Arrest warrant and summary offence

pk82

Is it possible to obtain an arrest (not a bench) warrant for a summary only, non arrestable offence? Assume arrestee has no previous convictions.

I know a summons is the usual method, but is the obtaining of a warrant possible?

chops018

I think once a summons has been sent out and it has gone past the summons date a warrant can be issued for an arrest in order to make them appear in court.

pk82

chops018 wrote: »

I think once a summons has been sent out and it has gone past the summons date a warrant can be issued for an arrest in order to make them appear in court.

Yes, that is a bench warrant. I am not referring to that

I am talking about 'in the first instance'

NoQuarter

pk82 wrote: »

That only covers a summons doesn't it?

I am talking about an arrest warrant

Ya just deleted it, sorry, I read the wrong order. I'll have a look for you!

pk82

NoQuarter wrote: »

Ya just deleted it, sorry, I read the wrong order. I'll have a look for you!

deleted mine too :-))

chops018

Oh right. I didn't think you could get a warrant for a summary offence. I'll wait to see what NoQuarter puts up.

pk82

chops018 wrote: »

Oh right. I didn't think you could get a warrant for a summary offence. I'll wait to see what NoQuarter puts up.

I am 99% sure it cannot be done, but really interested to hear comment.

Especially if there is a 'workaround' to enable it

NoQuarter

pk82 wrote: »

I am 99% sure it cannot be done, but really interested to hear comment.

Especially if there is a 'workaround' to enable it

I cant find a basis for it. You've probably seen Order 16 of the DC Rules. Thats seems to be the relevant provision and all it mentions is "indictable offences".

Just note that an indictable offence is different to an arrestable offence.

What would be the summary offence in your hypothetical situation?

pk82

NoQuarter wrote: »

I cant find a basis for it. You've probably seen Order 16 of the DC Rules. Thats seems to be the relevant provision and all it mentions is "indictable offences".

Yes

Just note that an indictable offence is different to an arrestable offence.

But, I think, there would be very few indictable offences that are not arrestable. What do you think?

What would be the summary offence in your hypothetical situation?

e.g. Sec 11 NFOAPA 1997 or Sec 2 NFOAPA 1997

NoQuarter

Ok I have a way to do it:


So it's a summary only offence so you cant get an arrest warrent issued and cant even be arrested under s.4 of the criminal law act as its not an arrestable offence.

BUT

There is a common law power of arrest for breach of the peace so that is how you could be arrested.

Also, if an arrest warrant was issued, it could have been issued (or you could be arrested for a s.2) under s.18 of the Public Order Act, 1994 which makes "assault with intent to cause bodily harm..." a hybrid offence (summary & indictable).

The same with your s.11. It could fall under s.17 of the Public Order Act, you could be arrested under s.4 of the Criminal Law act because s.17 of the Public Order Act is an arrestable offence or s.24 of the public order act for commiting an offence under the Act, then detained and then subsequently charged with your s.2 and s.11 instead of the Public Order offences.

That make sense?

EDIT:

One more way once I thought about it: s.2 Criminal LAw Act, 1997 defines and arrestable offence as : “arrestable offence” means an offence for which a person of full capacity and not previously convicted may, under or by virtue of any enactment, be punished by imprisonment for a term of five years or by a more severe penalty and includes an attempt to commit any such offence;

Note it states: and includes an attempt to commit any such offence

So you could be arrested under s.4 CLA 97 because s.3 assault is an arrestable offence and s.2 could, on "reasonable suspicion" be an attempt at an s.3.

pk82

NoQuarter wrote: »

Ok I have a way to do it:


So it's a summary only offence so you cant get an arrest warrent issued and cant even be arrested under s.4 of the criminal law act as its not an arrestable offence.

spot on

BUT

There is a common law power of arrest for breach of the peace so that is how you could be arrested.

Yes, but AGS need to be present when the breach occurs (or is imminent)

The same with your s.11. It could fall under s.17 of the Public Order Act, you could be arrested under s.4 of the Criminal Law act because s.17 of the Public Order Act is an arrestable offence, detained and then subsequently charged with your s.2 and s.11 instead of the Public Order offences.

That make sense?

Possible, as it is public order would not AGS have to be present to effect an arrest under sec 17?
Is it enough to have 'reasonable cause' or some proof of a sec 17. having occurred without actually having been present?

AGS would have to state that the arrest is under sec 17 PO - they could not say the arrest is under sec 11 NFO and then later say it was sec 17 po - right?

Also it is a big leap from sec 11 NF to sec 17 PO. Is it not possible thta they could leave themselves open to an unlawful arrest as there was not enough proof or reasonable suspicion of a sec 17 having been committed (irrespective if they subsequently charge for sec 11) ??

NoQuarter

pk82 wrote: »

Possible, as it is public order would not AGS have to be present to effect an arrest under sec 17?
Is it enough to have 'reasonable cause' or some proof of a sec 17. having occurred without actually having been present?

AGS would have to state that the arrest is under sec 17 PO - they could not say the arrest is under sec 11 NFO and then later say it was sec 17 po - right?

No not "present" as the arrest isnt under section 17, the arrest is under section 24 of the public order act. It doesn ask for "reasonable suspicion".

Reasonable suspicion has been looked at by the courts on numerous occassions and it's basically where the Garda forms the suspicion and is honestly held on the basis of evidence available to them at the time.

You just seem confused about 1 part. If you lets say, steal and the offence is theft under section 4. You arent arrested under s.4 of the theft act, you are arrested under an act that gives the poweer of arrest. That would be s.4 of the criminal law act. Then if you are detained int he garda station, that is under another act again. Then you are finally charged with whatever offences fit.

NoQuarter

pk82 wrote: »

Also it is a big leap from sec 11 NF to sec 17 PO. Is it not possible thta they could leave themselves open to an unlawful arrest as there was not enough proof or reasonable suspicion of a sec 17 having been committed (irrespective if they subsequently charge for sec 11) ??

If the only charge was the s.11, then possibly.

But if the offence was an s.2 also, I can see at least 3 ways to be arrested for that and then if the s.11 is thrown on to the charges afterwards, that is fine.

pk82

NoQuarter wrote: »

If the only charge was the s.11, then possibly.

Getting a little away from my original enquiry

Lets leave out sec 2 and assume he arrests under Sec 11 NFOAPA - i.e AGS states that at arrest.

So:

- Arresting under a warrant is in this case is definitely not possible ?

- it is a non arrestable offence

- AGS cannot now say that they arrested under something other than sec 11 correct?

Conclusion is that such an arrest as described may be unlawful.



By the way, when I earlier said is there a 'workaround', I meant is there a 'workaround' to obtain a warrant for a summary offence

NoQuarter

pk82 wrote: »

Getting a little away from my original enquiry

Lets leave out sec 2 and assume he arrests under Sec 11 NFOAPA - i.e AGS states that at arrest.

So:

- Arresting under a warrant is in this case is definitely not possible ?

- it is a non arrestable offence

- AGS cannot now say that they arrested under something other than sec 11 correct?

Conclusion is that such an arrest as described may be unlawful.



By the way, when I earlier said is there a workaround I meant is there a workaround to obtain a warrant for a summary offence

OK, s. 2 aside.

If AGS specifically said "I'm arresting you under s.11 NFOAP Act", they are way off, as there is no power of arrest under that section, or that whole Act in fact.

Are you clear that you are never arrested under the offence they say you committed? The arrest power itself comes from entirely different provision, and you are later, charged/summoned for the offence itself.

eg:

Assault causing harm
1. Arrested under s.4 criminal law Act, 97 = power of arrest.
2. Detained under s.4 Criminal justice Act, 84 = power of detention
3. Charged/summoned under s.3 NFOAP Act = offence committed.

so for your demands for payment it would have to be:

1. Arrested under s.24 Public Order Act or common law (because the suspicion could be an offence under s.17 Public Order (similar to your s.11) or just regular breach of peace).

2. Detained under s.4 Crim Justice Act 84 (can do this now because s.17 is arrestable).

3. charged under s.11 NFOAP Act as it might have fit better (and rather that charge than a s.17 public order).

So that s the workaround to get a warrant for your arrest (because s.17 is indictable) or just simply arrested at the scene.

MagicSean

didn't we do this thread last week?

MagicSean

MagicSean wrote: »

didn't we do this thread last week?

Same Op too

http://www.boards.ie/vbulletin/showthread.php?t=2056743242&page=4

NoQuarter

MagicSean wrote: »

Same Op too

http://www.boards.ie/vbulletin/showthread.php?t=2056743242&page=4

Jesus OP, you need legal representation big time if this isnt for some big assignment.

pk82

NoQuarter wrote: »

Jesus OP, you need legal representation big time if this isnt for some big assignment.

Don't worry boys. :-) I am supplementing my info from elsewhere for this hypothetical situation

The detail about the warrant vis a vis summary offence was not really addressed in that other thread. It focussed more on common law power of arrest.

I did not get an exact answer at the time if a warrant can be obtained for a summary offence - which now it seems cannot.

It could be obtained e.g. for an indictable offence as indicated via the workaround route depicted - but then the warrant is being issued for an indictable offence and not a summary one.

As stated then they could probably just arrest you anyway as the indictable offence would *probably* be also arrestable

So it still stands: No warrant for a summary offence possible.

If AGS specifically said "I'm arresting you under s.11 NFOAP Act", they are way off,

I concur

Procrastastudy

During last weeks episode I dont think we ever got an answer to the question - did they then tell you it was something else once you got to the station?

NoQuarter

pk82 wrote: »

So it still stands: No warrant for a summary offence possible.

No ARREST warrant for a specific summary offence no. But if you were arrested and then subsequently charged with a summary only offence, your unlawful arrest argument would easily fail.

pk82

Procrastastudy wrote: »

During last weeks episode I dont think we ever got an answer to the question - did they then tell you it was something else once you got to the station?

We did get an answer - It was the same. Arrest and charge same

ResearchWill wrote: »

I doubt that as when OP was taken to GS he was given a charge sheet which charged him for the same offence he was arrested for.

Procrastastudy wrote: »

Ah thanks RWill - I completely missed that.