Unlawful arrest

Fe1exams

Is it not an arrestable offence to possess child pornography??? so if it is, why does a garda need a warrant for the arrest? i am referring to the Judge Curtain case where the material was not allowed as evidence because it was not an arrestable offence and there was no warrant executed???

i am also looking at the area of arrest and detention which i dont understand ..i remember reading somewhere there was a catch all rule >> how can a garda can arrest a person for committing a minor offence such a an assault unser s2 nfoap 1997, when its not a serious or arrestable offence - over 5yr penalty

Surely there is a simple answer to all of this - thanks.

seb65

Fe1exams wrote: »

Is it not an arrestable offence to possess child pornography??? so if it is, why does a garda need a warrant for the arrest? i am referring to the Judge Curtain case where the material was not allowed as evidence because it was not an arrestable offence and there was no warrant executed???

i am also looking at the area of arrest and detention which i dont understand ..i remeber reading somewhere thee was a catch all rule >> how can a garda can arrest a person for committing a minor offence such a an assault unser s2 nfoap 1997 when its not a serious or arrestable offence - over 5yr penalty

surely there is a simple answer to all of this - thanks

I thought in the Curtin case, the warrant was to search his premises, not to arrest him. As the search was found to be illegal, all materials resultant from it were fruit from the poisoned tree, so to speak.

Fe1exams

grand - perhaps lets forget the specific example - im trying to understand a little more about arrestable offences....

- surely child pornography is an arrestable offence - therefore no warrant is needed....
- s2 nfoap 1997 is not an arrestable offence - so how can a garda arrest me if i assault someone in public infront of them... or s4,5,6 of the public order act 1994...

i think i know the answers to the two examples, but thats pointless if i dont understand why...
thanks

Tom Young

Start with where is an Arrestable Offence defined? Answer: S.4 Criminal Law Act 1997. Serious Offence should also be known for FE1s, from Bail Act 1997. Treason, Felony and Misdemeanor should also be well known, and their genesis/abolition in the CLA 1997.

Moving on from there, everything should be clearer.

MagicSean

You should try reading the legislation. Public order act contains a power of arrest. Common law grants a power of arrest for breach of the peace. And a person can be arrested on suspicion of a Section 3 assault and subsequently be charged with section 2

Fe1exams

Tom Young wrote: »

Start with where is an Arrestable Offence defined? Answer: S.4 Criminal Law Act 1997. Serious Offence should also be known for FE1s, from Bail Act 1997. Treason, Felony and Misdemeanor should also be well known, and their genesis/abolition in the CLA 1997.

Moving on from there, everything should be clearer.

The Act defines an arrestable offence as an offence for which a person could be punished by imprisonment for 5 years or more, similar to the definition of a serious offence.

-So the gardai lie about a s2 assault and arrest under the false suspicion of s3? that cant be right...

-S24 Public Order act 1994 > the arrest without warrant for a non arrestable offence..
(but still confusing as why would the leg say an arrestable offence is one with a penalty over 5 yrs when that is not true.. its a misleading and confusing definition)

Tom Young

What? That makes absolutely no sense.

Procrastastudy

There are many powers of arrest not just the power of arrest in arrestable offences.

Tom Young

Procrastastudy wrote: »

There are many powers of arrest not just the power of arrest in arrestable offences.

Yes of course. You'd be advised to look at the examiners reports to see what he's after, which is what I've indicated. Fe1exams seem to want to make very wide inquiries which are best dealt with by reading a CL book.

ResearchWill

Fe1exams wrote: »

The Act defines an arrestable offence as an offence for which a person could be punished by imprisonment for 5 years or more, similar to the definition of a serious offence.

-So the gardai lie about a s2 assault and arrest under the false suspicion of s3? that cant be right...

-S24 Public Order act 1994 > the arrest without warrant for a non arrestable offence..
(but still confusing as why would the leg say an arrestable offence is one with a penalty over 5 yrs when that is not true.. its a misleading and confusing definition)

Ok we must start with the idea that no one can be deprived of their liberty except in due course of Law.

Take the idea that the default position is arrest with warrant. Now There used to be common law exceptions to that, not so sure which still apply but from another thread I think the Common Law power still may exist in relation to breach of the peace.

Then statute allows a person to be arrested for a serious offence that is an offence for which 5 years or more can be imposed.

In relation to minor offences there are some statutory rights to arrest, example Drink Driving arrest for sample. Or Section 24 Public Order. In your example of section 2, well it could easily be a section 3 or 4 or you lunging for a person could be section 4 as you may do serious harm. In any case section 24 allows arrest if its section 6 "6.—(1) It shall be an offence for any person in a public place to use or engage in any threatening, abusive or insulting words or behaviour with intent to provoke a breach of the peace or being reckless as to whether a breach of the peace may be occasioned." So if a person is acting the total maggot in public there is a power to arrest, or the power to arrest if you refuse to move on.

MagicSean

You seem to be confused by the word arrest in the term arrestable offence. Try replacing the term arrestable offence with the word felony and then look at the legislation. It's not strictly correct but it might help your understanding.

Fe1exams

MagicSean wrote: »

You seem to be confused by the word arrest in the term arrestable offence. Try replacing the term arrestable offence with the word felony and then look at the legislation. It's not strictly correct but it might help your understanding.

good example thanks.
i def wouldnt recommend teaching yourself the syllabus to become a solicitor without a law degree.. this concept is the most basic thing in the world made confusing because law is so precise in one way and so vague in another... you cant trust any rule and dont expect it to state subject to exceptions.....gotta move on!!!!! enuff said

ResearchWill

Fe1exams wrote: »

good example thanks.
i def wouldnt recommend teaching yourself the syllabus to become a solicitor without a law degree.. this concept is the most basic thing in the world made confusing because law is so precise in one way and so vague in another... you cant trust any rule and dont expect it to state subject to exceptions.....gotta move on!!!!! enuff said

Well you have described law perfectly lol. Its all about this is the rule except when its not. To be honest to attempt FE1's without any legal course under your belt is going to be daunting. Best of luck.

NoQuarter

The problem youre having with arresting under s.3 if it was an s.2 is you are reading the definition of "arrestable offence" not fully.

“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;


The bold bit is why its ok to arrest under s.2, because it could easily be an attempt at s.3.

keano007

NoQuarter wrote: »

The problem youre having with arresting under s.3 if it was an s.2 is you are reading the definition of "arrestable offence" not fully.

“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;


The bold bit is why its ok to arrest under s.2, because it could easily be an attempt at s.3.

But its not ok In reality this almost never happens. It would make more sense to use S.24 public order act 1994. Its totally wrong IMO to arrest for an attempt of s.3 assault when one knows it's only s.2. That would be a total abuse of power.

ResearchWill

keano007 wrote: »

But its not ok In reality this almost never happens. It would make more sense to use S.24 public order act 1994. Its totally wrong IMO to arrest for an attempt of s.3 assault when one knows it's only s.2. That would be a total abuse of power.

In reality people are charged with section 3 everyday but plea or are found guilty of section 2. The difference between 3 and 4 is down to the medical report, how is a member of AGS arriving on a scene with guy on ground and other guy about to get a good kick in to know how much harm is about to be done. In my opinion the guy is attempting a section 4. He may only end up with a charge for section 2 but for the arrival of AGS it could have easily been murder.

If on the other hand a member arrived after all the trouble and there in no evidence of harm, then it would be a section 2 and no power to arrest. Unless some other issue arose. Or arrest under section 24 as you said.

MagicSean

A person shouldn't be arrested for a Section 3 assault unless they are going to be detained under section 4 of the CJA or charged with a section 3 assault.

ResearchWill

MagicSean wrote: »

A person shouldn't be arrested for a Section 3 assault unless they are going to be detained under section 4 of the CJA or charged with a section 3 assault.

Where does it say you must be charged with the offence you are arrested for.

Section 4 of Criminal Justice Act 1984 only allows detention for proper investigation of an arrestable offence.

Section 4 of the Criminal law Act 1997 allows arrest if an arrestable offence is about to be committed or has been committed.

MagicSean

ResearchWill wrote: »

MagicSean wrote: »

A person shouldn't be arrested for a Section 3 assault unless they are going to be detained under section 4 of the CJA or charged with a section 3 assault.

Where does it say you must be charged with the offence you are arrested for.

Section 4 of Criminal Justice Act 1984 only allows detention for proper investigation of an arrestable offence.

Section 4 of the Criminal law Act 1997 allows arrest if an arrestable offence is about to be committed or has been committed.

For what other purpose would you be arresting them if not to detain them or charge them with section 3. You cannot arrest them for a section 3 offence if you already know you are going to only charge them with section 2. That would be an unlawful arrest in my view

ResearchWill

MagicSean wrote: »

For what other purpose would you be arresting them if not to detain them or charge them with section 3. You cannot arrest them for a section 3 offence if you already know you are going to only charge them with section 2. That would be an unlawful arrest in my view

A person can be arrest and detained for investigation, after investigation be charged with lesser charge. Or released without charge while file goes to DPP who decides on lesser or no charge.

But I would agree with you if a member arrested for section 3, then at station straight away charged with 2 it may show he did not believe a section 3 had or was about to be committed.

NoQuarter

Im sorry but if you punch/hit/kick someone, that is an attempted s.3. If it transpires that there is no harm done after investigation well then the charge is s.2.

But it is completely acceptable to arrest for an attempt under s.3 using s.4 of the Criminal Law Act, 97.