It is a peculiar, but familiar, paradox in these islands that government reform in the wake of major police scandal and abuse includes the introduction of more of what facilitated the scandal and abuse in the first place. The May issue of these Notes highlighted exactly that in the context of police governance and accountability in Ireland. Since then, the Irish government has published proposals for another major Bill; this time aimed at reforming police powers. The context is the relentless pattern of Garda corruption that has plagued policing in Ireland for at least the past three decades.
It will come as no surprise that the proposed Bill will do more to facilitate Garda corruption than to combat it. Not only will it impact adversely on all people and communities on the receiving of Garda coercion, but it also signals a major shift from policing by consent to policing by authority.
The government’s Explanatory Notes to the proposed Bill may convey the impression that it is largely a codification of Garda powers in the interests of clarity and transparency. The reality is that the Bill goes far beyond that. Although its’ provisions are designed to replace many existing powers and procedures, it is important to appreciate that the former frequently expand the reach and depth of the latter. I cannot find any examples where extant powers are contracted in the interests of promoting the human rights of persons negatively affected.
In addition, the proposed Bill will leave in place and untouched the draconian police powers and procedures provided by the Offences against the State legislation. The new powers and procedures will also sit alongside the huge body of existing laws on matters such as: public order, surveillance, taking and examining bodily samples from persons, extracting DNA profiles, compiling and using a DNA database, restrictions on the right to silence etc. The net effect is the construction of a vast complex of police powers that leave little room for the concept of an autonomous individual able to rely on traditional rights and freedoms as a counterweight to police coercion. It is what one would expect in a police state.
Codes of Practice
A distinctive and disturbing feature of the provisions in the proposed Bill is the manner and extent to which it seems to leave important aspects of the Garda powers to codes of practice drawn up by the Garda Commissioner and approved by the Minister for Justice. The contents of any such codes are not legally binding in the sense that breach will not ground a criminal offence or a civil action in itself. Nor will breach automatically result in the exclusion of evidence so obtained. At most, a Garda member who breaches a code in any instance may be subject to disciplinary action which, of course, is a matter for the Garda themselves.
The manner in which codes of practice are used in the proposed Bill is tantamount to giving the Garda Commissioner a self-serving power to determine the limits of key Garda powers and the substance of restrictions (if any) on how those powers are used. As such, the rule of law in prescribing vital human rights and freedoms is being replaced with the rule of the Garda Commissioner and Minister for Justice. Again, that is what one would associate with a police state rather than a democracy based on respect for the rule of law and the prioritisation of human rights.
It would appear that the government is basing this reliance on codes of practice on an important recommendation in the report of the Commission on the Future of Policing in Ireland calling for the publication of Garda policies on the exercise of key police powers. It is highly unlikely, however, that the Commission intended such codes to replace vital statutory restrictions on the scope of the powers in the manner envisaged by the proposed Bill and illustrated below in this extended Note.
Structure of note
Given the length of the proposed Bill and the range of important matters addressed, it will not be possible to consider all aspects of it here. Attention will focus on key features of the provisions on powers of: stop and search; entry, search and seizure; arrest; and detention. Before doing that, however, it is worth noting that the Bill does include some general provisions on the protection of human rights.
In its report, the Commission on the Future of Policing in Ireland foregrounded the importance of human rights as the guiding principle in policing. The government has responded to this in the proposed Bill primarily by making the protection of fundamental rights the subject of the first substantive part. Unfortunately, the contents are bland and weak, and they are confined to the exercise of powers under the Bill (as distinct from the whole complex of Garda powers).
They begin with the innocuous statement that when exercising powers under the Bill gardaí must respect the rights of the person targeted and the principles of fairness and non-discrimination, while at the same time exercising diligence and determination in the investigation of crime and vindicating the rights of crime victims. For the most part, the Bill has little new to say on how the first part of this dichotomy is to be achieved. Indeed, the Explanatory Note to the proposed Bill actually state that these provisions are not meant to change existing law. That is a particular concern given that the emphasis in much of the rest of the Bill is on strengthening Garda powers and procedures in the interests of crime control and the crime victim at the expense of human rights, freedoms and due process.
Rights of the child
It must be acknowledged that there are some specific provisions on the rights of children and on persons with impaired capacity. The former, however, does little more than impose the familiar requirement of notification to a parent (or other appropriate person) where a child is being (or was) subjected to the exercise of a power under the Bill.
Rights of person with impaired capacity
Interestingly, protection of the rights of a person with impaired capacity seems to be framed around the interests of the Garda rather than the rights and autonomy of the person concerned. The Bill does not prescribe positive rights for the latter. Instead, it stipulates that a Garda member exercising powers under the Bill can take any measures he or she deems necessary and appropriate to protect the rights of the person that the person may not be capable of taking himself or herself. Moreover, it is left to the Garda Commissioner (with the consent of the Minister) to issue guidelines for the treatment of persons with impaired capacity when they are subjected to the exercise of powers under the Bill.
In effect, therefore, it is the Garda (rather than the law) who will determine how the rights of a person with impaired capacity will be protected when subjected to Garda coercion under the Bill. Should the Commissioner’s guidelines make concessions to the needs of such persons, they will have no binding effect. There is no penalty for non-compliance. Indeed, the Commissioner is not even obliged to issue guidelines.
Stop and search
The proposed Bill gives a Garda member a very broad power to stop and search a person or vehicle in a public place (loosely defined). The power is available where the member reasonably suspects that the person is in possession of any of a specified list of articles such as stolen goods, a controlled drug, a firearm or offensive weapon, a syringe or an article intended for use in the commission of a offence. Ominously, it also extends to anything “obtained unlawfully”. That can extend, for example, to evidence of corruption etc in high places leaked to a journalist.
A critical feature of this power is that, unlike its close counterpart in the UK’s PACE legislation, it goes much further than a ‘stop and frisk’ of the outer clothes. The proposed Bill does not define a search in this context, and it seems clear that it can extend to a strip search. Indeed, it provides for a person to be taken off the street etc to a Garda facility and detained there for the purposes of carrying out the search.
The power is a major intrusion on the privacy, dignity and liberty of the person. When combined with the low trigger threshold, it gives gardaí immense control over the presence and movements in public places of persons who spend much of their time there because of their social and economic circumstances.
Random vehicle searches
The proposed Bill provides a further power for a Garda member to stop and search a vehicle with a view to determining whether any person in the vehicle has committed, is committing or is about to commit any one of a long list of offences, or whether there is evidence of such an offence in the vehicle. Significantly, the member does not need a prior suspicion in relation to the vehicle. It is sufficient that he or she reasonably suspects that the offence has been committed etc by someone somewhere. In effect, it is a power to stop vehicles at random in such circumstances to check them and their occupants for relevant criminality. In other words, it is a ‘police state’ type power.
The proposed Bill requires the Garda member conducting a search under these provisions to provide the person affected with certain information, including the reasons for the search. It also requires a record to be made of the search and specifies the information that should be included (eg. identity of person searched, date and time, reasons, outcome etc.). Strangely, it does not require the identity of the member conducting the search to be recorded.
The person stopped is not entitled to be given a copy of the record automatically, Instead, he or she must apply in writing at any time before the copy is destroyed. Moreover, the legislation does not impose an obligation on the Garda to retain the record indefinitely or even for a specified time. Instead, it is a matter for the Garda to determine such period of retention (and procedure for destruction) in their own Code of Practice (see below).
These ‘protections’ are disappointing. The permanent retention of the stop and search records is vital not just for the interests of persons subjected to stop and search, but also for promoting transparency and accountability in respect of the manner in which the powers are used. Without them, it will be virtually impossible for bodies such as the current Garda Inspectorate to scrutinise use of the powers and identify trends in their use and overuse generally and against specific communities.
Code of Practice
The Bill makes provision for the Garda Commissioner to prepare a Code of Practice on the exercise of the powers for the approval of the Minister. Significantly, the Code shall set out critical matters such as: the circumstances in which a search may be conducted, the procedure to be followed in the search, the scope and extent of the search and the safeguards that will apply to children and persons with impaired capacity. In addition, it will determine key issues pertaining to the substance and treatment of the record of a search (including the circumstances in which the record may be retained, disclosed and destroyed, and the procedures for doing so).
It would seem to follow that it will be a matter for the Garda and the Minister, rather than the law, to determine key matters such as how far these Garda powers of stop and search will intrude on the privacy and dignity of persons affected, and the manner and extent to which their use (and trends in their use) will be amenable to accountability and independent scrutiny. It is a classic (and disturbing) example of the State delegating to the Garda the power to determine vital aspects of the substance and application of their own coercive powers over the individual.
The only significant concession to the human rights of targeted persons in this context is the provision requiring the Commissioner to have regard to certain matters when preparing the Code. As well as the need for gardaí to act with diligence and determination in investigating crime and protecting the rights of crime victims and the public, these include: the fact that a search is an intrusion on the targeted person’s right to privacy; the need for a search to be necessary and proportionate; and the need to base a decision to search on fair and objective grounds that do not discriminate between persons on the basis of personal characteristics.
Superficially, this requirement to strike a balance in the Code between the Garda crime control objectives and the human rights of targeted persons may seem sufficient and effective for the latter. The reality, of course, is that they do not express the contents of the Code. It remains a matter for the Garda Commissioner (a self-interested party) to formulate those contents, including the balance to be struck between the competing interests. Moreover, the Code itself will not impose legally binding standards. As noted above, breach is not sufficient in itself to render the person concerned liable to criminal or civil action. At most, it could provide a basis for internal disciplinary action by the Garda themselves.
Risk of abuse
The equivalent PACE ‘stop and search’ powers are more limited than those in the Bill, yet the former would appear to impose stronger accountability and human rights protections against abuse. Nevertheless, as most UK law students (and especially those who have taken the Policing module) will know, the protections have not prevented the more limited powers there from being abused in a grossly discriminatory manner against ethnic minorities.
Currently, a black person is at least nine times more likely than a white person to be stopped and searched in England and Wales. For some police forces the figure is many multiples of that. Equally, it would appear that the powers are used excessively, with only about one tenth of the stops and searches revealing possession of illicit items. By any measure, these are grossly disturbing statistics. Yet, there is no reason to believe that the powers will be used in Ireland with more restraint and with more awareness of the dangers of conscious or unconscious bias against categories of already marginalised persons and communities.
It is also important to note that that the stop and search powers provided in the proposed Bill are not simply a codification of existing powers. It is true that they will replace some of the latter, but they do so in a manner that adds significantly to them. They also leave untouched a substantial number of existing powers, including the draconian power under the Offences against the State legislation. They do not extend the protections in the Bill (weak as they are), or those that may possibly be included in the envisaged Code of Practice, to these other powers. In short, the stop and search provisions in the Bill can be considered an example of Garda powers being extended significantly under cover of purporting to enshrine protection of human rights at the heart of Garda activity.
Entry, search and seizure
Current warrant powers
Current law provides the Garda with a wide range of powers of entry, search and seizure under warrant. These are scattered across disparate statutory provisions, many of which are confined to particular offences while others extend to specified categories of offence. Some are quite restrictive, and others are notably generous, in the range of powers they confer on gardaí acting under the warrant. Some are subject to limitations or protections associated with, for example, the privacy of the dwelling, confidential information or journalists’ sources.
Over the past few decades, there has been a notable drift towards expanding the scope of the warrant provisions and their associated Garda powers. This has been combined with fewer and narrow limitations and protections for persons subjected to the powers. The Bill pushes this trend to the limit. It seeks to replace many (but not all) of the individual powers with a general power which, notably, is pitched at the most extensive and intrusive level relative to the privacy, property and personal rights of the individual. In other words, the Bill provides for a substantial upscaling in entry, search and seizure powers.
The Bill extends the warrant power to all indictable offences (offences that may be tried before a judge and jury). It also applies it to a large number of summary offences (which tend to be minor or at the less serious end of the scale).
Typically, an application for a warrant will be made by a member of the Garda to a District Court. Given the nature and extent of Garda powers exercisable under a warrant (see below), this should present a vital independent check on the case for issuing it. Nevertheless, emulating the extraordinary provision in the Offences against the State legislation (and a few other extreme measures), the Bill also gives a Garda superintendent the power to issue a warrant where he or she is not involved in the investigation in question. This can be done in exceptional circumstances, where the need for immediate issue of the warrant renders it impracticable to apply to a District Court judge. It is the Garda superintendent himself or herself, however, who will determine whether those circumstances are satisfied.
The notion of a self-serving Garda power to issue a warrant to gardaí makes a nonsense of the whole concept of a warrant as an independent judicial order. It is tantamount to giving the Garda the power to authorise themselves to exercise the sweeping powers of entry, search and seizure associated with the warrant. It borders on the farcical to proceed on the assumption that a Garda superintendent is independent in the matter simply because he or she is not directly involved in the investigation in question. The reality is that the superintendent is issuing the warrant to colleagues with whom he or she is employed in the common enterprise of investigating crime, in which the issue of the warrant is an integral part. He or she can hardly be considered independent in the matter in any material sense.
Low threshold for issue
The power to issue a warrant is framed in very broad terms. The Garda member applying for it merely must satisfy the judge that there are reasonable grounds for suspecting that evidence relating to the offence in question may be found at the place concerned. This is a low threshold given the enormity of the powers unleashed by a warrant. Moreover, there is no express statutory requirement for the judge to be informed of the nature and extent of the evidence being sought before issuing the warrant.
Equally, there is no statutory provision limiting the manner and extent to which the search is conducted to the likely character of evidence being sought in connection with the offence. In other words, a warrant issued to search a dwelling for stolen goods will not necessarily preclude gardaí conducting the search from trawling through personal items and confidential information sources that are unlikely to contain evidence of the stolen goods. The provisions are framed in terms that confer maximum freedom for the gardaí seeking the warrant and for those acting pursuant to it.
Normally an application for a warrant is made by a Garda member appearing in person before a District Court judge. The Bill, however, also makes provision for a warrant to be applied for and granted where it is believed that the time taken for the applicant to appear in person would frustrate the effective execution of the warrant. This surely raises a question over the capacity of the judge to scrutinise and assess an application effectively in such circumstances. Moreover, there is no statutory requirement for the interaction between the judge and the Garda applicant to be recorded in these instances.
Premises to be searched
The immense scope of the warrant provisions is also reflected in the Bill’s inclusive definition of a “place” that may be the subject of a warrant. In addition to any land or building etc on land, it encompasses any vehicle, dwelling or residence. The inclusion of a private dwelling or residence is particularly significant. Despite the traditional view of the private dwelling as a place of sanctuary for the occupants, and the fact that the Irish Constitution affords it special protection against coercive intrusion from the State and others, the Bill exposes the dwelling to the full force of the warrant powers as if it was no different from any other piece of land or building.
Period of validity and repetitive use
The standard period of validity of a warrant issued pursuant to these provisions is seven days, but it can be extended several times up to a total period of 28 days. Drugs warrants can be issued for 30 days in the first instance and can be extended. While in force, a warrant will permit the Garda member concerned, accompanied by so many other gardaí and/or other persons, as he or she considers necessary, to enter and search the place in question (see below). Significantly, the warrant is not exhausted after first use. It can be used again and again in respect of the same premises during its period of validity. There are no express provisions in the proposed Bill protecting the occupant of a dwelling against the detriment of repeated entries and searches under a warrant.
Perhaps the most disturbing feature of the warrant provisions is the nature and extent of the coercive powers they confer on gardaí acting under a warrant. In particular, they empower gardaí to search not just all documents, persons, places and things physically present on the premises, but also all information stored in any computer, mobile phone or any other storage medium present. Incredibly, this extends far beyond the premises etc being searched to include any books, documents, records or computer, mobile phone etc located elsewhere if a person on the premises can access them through, for example, a computer or mobile phone on the premises. Gardaí conducting the search can require any person on the premises to facilitate such access, including by providing passwords, encryption keys etc.
Equally, the power of seizure under a search extends to a power to seize any computer (mobile phone etc), and to a power to make and retain a copy of any document (including any electronically stored information) which a Garda member acting under the warrant reasonably believes to be evidence relating to the offence. Given the connection with electronically stored information, this has an exceptionally broad reach. Almost inevitably, it will facilitate scooping up large bodies of information enabling gardaí to peer into aspects of the person’s private, social, professional, political etc activities that have nothing to do with the offence being investigated.
By any standard, these provisions are Orwellian. Where a warrant is issued, it can be used by gardaí effectively to access all of an individual’s personal, confidential and professional information and, through that individual, to access the same in respect of his or her family members, associates, workplace or any body or association with which he or she can link up from the place being searched (which could be his or her home).
Searching persons without suspicion
It should be borne in mind in this context that the individual in question need not be a suspect. It is sufficient simply that he or she is present on the premises (which can be searched on multiple occasions). It must also be borne in mind that he or she could be a journalist, an opposition parliamentarian, a human rights lawyer or activist, etc who may possess or have (or have access to) sensitive information that the government (and/or the police) are keen to access or suppress in their own partisan interests. These are no exaggerated or fanciful considerations in a State where the national police force is also the primary State security service. There is surely no place for police powers of this nature and extent in a democracy based on respect for the rule of law and human rights.
Another striking feature of the warrant provisions is their lack of express protections for the human rights of those who may be affected by the exercise of the powers. As noted above, the occupant of a property being searched, or persons searched simply because they are present on the premises in question, need not be suspected of any criminal activity. Yet, they are treated as if they are criminal suspects at the disposal of the gardaí, without even having the benefit of most of the protections normally available to suspects subjected to Garda powers. It is worth noting, for example, that there are no express limitations on the scope of the power to search persons present on the premises subject to an entry, search and seizure. It would seem to follow that it can extend to a strip search and to children and even infants in their own home.
A provision which purports to confer rights on the occupier of premises subject to a search under warrant amounts to little more than the provision of information about the conduct of the search and his or her obligations during it. The occupier will not even have an immediate right to a copy of the warrant at the commencement of the search. If not given a copy within seven days, the onus is on him or her to apply for it to a District Court judge. The occupier must be shown a copy of the warrant on commencement of the search, but that gives little or no opportunity to examine it closely (especially if it is in electronic form).
There is provision in the proposed Bill aimed at protecting the examination or seizure of “privileged” material in the course of a search under warrant. Unfortunately, the Bill does not include a definition of “privileged” in this context. Undoubtedly, it covers material within the scope of legal professional privilege. Less certain is whether it extends to a journalist’s sources, a person’s medical records or other situations in which personal information is held under an expectation of confidence. In any event, the protection afforded the privileged material is convoluted and does not ensure that gardaí conducting a search will not access and view privileged material howsoever defined.
It is worth noting in this context, that there is express provision in the proposed Bill dealing with the situation where material that could lawfully be seized under a warrant is comprised in material that cannot be lawfully seized (eg. privileged material). In this event, the Bill favours the gardaí by allowing them to seize the lot where it is not reasonably practicable to separate them on the premises. The Act is silent on how the material should be managed or separated thereafter in a manner that ensures that the Garda do not secure access to material to which they should not have access. The implication is that this provision will, in practice, drive a coach and horses through the notional protection for privileged material.
Code of Practice
The Bill makes express provision for the Garda Commissioner to issue a Code of Practice on the conduct of these searches with the approval of the Minister. It suffers from the same weaknesses identified above generally and in the provisions for a Code of Practice on ‘stop and search’. It is a real concern that the legislature is effectively abdicating to the Garda Commissioner responsibility for shaping the scope of Garda powers to intrude deeply into the intimate private lives and person of individuals who may not necessarily be suspected of a criminal offence. A glaring example of this is the stipulation that the Code shall set out “the particular safeguards to apply when the subject of a search [on the premises] is a child or a vulnerable person.” It is quite incredible that these aspects are relegated to a Garda Code rather than dealt with directly by law.
Equally, there is no provision in the proposed Bill requiring the draconian powers to be exercised proportionately and with respect for the privacy and dignity of the individual and the inviolability of the dwelling. These are merely matters (along with others) which the Commissioner should consider when drafting the Code. Even if they are expressly included in the Code, they will lack the status of statutory provisions. Breach does not trigger criminal or civil liability. Nor does it affect the admissibility of evidence obtained as a result.
Clearly, these provisions are not designed to inject protection of human rights at the heart of entry, search and seizure. Nor are they merely a codification of existing powers. They are deigned to replace several existing powers, but in a manner that substantially expands and deepens them. Moreover, they leave untouched a number of existing powers, most notably the draconian provisions in the Offences against the State legislation. It is also worth noting that they are complemented by a very substantial body of summary powers of entry, search and seizure (and related powers). These are dealt with in my book on Criminal Procedure (2016).
Irish law currently confers extensive summary powers of arrest on gardaí (as well as powers on other persons). These are to be found in a combination of common law (essentially confined to arrest for actual or anticipated breach of the peace) and statutory provisions. The latter include a general power of summary arrest in respect of any “arrestable offence” which is defined broadly as an offence that can be punished on conviction by imprisonment for a term of at least five years or by a more severe penalty.
Many lesser offences also attract summary powers of arrest. These, however, reflect a patchwork of statutory provisions, each of which was introduced (largely) to deal with the needs of a specific offence or related offences. For most lesser offences, a power of arrest is not necessary either because it is disproportionate or because the offender can usually be detected and managed without having to be arrested and processed through Garda custody.
The most prominent feature of the arrest provisions in the proposed Bill is that they extend the scope of Garda summary powers dramatically. Each member of the Garda will be given a summary power of arrest in respect of any offence, no matter how minor or trivial that offence may be. It will be available simply where a member reasonably suspects that an offence has been committed. In this event, the member will be able to arrest anyone whom he or she reasonably suspects of being guilty of the offence. Equally, a member will be able to arrest anyone whom he or she reasonably suspects to be committing an offence.
The net effect is that all gardaí will have a sweeping power of arrest in respect of any offence, irrespective of how minor the offence, or whether an offence was actually committed, or whether the person arrested actually committed an offence. By any standard, this is an excessive intrusion into the right to liberty. It even exceeds the scope of the draconian arrest power in the Offences against the State legislation. It effects a fundamental change in the legal relationship between gardaí and citizens. Given the very low threshold for the availability of the power, it will effectively enable gardaí to use the threat of a summary and immediate deprivation of liberty over anyone who does not submit to their command.
A limited concession to the fundamental rights of the individual is that the power can only be used in respect of non-serious offences where the Garda member has reasonable grounds to believe that it is necessary for one of a finite list of purposes. These include: preventing harm, preventing the commission of another offence, or obstructing a member in the discharge of his or her duties (eg. failure to give name, address or date of birth that is not false or misleading). That still leaves immense scope for a member to justify arrest or the threat of arrest. Moreover, these purposes do not apply at all to a serious offence which is defined so broadly as to capture a huge range of offence situations that might not be considered serious in the broader scheme of criminality.
The general public perception may be that a serious offence in this context denotes an offence that has caused serious harm to the person, property, community or state. So, for example, it would include homicide, sexual offences, offences causing significant bodily harm to a person, human trafficking, offences causing significant material loss or damage to property, corruption, drug-trafficking, firearms offences, perverting the course of justice and so on.
The Bill, however, extends it to any offence for which a court could sentence the convicted person to imprisonment for a term of five years or more or a more severe penalty (as well as offences listed in a Schedule to the Bill). What matters is not whether the offence actually caused serious harm, loss or damage in the individual case, but whether the court could hand down a sentence of imprisonment for a term of at least five years if it was minded to do so.
It follows that many offences which might not generally be considered serious in the broader scheme of criminality will qualify as serious for the purposes of the Bill and the Garda powers provided by it. The theft of can of beer from a supermarket, for example, can qualify as a serious offence. It is important to bear that in mind because it means that the extensive and intrusive Garda powers conferred by the Bill have a very broad reach. They are not confined to offences that everyone would immediately recognise as so serious that they warrant giving gardaí summary and wide-ranging powers of investigation encroaching deeply into the rights of the person.
Breach of the peace power
The proposed Bill also retains the current common law power of arrest for breach of the peace. This enables a Garda member to arrest a person whom the member has reasonable grounds for believing has committed, is committing or is about to commit a breach of the peace. This is an incredibly broad and controversial power. In England, it has a history of being used to suppress peaceful public protest. It says much about the shallowness of the proposed Bill’s approach to the protection of human rights that no express provision is included to ensure that it cannot be used in that manner. Indeed, even the weak concessions to human rights provided for non-serious offences are not extended to the breach of the peace power.
The proposed Bill includes provisions on, among other things: the information that a person should normally be given on arrest (or on a stop and search); the caution to be administered to a person on arrest and when being questioned in certain circumstances; entry and search of premises (including a dwelling) to effect an arrest; search and seizure in respect of an arrested person (which can include a strip search); re-arrest; and arrest of a prisoner or child detainee for the investigation of an offence other than that for which they are imprisoned or in detention. For the most part, these reflect existing law. Where there are departures, they are invariably in ease of Garda investigation.
Code of Practice
The proposed Bill makes provision for the Garda Commissioner to issue a Code of Practice providing “practicable guidance” for gardaí on the exercise of these arrest (and related) powers. It suffers from the same weaknesses identified above generally and in respect of the Codes on stop and search and on entry, search and seizure. It is worth noting that the arrest Code is expressly required to address matters such as: the scope and extent of a search of persons on arrest and the safeguards to be applied where the subject of the arrest is a child or a vulnerable person. Given the enormity of impact that an arrest has on the liberty, privacy and dignity of the individual, it is a major concern that such vital matters will be dealt with through a self-serving Garda code of practice rather than the law.
It is important to note that these arrest powers in the Bill are not simply a codification of existing law. While they will replace a large number of existing arrest powers, they will also effect a major and unprecedented expansion in the scope of those powers. Moreover, they will not replace all existing powers. Several key powers will remain. The most notable of these is the draconian arrest power conferred by the Offences against the State legislation. Not only does the Bill retain such powers, but it makes no attempt to rein them in with appropriate human rights protections.
Detention in Garda custody
Part 6 of the proposed Bill deals with the detention and treatment of an arrested person in Garda custody. It constitutes the the largest part of the Bill, and it will not be possible to comment on every aspect (or even most aspects) of it here.
Garda custody facility
At the outset it is worth noting that the Bill breaks the traditional link between the familiar Garda station and the detention of an arrested suspect. The established obligation to take an arrested suspect to the Garda station is replaced with an obligation to take him or her to a Garda “custody facility”. This hints at the construction and use of Garda interrogation facilities separate and distinct from the Garda station to which the public generally have access on a daily basis. Interestingly, the government’s Explanatory Note to the Bill states that the intention is “to allow for the fact that other types of custody facilities may be used in the future.” That raises a potentially ominous prospect.
It is also worth noting that the custody officer in a Garda custody facility could be either a Garda member (as at present) or a civilian. The custody officer plays a vital role in protecting the welfare etc of the suspect in Garda custody. Among other things, he or she provides (at least notionally) an independent check on the necessity for the person’s continued detention etc. Yet, there is no absolute prohibition on the custody officer being involved in the arrest of the person (or investigation of the offence) concerned.
An arrested person can be searched on being brought to a Garda custody facility even though he or she will likely have been searched on arrest. Again, this can extend to a strip search. It is easy to see how such repetitive and intrusive searches could be used to humiliate and intimidate the arrested person, thereby softening him or her up for questioning and the taking of samples from on and inside his or her body.
One of the most disturbing features of the detention provisions is the manner and extent to which they will expand Garda power to detain an arrested person in their custody for longer periods. Originally, the Criminal Justice Act 1984 provided for a maximum period of detention for 12 hours (longer if an overnight rest period of 8 hours was used). In 2006, this was extended to 24 hours (longer if an overnight rest period is used). Under the Bill, these detention periods will continue to be applicable to persons arrested in respect of a serious offence which, as noted above, has a very broad reach.
The Bill also makes provision for the Garda to extend the period of detention for up to another 24 hours. This can be done for the investigation of any of a list of particularly serious offences, or where the person has been arrested on suspicion of having committed two or more serious offences that do not arise out of the same set of facts. It is not at all clear how a person can be arrested at the same time for two or more offences. Nevertheless, the effect is to double the period of Garda sanctioned detention in respect of a very wide range of offence situations that pose no significant threat to the State. This effects a radical change in the criminal process favouring police power and expediency over the fundamental rights of the person, without any obvious or rational justification.
Seven day detention
The possibility of seven days detention in police custody was introduced in these islands as a temporary measure in the UK’s Prevention of Terrorism Act 1974 in the wake of the Birmingham pub bombings. It was introduced in Ireland in 1996 as an exceptional measure to deal with the situation where it was believed that a person arrested on suspicion of drug trafficking had ingested drugs as a means of trafficking them. The seven day detention period was designed to provide sufficient time for the drugs to pass through his or her body.
As often happens in criminal justice, draconian powers introduced for temporary, emergency or exceptional purposes have a habit of becoming accepted and adopted as the norm. In 2007, the seven day power, was extended in Ireland to a number of particularly serious offences, supposedly to deal with threat of organised crime. Now, however, the Bill will extend it to an expanded list of such offences. Step by step, the draconian seven day power is on its way to being normalised.
Stopping the detention clock
It is also important to note that the actual period in detention may significantly exceed the 48 hour (or seven day) period. The proposed Bill revises the regulation of overnight rest periods for a person in Garda detention. If the Garda allows the person to avail of overnight rest, the detention clock will stop running for the period of that rest. The effect is that the person will have to stay longer in detention than might otherwise have been the case. Equally, time spent during the detention for the person to get medical attention in a hospital (or while he or she is medically unfit for questioning), or while waiting for his or her solicitor to arrive will not count towards the permitted maximum period of detention.
Applications for extension
For extensions beyond 48 hours in the seven day period, the Garda must apply to a District or Circuit Court judge. The person concerned may also be heard on any such application. However, the detention clock stops running during the time taken to process the application. An even more heinous aspect of this procedure is that Garda evidence justifying the extension can be given and received in the absence of the person concerned and his or her legal representative. This can make a farce of the person’s right to be heard. It also adds to an expanding range of provisions for secret hearings in the criminal process.
Even where evidence is given in the presence of the person on these hearings, it will be difficult for him or her to challenge it effectively. There is no provision for advance notice of the evidence. Moreover, the Garda evidence can be given second-hand by a member of the Garda who has no first-hand knowledge of the matters in question. This will make it very difficult for the person to cross examine the evidence in any meaningful sense.
Release and call back
Another insidious aspect of the detention provisions is that at any time during detention for a “relevant offence”, the Garda can release the arrested person with a view to bringing him or her back into custody at a later date to resume the questioning. This power was first introduced in 2011 for “relevant offences” which encompass a wide range of organised crime type offences and ‘white-collar’ crime offences, among others. The effect is that a person is held in a sort of a limbo for up to four months during which time he or she can be required to submit to Garda custody at the convenience of the Garda for the remainder of the detention period. The ‘police state’ ramifications are obvious.
Electronic recording of interviews
The Bill makes provision for the electronic recording of interviews in Garda custody. The provisions, however, are sparse and it is not at all clear whether, or to what extent, the current detailed provisions will continue to apply. The latter are framed around an outdated mode of recording given the advances in the technology since they were introduced in 1997. Presumably, the Bill will facilitate resort to the latest technology, but vital details are missing from the Bill. It also seems clear that the focus of the Bill here is on serving the needs of the Garda and the prosecution. Little or no concession is made to the needs or interests of the person interviewed. There would also appear to be a knock on effect on the contents of the custody record that must be retained in respect of persons detained in Garda custody.
The proposed Bill repeats a number of standard rights and protections attaching to a person in Garda detention. These include the right to be given information about his or rights, the right of access to a solicitor and to have contact made with a third party etc, and the right to have a solicitor present during questioning. While all of these are welcome, it is disappointing that they do not go further given the extent to which the Bill extends Garda powers over the person.
It is also worth noting that very few of these protections are absolute. Of particular note is the broad Garda power to exclude a person’s solicitor from questioning where the Garda considers that their presence is unduly disruptive or would prejudice any criminal investigation or criminal proceedings regarding the offence. The latter is wide open to be used in a self-serving manner for Garda convenience. Moreover, the wording of these provisions suggests that, having excluded the person’s own solicitor from the interview, the Garda could foist their choice of solicitor on the person.
Code of Practice
As with the other main Garda powers in the proposed Bill, there is provision for the Garda Commissioner to issue a Code of Practice for providing practical guidance to gardaí on the exercise of these detention powers. Once again, however, much of what should be in the Act in the interests of protecting the needs and rights of persons affected is relegated to the status of mere guidance. Key examples here include the treatment of persons detained in Garda custody; procedures governing access to a solicitor; and the information to be recorded in a custody record, including the means of recording and storing the information, and the circumstances in which the record may be retained, disclosed and destroyed (and the procedures for that).
Perhaps more than any other part of the proposed Bill, these provisions on detention complicate and obscure the law. While some of the existing detention provisions will be replaced by the Bill, many powers and procedures will remain; including those in the Offences against the State legislation. The effect is to render the law on Garda detention complex and incoherent. This can only benefit Garda and prosecutorial interests at the expense of transparency, due process and human rights.
My first essay as a first year law student back in 1976 was on police powers. One of the striking features about it on reflection is how easy it was to encompass and critique all main police powers satisfactorily in a relatively short essay. That, of course, was a reflection of the fact that police powers in these islands at that time were uncluttered, sufficient for the investigation and detection of crime and maintenance of public order and, for the most part (with the exception of prevention of terrorism powers), encroached no more than was necessary on the rights and freedoms of the individual. How things have changed.
The second edition of my book on Criminal Procedure (2016) takes more than 600 pages (about 400,000 words) to address police powers, and even that does not cover the whole subject. If the book goes to a third edition, the police powers chapters will be significantly longer again if the proposed Bill is enacted in its current form.
The relentless speed, manner and extent to which police powers have expanded in depth, detail and complexity over at least the past four decades are disturbing. It is difficult to detect the survival of the autonomous individual possessed of meaningful rights in the face of lawful police interest and action. Equally, it is difficult to detect the survival of the State based on respect for the rule of law, human rights and democratic values in the face of this massive swing to executive police power.
An astounding feature of these developments is that they are not hindered by regular eruptions of public concern over shocking and extensive abuses of police powers. On the contrary, they seem to be fuelled by them. Nor does it seem to matter that there is no credible link between expanded police powers and improved prosecution or prevention of crime. It is as if their expansion has become institutionalised as a self-serving end in itself.
The proposed Garda powers Bill is very much in the same mould. It will expand, complicate and obscure police powers at the expense of the rule of law, human rights and freedoms. It has all the appearance of being drafted in a hurry to serve the ends of police and political expediency. It will not deliver any dividends in the prevention or detection of crime, but it will make another significant contribution to the seemingly relentless march towards a police state.