irish Search Laws

cavedave

What rights do you have in Ireland about being searched? Who can search you or your possessions and how much suspicion is needed to do so?
More specifically
Can the police search your car without probably cause. What does probably cause represent in such a case? If they can do "random" searches of a car or person is there some % of the time they have to be correct? Is the % of the time a non warrant using search is carried out and nothing is found known?

Similarly does the TV license man need a warrant to enter your house to "search" for a television?

In airports what search rights do the security have? Can they look through the files on your laptop for instance? Do they need a court issued warrant before they can strip search you?

These questions do not relate to any actual case I am just wondering what your rights in Ireland are.

IANAL (hullaballoo's test a/c)

The simple answer is that you don't have any. It's not an ideal position, but hey, the majority of people re-elected the government who put the laws in place that infringe personal rights. They only caveat is that they can only search your person on 'reasonable' suspicion. In practice, that could amount to almost any suspicion held by a Garda.

The Misuse of Drugs Act 1977 (s.23) and the Offences Against the State Act, 1939 (s.30) have the biggest impact on personal rights with regard to searches. The constitutionality of both have been upheld.

cavedave

Thanks for the info. Yes any person or vehicle can be search if the Garda "with reasonable cause suspects" http://www.irishstatutebook.ie/1977/en/act/pub/0012/sec0023.html#zza12y1977s23

That is a pretty scary law. Part c means items can seized if the may at a later date be used as evidence.

*edit the Offences Against the State Act, 1939 (s.30) is here http://www.irishstatutebook.ie/1939/en/act/pub/0013/sec0030.html#zza13y1939s30

IANAL (hullaballoo's test a/c)

If you think that's bad, you'd want to see what they've done to the Right to Silence! The Criminal Law Act 2007 basically removes the right to silence, with very little qualification.

I'm expecting legislation to remove that irritating thing called the presumption of innocence next.

CantGetNoSleep

cavedave wrote:

Thanks for the info. Yes any person or vehicle can be search if the Garda "with reasonable cause suspects" http://www.irishstatutebook.ie/1977/en/act/pub/0012/sec0023.html#zza12y1977s23

That is a pretty scary law. Part c means items can seized if the may at a later date be used as evidence.

*edit the Offences Against the State Act, 1939 (s.30) is here http://www.irishstatutebook.ie/1939/en/act/pub/0013/sec0030.html#zza13y1939s30

Does that mean that non drugs items found can also be used as evidence? Eg if they search you under that act can you be charged with firearms offences etc? Thats the part of it i see as scary, as they can suspect anyone of having drugs on them as an excuse to search almost randomly

On the other hand i dont know if i'd like to see a situation where a van full of drugs gets through customs as gardai cant search it without a warrant

IANAL (hullaballoo's test a/c)

CantGetNoSleep wrote:

Does that mean that non drugs items found can also be used as evidence? Eg if they search you under that act can you be charged with firearms offences etc? Thats the part of it i see as scary, as they can suspect anyone of having drugs on them as an excuse to search almost randomly

On the other hand i dont know if i'd like to see a situation where a van full of drugs gets through customs as gardai cant search it without a warrant

That's the pinnacle of the issue. Personally, I'd prefer to waive some of my constitutional rights, and let the Gardaí search me and interrogate me with next to no reason, then for drug traffickers or other serious offenders to have an easy life of it.

However, I do find the recent legislation re the Right to Silence very disturbing.

cavedave

Personally, I'd prefer to waive some of my constitutional rights, and let the Gardaí search me and interrogate me with next to no reason,

Feel free to waive your rights, I would rather not waive mine

then for drug traffickers or other serious offenders to have an easy life of it.

Particularly with drugs laws there is a lot of evidence around. Stuff dogs can sniff, previous convictions, all sorts of things that could be used to define what "reasonable" suspicion means, even a "you should be right 20% of the time" would put certain limitations on the ability to search people.

The problem is not with the Garda as they currently are. I generally regard them well. The problem is imagine supporters of your least favorite political party running and manning them. All of a sudden "reasonable suspicion" and "seizure of everything that might be evidence" could be you being thrown out of your house which is then seized. Then you being arrested for vagrancy. All on very limited grounds.

seamus

IANAL wrote:

That's the pinnacle of the issue. Personally, I'd prefer to waive some of my constitutional rights, and let the Gardaí search me and interrogate me with next to no reason, then for drug traffickers or other serious offenders to have an easy life of it.

Pretty much. Can't say I'd have a problem submitting to a search - the Gardai don't search people for the good of their health, so you'd have to be looking in some way dodgy to be searched in the first place.

Similarly does the TV license man need a warrant to enter your house to "search" for a television?

Yes. The general rule is that nobody can ever enter your home for any reason without your permission, or a warrant from the courts (although there are a few small exceptions). This includes Gardai, license inspectors, debt collectors, etc etc.

In airports what search rights do the security have? Can they look through the files on your laptop for instance? Do they need a court issued warrant before they can strip search you?

I not sure what specific powers they have, but I would suspect that bye-laws give them the power to search you for any item which may threaten the airport, its staff, or other passengers. Files on your laptop wouldn't include this.

From a contractual point of view, you book the flight on the agreement that you will be searched. If you don't want to be searched, then you choose to not board the flight, basically.

IANAL (hullaballoo's test a/c)

cavedave wrote:

Feel free to waive your rights, I would rather not waive mine

The waiver in question is compulsory viz. the legislation referred to above.

Particularly with drugs laws there is a lot of evidence around. Stuff dogs can sniff, previous convictions, all sorts of things that could be used to define what "reasonable" suspicion means, even a "you should be right 20% of the time" would put certain limitations on the ability to search people.

The problem is not with the Garda as they currently are. I generally regard them well. The problem is imagine supporters of your least favorite political party running and manning them. All of a sudden "reasonable suspicion" and "seizure of everything that might be evidence" could be you being thrown out of your house which is then seized. Then you being arrested for vagrancy. All on very limited grounds.

Well, there are some limitations, but yes, effectively you can get searched and arrested etc. on a hunch. The limitations come in when the matter gets to court: the reasonable cause part needs to be proved. However, anyone who even knows someone who's been arrested of drug-related offences will tell you that the average random search/arrest which results in a seizure of drugs will generally be concluded with, "now, tell us where you got the drugs, and you can be on your merry way".

In effect, when you're randomly searched, you can assert your rights in court, but it's unlikely the process will get that far.

Tom Young

I believe the 2006 CJA also inserted wider search powers for the Search, Seizure and retention.
Part 2.

Investigation of Offences
5. Designation of place as crime scene. **(This one being the most interesting)
6. Search warrants in relation to arrestable offences.
7. Power to seize and retain evidence. **(This one a close second)
8. Arrestable offences.
9. Amendment of section 4 of Act of 1984.

Forensic allowances: SS. 12 and 14. Photo's and Swabs.

Part 3. Deals with admission of hearsay, stemming from the Keane trial. (Hostile witness statements)

In support of IANALs comments: The relevant modifications to the right to silence are in Sections 28 and 30 of CJA 2007. 30 turns on and amends 19A of 1984 CJA in respect of failure to mention certain things:

- Now any garda and not just the arresting one may put the matters to the suspect.

- Matters that the suspect may be required to account for have been broadened. S 18 now covers the presence of any object, substance or mark, in any place where the suspect was during any specified time period and not just the place of arrest. Similarly s 19 now covers the accused’s presence at any particular place at or about the time of the offence, not just the place of arrest.

- Inferences may now only be drawn where the questioning is recorded, or where the accused has consented in writing to its not being recorded.

(ii) An extra section 19A has also been added: it provides that inferences may be drawn by the failure of the accused to mention any fact relied on in his defence. The effects of this section remain to be seen. Similar provisions, now repealed by this Act, only resulted in one reported case (DPP v Bowes), which merely reminded that the defence must trigger the provision by relying on facts.

19(5) Jury 'shall' have regard ...

19(1) Applies to all proceedings relating to an arrestable offence.

Possibly also important to note that the right to silence has been under 'common law' erosion for some time, e.g., DPP v. Kilpatrick, Rock, Heaney etc.

cavedave

The waiver in question is compulsory viz. the legislation referred to above.

It is compulsory. My "fine you do that if you want to but don't expect me to do it" is the standard humorous libertarian response to "i do not mind giving up some rights if.. I do not mind paying more taxes if..." and other such arguments.

the Gardai don't search people for the good of their health, so you'd have to be looking in some way dodgy to be searched in the first place.

As I said before. They do not in general (though some Donegal problems have occurred) but the problem is you cannot rely on the laws always being enforced by the good gardai we have now. Imagine Gardai that were bad with these powers.

5. Designation of place as crime scene. **(This one being the most interesting)

That one is weird. To get back to the TV license could thing not having one qualify a house as a crime scene? or some other minor crime that takes place in a house (a pirated dvd say)?

*edit This right to silence stuff is very interesting and relevant also. Just saying it is relevant in case someone gets accused of thread hijacking. The right to silence stuff is all part of the same discussion area.

seamus

cavedave wrote:

That one is weird. To get back to the TV license could thing not having one qualify a house as a crime scene? or some other minor crime that takes place in a house (a pirated dvd say)?

No. The act specifically states that the Garda must be authorised to be in the place before it can be designated a crime scene. They can't just accuse you of something at your door, then designate it as a crime scene to gain entry.

Tom Young

5. is rank based, here's the act: http://www.oireachtas.ie/documents/bills28/acts/2006/A2606.pdf

Tom Young

5. is rank based, here's the act: http://www.oireachtas.ie/documents/bills28/acts/2006/A2606.pdf

IANAL (hullaballoo's test a/c)

Additionally, most of the provisions refer to 'arrestable offences', which are generally offences carrying a sentence of 5 years imprisonment. So, the TV licence thing doesn't fit.

cavedave

No. The act specifically states that the Garda must be authorised to be in the place before it can be designated a crime scene. They can't just accuse you of something at your door, then designate it as a crime scene to gain entry.

Additionally, most of the provisions refer to 'arrestable offences', which are generally offences carrying a sentence of 5 years imprisonment. So, the TV licence thing doesn't fit.

Thanks for the information. It is good that there are some limitations on how bad a crime needs to be before search and seizure rights are altered.

The seizure laws around crime in general appear odd. "We are taking your house unless you can prove it is not bought from drug dealing income" seems to remove the presumption of innocence. Am I right in thinking this is roughly how the criminal assets bureau seizures work?

IANAL (hullaballoo's test a/c)

cavedave wrote:

The seizure laws around crime in general appear odd. "We are taking your house unless you can prove it is not bought from drug dealing income" seems to remove the presumption of innocence. Am I right in thinking this is roughly how the criminal assets bureau seizures work?

Yes, but it's akin to a special branch of the Gardaí, so they know who they're targeting. In which case, you or I won't be subjected to having our houses seized or bank accounts frozen unless we are involved in some nasty stuff.

johnnyskeleton

cavedave wrote:

That one is weird. To get back to the TV license could thing not having one qualify a house as a crime scene? or some other minor crime that takes place in a house (a pirated dvd say)?

I think this is just putting on a statutory footing what they were doing anyway, and they would only really use it for murder or rape (cases where real evidence is often required)

As for the TV licences, if you want to talk about an unjust law, there's one if there ever was. I don't think they even need to call around to people's houses, it is presumed that every house has a television.

cavedave wrote:

The seizure laws around crime in general appear odd. "We are taking your house unless you can prove it is not bought from drug dealing income" seems to remove the presumption of innocence. Am I right in thinking this is roughly how the criminal assets bureau seizures work?

There is no presumption of innocence in civil law. It is pretty easy to prove that a house was not bought with dirty money - bring in your mortgage statement. Ok, at least not dirty money from YOUR criminal activity.

cavedave

Yes, but it's akin to a special branch of the Gardaí, so they know who they're targeting. In which case, you or I won't be subjected to having our houses seized or bank accounts frozen unless we are involved in some nasty stuff.

Again you are relying on the good nature of the police rather then of the good nature of the law which seems unwise. Rights should not protect the guilty from prosecution they should protect the innocent from government tyranny.

seamus

cavedave wrote:

Rights should not protect the guilty from prosecution they should protect the innocent from government tyranny.

Now you're gone too far over the other side. The law must assume that government tyranny does not exist - that the government is elected by a population and thus is representative of that population. In an ideal world.

Legislators have to attempt to find the balance between providing the State (i.e. the Gardai representing the people) with the minimum means to protect themselves and maintaining the rights of the people.

The aim is to give those in power the *minimum* amount of powers they need to do their jobs. There's no way to guarantee that even these powers won't be misused - it's a matter of trust - but at the same time, there's no need to give them more power than they require.

cavedave

An equal application of law to every condition of man is fundamental.
-- Thomas Jefferson, to George Hay, 1807. ME 11:341

The law must assume that government tyranny does not exist - that the government is elected by a population and thus is representative of that population.

You have a point that fundamentally it is the people rather then documents that must stop dictators and such taking control.

I would say that the constitution should be such as to make it very difficult for tyranny to exist. Relying solely on what the population at any given time want rather then what are fundamental rights seems unwise. If the population decided in the morning that slavery should be brought back in they would be wrong and no law made could make them right*. Sorry this is getting into "The Open Society and Its Enemies" territory and away from strictly legal (as opposed to political) discussion.

*edit or to put it better

All, too, will bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will, to be rightful, must be reasonable; that the minority possess their equal rights, which equal laws must protect, and to violate which would be oppression.
-- Thomas Jefferson, First Inaugural Address, March 4, 1801

IANAL (hullaballoo's test a/c)

Quoting an ex-President of the US doesn't give any weight to your argument. Politicians characteristically say things that they think the majority of people want to hear. Lawyers don't (e.g., Michael McDowell).

Anyway, the discussion you're getting at has little to do with the constitutional infringements in question here. Your argument is touching on the difference between positive law and natural law.

(Very) broadly speaking, natural law tries to take into account morals and 'right' against 'wrong' in law-making, and interpreting law. Positivists take the law at face value, and don't pretend that 'right' and 'wrong' (in the moral sense) come into the debate. Generally, the courts in this country have, since 1922, fluctuated between being predominantly positivist, and predominantly natural lawyers.

For a good example of how far wrong both schools can go, see The State (Ryan) v Lennon [1935] IR 170. There's no real answer to the question of which school is right, but in my opinion, a proper balance between the two (though not possible in theory) works in practice.

To use your slavery example (seriously, why does it need to be so extreme? It's far easier for us to strike down an extremist argument than something in the middle-of-the-road like, say, euthanasia), there are a number of reasons why, if the majority of Irish people wanted to legalise it, it could not be done. The UN Charter, The ECHR, and Bunreacht na hÉireann each have safeguards in place that mean slavery can never be re-introduced without revision of what are generally referred to as fundamental rights (notably here, equality, right to earn a living, liberty and many, many more).

If the Irish people did change the constitution to legalise slavery, the EU (and probably the US) would step in immediately and shut us down (if you'll forgive the colloquialism). If the entire EU got infected with some variant of the Rage virus, went crazy, and decided to legalise abortion, the the UN (and probably the US) would immediately step in and we might bear witness to in interesting (if devastating) war.

Anyway, that's all rubbish because it's never going to happen.

With regard to the police, and their role, the CAB is a very specialised unit, and those who are involved in it are the cream of the crop (just as Special Branch members are). So, whatever prejudices operate in your mind against the Garda walking the beat in your area, pestering kids, boy-racers and everyone else, out of sheer boredom, can be allayed as against CAB/Special Branch, or any other specialised unit of the police - they're jobs are anything BUT boring, and they simply wouldn't have the time to go about seizing your house or my house.

Incidentally, they can't just press a button and freeze accounts/seize assets. They have to apply to the courts to do so - and in applying, they have to convince the courts that the infringement of rights is necessary, and that they have sufficient reason to believe their course of action to be validated.

cavedave

Quoting an ex-President of the US doesn't give any weight to your argument

sorry i was quoting it for eloquence rather then as an authority.

Politicians characteristically say things that they think the majority of people want to hear. Lawyers don't (e.g., Michael McDowell).

Good thing Jefferson never worked as a laywer, and that Mcdowell never went into politics..

natural law tries to take into account...

Thank you for the information. It explains some of the reasoning you here from court cases.

To use your slavery example

That was a bit of a strawman, but the natural law buck does have to stop somewhere.

if the majority of Irish people wanted to legalise it, it could not be done.

so there are constraints on the "will of the people", which seems to be a good thing.

With regard to the police, and their role, the CAB is a very specialised unit, and those who are involved in it are the cream of the crop (just as Special Branch members are). So, whatever prejudices operate in your mind against the Garda walking the beat in your area, pestering kids, boy-racers and everyone else, out of sheer boredom, can be allayed as against CAB/Special Branch, or any other specialised unit of the police - they're jobs are anything BUT boring, and they simply wouldn't have the time to go about seizing your house or my house.

I like and trust the police. The problem is not the current Garda it is what could a really bad bunch do with unjust laws. It is the laws that bother me rather then the Garda.

Fundamentally having laws that impinge on basic rights that are ok "because they only apply to scumbags" seems a really bad idea. The history of this island or pretty much any country should show that.

I have a problem with justice based on who the Sunday Wuurld decides to name after a woodland animal

IANAL (hullaballoo's test a/c)

cavedave wrote:

Fundamentally having laws that impinge on basic rights that are ok "because they only apply to scumbags" seems a really bad idea. The history of this island or pretty much any country should show that.

Where the rights are infringed, it is said to be justified on the basis of the proportionality between the infringement and the objective of the laws. For example, in Heaney & McGuinness v Ireland the ECtHR decided that provisions which require that a person give a full account of movements on request were in violation of a.6 of the ECHR if failure to do so was a criminal offence (re s 52 OASA 1939). It was felt that the objective of preventing and detecting subversive (terrorist etc.) activity, whilst a valid objective, could not justify infringement of the right to silence to this extent.

Conversely, the same court has decided that infringing the right to silence to the extent of drawing reasonable inferences is ok (Condron v UK), once the jury is adequately warned. (Note: the approach is varying in this jurisdiction, see Rock v Ireland; Finnerty Case.)

I have a problem with justice based on who the Sunday Wuurld decides to name after a woodland animal

Thankfully, so do the courts.