GSOC GARDAI NOT FIT FOR PURPOSE

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Your rights and the Gardaí

Your rights when stopped, when arrested, when searched and when detained.

All people in Ireland have certain rights when it comes to contact with the Gardaí. These rights apply to all people, young or old; however young people and certain other groups may have additional or slightly different rights.

Your rights when stopped by the Gardaí

• A member of the Gardaí can ask any member of the public to stop at any time. You may be legally bound to stop if the Garda believes that you have committed an offence/are committing an offence under the Offences Against the State Acts or if the Garda wishes to check the tax and insurance on your car.
• If the Garda is not wearing their uniform, they must show you identification if you ask them.
• You may need to give your name and address. If you refuse to do so, you could be arrested.
• If the Garda asks you to go to the station with them, you should ask if you are under arrest. If you are under arrest, you must go with them. Fighting it will only add another charge to your case, such as resisting arrest. If you are not under arrest, you do not have to go to the station.
• The Gardaí have the right to take you into custody if they believe that you are suffering with mental ill health and could harm yourself or others as a result.

Your rights when placed under arrest

• In Ireland, a Garda does not need an arrest warrant to arrest you in many circumstances, such as: an offence under the Road Traffic Acts, an offence under the Public Order Act or if you seem to be committing a serious offence.
• The Gardaí can enter your home to arrest you for an offence with a penalty of at least five years in prison.
• In order to be arrested, the Gardaí must have a reasonable suspicion (this is a specific legal term) that you have broken the law. You can’t be arrested just because they believe you could help with another criminal investigation, unless the criminal investigation is to do with an offence under The Offences Against The State Act.
• You have the right to be told very clearly that you are under arrest and the reason for your arrest.
• As mentioned above, it is best not to resist arrest, even if you think you are being wrongfully arrested. Resisting arrest is a crime in itself.
• Gardaí may use reasonable force to arrest you. However, if excessive force or physicality is used, the arresting Garda can be sued for assault. You can also take a case to the Garda Ombudsman.
• You can be arrested a few times if the Gardaí wish to re-question you about a specific offence, if there have been recent developments in the investigation or if they wish to formally charge you.
• If you are charged with a crime, it will be written down on a charge sheet. This sheet details the offences you have been charged with and a Garda will read it out to you.
• You do not always have to be charged to be prosecuted by the Gardaí; you may instead receive a summons to court.
• The length of time you can be held without being arrested depends on the alleged offence you are being questioned about. Click here for further information on detention times.

Your rights when searched

• A Garda may search you if they have a reasonable suspicion that you have committed a crime. In such a case, you can be searched without your consent.
• A member of the same sex must search you if the search consists of more than a pat down over your clothes. Often, a member of the same sex will perform a pat down though.
• Customs officers have the legal right to search you. Some employers may also have the right to search you if it is written into your contract. However, security personnel never have the right to search you.
• The Gardaí have the right to search your car or any car you are a passenger in if they have a reasonable suspicion that you have committed/are about to commit a certain crime or that you have drugs on you or in the car.
• You can be searched at home, at work, on the street or in a Garda station.
• A Garda generally needs a warrant to enter your home to search, but they can occasionally enter your home if they are chasing you and you have escaped to your house, or if they have come to arrest someone in your home.
• A Garda must meet certain conditions when searching your home:
• They must tell you why they are searching.
• They are entitled to take any items that could be used for the case.
• They cannot tell you to remain in a certain room or segment of the house unless you are under arrest.
• The Gardaí are entitled to look at your computer and even take it away if necessary.
• You cannot try to prevent the Gardaí from entering your home; doing so could cause you to be charged with a crime such as obstructing the course of justice.

Your rights at the Garda station

• Your time in custody will be recorded on what is called a custody record. This details the reason for your arrest and the time at which you arrived, as well as your personal details. It should also include a record of solicitor or doctor visits and of any food you were given.
• Every Garda station has a ’member in charge’. This person is responsible for ensuring that all procedures and laws are followed regarding your care. If there is an issue, you can ask to speak to them.
• You have the right to speak to a solicitor immediately. You also have the right to request medical attention and to get your regular prescriptions.
• A member of your family must be told that you are being kept at the Garda Station. You may also be entitled to one visit from someone, as long as the Gardaí do not think it will interfere with the investigation.
• You have the right to be served at least two light meals and one main meal during any 24-hour period of time.
• You are entitled to sleep for eight hours between midnight and 8 a.m.; however this may not count towards your total detention time and you may be kept longer than if you hadn’t slept.

Your rights if you are under 18 years of age

• You can be charged if you are under 18. However, the Gardaí must follow certain procedures when dealing with young people.
• The Gardaí must inform your guardian or parents that you are in custody, the reason for this and that you have the right to a solicitor. They must tell your parents/guardian to come to the station as soon as possible.
• You cannot be questioned by the Gardaí without your parents or guardian being present. The only exceptions to this are: if the Gardaí cannot contact your parents/guardian; if your parents/guardian cannot come to the station in a reasonable amount of time; if the Gardaí believe that you, other people or your property are at risk if questioning is delayed; if the Gardaí believe that your parents/guardian are involved in the offence or that your parents/guardian may cause an obstruction of justice.
• If Gardaí decide to interview you without your parents/guardian present, they must try to get another relative or responsible adult to be present at the interview. Often, this is the local peace commissioner.
• The Gardaí must do their best to ensure that you are not detained with people over the age of 18, unless there is no other facility available.

Your rights and disabilities

• If you have a disability, you must be treated similarly to a person under the age of 18.
• If you have a hearing disability, you cannot be questioned without an interpreter being present unless you sign away this right. If you cannot get access to an interpreter, you must be questioned in writing.
• You have the right to an interpreter if you cannot understand what is happening.

Your rights as a foreign national

• You have the same rights as Irish citizens regarding your treatment and the right to contact a solicitor. You also have the right to contact your embassy.
• Under the Immigration Act 1999, you can be arrested and detained without a warrant.
• You have the right to an interpreter if you cannot understand English or have general difficulties understanding what is happening.

Your rights during protests

• All people living in Ireland are entitled to free speech under the constitution. You also have the right to freedom of assembly. This means that you are legally entitled to organise or take part in marches or protests.
• You have the right to get together with other people unless you are trespassing on private land or are violent.
• The Gardaí can film and photograph you during a protest. However they must comply with data protection laws.
• Gardaí should not physically touch you unless they are protecting other people, defending themselves or arresting you.

Your rights and the Criminal Justice (Public Order) Act

• Offences under this order include: public drunkenness, threatening or abusive behaviour in a public place, distributing abusive or obscene material in a public place, disorderly contact in public, failing to comply with Garda orders (i.e. ignoring a Garda’s order to move off the street and go home), trespassing, obstruction of vehicles or people, rioting, assault or obstruction of a peace officer or medical personnel, and failure to give your name and address to a Garda.
• If a Garda believes that you have alcohol or drugs on you, they have the legal right to ask you to leave the area, to confiscate the drugs/alcohol or to question you about what you are carrying.
• A Garda does not need a warrant to arrest you for most of the above listed offences.

Your rights when interviewed by the Gardaí

• You have the right to speak to a solicitor without any Gardaí being in the room. You also have the right to ask to speak to your solicitor if you feel you need legal advice in the middle of the interview. However, in Ireland you do not have the right to have your solicitor present during questioning.
• If your income is below a certain limit you may qualify for a solicitor from theLegal Aid Board.
• Only two Gardaí may interview you and there cannot be more than four Gardaí in the room at any time.
• Each interview cannot last longer than four hours.
• You have the right to remain silent. However, your silence may be used against you in court. Sometimes, your silence may be used as proof of guilt in court.
• The Gardaí will record your interview by writing it down. They will then read it back to you at the end of the interview in order to check its accuracy. The Gardaí should also video the interview; however they do not have to do this if it is impractical to do so. You can only get access to the tape if you are prosecuted and then apply to the court to view it.
• You should only sign a statement made to the Gardaí once you have talked it over with your solicitor.

Your rights and identification parades

• You don’t have to take part in an identification parade. However, if you do not agree to take part, the Gardaí may hold an informal parade instead and this does not have as many legal safety nets as a formal parade. Also, your refusal to take part in an identification parade could be used against you in court.
• You should be clearly told that you have the right to refuse to take part and that you also have the right to have your solicitor there.
• There should be at least eight other people of similar appearance, build and clothing as you in the parade. You and/or your solicitor have the right to object to any of the members of the parade and these objections should be recorded.

Your rights and biological samples

• Your photograph and fingerprints can be taken without your consent if you are being detained at a Garda station. The Gardaí can keep these for as long as they wish to. However, you can ask the Garda Commissioner to have them destroyed if you have not been charged, have been tried and found not guilty, or if the case has been dropped.
• Saliva, hair (not pubic hair), nail clippings, footprints and body swabs from anywhere aside from your genitals and/or anus can all be taken without your consent.
• Blood, urine, pubic hair samples, dental impressions and genital or anal swabs can only be taken with your consent.
• A Superintendent must authorise the collection of these samples. They must have a reasonable suspicion that you are involved in the offence for which you are being detained.
• Refusing to give samples could be used against you in court.
• You cannot refuse to give breath, urine or blood samples if a Garda suspects you of drunk driving. Refusing in such a case is actually a crime.
• The Gardaí must destroy the samples after twelve months, if you have been found not guilty or if the case has been dropped.