all of which involve a number of people behaving in a violent and threatening manner. Some of these more serious offences can be committed in a public or in a private place. It further creates offences relating to trespass and obstruction of vehicles or people and gives the gardaí extensive powers to control crowds at public events. It is important to be aware that the Act also creates an offence of failure to comply with a direction of a member of An Garda Síochána. The Act gives the gardaí extensive powers to ask you to stop acting in a certain way, or move out of the area peacefully. If you do not comply with such a direction, this is an offence under the Act. You can be arrested without a warrant if you are found committing an offence under this Act. In addition to this, if a garda thinks you have committed such an offence, he can demand your name and address. If you refuse to give these, or the garda believes the name and address you have given are false or misleading, you can be arrested without a warrant. If you are approached by a garda, you should always give your name and address when asked, and if you are asked to leave a place or stop acting in a certain manner, do so, otherwise you could be committing an offence under the Act and a garda is entitled to arrest you. BEING ARRESTED How do I know I am being arrested? A garda should tell you that you are under arrest and ask you to accompany him or her. He or she may restrain you or touch you to prevent you from leaving. He or she should make it clear that you are not free to go. Am I entitled to know the reason for my arrest? Yes.You are entitled to be shown the warrant under which you are being arrested or if you are being arrested without a warrant, you are entitled to be told in simple, understandable language why you are being arrested. You should not be misled. Can I be arrested in my home? Yes. You can be stopped in the street or the gardaí may call to your home or place of work. If you refuse to let the gardaí into your home, they can use reasonable force to enter. This means they can break the door down if necessary. What if I resist arrest? It is very unwise to resist arrest, even if you think that the arrest may be unlawful, as charges could later be brought against you for obstruction of justice or assault on a garda. Such charges could be brought against you even if it later transpires that the arrest was unlawful. If you think the arrest, or the manner in which it was carried out, was unlawful tell your solicitor why you think so as soon as you see him or her. You can later make a complaint or sue for false imprisonment or assault. Can the gardaí use force in arresting me? Gardaí can use "reasonable force" in arresting you. That means that if the force used is reasonable in the circumstances of the arrest, the gardaí are not committing an offence. If you submit to an arrest, no force can be used against you. If the force used is excessive and not reasonable in the circumstances, the gardaí can be prosecuted or sued for assault. Can I be re-arrested after the gardaí have let me go? Yes you can. You can be re-arrested in order to be charged or you can also be re-arrested if the gardaí have, since your release, obtained further information in relation to your involvement in the offence. Copyright © Irish Council for Civil Liberties Disclaimer The information in these information sheets is designed for the purpose of raising awareness of your rights. It is not intended to be a substitute for legal advice. If you do find yourself in trouble with the gardaí, you should contact a solicitor as soon as possible. . DETENTION GENERAL INFORMATION If you are arrested and detained at a Garda Station for questioning,you should remember the following things: • Every Garda Station must have a Member in Charge. He or she will be responsible for recording all your personal details and the details of your detention. If you have any difficulties or requests you should talk to the Member in Charge. • You are entitled to be notified of your right to contact a solicitor. If you have asked for a solicitor the Member in Charge of the Garda Station must notify him or her as soon as possible. • You are entitled to have a member of your family, or another person of your choice, told that you are being detained, and where. • If you are ill or injured in any way, insist on seeing a doctor at once. Also, if you have to take medication or have a medical or nervous condition or complaint which may be made worse by questioning, let the Member in Charge know straight away. • If you are hungry or thirsty, ask for something to eat or drink. You are at all times entitled to be treated humanely. • You are entitled to make a telephone call or send a letter, unless the Member in Charge thinks it will hinder or delay the investigation of the crime. The Member in Charge may listen to the telephone call or read the letter. However, a telephone call to a solicitor must be in private, i.e., the Member in Charge cannot listen to it. BEING DETAINED What is the difference between detention after charge and detention without charge? If you are detained after charge, this means you have been charged with an offence and are being detained for the purposes of being brought before a District Court as soon as possible to plead guilty or not guilty. If you are being detained without charge this means that you are being detained for questioning or to take samples from you or search you in connection with the investigation of an offence. For this to happen you must be arrested and detained under one of the specific powers that allow this type of detention and the Member in Charge of the station must be of the opinion that it is necessary for the proper investigation of the offence. The most commonly used powers of detention without charge are: • Section 4, Criminal Justice Act 1984 • Section 2, Criminal Justice (Drug Trafficking) Act 1996 • Section 30, Offences Against the State Act 1939 • Misuse of Drugs Acts 1977 and 1984 • Road Traffic Acts, 1961 - 1994 For how long can I be detained without charge? How long you can be detained for depends on what section you have been arrested under. The most commonly used section for detention without charge is section 4 of the Criminal Justice Act 1984. Under this section you can be detained initially for 6 hours, which can be extended by a garda not below the rank of Superintendent by another 6 hours. You are entitled to a period of rest between 12 midnight and 8 am and this is not counted as part of your detention. You can therefore be in the Garda Station for up to 20 hours in total. Under section 2 of the Criminal Justice (Drug Trafficking) Act 1996, which applies mainly to serious drugs related offences, you can be detained for up to 7 days in total. Initially, you can be held for 6 hours but this can be extended by 18 hours and then another 24 hours by a Chief Superintendent. After that the gardaí must apply to a District Court Judge who can extend the detention for another 72 hours, and then another 48 hours. You must be brought before the Judge before he can do this and your solicitor can argue on your behalf. Under section 30 of the Offences Against the State Act 1939, as amended, which applies to a wide variety of political and non-political offences, you can be detained initially for a period of 24 hours, which can be extended by a Chief Superintendent for another 24 hours. The gardaí can then apply to a District Court Judge to detain you for another 72 hours, and then another 48 hours. You must be brought before the Judge and your solicitor can make submissions on your behalf. Under the Misuse of Drugs Acts 1977 and 1984, which apply to a number of drugs related offences, you can be held for as long as it takes to carry out a search authorised by that Act. Similarly, under the Road Traffic Acts 1961 - 1994 you can be held for as long as it takes to take a sample which can be taken under that Act, or for 6 hours. If you have to go to hospital or spend time before a Court, this time is not counted as part of your detention period. QUESTIONING / INTERROGATION Before the gardaí start questioning you, they should caution you. A caution is a statement whereby they tell you that you have a right to remain silent and that anything you say can be taken down and given in evidence. You should, however, always give your name and address if asked. If you have any concerns about your rights during questioning you should take advice from your solicitor. Generally, you should consult with a solicitor before signing any statement. Usually, more than one garda will be questioning you. Sometimes they may take different approaches to try to get you to answer questions. Try not to be intimidated by oppressive questioning techniques. There should be no more than two gardaí questioning you at any one time and there should not be more than four gardaí in the room at the same time. Questioning should not go on without a break for more than four hours. Do I have the right to see a solicitor? You are entitled to be notified, both orally and in writing, of your right to see a solicitor of your choice. If this solicitor cannot be contacted or is not able to come to the station, you are entitled to nominate another solicitor. If you or your family do not know any solicitors, the gardaí will contact one for you. The Law Society of Ireland also provides a list of solicitors who are available for consultation if you are detained in a Garda Station. You are entitled to have reasonable access to your solicitor. You are entitled to have your consultation with him or her privately, that is, out of earshot of the gardaí, but the gardaí present are entitled to keep such a consultation within their sight. You are not entitled to have your solicitor with you while you are being questioned. If something arises during questioning in relation to which you think you need legal advice, ask that the interview be interrupted so that you may take advice from your solicitor. There is now a scheme in place under which your solicitor will be paid for his consultation with you in the Garda Station if you are detained under the Criminal Justice Act 1984, the Offences Against the State Act 1939, as amended or the Criminal Justice (Drug Trafficking) Act 1996 and if you meet the financial criteria. Do I have to answer a garda’s questions? You do have a right to remain silent. However, there are some exceptions to this right. These include: An obligation to account for certain things in your possession, or your presence in a certain place, under the Criminal Justice Act 1984. An obligation to give an account of your movements during a certain period under the Offences Against the State Act 1939. The European Court of Human Rights found that this section is in breach of the European Convention of Human Rights and therefore the continued use of the section is open to question. An obligation to answer certain questions under the Criminal Justice (Drug Trafficking) Act 1996. An obligation to provide certain information about a vehicle under the Road Traffic Act 1961. You may be told that if you do not answer certain questions you will be committing an offence, or that inferences can be drawn from your refusal to answer questions. This means that in a court case the judge and jury are entitled to think that you did not answer the questions because you had something to hide. If you are told that you must answer certain questions, you should ask to speak to your solicitor immediately so that he or she can explain your position to you. Will my interview be recorded? Your interview can be recorded but there is no obligation on the gardaí to do this if “it is not practicable”. What if I am asked to take part in an identification parade? You are not obliged to participate in an identification parade but if you refuse, it is possible that the gardaí will hold an informal identification, which does not have as many procedural safeguards as an identification parade, and the result of that informal identification could be admitted as evidence. Always consult your solicitor before participating in an identification parade. If you do agree to do so, you are entitled to have your solicitor, or a friend, present. There are strict rules to be followed in conducting an identification parade. The gardaí have told me that I have to give fingerprints and a blood sample? Do I have to comply? The gardaí can take a number of samples from you without your consent. The rules in relation to taking these samples depend on the section you are being held under. If you have been arrested under section 4 of the Criminal Justice Act 1984, section 30 of the Offences Against the State Act 1939 or section 2 of the Criminal Justice (Drug Trafficking) Act 1996, the gardaí can take the following samples without your consent: • Fingerprints, footprints, or other similar impressions. • Hair other than pubic hair. • Nails or material found under nails. • A swab from anywhere other than a body orifice or the genital region. The gardaí have to get your consent to take samples of: • Blood • Pubic Hair • Urine • Saliva • A swab from a body orifice or genital region. • A dental impression. What if I refuse? You can refuse if you have “good cause”. Good cause is not defined in the legislation, but could include things like religious or medical grounds. If you refuse without good cause, inferences can be drawn from your refusal. This means that the judge and jury in your case could decide that you refused to give the sample because you have committed the offence. If you are asked to give a sample you should consult your solicitor immediately. The Road Traffic Acts 1961 - 1994 If you are arrested under the Road Traffic Acts 1961 - 1994, the gardaí can require you to give a sample of your breath, blood or urine. If you refuse, you can be charged with an offence. The gardaí can require you to accompany them to a Garda Station and take such samples even if you are not under arrest and they can also require you to give them if you are in a hospital after a road traffic accident. SPECIAL CATEGORIES Young Persons If you are under the age of 17 years, you are entitled to have a parent or guardian present before you are questioned or asked to make a statement, unless that person cannot be contacted, has not attended within a reasonable time or it is impracticable for that person to attend, or if there might be a risk to persons or property if questioning is delayed because of this. Your parent or guardian is entitled to sit in when you are being questioned, except if that parent or guardian was the victim of the crime, or if they have also been arrested in connection with the crime. If your parent or guardian is not at the interview, the gardaí should arrange to have another adult who is not a garda present. A. Persons with Intellectual or Learning Disabilities The same provisions apply to persons with intellectual or learning disabilities as apply to persons under the age of 17. C. Persons with a Hearing Disability A person with a hearing disability may not be questioned without an interpreter unless they give their consent to this in writing. If there is no interpreter available, the questions must be put in writing. D. Foreign Nationals If you are a foreign national, in addition to your standard right to contact a solicitor, you are also entitled to be informed that you can contact your embassy or consul if you wish. You are also entitled to request a translator or interpreter if you are being questioned. In addition to the detention powers of the general criminal law, there are also a number of laws that create powers to detain foreign nationals for immigration control purposes. The Immigration Act 1999, for example, provides for extensive powers of arrest without warrant and detention of people against whom a deportation order has been made. If you are a refugee or asylum seeker, and in particular if you are arrested in conjunction with an offence relating to your status, you should contact the Refugee Legal Service at 1800 229222 or 01 6310800 or the Irish Refugee Council at 01 8730042. If you are not a refugee or asylum seeker and you are concerned about your rights you should contact the Immigrant Council of Ireland at 01 8656525. Copyright © Irish Council for Civil Liberties Disclaimer The information in these information sheets is designed for the purpose of raising awareness of your rights. It is not intended to be a substitute for legal advice. If you do find yourself in trouble with the gardaí, you should contact a solicitor as soon as possible. A GUIDE TO THE CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994 The Criminal Justice (Public Order) Act 1994 became law on the 3rd April 1994. It created a number of different offences, and gave the gardaí additional powers to deal with such offences and to deal with crowd situations. It is important to be aware of the provisions of the Act, as the type of situations it deals with affect most people at some stage in their lives, whether it is being on the streets after a night out, or going to a concert, football match or participating in a demonstration. This guide is intended to explain the types of offences the Act has created, and the powers the gardaí have been given under the Act. If you do find yourself in trouble with the gardaí in any situation, it is important to seek the advice of a solicitor as soon as possible. Being familiar with the provisions of this Act however should hopefully help you prevent getting into such trouble in the first place! PUBLIC ORDER OFFENCES The public order offences created by this Act could arise in a variety of different situations, such as on the streets at night, at public events such as concerts, or at group gatherings such as demonstrations or protests. Many of them refer to conduct in a public place. A public place in this Act is defined broadly, and includes all places to which a member of the public has access, including as a trespasser. Some of the offences are quite straightforward, such as: Intoxication in a public place (section 4) - Intoxication in this section is defined to include being under the influence of alcohol or drugs or other substances. Maximum penalty - Fine of €127. Disorderly conduct in a public place (section 5) Maximum penalty - Fine of €635. Threatening abusive or insulting behaviour in a public place (section 6) Maximum penalty - Fine of €635 or 3 months imprisonment or both. Distribution or display of threatening, abusive, insulting or obscene material (section 7) Maximum penalty - Fine of €635 or 3 months imprisonment or both. Entering a building with intent to commit an offence (section 11) Maximum penalty - Fine of €1,270 or 6 months imprisonment or both. Most prosectutions and convictions under the 1994 Act are sections 4 and 6. For example, charges for offences committed while a person was taking part in a public protest have mainly been brought under section 6 of the Act. Some of the offences created require more explanation.These include: Failure to comply with a direction of An Garda Síochána (section 8) This section is the most commonly used section of the Act. Under this section, if a garda suspects that someone who is in a public place is committing one of the above offences, or is loitering in a public place in such a way there may be reason to believe that the safety of persons or property might be in danger, the garda can direct that person or persons to stop acting in such a way and leave the area peacefully. It is an offence not to do as the garda directs, under this section. Maximum penalty - €635 fine or 6 months imprisonment or both. Wilful Obstruction (section 9) - It is an offence to intentionally prevent or obstruct the movement of any person or vehicle in a public place. Maximum penalty - Fine €254. Trespass on a building (section 13) - This section makes it an offence to trespass on a building in such a way that might cause fear in another person. Maximum penalty - Fine of €1,270 or 12 months imprisonment or both. This section also makes it an offence not to stop acting in such a way or leave the place if you are told to do so by a garda. Riot (section 14) - The offence of riot is committed if 12 or more people who are present together in any place, whether public or private, use or threaten to use violence and if the way they act would cause someone to fear for his or someone else’s safety. If this happens, each of the people in the group will be charged with riot. There has to be a common reason for the behaviour in question. Maximum penalty - Unlimited fine or imprisonment of up to ten years or both. Violent Disorder (section 15) - This offence is similar to that of riot, except that it involves a group of three or more people. The penalty is the same as for riot. Affray (section 16) - This offence again is similar, but is not quite as serious and involves two or more persons. Other Offences This Act also created a number of other offences, such as blackmail, extortion and demanding money with menaces (section 17), assault with intent to cause bodily harm (section 18), assault or obstruction of a peace officer (meaning members of An Garda Síochána, prison officers and members of the Defence Forces) (section 19) and the Act also forbids the advertising of brothels and prostitution. POLICE POWERS This Act gives gardaí a wide range of powers in relation to public order offences, in addition to any powers they had before the Act became law. Gardaí can arrest, without warrant, pursuant to section 24, anyone found to be committing an offence under any of the following sections of the Act: sections 4 - 8, 11, 13 - 19. If a garda thinks that an offence has been committed under one of these sections, they can ask for the name and address of anyone they suspect has committed the offence. If you refuse to give your name and address or give one that a garda thinks is false or misleading, they can arrest you without a warrant. The failure to give a name and address or the giving of a false or misleading one, is an offence in itself. It is therefore very important to give the garda your name and address if asked! Under a number of sections of this Act, a garda is entitled to tell you to stop acting in a certain manner or move away from a place in a peaceful manner. If you do not do this you could be committing an offence! Part III of the Act sets out a wide variety of powers for the gardaí in relation to Crowd Control at Public Events. These include restricting access to public events, erecting barriers, checking tickets and giving various directions to people as to where they can and cannot go. Failure to comply with such direction is an offence. Under this part, and under section 4, gardaí have the power to search you for alcohol and seize any alcohol they find on you and if necessary ask you to leave the place. Failure to comply is an offence. If you find yourself in a situation to which you think the provisions of this Act might apply, it is important to remember to give your name and address if asked, and to remember that if you do not do as a garda asks you to do, you may be committing an offence. If you are arrested, and you are in anyway concerned about your legal rights, you should contact a solicitor straight away. Copyright © Irish Council for Civil Liberties Disclaimer The information in these information sheets is designed for the purpose of raising awareness of your rights. It is not intended to be a substitute for legal advice. If you do find yourself in trouble with the gardaí, you should contact a solicitor as soon as possible. SEARCHES If the gardaí believe a crime has been committed, they are allowed to search a person or premises. Searches can be carried out with or without a warrant depending on the purpose of the search and which of the many powers the gardaí are acting under. The law on searches and your rights, if you and your premises are searched. are set out in more detail in the following sections. However there are some key things that you should remember if you, or your property, are ever subjected to a search: • You are entitled to ask why you or your premises are being searched. • You should ask the gardaí to identify themselves, and, if they are in plain clothes, ask to see their identity cards. • If asked, always give your name and address. If you do not you may be committing an offence. • Ask to see the search warrant under which the gardaí are acting, or, if they do not have one, under what powers they intend to carry out the search. • Take note of the method in which the search is carried out. • All searches must be carried out fairly and cannot be conducted in an oppressive manner. • Take a note of the names of the officers who carry out the search. • If you have any doubts at all as to the validity of the search or the manner in which is was carried out, contact a solicitor. Copyright © Irish Council for Civil Liberties Disclaimer The information in these information sheets is designed for the purpose of raising awareness of your rights. It is not intended to be a substitute for legal advice. If you do find yourself in trouble with the gardaí, you should contact a solicitor as soon as possible. SEARCH OF THE PERSON Can I be searched without my consent? Yes. There are numerous powers, which allow gardaí to search you. The more commonly used of these include section 23 of the Misuse of Drugs Acts 1977 and 1984 which allows gardaí to stop and search any person reasonably suspected to be in possession of a controlled drug. Under the Offences Against the State Act 1939 gardaí have the power to search you, your property, vehicle or boat. You can also be searched in the course of a search of your property, under a number of statutes, for example the Criminal Justice (Theft and Fraud Offences) Act 2001. There are also powers which allow gardaí to search you in everyday situations, for example the power to search you for alcohol on your way in to an event such as a rock concert or festival, under section 22 of the Criminal Justice (Public Order) Act 1994. All searches must however be carried out fairly and cannot be conducted in an oppressive manner. There are also a number of powers that allow you to be searched after you are arrested. Do gardaí need a warrant to search me? No not in all circumstances. You can be searched without a warrant under a number of statutes. These include the power under section 23 of the Misuse of Drugs Acts 1977 and 1984, which applies to drugs related offences, section 30 of the Offences Against the State Act 1939, which applies to politically motivated offences, and also to more ordinary offences such as some firearms and malicious damage offences. The power to search you for alcohol under the Criminal Justice (Public Order) Act 1994 can also be exercised without a warrant. However, some laws do require gardaí to have a warrant to search you. These include the power to search you under section 10 of the Criminal Justice (Miscellaneous Provisions) Act 1997, which applies to serious offences such as murder, some sexual offences and false imprisonment and the power to search you and your premises under section 48 of the Criminal Justice (Theft and Fraud Offences) Act 2001. If a garda wants to search you, ask him or her why you are being searched and under what power. You are entitled to be told the reason for the search and the nature and description of the power being used. If you are concerned that a search may have been conducted illegally you should contact a solicitor as soon as possible. Where can I be searched? You can be searched in your home, your workplace, stopped on the street, or your vehicle can be stopped so that gardaí can search it and its occupants, depending on the power the gardaí are exercising. Can only a Member of the Garda can search me? No. You can also be searched by a number of other people. For example customs officers have wide powers of search. You can also be searched by your employer, if this is provided for in your contract of employment. If you are subjected to such a search and have queries in relation to it, you should contact your union. For further information on employment rights, you can consult the Department of Enterprise, Trade and Employments website at www.entemp.ie or call their Employment Rights Information Line on 01 631 3131. If you are stopped by a security guard, you must be handed over to the gardaí as soon as possible, so that they can search you. What about my constitutional right to bodily integrity? You do have a right to bodily integrity guaranteed by the Constitution, but this is subject to the statutory provisions allowing you to be searched, as these are necessary for protection of the common good. As we have mentioned, all searches must however be carried out fairly and cannot be conducted in an oppressive manner. Are there any regulations in relation to the manner in which I can be searched? If you are searched when you are in a Garda Station, the Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Síochána stations) Regulations 1987, more commonly known as "The Custody Regulations" dictate the manner in which such a search can be carried out. These provide, among other things, that you must be informed of the reason for the search, that you shall not be searched or made to undress by someone of the opposite sex, other than a doctor, that a record shall be kept of the search, including who was present and what, if any, items were taken from you. There are no specific rules governing searches carried out somewhere other than a Garda Station, apart from those set out in the specific sections that create the power of search being exercised. All searches must however be carried out in a manner that respects the human rights of the person being searched and they must be carried out fairly. This means, for example, that you should always be told the reason for the search, and that if the search is any more extensive than a "pat down" search, it must be carried out by a member of the same sex. If you are searched in a manner which you think is oppressive or unfair, contact a solicitor as soon as possible. A search that is carried out in a manner that is in breach of your right to bodily integrity could be challenged and a court could decide that any evidence obtained in the search is inadmissible on this basis. Copyright © Irish Council for Civil Liberties Disclaimer The information in these information sheets is designed for the purpose of raising awareness of your rights. It is not intended to be a substitute for legal advice. If you do find yourself in trouble with the gardaí, you should contact a solicitor as soon as possible. PROPERTY SEARCHES Can my home or premises be searched by gardaí against my will? Yes. A large number of statutes create powers of entry and search for the gardaí, for a variety of different purposes. Most of these powers relate to a specific criminal offence, for example the power to search premises where someone is suspected of handling stolen goods under the Larceny Acts 1916 and 1990 and the power to search a premises in relation to theft and fraud offences under the Criminal Justice (Theft and Fraud Offences) Act 2001. Some powers are more general, for example, under the Criminal Law Act 1997, a garda may, in certain circumstances, if necessary by use of force, enter and search any property for the purposes of arresting someone whom he or she reasonably suspects is on the property. Do gardaí have to have a warrant? For most searches gardaí do need a warrant, but not for all. If a warrant is required this is usually stated in the statute that sets out the offence, for example section 48 of the Criminal Justice (Theft and Fraud Offences) Act 2001. There are also provisions which create powers of search under a warrant for a number of offences. The power to search a premises under section 10 of the Criminal Justice (Miscellaneous Provisions) Act 1997, which applies to serious offences such as murder, some sexual offences and false imprisonment, and the power to search a premises under section 26 of the Misuse of Drugs Acts 1977 & 1984 for drugs are two examples. Powers of search without a warrant include a common law power for gardaí to search the place where someone is arrested for the purposes of taking into custody any dangerous weapon or other item that may be evidence of the crime alleged. Gardaí also have the power under section 5 of the Criminal Law Act 1997 to enter and search a premises for the purposes of arresting someone suspected to be in the premises. If gardaí come to your property for the purposes of carrying out a search, always ask to see the warrant. If they do not have one and say they do not need one, ask them to explain in detail under what power they are carrying out the search. Who can issue a warrant? Most warrants must be issued by a District Court Judge or a Peace Commissioner, after a garda has made a statement under Oath, known as a Sworn Information, that he or she has reasonable cause to suspect that a crime has been committed and that the search warrant is necessary. Some warrants can also be issued by senior members of the Garda, with or without a Sworn Information. The relevant section in the statute that sets out the offence will state who can grant the search warrant. If you have any doubts as to whether a warrant is issued by the right person, tell your solicitor, who will request a copy of the warrant and the Sworn Information on which it is based. If the gardaí do have a warrant, what should I look out for? Make sure that the warrant is dated and signed, has your correct name and address on it and the name of the garda authorised to carry out the search. Make a note of the date, the section to which the warrant refers, and what it allows the gardaí to do. Most warrants are only valid for one week, but some can last longer. Different warrants also permit gardaí to do different things. If you have any doubts about the validity of a warrant you should seek legal advice and your solicitor should obtain a copy of the warrant and, where applicable, Sworn Information. If a warrant is invalid this could mean that a court can exclude any evidence obtained under the warrant, if you are charged. Can gardaí take anything away with them? Yes. Most powers of search include a power to seize anything that might reasonably be believed to be evidence, so as to prevent the removal or destruction of the item or items in question. The Criminal Law Act 1976 also includes a general power to seize any evidence which the gardaí come across during a search. Can I remain in my property while the gardaí are searching it? Yes you can. You are entitled to observe the manner in which the search is being carried out. You should not however obstruct a search. At all times such a search should be carried out in a fair manner and the power to search is not allowed to be used oppressively. If you have any concern in relation to the way in which a search was carried out, you should contact your solicitor. If the gardaí are taking any items with them, you should make a list of all the items they have taken. Can gardaí search my car? Yes. Under section 8 of the Criminal Law Act 1976 the gardaí can search your vehicle where they reasonably suspect that certain offences, specified in the section, have been or are about to be committed. There is also a power to search your vehicle, or indeed boat or any other vessel, under section 30 of the Offences Against the State Act 1939. Can the gardaí ask to look at my computer? Yes. Under section 48 of the Criminal Justice (Theft and Fraud Offences) Act 2001, which applies to a wide variety of crimes against property, gardaí can have access to any computers on the premises that they are searching. They can also compel you to give any necessary passwords to enable them to do so. Under section 49 of this Act it is an offence to obstruct the gardaí in carrying out their search. Can I prevent gardaí from entering my premises if I think they are acting unlawfully? No. You should not obstruct a search carried out by gardaí. If you do this you could be committing an offence. However, if you think the search was unlawful or carried out in an unfair or oppressive manner, you should object and you should register this objection with the gardaí. You should also tell your solicitor immediately. Evidence obtained unlawfully can be excluded by a court. Copyright © Irish Council for Civil Liberties Disclaimer The information in these information sheets is designed for the purpose of raising awareness of your rights. It is not intended to be a substitute for legal advice. If you do find yourself in trouble with the gardaí, you should contact a solicitor as soon as possible.