"Statuteless" Detention

detective

In relation to Gardai detaining people following arrest for S.4 Public Order Act 1994 or breach of the peace involving intoxication is there any case law pertaining to the detention?

S.16 RTA puts it in a statutory footing for drink drivers but Gardai rely on common law to detain other intoxicated people as far as I know. Is there case law at all?

I'm not referring to cases where a lawful statutory detention is applied for by arresting member, e.g. S.4, S.50 etc.

MagicSean

Well if the person is being charged they can't really be charged or bailed until they are in a condition to understand what they are signing.

johnnyskeleton

There's a power of arrest under common law for breach of the peace apparently:

http://www.courts.ie/judgments.nsf/6681dee4565ecf2c80256e7e0052005b/40ea083a9ebd7676802572430061cf6d?OpenDocument&Highlight=0,thorpe

Thorpe v. DPP (Murphy J)

There are more serious breaches of the peace which are offences under common law and others which are simply preventative in nature and not being an offence nor being susceptible to a penalty. Both are subject to a power of arrest.

detective

MagicSean wrote: »

Well if the person is being charged they can't really be charged or bailed until they are in a condition to understand what they are signing.

Lets say they aren't being charged. Where is the power to detain here? I know it exists but I'm unsure if it's etched in case law somewhere.

detective

johnnyskeleton wrote: »

There's a power of arrest under common law for breach of the peace apparently:

http://www.courts.ie/judgments.nsf/6681dee4565ecf2c80256e7e0052005b/40ea083a9ebd7676802572430061cf6d?OpenDocument&Highlight=0,thorpe

Thorpe v. DPP (Murphy J)

There are more serious breaches of the peace which are offences under common law and others which are simply preventative in nature and not being an offence nor being susceptible to a penalty. Both are subject to a power of arrest.

Thanks for that. Very interesting reading indeed but I'm really concerned with the detention issue here.

johnnyskeleton

detective wrote: »

Thanks for that. Very interesting reading indeed but I'm really concerned with the detention issue here.

Arrest necessarily involves a level of detention i.e. physical restraint. I'm not 100% but conceiveably such restraint of liberty would last until the danger of a breach of the peace is gone i.e. when they sober up.

I assume that you are not talking about detention for the purpose of interview, and since most of the case law arises from applications to exclude admissions, I'm not sure if there is anything specifically on point.

Presumably you are talking about a situation where a person is arrested and complains that they should be released, or conceiveably bringing a civil claim for false imprisonment on the basis that there is no power to detain for one's own good.

I suppose until such a case arises, the law will not be clarified. Isn't there something about how a person can be detained under section 49(8) until such time as they are in a fit state to leave garda custody?

These little, less litigated issues, are usually very interesting.

MagicSean

I've always assumed a maximum time of 6 hours for sobering up. You are probably aware of the recent change to section 4 detentions which allow for a doctor to suspend questioning for up to six hours for a prisoner to sober so that gives a good benchmark. I do recall being told the six hour rule in class but I'm not sure if it's common law or old statute.

Its really a balancing act. His right to freedom versus your duty of care. If he needs longer than six hours you would probably be sending him to hospital.

detective

johnnyskeleton wrote: »

I suppose until such a case arises, the law will not be clarified. Isn't there something about how a person can be detained under section 49(8) until such time as they are in a fit state to leave garda custody?

These little, less litigated issues, are usually very interesting.

Yeah S.16 RTA gives the Gardai 6 hours to detain people. In the job most Gardai believe you have 6 hours to detain drunk people full stop but unlike S.16 it's not etched in statute.

I think magicsean is correct in his use of the words duty of care covering the detention.

source

detective wrote: »

johnnyskeleton wrote: »

I suppose until such a case arises, the law will not be clarified. Isn't there something about how a person can be detained under section 49(8) until such time as they are in a fit state to leave garda custody?

These little, less litigated issues, are usually very interesting.

Yeah S.16 RTA gives the Gardai 6 hours to detain people. In the job most Gardai believe you have 6 hours to detain drunk people full stop but unlike S.16 it's not etched in statute.

I think magicsean is correct in his use of the words duty of care covering the detention.

The key for intoxication is in the wording of the offence, you're arresting them because you believe they are a danger to themselves or others. Once arrested there is a duty of care over that person until the member believes the danger no longer exists....ie they sober up.

mcgarrett

If he is in custody and is intoxicated you are duty bound to detain him until he is fit for release or can be released into the custody of someone sober and willing to take responsibility for him.

Common law covers you under your oath to "protect life".

detective

http://www.justice.ie/en/JELR/Summary Report PDF version.pdf/Files/Summary Report PDF version.pdf

The above report was very critical of a similar Garda detention. Gardai stated they detained because (a) the juvenile's father didn't take custody of him and (b) the juvenile was intoxicated.

The report specifically states that the fact a parent won't take a juvenile from a Garda station does not make a detention lawful. It doesn't really go into the fact that the juvenile was intoxicated though.

johnnyskeleton

detective wrote: »

http://www.justice.ie/en/JELR/Summary Report PDF version.pdf/Files/Summary Report PDF version.pdf

The above report was very critical of a similar Garda detention. Gardai stated they detained because (a) the juvenile's father didn't take custody of him and (b) the juvenile was intoxicated.

The difficulty is how would one challenge it on a practical basis? It wouldn't be challenged in a criminal trial because nothing of evidential value comes of it. In a civil trial you would have to show a Garda acted maliciously. Perhaps in an article 40 application you could challenge it, but if someone had thecognitive ability to bring an art 40 they are probably sober enough to be released.

detective

Maybe there's a difference between juveniles and adults... I understand there'd be no point launching a legal challenge because tou couldnt rid any evidence and I always thought Gardai were covered in the duty of care aspect too but in a situation like the aforementioned report where the prisoner dies the detention is dissected in every detail and the outcome of same doesn't fill me with confidence.

mcgarrett

In circumstances such as are outlined in that report where:

(1) The father is not interested.
(2) The mother is 80 miles away.
(3) There is no responsible adult available to take care of the child.

It would appear that section 12 Child Care Act could be invoked.

johnnyskeleton

detective wrote: »

Maybe there's a difference between juveniles and adults... I understand there'd be no point launching a legal challenge because tou couldnt rid any evidence and I always thought Gardai were covered in the duty of care aspect too but in a situation like the aforementioned report where the prisoner dies the detention is dissected in every detail and the outcome of same doesn't fill me with confidence.

I can't find the specific analysis of whether the detention was lawful or not. It could have been found to be unlawful for technical reasons, and they may not have considered every aspect of it. Certainly, Thorpe was probably not opened to them.

Detention also has a specific meaning in that it usually refers to detention for the purposes of interview. The physical restraint while waiting for something to happen e.g. court to become available or a person to sober up is technically part of the arrest. Perhaps this distinction was not made before the tribunal?

For example, when a person is arrested for the purpose of charge, they have to be brought to a district court judge as soon as is reasonably possible. This could mean 10 minutes or it could mean Christmas Weekend if there is no judge available on Christmas day. The test is not how long the person can remain arrested for, but rather at what point does the condition for their arrest cease? In the case of arrest for charge it ceases when they could reasonably bring the person before a District Court Judge, whether they actually do or not. In the case of the breach of the peace arrest, logic would suggest that they can be arrested until the breach of the peace ceases. In practical terms, this would be when the person is no longer likely to cause a breach of the peace.

Finally, you have to remember that Tribunals of inquiry are not law courts. They do not set precedent or establish legal rulings. Instead, they form opinions of fact and law. It is entirely possible that the keeping of him in the garda station was criticised as a consolation to the family so that they have something to blame without attributing too much specific blame on the Gardai.

I would be reasonably confident that if this came before the courts in 2011 the issue would not be so clear cut.

detective

johnnyskeleton wrote: »

Finally, you have to remember that Tribunals of inquiry are not law courts. They do not set precedent or establish legal rulings. Instead, they form opinions of fact and law. It is entirely possible that the keeping of him in the garda station was criticised as a consolation to the family so that they have something to blame without attributing too much specific blame.

Surely a detention is either lawful or unlawful and there isn't a middle ground... similar to pregnancy!?!?! If it is lawful then it shouldn't be open to criticism. If it is unlawful, and the report plainly stated it was unlawful, then why was it unlawful if the prisoner was intoxicated.

I expect the criticism was nothing to do with consoling the family and if it was its cold comfort to the Gardai if they did their jobs correctly (relating to the detention only)... if that is the case.

johnnyskeleton

detective wrote: »

Surely a detention is either lawful or unlawful and there isn't a middle ground... similar to pregnancy!?!?! If it is lawful then it shouldn't be open to criticism. If it is unlawful, and the report plainly stated it was unlawful, then why was it unlawful if the prisoner was intoxicated.

As I said, logically and based on Thorpe such a detention would appear to follow from the common law power and if a person was arrested for breach of the peace, logically that person should not cease to be so arrested until the breach of the peace ceases. I'm not saying that the tribunal was wrong, but I would say that it is not good authority for suggesting that such a deprivation of liberty is not permitted. I can't see the specific point where they discuss the unlawfulness of the detention, I have only seen them state that they find it unlawful without any real analysis. However, I have only briefly perused it so if you can point that part of it out to me that might be of assistance.

Maybe, for the purposes of the inquiry, it was accepted by all sides that there was no lawful detention which would not be an unusual concession to make in the circumstances. Perhaps it was not litigated in any great detail because that was outside of the terms of the inquiry's reference. Perhaps no one put forward any viable justification for the detention. Perhaps the problem with the detention is not that there isn't a power to detain in these circumstances, it is that they invoked the wrong procedure i.e. there was something about getting the father's consent under false pretences. Without seeing the specific reasons and what was argued before the inquiry we don't know.

detective wrote: »

I expect the criticism was nothing to do with consoling the family and if it was its cold comfort to the Gardai if they did their jobs correctly (relating to the detention only)... if that is the case.

It is often said that justice is a result that neither side is entirely dissatisfied with.

McCrack

Two observations on that report. Firstly it's a summary and the Dept didn't publish the full report. Its terms of reference were completely restrictive.

The Gardai suggested to have the child held citing it being best for his own protection and that was agreed. There was and is no legal basis for the Gardai doing so. A civil action was ultimately taken by the Rossiter family against the State for wrongful death and unlawful detention was thrown into the bag. Significant damages were awarded.

johnnyskeleton

McCrack wrote: »

Two observations on that report. Firstly it's a summary and the Dept didn't publish the full report. Its terms of reference were completely restrictive.

The Gardai suggested to have the child held citing it being best for his own protection and that was agreed. There was and is no legal basis for the Gardai doing so. A civil action was ultimately taken by the Rossiter family against the State for wrongful death and unlawful detention was thrown into the bag. Significant damages were awarded.

But is the reason for that because there is no power to keep a person in custody or is it due to breaches of the treatment of persons in custody regulations? Neither the above reportnor newspaper articles make that clear.

McCrack

In this particular instance it was a combination of things that where not done correctly (and indeed things done that shouldn't have been done) and one of those was the unlawful detention of Brian Rossiter by the Gardai.

There is simply no statutory basis for detention of people for Public Order offences. Of course people can be held if they are a danger to themselves or others (by reasons of intoxication) but this is entirely subjective on the Gardai's part.

Kevin3

Licensing (Ireland) Act, 1874
S.25 Every person who, in any highway or other public place, whether a building or not, is so drunk as to be incapable of taking care of himself, may be detained by any Garda until he can, with safety to himself, be discharged, but if so detained he shall be summoned in due course to answer for such offence.

Can't find a link for the act but it's in the Garda Guide.

detective

McCrack wrote: »

There is simply no statutory basis for detention of people for Public Order offences. Of course people can be held if they are a danger to themselves or others (by reasons of intoxication) but this is entirely subjective on the Gardai's part.

But the boy was arrested for S4&6 Public Order which showed the arresting Garda believed he was a danger onto himself or others. The report accepts this as lawful.

Are you saying that if the MIC had the same opinion as the arresting Garda then the detention would have been lawful?

MagicSean

Kevin3 wrote: »

Can't find a link for the act but it's in the Garda Guide.

The old legislation isn't available online most of the time. I was thinking there was a statutory basis somewhere, I didn't think it was that old though.

McCrack

I don't want this to get bogged down into a specific case but in that case there wasn't any question on the lawfulness of the arrest (it was accepted that the child was lawfully arrested) but the detention on foot of the arrest that followed was unlawful.

The Gardai had and have no basis simpliciter to detain a person arrested for a Public Order offence except obviously to process them.

MagicSean

McCrack wrote: »

I don't want this to get bogged down into a specific case but in that case there wasn't any question on the lawfulness of the arrest (it was accepted that the child was lawfully arrested) but the detention on foot of the arrest that followed was unlawful.

The Gardai had and have no basis simpliciter to detain a person arrested for a Public Order offence except obviously to process them.

Its a case of damned if you do and damned if you dont. No power to detain them but liable if you release them and they walk in front of a car. That's why a person should not be kept unless they are going to be charged.

McCrack

Common sense and judgement prevails in these circumstances.

If a person cant stand because of intoxication they cant be released. Anything less intoxicated than that I would be of the opinion that it's suspect to continue the detention. Being drunk and/or high is not sufficient. Being paralytic drunk is.

johnnyskeleton

Again arrest and detention have specific and general meanings. Detention meaning detentionfor questioning is not permitted for minor public order. But that's not what happened here. What this is about is what you might call a prolonged arrest where the person is deprived of their liberty for an extended period either for the purposes of charge or because they pose a danger to themselves or to others or because there is a continuing breach of the peace or risk of a breach of the peace.

I think there are a number of statutory and a common law powers set out in this thread so I don't accept the bare assertion that there is no power to detain (in the sense of keep them in a Garda station) without there being any real consideration of these arguments by the courts.

But on the specific issue as to whether a person being kept in a Garda station because of intoxcation without an express statutory provision, to suggest that this is not possible would appear illogical in the face of Mr Justice Murphys decision above.

So in the rossiter case it is clear they found the "detention" unlawful but what is no so clear is why.

johnnyskeleton

McCrack wrote: »

There is simply no statutory basis for detention of people for Public Order offences. Of course people can be held if they are a danger to themselves or others (by reasons of intoxication) but this is entirely subjective on the Gardai's part.

but isn't tat the source of confusion? Wasn't he simply held until he sobered up rather than being detained in the criminal law sense of the word? That the gardai treated it as a detention requiring a custody record, checks and so forth was an additional benefit conferred by them, yet they should somehow be criticised for that? Moreover, by asking the father to take him and when he said no asking him to agree to the detention seems like good common sense and courtesy by the gardai.

It is always very sad when a child dies, but it is also quite annoying that a dead child often makes common sense go out the window.

Without knowing the specifics and without hearing the evidence I cannot categorically state that the inquiry was wrong nor can isay that te state were wrong to settle with damages. But IMO if the supposed lack of a power to keep him in a Garda station and to fill out a custody record was a reason to criticise the gardai I am of the view that they were wrong.

McCrack

Anybody arrested and conveyed to a Garda Station has the benefit of the Custody Regulations which includes proper and accurate recording of the arrest, Notice of Rights, times etc etc in the custody record and regular checks if detained in a cell.

Again I don't want to get into specifics of that case because its not supportive of this discussion. It is an example to demonstrate however the illegality of detaining people for Public Order offences.

Kevin3

Wasn't the issue in this case that the child should have been released into the custody of his parent on his arrival. If he was an adult there would have been no issue with the actual detention.

A lot of people have died in garda custody while sobering up. The actual lawfulness of their detention has never been an issue in any of the subsequent enquiries of the cases I'm aware of.

MagicSean

Kevin3 wrote: »

Wasn't the issue in this case that the child should have been released into the custody of his parent on his arrival. If he was an adult there would have been no issue with the actual detention.

A lot of people have died in garda custody while sobering up. The actual lawfulness of their detention has never been an issue in any of the subsequent enquiries of the cases I'm aware of.

But didn't the parent refuse to take him? So it was an option of throwing an intoxicated juvenile out on his own or leaving him in a cell.

Although as someone else pointed out the Gardaí could now use Section 12 the take custody of the juvenile and bring give him to the HSE but I'm not sure if that was available back then.

Kevin3

MagicSean wrote: »

But didn't the parent refuse to take him? So it was an option of throwing an intoxicated juvenile out on his own or leaving him in a cell.

Although as someone else pointed out the Gardaí could now use Section 12 the take custody of the juvenile and bring give him to the HSE but I'm not sure if that was available back then.

I don't think he refused. He basically came to the conclusion with the guard that a night in the cells would do him no harm.

The garda should have insisted that the father brought him home. If he refused, which probably wouldn't have happened, section 12 could have been used which is from the child care act of 1991 which was long in use when the incident happened in 2002.

johnnyskeleton

McCrack wrote: »

Again I don't want to get into specifics of that case because its not supportive of this discussion. It is an example to demonstrate however the illegality of detaining people for Public Order offences.

But can you clarify what you mean? Do you mean detaining as in the legal phrase meaning a detention for the purposes of questioning under a specific statutory power, or do you mean detaining a person who has been arrested?

In the former, you are correct (insofar as it relates to minor public order offences) but that is not what is being discussed.

Instead, what is being discussed is the bringing of an arrested person into a garda station on foot of an arrest for a public order offence. There are a number of lawful bases for this:
1) arrest for the purposes of charge;
2) section 24 arrest;
3) common law arrest for breach of the peace (Thorpe);
4) section 25 Licencing (Ireland) Act 1874 (Thanks Kevin3).

The report simply dismisses the possibility of the lawfulness of the person being in the garda station at the time. However, there are a number of lawful bases upon which he could have been kept there.

So with respect, it is not enough to simply point to the decision of inquiry (which, in any event, does not give a reasoned decision as to why none of the above are valid) and say that it is an example to demonstrate the illegality of detention for a public order offence. There must be a reason why the detention was found to be unlawful, and given all the above statutory and common law powers, I can't see how his remaining in the garda station was an unlawful detention, nor do I see it as authority for the proposition that such a detention is unlawful. Where someone is intoxicated so as to be a danger to themselves or others, or is continuing to commit a breach of the peace, they can be arrested by the Gardai until that danger or beach of the peace has passed. That seems reasonably clear to me from the sources identified above.

McCrack

I am referring to detention for the purposes of the proper investigation of an offence.

There is no power to detain a person under the Public Order Act longer than is necessary to process them.

Public Order is not caught by S4 of the CJA 1984 which is the statutory basis for most detentions in this State.

Thorpe was concerned with Common Law Breach of the Peace. The Common Law in respect to arrest is to bring a person before a court to answer a charge. The Common Law does not recognise detention for the purposes of investigating a crime.

detective

McCrack wrote: »

The Common Law does not recognise detention for the purposes of investigating a crime.

But does the common law recognise detention for the purpose of allowing an arrested person to sober up and solely to sober up?

johnnyskeleton

McCrack wrote: »

I am referring to detention for the purposes of the proper investigation of an offence.

There is no power to detain a person under the Public Order Act longer than is necessary to process them.

ok, but that's not what the thread is about. No one, afaik, is suggesting a detention for the purposes of interview.

Public Order is not caught by S4 of the CJA 1984 which is the statutory basis for most detentions in this State.

some public order offences are, but that's a side point.

The issue, which seems to lack some clarity is why the inquiry suggested the detention was unlawful when there is ample authority for what was done. Detention, in this regard, is the wrong term but was used by the inquiry.

More generally, the OP is quite rightly concerned that gardai exercising powers to prevent a drunk from going out and breaching the peace or injuring themselves/others could be criticised if there is some issue of law that the inquiry considered but we have not.

dermot_sheehan

I wouldn't see any problem with detaining someone until charge before the next sittings of the District Court.

There is no absolute right to station bail, it's discretionary.

MagicSean

johnnyskeleton wrote: »

ok, but that's not what the thread is about. No one, afaik, is suggesting a detention for the purposes of interview.



some public order offences are, but that's a side point.

The issue, which seems to lack some clarity is why the inquiry suggested the detention was unlawful when there is ample authority for what was done. Detention, in this regard, is the wrong term but was used by the inquiry.

More generally, the OP is quite rightly concerned that gardai exercising powers to prevent a drunk from going out and breaching the peace or injuring themselves/others could be criticised if there is some issue of law that the inquiry considered but we have not.

Maybe it was found that at the time of the fathers arrival he was no longer intoxicated to a degree that would justify detaining him.

mcgarrett

Arrests under Section 4 and 6 of the Public Order Act are dealt with by:

(1) Charge and release.
(2) Held due to intoxication and released when sober or in care of a responsible person. (charged or summonsed)
(3) If charged after 5pm, can be held and brought before the District Court before 12 noon the following day.

In the Rossiter case, the Garda seeking written permission from the parent to detain Brian suggests that the Garda didn't believe he was drunk or drugged enough to be a danger to himself if released.

There is also a possibility that the investigating Garda may not have been in a position to charge him as approval from the National Juvenile Office may have been required.

Hindsight is an advantage but, "here's your son Mr. Rossitter take him home and look after him" was the course of action.

In answer to the OP, you take your pick from 1,2 or 3 above.

johnnyskeleton

MagicSean wrote: »

Maybe it was found that at the time of the fathers arrival he was no longer intoxicated to a degree that would justify detaining him.

Exactly. That or some other case specific reason.