Criminal Law 3 Flashcards
Arrest without Warrant
- S.4 Criminal Law Act 1997: Where a Garda, with reasonable cause, suspects an arrestable offence has been committed, he may arrest without warrant. This also applies where normal people suspect with reasonable cause that someone HAS committed or IS committing such offence.
- Under s.2(1) an “arrestable offence” is one which a person of full capacity and not previously convicted may be punished by prison for 5 years or more and includes attempt.
- DPP v McCreesh - an arrest is effected by the ‘seizure or touching of a person’s body accompanied by a form of words to indicate to them that they’re under restraint’. Words alone are enough if the person submits.
- DPP v O’Shea - If gardaí suspects an arrest was unlawful, they must promptly release the suspect and re-arrest him on lawful grounds.
General Principles of Arrest
- Right to be Informed of Basis of Arrest
- Reasonable Expedition
- To Be Charged at First Reasonable Opportunity
- Search upon Arrest
Right to be Informed of Basis of Arrest
DPP v Connell - Garda purported to arrest Connell for drink-driving under Road Traffic Act but incorrectly cited it. Arrest is lawful WHEN the legal authority for it is adequately IDENTIFIED and the suspect is adequately informed of the general reason for it.
DPP v Walsh - Walsh was arrested in a busy bar and not immediately told of reasons for arrest. He did not ask why either but was told at the station. The arrest was lawful as they were not deliberately concealing the cause of the arrest by refusing to give information when asked or giving false information.
Reasonable Expedition
DPP v Boylan - Before Boylan was brought to the police station, he was kept for 2 hours in a shed while his truck was searched under Misuse of Drugs Act. This delay was unreasonable and invalidated the arrest.
If a person is arrested for questioning, he must be brought with reasonable expedition into custody so he can be detained for questioning or the arrest is unlawful.
DPP v Cleary - A delay of 10 minutes to bring the suspect to the station was reasonable.
DPP v Kelly - Kelly was detained in three different stations. As long as the duration is complied with and the venue is complied with, then it is fine.
A person may be detained in “prison or some other convenient place” NOT A CAR. It can be a Garda station, prison or building of some sort.
To Be Charged at First Reasonable Opportunity
Dunne v Clinton - there is no hard and fast rule to cover every case. It depends on the situation including the time and place of arrest, number of suspects, and if a judge is easily available.
Search upon Arrest
Jennings v Quinn - public interest allows gardaí to search the person and seize property in possession of the suspect without a search warrant when
1. they believe it is necessary to avoid the property being destroyed and
2. the property is evidence in support of any criminal charge or reasonably believed to be stolen/unlawfully held.
It may be used as evidence at the trial and then, returned to the person it was taken from unless court has directed disposal.
Detention (Statute)
- S.4 Criminal Justice Act 1984
For an arrestable offence or attempts of such offences, a person can be detained for 6 hours. It can be extended by 6 or 12 hours if the Garda has reasonable grounds to believe it is necessary for proper investigation. 12am to 8am don’t count if it is for rest and consent to this is in writing. - S.30 Offences Against the State Act 1939 - if a person is arrested without a warrant for committing an offence against the state or carrying a document or possessing information regarding this, detention time is 24 hours. Max is 72 hrs when the chief superintendent applies to District Court upon Reasonable cause for suspicion. The govt can also declare an offence to fall within this category.
- S.2 Criminal Justice (Drug Trafficking) Act 1986
For arrests for deug trafficking offences with no warrant, detention is 6 hours on reasonable grounds. Max is 1 week or 168 hours upon reasonable grounds for believing detention is necessary for proper investigation. - S.50 Criminal Justice Act 2007 - most murder and firearm offences is the same detention time as above.
Detention (Case Law)
DPP v Byrne - After a 4-hour extension to detention was directed, Byrne made a statement but if the extension was not properly directed, the confession would be inadmissible. The Chief Superintendent who gave the direction was dead so he could not give evidence of the state of mind. The DPP did not show the detention was lawful so Byrne was acquitted. Time extensions must involve reasonable grounds for believing it is necessary for the proper investigation of the offence.
Treatment of Suspects in Custody (Case Law)
AG v Cummins
1. In looking for a suspect, Garda can ask anyone they think will give useful information
2. When Garda knows he will charge someone, he should let them know before asking questions. Same applies when questioning in custody and if a prisoner volunteers a statement.
3. A caution should be given for a formal charge that any statements made may be used in court of law. Statements before this caution are not admissible.
4. A prisoner making voluntary statement cannot be cross-examined or asked questions about it.
5. If more than 2 people are charged with the same offence, the statements are taken separately and not read to the others.
6. Statements should be in writing and signed after being read to him and invited to correct it
R v Voisin - Breach of these rules doesn’t automatically result in exclusion of evidence. Judge decides.
Right to have Reasonable Access to Legal Advisors
DPP v FINNEGAN - people in custody have a constitutional right to reasonable access to legal advice so they can be fully-informed regarding what they say. It addresses the power imbalance with police. Suspect should know when their solicitor arrives and they should be let in. Right to have Reasonable Access to Legal Advisors includes a phone, personal or private conversation with a solicitor.
LAVERY v Member in Charge Carrickmacross Garda Station - solicitor does not have to be present during interrogation
DPP v BUCK - where a person asks to see a solicitor and Gardaí make bona fide attempts to comply, the judge will decide on the admissibility of any incriminating statement made before the solicitor came
DPP v GORMLEY - CURRENT POSITION - Defendants are entitled to not be interrogated before the solicitor arrives when the suspects requests for one
Treatment in Custody (Statute)
Criminal Justice Act (Treatment of Persons in Custody in Garda Stations) Regs
S.7 states a breach by a Garda doesn’t in itself affect lawfulness of detention or admissibility of evidence
DPP v McFadden - McFadden was arrested for drink-driving. In the station, he consented to being searched but objected to his wallet being searched but Gardai did not listen. HELD: Gardai should make sure a suspect know the reason for a search and does it with due respect. If this is not done, it can be trivial enough for the detention to be treated as lawful but here, it was unlawful. McFadden clearly objected to searching his wallet and the Garda did not communicate a legal justification of interfering with his constitutional rights.
Regulation 12 - Interviews shall be conducted in a fair and humane manner. 4 hours max. Intoxicated people cannot be questioned.
Regulation 19 - Reasonable rest time with Meals and Access to toilet.
Regulation 20 - No use of force unless to prevent escape, self-defence, etc.
Regulation 21 - If injured, drunk, drugged, mentally ill, etc. shall summon doctor.
Recording of Interviews only applies to stations where equipment has been “provided and installed”.
Presumption of Innocence
Art 38.1: Guarantees the right to trial in due course of law. Includes presumption of innocence until Prosecution proves beyond a reasonable doubt.
Art 6 ECHR: ‘Person charged with a criminal offence shall be presumed innocent until proven guilty’
Woolmington v DPP - Presumption also exists at common law. “Duty on prosecution to prove the prisoner’s guilt”
DPP v O’T - A trial judge’s charge to the jury must contain a statement and explanation of the presumption of innocence.
DPP v Kelly - Prosecution must have to prove the accused’s guilt to a standard beyond a reasonable doubt AND negative beyond any reasonable doubt any defence raised
- There are instances when the standard of proof shifts
Instances when the standard of proof shifts
However, there are certain circumstances where the defendant will be required to prove a certain matter in his trial, like defence of insanity. Standard is: Balance of Probabilities:
Hardy v Ireland - Under Explosive Substances Act, a person shall be guilty of possession of an explosive substance unless he can show he had or made it under control for a lawful object. This did not breach the right to trial in due course because the DPP still had to prove actus and mens rea beyond reasonable doubt.
O’Leary v AG - Offs Ag State Act 1939 stated that a person found with certain incriminating documents is evidence that they are a member of an unlawful organisation unless it could be disproved. This breached right to trial in due course as it required people to prove their innocence. A reverse onus PRESUMPTION should NOT require the court to convict on the basis of the presumption of innocence.
DPP v Forsey - the Prevention of Corruption Act created a presumption of corruption relieving the prosecution of their burden. This was allowances as the presumption of innocence is not absolute. Proof obligations can be imposed.
Right to Silence
Right to Silence is a corollary of Art.40.6 right to freedom of expression but it is subject to public order and morality.
Heaney v Ireland - Off Ag State Act 1939 provided it was an offence to not give an account of your movements when requested by a Garda. This essentially criminalised the exercise of a constitutional right. It had to satisfy the proportionality test, which it did since the law afforded them protections minimizing the risk of the suspect wrongfully confessing to a crime.
Heaney and McGuinness v Ireland - the same provision above violated Art 6 ECHR presumption of innocence. In determining a criminal charge, everyone is entitled to a fair hearing by an independent and impartial tribunal established by law. The rationale to to protect against improper compulsion by the authorities to avoid miscarriage of justice. While the right to silence and privilege against self-incrimination are not absolute, the restrictions here went too far as the degree of compulsion destroys the essence of these rights.
Rock v Ireland - Criminal Justice Act allowed interferences to be drawn when a person does not account for certain matters. Rock was found in possession of forged US bank notes but refused to answer. This was constitutional as it was to protect the life, person and property of its citizens and was proportional. The inferences could not be the sole basis for a conviction.
Drawing of Inferences
SS.28-30 Criminal Justice Act 2007
Inferences that appear proper can be drawn
1. from the accused’s failure or refusal to account for any object, substance or mark on objects in his possession.
2. OR for his presence at a place at or about the time the offence was allegedly committed
3. OR when an accused does not mention any fact relied on in his defence but the circumstances clearly needs an explanation.
4. Inferences cannot form the sole basis for a conviction without other evidence.
This applies when the person is told of this effect and had a reasonable opportunity to contact a solicitor before his refusal and it is recorded by electronic means.
DPP v Wilson - adverse inferences can only be drawn for an offence a person is subsequently charged with.
