Students & the Law
AITSU Online Legal Advice Section
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What do i do if i get arrested
Most of us have nothing more than a vague idea of what our legal rights are, or what procedures should be followed by the gardai in circumstances where we are arrested or detained, and how we can ensure that our rights under the law are protected. The following is a brief outline of what is likely to happen where a person is arrested.
Stop and search :
There are a number of powers given to the Gardai by which they can stop and search a person either in the street or in a vehicle. These powers include:
S. 30 Offences against the State Act (1939) Gardai may stop and search any person suspected of involvement in offences to which the Act applies.
S. 8 Criminal Law Act (1976)
A garda acting on reasonable suspicion may stop a vehicle search both the vehicle and its occupant if it is suspected that they are involved in one of a number of offences including murder, manslaughter, fire arms offences, burglary, malicious damage or explosive offences.
S25. Misuse of drugs Act (1977) A garda acting on reasonable suspicion may search any person whom he/she has a reasonable cause to suspect is in possession of a controlled drug.
Arrest
Arrest, in the context of the criminal law, is the restraining or apprehension of a person on foot of some lawful authority so he shall answer an alleged or suspected crime. Arrest is a process by which a Garda can bring a person before a court at the earliest opportunity, There are no general powers to detain for "questioning" nor can a person be asked to accompany a Garda to a police station unless they are actually under arrest, which arrest must be authorised by law.
Arrest with warrant
Gardai may arrest by obtaining a warrant from a
District Justice, whereby the Garda swears an information before the Judge, and if it discloses a criminal offence, the Justice may, in the exercise ofhis/her discretion, issue a warrant. If the Justice believes that a summons will suffice to ensure attendance, he/she should issue a summons. This procedure is not frequently used, although it is worth noting that there are, for example, certain circumstances in which a warrant may be issued to arrest a defendant who fails to appear in answer to a summons.
Arrest without warrant
There is no general power of arrest for a crime, and arrests are carried out under specific statutory provisions. There are many such provisions, and a person being arrested is always entitled to know under what provision he/she is being arrested. The Criminal Law Act 1997 abolished the distinction between felonies and misdemeanours and widened powers of arrest and powers of entry to effect an arrest in respect of arrestable offences. An arrestable offence is defined as one which carries a maximum term of imprisonment of at least five years A garda who suspects that an arrestable offence has been committed may arrest a person suspected of such offence. Under this Act a garda may enter any premises or dwelling in certain circumstances to effect such an arrest.
The gardai have extensive powers of arrest under the Criminal Justice Public order Act 1994 for offences committed in a public place such as breach of the peace , drunk and disorderly, obstruction and failure to comply with the direction of the gardai
Under the Criminal Justice Act (1984) a person arrested on suspicion of an offence punishable by a maximum period of at least five years imprisonment may be detained without charge for a period of six hours, (which period can be extended for a further six hours if authorised by a Superintendent) to allow for the "proper investigation" of the offence.
If the arrest happens late in the evening, the periods of questioning may be suspended to allow for sleep, once the arrested person consents in writing to such break and the suspended period does not form part of the six hours.
Under S. 30 of the Offences against the State Act (1939) a person arrested for an offence coming
If you are arrested:
You should ask to see the garda's identification or get his/her number.
You are entitled to know under what power and for what offence you are being arrested.
You are not obliged to say anything when arrested although there are exceptions to this, such as the Offences against the State Act and the Road Traffic Acts.
Do not resist arrest, as this in itself is an offence and even if no other charges are proved against you can be convicted of this fence
Once in the station ask to phone a solicitor. If you do not know one, phone the Students' Union or a friend. The Gardai must allow you to consult with your solicitor in private. There is no right to a solicitor under the free legal aid scheme while in custody.
Do not sign any statement without legal advice. Ask to see your solicitor immediately.
within the ambit of this Act is obliged to give his/her name and address. Under S. 52 of the Act the gar-dai are entitled to question him/her and to require him/her to give an account of his/her movements or give all information in his / her possession relating to the commission of an offence coming under this Act, and failure or refusal to do shall be an offence. Under this Act someone being questioned in relation to an offence under this Act can be held without charge for 24 hours (which can be extended to 48 hours with the authority of a chief superintendent)
In the station
A person under arrest has constitutional rights, which must be protected. These rights have now been set out on a standardised form, and the person must be given, on their arrival at the station, a copy of these rights, which must be explained to him / her in ordinary language.
Where a person asks to see a solicitor he / she should not be asked to make a written statement until a reasonable time has elapsed to allow the solicitor to arrive. He/she also has the right to receive a visit from a relative or friend if they so wish. Where a person is arrested and informed of his/her right to object but does not do so, he/she may be photographed , measured and fingerprinted on the application of an inspector. If he/she does object he/she may nevertheless be photographed, measured and fingerprinted with the authority of the Minister of Justice or if an Inspector makes an application to a District Justice or the Commission or Deputy Commissioner of the Garda Siochana.
If arrested and charged you must be brought before the District Court at the earliest opportunity (NB I f arrested on Friday evening this could be Monday morning). Failure to do this would make continued detention unlawful.
Bail
The sergeant or other person in charge of a Garda Station is empowered to admit to bail any person who is brought in custody to the station, providing there is no warrant outstanding against the person in question. Remember to ask for bail as the Gardai will not volunteer the information. Once the person is admitted to bail they are bailed to appear at a par ticular date before the District Court and they are obliged to appear on that date, with a failure to appear resulting in a warrant for the arrest of the person being issued to bring him / her before the Court.
Failure to account for firearms and/or property
Under the Criminal Justice Act, where a Garda finds a person in possession of a firearm or property. which the Garda believes to be stolen, the Garda can require the person to give an account of why he/she has the firearm or the property.
Evidence
(a) If a Garda finds any object, substance or mark on a person's clothing or in his/her possession and the person fails to account for such object, substance, or mark, the court is entitled, in a subsequent trial , to draw inferences from his/her failure to account, and to use any failure to account as cor-roboration for any other evidence.
(b) If a person is detained at the scene of a crime and a Garda believes his/her presence is due to their participation in the crime and the person fails to account for their presence there, the court is entitled in a subsequent trial to draw inferences from this and to use any failure to account as corroboration for any other evidence.
(c)lf a person is asked to participate in some form of forensic test and refuses to do so. the Court is entitled, in a subsequent trial, to draw inferences from such failure.
Legal Aid
There is a State scheme of civil aid for non-criminal charges which makes the services of solicitors, and if necessary, barristers available to persons of modest means at little cost. The service includes anything from writing a solicitor's letter on your behalf to representing you in court proceedings. You should contact a law centre or a solicitor for further advice on civil legal aid. For legal aid for criminal law cases you apply to the District Justice / Judge on your first appearance in court.