Section 42 Criminal Justice Act 1999 (Warrant)

detective

I had to use one of these this week in order to question an inmate. It sparked a small debate/argument at work in relation to the warrant's validity. A normal arrest warrant tends to be valid for a six month period, however, my colleagues have assured me that this warrant is only valid for 7 days.

I have searched the Garda guide and the 1999 Act itself and there doesn't appear to be any definitive answer. It states nothing on the warrant itself either. Even a penal warrant (6 month limit) states the time limit within its body so now I'm thinking this must be the subject of some case law which states it must be executed within 7 days.

Can any of my friends in the legal profession clarify this matter for us? Here's the warrant if it helps http://www.courts.ie/rules.nsf/53bd32841fc5bbf280256d2b0045bb5d/5469ae738784c6128025764f0059460b?OpenDocument

Tom Young

I haven't have time to check this in too much detail and will defer to my more criminally minded (in the professional sense) colleagues.

[Edit] Section 42 Deals only with the arrest and detention of prisoners in connection with investigation of other offences.

Now, I can only assume that that is not the relevant Section the the warrant itself, but in fact it is the Criminal Justice (Miscellaneous Provisions) Act 1997 Section 10, which dictates the duration of one week. This provision was amended by Section 6 of the 2006 Act, FYI.

I suspect therein is the answer.

Tom

detective

Well I don't think so Tom Young because the provisions of Section 10 of the 1997 act which you mention refer to a search warrant. From my experience all search warrants have a time limit actually specified in the warrant to search, including the Sec 10 which you mentioned. But an arrest warrant is different. I'm still baffled. I respect my colleagues in what they say about the 7 days but it bothers me that they can't "prove it".
But thanks for your input I need as much enlightenment as I can get!!

Tom Young

How may arrests be made?

1.Warrant
2.Without warrant, (majority of arrests) if common law or statute apply

An example of common law power of arrest?

Breach of the peace

Examples of arrest without warrant pursuant to Statute?

S. 4 Criminal Law Act 1997
S. 30 OAS Act 1939

What powers are conferred by S. 4 Criminal Law Act 1997?

Powers of arrest on any person & Garda re. arrestable offences

What is an arrestable offence? > 5 years prison , full capacity, no previous

Under Section 4 Criminal Law Act, 1997 - Who can arrest where an arrestable offence is being committed?

Anyone.

What sections are arrest warrants covered off under?

S. 5 Criminal Law Act, 1997

oldwan

not officially a warrant. section 42 is actually an 'authority' maybe here is
where they make the distinction?

detective

oldwan wrote: »

not officially a warrant. section 42 is actually an 'authority' maybe here is
where they make the distinction?

no warrants can authorise or command. sec 42 is a warrant alright. it says it on the top of it - warrant to arrest.

detective

Tom Young wrote: »

What sections are arrest warrants covered off under?

S. 5 Criminal Law Act, 1997

Correct. The section which you have mentioned covers this area but does not specify time limits.
Arrest warrants = bench, committal, penal, warrant to arrest/detain.
Bench/Committal = Indefinite/no time limitations
Penal = 6 months
Warrant to arrest (such as sec 42 cja '99 or sec 10 cja '84) = unspecified

Tom Young

detective wrote: »

Correct. The section which you have mentioned covers this area but does not specify time limits.
Arrest warrants = bench, committal, penal, warrant to arrest/detain.
Bench/Committal = Indefinite/no time limitations
Penal = 6 months
Warrant to arrest (such as sec 42 cja '99 or sec 10 cja '84) = unspecified

It may be that you're correct and there is some form of lacuna which has developed in relation to the carriage over of the one week practice. I had a look at the attachment and committal warrants, didn't spot a time limit.

detective

Tom Young wrote: »

It may be that you're correct and there is some form of lacuna which has developed in relation to the carriage over of the one week practice. I had a look at the attachment and committal warrants, didn't spot a time limit.

Thanks Tom, if a man with over 2, 500 posts can't spot it either then I'll feel a bit better. Still though, if anyone is aware of some case law in relation to this piece of legislation then it would be greatly appreciated!!

FreudianSlippers

I had a quick look on justis and didn't see anything. Didn't really have time to have a proper look though.

Bosco boy

The legal section in the Garda college will sort if for you fairly quick and maybe a wise skipper!!!

detective

Bosco boy wrote: »

The legal section in the Garda college will sort if for you fairly quick and maybe a wise skipper!!!

Wise skippers are telling me it's 7 days. Everything else is telling me its 6 months providing all other statutes of limitations are complied with. I thought everyone else in the GC have been disbanded/ re-routed (joke) because of the cut-backs.

Tom Young

detective wrote: »

Wise skippers are telling me it's 7 days. Everything else is telling me its 6 months providing all other statutes of limitations are complied with. I thought everyone else in the GC have been disbanded/ re-routed (joke) because of the cut-backs.

There are some fellas/gals who will know who contribute here. They are probably on vacation!

I didn't check the Statute of Limitations.

Tom

Bosco boy

detective wrote: »

Wise skippers are telling me it's 7 days. Everything else is telling me its 6 months providing all other statutes of limitations are complied with. I thought everyone else in the GC have been disbanded/ re-routed (joke) because of the cut-backs.

there's still life down there other than reserves! If i were you i'd get the warrant and deal with it within the 7 days and you can't go wrong, I know its probally bugging you. I think it probally is 7 days as it should be expected that a person would be dealt with promptly as they are in custody and it is pretty easy to find them, justice delayed and justice denied and all that jazz!

Selected

detective wrote: »

Thanks Tom, if a man with over 2, 500 posts can't spot it either then I'll feel a bit better.

Mr. Detective, I suggest re-reading the document, assiduously.

detective

Bosco boy wrote: »

there's still life down there other than reserves! If i were you i'd get the warrant and deal with it within the 7 days and you can't go wrong, I know its probally bugging you. I think it probally is 7 days as it should be expected that a person would be dealt with promptly as they are in custody and it is pretty easy to find them, justice delayed and justice denied and all that jazz!

yeah i did execute it after 6 days but i had just had a newborn home at the time and had planned to take a week or two off so thats how it came up. what you said is spot on in relation to easy to find them etc.

law86

This has me stumped; I have looked for authority on this but can't find reference to it anywhere. Bosco boy must be on the right track with justice delayed etc, but I'd be interested to see where it came from. Just wondering if the time limit could be related to maximum detention periods?

detective

law86 wrote: »

Just wondering if the time limit could be related to maximum detention periods?

I wouldn't think so as I believe Section 42 only applies to Section 4 detentions no matter what the alleged offence may be, i.e. no matter what he's accused of the police only have 24 hours to question him. Thanks for the input though it's all greatly appreciated.

Selected

Mr. Detective, has it ever crossed your mind the warrant you're trying to enforce may be an illegal, or, at the very least, a conflicted one?

FreudianSlippers

Selected wrote: »

Mr. Detective, has it ever crossed your mind the warrant you're trying to enforce may be an illegal, or, at the very least, a conflicted one?

I'm not quite sure what you mean by this... can you elaborate?

detective

Selected wrote: »

Mr. Detective, has it ever crossed your mind the warrant you're trying to enforce may be an illegal, or, at the very least, a conflicted one?

Yeah can you elaborate please? Are you referring to the section in general being illegal or just the warrant I may have had? I'm confused?

detective

Any more concrete ideas from our legal minded people on this one?

dermot_sheehan

This 6 month time limit on ordinary warrants comes from Order 26 rule 11 of the District Court Rules which provides:

11. Where a warrant, other than

—a warrant for the arrest of a person charged with an indictable offence,
—a warrant for the arrest of a person who has failed to appear in answer to a summons in respect of an offence,
—a bench warrant for the arrest of a person who has failed to appear in compliance with the terms of a recognisance, or
—a search warrant,

is addressed, transmitted or endorsed for execution, to any person and he or she is unable to find the person against whom the warrant has been issued or to discover where that person is or where he or she has goods, such person having the execution of the warrant shall return the warrant to the Court which issued the same (within such time as is fixed by the warrant or within a reasonable time, not exceeding six months where no time is so fixed) with a certificate (Form 26.4, Schedule endorsed thereon stating the reason why it has not been executed, and the Court may re-issue the said warrant, after examining any person on oath if the Court thinks fit so to do concerning the non-execution of the warrant, or may issue any other warrant for the same purpose from time to time as shall seem expedient.

This gives effect to section 33 of the Petty Sessions (Ireland) Act 1851 which requires unexecuted warrants to be returned within a reasonable period of time to the issuing authority:

Whenever the person to whom any warrant shall be so addressed, transmitted, or endorsed for execution, shall be unable to find the person against whom such warrant shall have been issued, or his goods, as the case may be, or to discover where such person or his goods are to be found, he shall return such warrant' to the Justices by whom the same shall have been issued within such time as shall have been fixed by such warrant (or within a reasonable time where no time shall have been so fixed), and together with it a certificate (G a.) of the reasons why the same shall not have been executed ; and it shall be lawful for such Justice to examine such person on oath touching the non-execution of such warrant, and to re-issue the said warrant again, or to issue any other warrant for the same purpose from time to time as shall seem expedient.

In Flynn v. Governor of Mount Joy (Barron J.) 6th of May 1987 this was considered, and it was held that fundamental fairness in execution of a bench warrant could render the detention illegal.

O'Connor's The Irish Justice of the Peace , Second Edition was cited as authority where the author says at page 74:

"A warrant remains in force until it is fully executed provided the Justice who signed it so long live……, and provided, it is submitted, also that the Justice continued to hold office.

Since a s. 42 warrant is a warrant for the arrest of a person charged with an indictable offence, it does not appear to be caught by the 6 month limit.

The reason why someone might regard it as authority to produce the prisoner as opposed to authority to arrest is the fact that the prisoner is already in lawful custody pursuant to the order committing him to prison. It could in some ways be regarded the same as a body warrant issued by a district court judge to a governor of a prison ordering that a prisoner be produced in court on a certain date.

The distinction with a body warrant however is the prisoner is being detained for the purposes of questioning under s. 4 of the Criminal Justice Act as opposed to being detained as punishment for their original offence. It is therefore an "arrest" for the purpose of questioning under s. 4 even though the prisoner was in lawful custody prior to the "arrest". The distinction exists in that the prisoner is in a different form of detention under the warrant as he can be questioned by gardai in a garda station as opposed to being loged in prison. The prisoner's original warrant of committal for the offence he was convicted for is directed to the governor of a prison and authorises his detention in a prison not a garda station. The gardai only have a power to arrest a prisoner if he is unlawfully at large under s. 7 of the Criminal Justice Act 1960 and that section does not allow them to detain the person for the purposes of questioning.

In any case it would be quite amazing if the gardai had trouble locating a person who is supposed to be in lawful custody in prison within 6 months to execute a s. 42 warrant.

The 7 day limit comes from the requirement that search warrants be executed within 7 days (s. 10 Criminal Justice (Miscellaneous Provisions) Act 1997

Potus

Had a thought on the interesting question posed by Detective.

Perhaps there was no time limit intended to be placed on the “execution” of such a warrant??

Such a warrant under section 42 (as amended) is necessarily a permission on the authority of a Judge of the District Court for the member of the Garda Síochána to arrest a person for the investigation of an offence.

I am minded of the dicta of Carney J. in the case of Dunne v Director of Public Prosecutions (Unreported, High Court, 6th June, 1996) wherein the Judge said of a warrant;

“A warrant of apprehension is a command issued to the gardaí by a court established under the Constitution to bring a named person before that court to be dealt with according to law. It is not a document which merely vests a discretion in the guards to apprehend the person named in it; it is a command to arrest that person immediately and bring him or her before the court which issued it. That it is a command rather than merely an authority or permission to arrest can clearly be seen from the terms of the warrant in the instant case.” (my emphasis)


So, it seems to me that Carney J. distinguished the “permission” as granted by a section 42 warrant (although they didn't exist at the time he delivered his judgement i'll admit) from that of warrants of apprehension which are commands to the Gardaí by a Court established under the Constitution to bring a named person before that court to be dealt with according to law.

The section 42 warrant is purely for the investigation of an offence and not for the bringing of the person named in the warrant immediately before the court. As such they fall outside of the provisions of the Order 26 rule 11 of the DCR as well as section 10 of the Criminal Justice (Miscellaneous Provisions) Act 1997 in the sence of what those provisions attempt to ensure.

Just my thoughts on the issue, and I'm in the same you Detective, but not in the legal text revision section of the GC.