Information to be given to a garda upon request
A garda may approach and ask any question of a member of the public in course of detecting and preventing crime.
Except for providing a name and address no person is obliged to answer garda questions.
Beyond this there is no obligation to answer any further question posed by a garda.
The Criminal Justice (Public Order) Act 1994, section 24 entitles a garda to demand name and address where they reasonably suspect that that a person has committed an offence. A failure to comply is an arrestable offence.
The person of whom the demand is made must be informed of the reasonable suspicion and the consequence of the failure to comply. Plain language is required to be used by the garda in explaining the specific offence believed to have been committed.
The procedure upon arrest
Arrest is for the purpose of ensuring a person answers a criminal complainant.
An arrested person will generally be taken into custody and charged with an offence or detained to allow for the offence to be investigated.
In what follows 'Statutorily detained' means the detention of a person who has been arrested but not charged so that the offence can be further investigated.
An arrested person may only be statutorily detained, for the purpose of investigation, in respect of offences which carry a penalty of five years or more. Generally detention will occur under s.4 Criminal Justice Act 1984. You are obliged to provide your name and address and a failure to do so is an offence.
This would capture some offence under the Criminal Justice (Public Order) Act 1994, (violent disorder/obstruction of a garda) and criminal damage but it would not extend to abusive behaviour in a public place or failure to comply with a direction of a garda.
Upon being charged with an offence after arrest the person will either be;
• Held in custody to appear in court or,
• Released on station bail to appear in court at a later date.
Where the garda have a doubt as to the arrested person’s identity/residency then station bail will be refused.
The rights of an arrested person
The arrested person, when taken into custody or detained must given notice of their rights and a Form C72. The form must be read over and explained to the arrested person.
The garda must make a record at the station of the arrest and custody
An arrested person, either in custody and/or statutorily detained, has the right to be informed of their entitlement to access to a solicitor and has a right of reasonable access to a legal adviser. A consultation with a solicitor can take place in sight of the garda but not within hearing.
An arrested person is entitled to have a family member or friend informed of the arrest. Also an arrested person may receive a visit from a family member/friend provided it can be adequately supervised.
An arrested person who is a foreign national is entitled to have their national consul informed of the arrest
An arrested person is entitled to make a free telephone call of reasonable duration.
An arrested person in custody may be searched. A search may not be conducted by a garda of the opposite sex. If the search involves the removal of underclothing then a doctor should, if practicable, be present.
A person in custody is entitled to such meals as are necessary, being two light and one main meal in a 24 hour period. A person may have a meal supplied at their own expense where reasonably practicable.
Persons of different sex are not to be placed in the same cell. Persons of the same sex should be where reasonably practicable be given single cells. A person of the opposite sex may not be visited by a garda of the opposite sex unaccompanied.
A person in custody is reasonably entitled to access to a medical doctor
Finger prints and photography
Where a person is in custody without being statutorily detained then voluntary consent must be given to the taking of fingerprints.
If a person is arrested and statutorily detained they can be photographed or fingerprinted under section 6(1)(c) of the Criminal Justice Act 1984 only if this has been directed by a garda not below the rank of superintendent.
If a person fails to allow the fingerprints or photo to be taken then reasonable force may be used if directed by a garda not below the rank of superintendent. The person must be informed of the intention to use force and of the fact that the direction has been authorized. The taking of such photographs and fingerprints and palm prints shall be video-recorded.
The consequences of refusing to answer a question
An arrested person enjoys the constitutional right to silence. An arrested person can to refuse to answer any question/provide any information on the grounds that it may incriminate them in respect of the offence for which they have been arrested.
This privilege does not extend to those questions that statute requires to be answered, in general this applies to scheduled offences under the Offences Against the State Acts.
Where a person is statutorily detained a failure to answer a question concerning
a) their presence at a location/mark or
b) a substance on their personal possessions
allows a court to draws inferences but is not conclusive of guilt.
If a garda has doubts as to the identity of a person arrested this can be a ground for refusal of station bail or court bail if the person is charged with an offence. A garda thus may to make a reasonable request of a person in order to establish their identity if there is a doubt as to same, this would include asking for some form of ID, be it a bankcard, passport or other form of identification. Likewise in certain circumstances a garda is empowered to demand a name and address where they suspect an offence has been committed. Failure to provide such information is grounds for an arrest.
The recent decision of the High Court (Dokie v DPP  IEHC 110)
referred to concerns offences under the Immigration Act 2004 which require a non national to produce a passport upon request. The result of this decision is that the specific criminal offence under consideration was unconstitutional and as a result a garda may now not make a demand under that specific piece of legislation.
This decision does not however alter the position of a person whom has
been (i) arrested and statutorily detained or (ii) demanded to establish their identity where a garda has a reasonable suspicion they have committed a certain offence. In both instances the onus moves to the person to satisfy the garda of their identity, by whatever means they wish which includes producing photographic id. The failure to do so results in being charged and/or refused bail.
Prepared by Martin McDonnell, Barrister at Law (firstname.lastname@example.org)
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