Arrest and judicial review

jd80

hi


Can a suspected illegal arrest by the gaurds be subjected to judicial review or are such things exempt from JR?

does JR just determine legality - does it give compensation or does the latter require a separate civil case?

Links to JR in superior Court Rules (didn't understand them):

http://www.courts.ie/rules.nsf/8652fb610b0b37a980256db700399507/a53b0f76ffc6c5b780256d2b0046b3dc?OpenDocument


http://www.courts.ie/rules.nsf/SuperiorAmdLookup/No84-S.I.+No.+691+Of+2011:+Rules+Of+The+Superior+Courts+(Judicial+Review)+2011



thanks

Victor

Surely Habeas Corpus would apply?

jd80

Victor wrote: »

Surely Habeas Corpus would apply?

dont know, would it?

I mean an arrest and then released - but the arrest itself is illegal

also the rules above state

(2) The expression "order of habeas corpus" does not include an order made pursuant to Article 40 section 4 of the Constitution.

40.4.1 deals with liberty and it not allowed to be taken save in accordance with law


So does that mean you can or cant have a JR for an illegal arrest ???

ThreeLineWhip

Action for damages for unlawful imprisonment.

jd80

ThreeLineWhip wrote: »

Action for damages for unlawful imprisonment.

Yes

but by Judicial review or what?

Does JR determine legality only or also award damages?

ThreeLineWhip

You would have to issue proceedings in civil court for damages.

jd80

ThreeLineWhip wrote: »

You would have to issue proceedings in civil court for damages.

Yes that is clear but if one wants a court to state that 'yes that arrest was illegal' then MUST one go the route of JR?

If one does go that route will a JR aALSO ward damges or does one have to take the civil action afterwards?

johnnyskeleton

jd80 wrote: »

Yes that is clear but if one wants a court to state that 'yes that arrest was illegal' then MUST one go the route of JR?

As you've been told several times, no.

If one does go that route will a JR aALSO ward damges or does one have to take the civil action afterwards?

It is possible but unlikely.

If someone is seeking damages for an unlawful arrest they should bring a civil claim. Better yet, they should see a solicitor if they want legal advice.

jd80

johnnyskeleton wrote: »

As you've been told several times, no.

Less of the attitude - I still haven't been told what a JR is for if you can go the route of a civl action instead especially now as you say it is possible but unlikely that aJR will award damages

johnnyskeleton wrote: »

Better yet, they should see a solicitor if they want legal advice.

Really? Any good ones on here or all students?

I saw one for the last 6 months - very reputable allegedly

That would surely explain why the stupid c*nt mentioned none of this, ignored my correspondence and I have to resort to the Internet to find out information not advice


I fired him - didnt know the f**king basics or couldnt be arsed

Milk & Honey

jd80 wrote: »

Less of the attitude - I still haven't been told what a JR is for if you can go the route of a civl action instead especially now as you say it is possible but unlikely that aJR will award damages



Really? Any good ones on here or all students?

I saw one for the last 6 months - very reputable allegedly

That would surely explain why the stupid c*nt mentioned none of this, ignored my correspondence and I have to resort to the Internet to find out information not advice


I fired him - didnt know the f**king basics or couldnt be arsed

You haven't asked what a JR is for. You have asked can it be used in a particular context.
There are books written about Judicial review. Most of them are large volumes. This is a discussion site not an educational service.
There are numerous judgements in judicial review cases on the courts.ie. website. If you read a few of them you should be able to work out what a Judicial review is for.

ThreeLineWhip

http://en.wikipedia.org/wiki/Judicial_review_in_Ireland

Judicial review in Ireland is a way for the Superior Courts to supervise the Oireachtas to make sure that legislation does not conflict with the Constitution. "Superior Courts" refers to either the High Court of Ireland or the Supreme Court of Ireland and is a specific reference to the greater width of their jurisdiction in comparison to Ireland's lower courts (that is, the District Court and the Circuit Court). An applicant for judicial review in Ireland must start by applying for leave to seek judicial review. This acts as a filter of entirely spurious or unfounded matters. Having been granted leave, the applicant must then remake the entire application for judicial review whereupon the Court will set a date for hearing.
All judicial review in Ireland is conducted by the High Court unless the applicant wants a review of any decision, activity, ruling or rule of the High Court whereby the review shall be conducted by the Supreme Court (including appeals of decisions previously made in High Court judicial reviews)

So you can't JR the Gardaí. All you can do is sue them for damages.

ddel

jd80 wrote: »

Less of the attitude - I still haven't been told what a JR is for if you can go the route of a civl action instead especially now as you say it is possible but unlikely that aJR will award damages



Really? Any good ones on here or all students?

I saw one for the last 6 months - very reputable allegedly

That would surely explain why the stupid c*nt mentioned none of this, ignored my correspondence and I have to resort to the Internet to find out information not advice


I fired him - didnt know the f**king basics or couldnt be arsed

If you were arrested i assume you were charged. If so - did you have a day in court?

jd80

ddel wrote: »

If you were arrested i assume you were charged. If so - did you have a day in court?

not yet - upcoming - but an illegal arrest does not cancel a charge apparently

Stupid solicitor should have initiated a Jr (if possible) or civil action - might have made the gaurds more inclined to strike out their action or at least make them look like muppets

whereby I can still initiate civil action - I just wanted to know if the JR would have been possible and the better thing to do.

a positive result from a JR would mean the civil action would only really be a formality

Maybe that is the wrong way to think though

ddel

jd80 wrote: »

not yet - upcoming - but an illegal arrest does not cancel a charge apparently

Stupid solicitor should have initiated a Jr (if possible) or civil action - might have made the gaurds more inclined to strike out their action or at least make them look like muppets

The case can be dismissed because of an illegal arrest and the verdict/opinion of the judge to that effect could be the bedrock of your civil action. On a seperate angle, is the garda onbudsman appropriate in such instances?

jd80

ddel wrote: »

The case can be dismissed because of an illegal arrest and the verdict/opinion of the judge to that effect could be the bedrock of your civil action.

Hmmm! I have the information that that is NOT the case i.e.. the charge will not be dismissed

Have you any case law to back that up or are you talking from experience in the DC?

ddel wrote: »

On a seperate angle, is the garda onbudsman appropriate in such instances?

I am compiling the ombud report myself having being completely let down by my solicitor - he never mentioned the ombud

A JR would have been good as it would have been a judge saying 'yes, they were wrong'

The ombudsman does not always get to the bottom of things as referred to in the following article.

Thie proceedings in this article could have been a JR - as the judge 'gave leave' to sue the State then it could not have been a civil case

http://www.irishexaminer.com/ireland/man-with-autism-cleared-to-sue-state-and-gardai-over-arrest-205767.html

johnnyskeleton

jd80 wrote: »

Less of the attitude - I still haven't been told what a JR is for if you can go the route of a civl action instead especially now as you say it is possible but unlikely that aJR will award damages

Here now, you come on here demanding answers and then get stroppy when you don't like them. If you want to be told what a jr is for, do a law degree.

ResearchWill

rinsedpie wrote: »

A friend caught an 18yearold African boy shoplifting in his groceries today; caught him as he was about to reach the door; garda was called; shockingly they warned him that the boy could sue him as he HAS NOT MADE IT OUT OF HIS SHOP YET and therefore couldnt be arrested..and he was released! My friend got his merchandise back. LOL! the law in this country almost favours the criminals. If that boy was caught in his native country, he would have been beaten senseless.

I call bull on that.

jd80

johnnyskeleton wrote: »

Here now, you come on here demanding answers and then get stroppy when you don't like them. If you want to be told what a jr is for, do a law degree.

Leave me alone, we are having a good discussion here.

Even without a law degree, I know more than some of he solicitors I have attended - pure waste of time.

If I found a good one, I would really appreciate him/her.

ResearchWill

ThreeLineWhip wrote: »

http://en.wikipedia.org/wiki/Judicial_review_in_Ireland

So you can't JR the Gardaí. All you can do is sue them for damages.

Mmmm don't always believe what Wikipedia says.

Slightly better info http://www.citizensinformation.ie/en/government_in_ireland/national_government/standards_and_accountability/judicial_review_public_decisions.html

jd80

ResearchWill wrote: »

Mmmm don't always believe what Wikipedia says.

Slightly better info http://www.citizensinformation.ie/en/government_in_ireland/national_government/standards_and_accountability/judicial_review_public_decisions.html

Bingo! just about to quote it but you beat me to it

Also http://www.courts.ie/rules.nsf/8652fb610b0b37a980256db700399507/a53b0f76ffc6c5b780256d2b0046b3dc?OpenDocument (which is linked in that Citizens info page)

and which was in my original post

So I think the Gaurds can be subjected to a JR, but do not see the sense of it exactly if that JR only ascertains if the action was legal or not (a civil action would do the same AND award damages would it not?)

ThreeLineWhip

Correct.

MagicSean

rinsedpie wrote: »

A friend caught an 18yearold African boy shoplifting in his groceries today; caught him as he was about to reach the door; garda was called; shockingly they warned him that the boy could sue him as he HAS NOT MADE IT OUT OF HIS SHOP YET and therefore couldnt be arrested..and he was released! My friend got his merchandise back. LOL! the law in this country almost favours the criminals. If that boy was caught in his native country, he would have been beaten senseless.

Allof that is incorrect.

jd80 wrote: »

not yet - upcoming - but an illegal arrest does not cancel a charge apparently

Stupid solicitor should have initiated a Jr (if possible) or civil action - might have made the gaurds more inclined to strike out their action or at least make them look like muppets

Ah yes... blackmail. And your solicitor didn't advise you on how to use the law in this manner? The nerve.

There are a number of things that may be invalidated if the arrest is illegal. Admissions or obtained evidence would be good candidates. Really it all depends on the specific circumstances.

ddel

jd80 wrote: »

Hmmm! I have the information that that is NOT the case i.e.. the charge will not be dismissed

Have you any case law to back that up or are you talking from experience in the DC?



I am compiling the ombud report myself having being completely let down by my solicitor - he never mentioned the ombud

A JR would have been good as it would have been a judge saying 'yes, they were wrong'

The ombudsman does not always get to the bottom of things as referred to in the following article.

Thie proceedings in this article could have been a JR - as the judge 'gave leave' to sue the State then it could not have been a civil case

http://www.irishexaminer.com/ireland/man-with-autism-cleared-to-sue-state-and-gardai-over-arrest-205767.html

I think you may have an inaccurate view of a case being dismissed. If the gardai decide to drop the case that would result (in most cases) in a strike out. You may have been told there is no hope of a strike out. A Judge can dismiss a case at any point in the proceedings and you would hope the reason for your case being dismissed would be due to any issue with the arrest. Obviously you need a defence sol/barrister to argue this in Court. The Judge will not pick out an issue with the arrest unless it's raised and proved.

Pat Mustard

jd80 wrote: »

Even without a law degree, I know more than some of he solicitors I have attended - pure waste of time.

I heard a defendant say something similar in court some time back. The Judge replied: "You're one of those, are you?".

Dunning & Kruger categorised this phenomenon as follows:

The Dunning–Kruger effect is a cognitive bias in which unskilled individuals suffer from illusory superiority, mistakenly rating their ability much higher than average. This bias is attributed to a metacognitive inability of the unskilled to recognize their mistakes.

jd80

MagicSean wrote: »

Ah yes... blackmail. And your solicitor didn't advise you on how to use the law in this manner? The nerve.

You must be a poor solicitor or rather law student given the way you twist my meaning.

Nothing to do with blackmail and how dare you insinuate such.

Solicitor should have advised on Jr or civil action - did not

AGS could have decided themselves if they wish to press ahead or have their Inspector look like a muppet in the court especially given he strenuously denied arrest and then AGS subsequently admitted it days later in writing

MUPPETS

jd80

The Mustard wrote: »

I heard a defendant say something similar in court some time back. The Judge replied: "You're one of those, are you?".

Really? Well Judge Kennedy did not say that when I beat a solicitor, barrister and their client in the Circuit Court nor Judge Haughton in the DC (CivIl actions)

Do you want the case file no?

The Dunning–Kruger effect is a cognitive bias in which unskilled individuals suffer from illusory superiority, mistakenly rating their ability much higher than average. This bias is attributed to a metacognitive inability of the unskilled to recognize their mistakes.:

Rather SOME of the solicitors I have engaged suffer from this.

Again: i would appreciate a good solicitor if I could find him/her

Pat Mustard

jd80 wrote: »

Really? Well Judge Kennedy did not say that when I beat a solicitor, barrister and their client in the Circuit Court nor Judge Haughton in the DC (CivIl actions)

Do you want the case file no?

You have an honest face.

jd80

ddel wrote: »

I think you may have an inaccurate view of a case being dismissed. If the gardai decide to drop the case that would result (in most cases) in a strike out. You may have been told there is no hope of a strike out. A Judge can dismiss a case at any point in the proceedings and you would hope the reason for your case being dismissed would be due to any issue with the arrest. Obviously you need a defence sol/barrister to argue this in Court. The Judge will not pick out an issue with the arrest unless it's raised and proved.

Thank you.

I understand your point and am aware that the Judge may dismiss at any point.

I was told that an unlawful arrest will not cancel the charge itself

I suppose it is up to the judge whether he/she dismisses it on that point or carries on.

I suppose that decision would be be a function of his experience, would a greater injustice be done by dismissal or even how he feels on the day ...

jd80

The Mustard wrote: »

You have an honest face.

Yes, I thought that would quieten the doubting masses



The fact that I was telling the truth and had all the documentation to prove it on the balance of probability (and beyond had it been required)

AND

the confidence and ability to present the cases won the cases for me

Pat Mustard

jd80 wrote: »

Yes, I thought that would quieten the doubting masses

The fact that I was telling the truth and had all the documentation to prove it on the balance of probability (and beyond had it been required)

AND

the confidence and ability to present the cases won the cases for me

I have ya now.

valleyoftheunos

OP

The appropriate time to have your arrest challenged and/or declared illegal would be upon hearing of the charges against you. A JR would not be necessary.

If the Prosecution intends to use any evidence obtained whilst you were detained the prosecution will have to prove that your arrest and detention was lawful. That involves calling the arresting Garda and Member in Charge as witnesses and having them enter evidence about how and when you were arrested and detained etc.

jd80

valleyoftheunos wrote: »

OP

The appropriate time to have your arrest challenged and/or declared illegal would be upon hearing of the charges against you. A JR would not be necessary.

If the Prosecution intends to use any evidence obtained whilst you were detained the prosecution will have to prove that your arrest and detention was lawful. That involves calling the arresting Garda and Member in Charge as witnesses and having them enter evidence about how and when you were arrested and detained etc.

Hypothetically speaking if an arrest were unlawful would the resulting charge be unlawful?

My info to date is that it would not be.

hypothetically speaking no other info was garnered by AGS form the accused

valleyoftheunos

jd80 wrote: »

Hypothetically speaking if an arrest were unlawful would the resulting charge be unlawful?

My info to date is that it would not be.

hypothetically speaking no other info was garnered by AGS form the accused

No the charge would not necessarily be unlawful. However any evidence gained during detention following that arrest would be unlawful and inadmissible. The charges would almost certainly have to be dismissed.

I would of course be open to AGS to rearrest you outside the court and charge you again.

MagicSean

jd80 wrote: »

You must be a poor solicitor or rather law student given the way you twist my meaning.

Nothing to do with blackmail and how dare you insinuate such.

Solicitor should have advised on Jr or civil action - did not

AGS could have decided themselves if they wish to press ahead or have their Inspector look like a muppet in the court especially given he strenuously denied arrest and then AGS subsequently admitted it days later in writing

MUPPETS

Your posting style and attitude seem similar to a person who posted here before by the name of JC. Not the same person by any chance?

Victor

The Mustard wrote: »

I heard a defendant say something similar in court some time back. The Judge replied: "You're one of those, are you?".

Dunning & Kruger categorised this phenomenon as follows:

aka the unknown unknowns.

Pat Mustard

Victor wrote: »

aka the unknown unknowns.

It seems so, Mr. Rumsfeld!

“When people are incompetent in the strategies they adopt to achieve success and satisfaction, they suffer a dual burden: Not only do they reach erroneous conclusions and make unfortunate choices, but their incompetence robs them of the ability to realize it. ...they are left with the erroneous impression they are doing just fine.”

It might go somewhere towards explaining the recent rash of Freemen adopting kamikaze legal strategies in courtrooms nationwide.

Some litigants are just too incompetent to realise their own limitations.

jd80

MagicSean wrote: »

Your posting style and attitude seem similar to a person who posted here before by the name of JC. Not the same person by any chance?

No, not the same person.

Not that you will believe that, I assume?

jd80

The Mustard wrote: »

Some litigants are just too incompetent to realise their own limitations.

The emphasis having to be on 'some', given my experience I detailed earlier.

Like I also said several times, if I could find a good solicitor especially for this matter, I would appreciate him/her.

I would be more than happy for someone competent to take the weight from me.

Unfortunately, that has not been the case. Do you think it is good enough that a solicitor leaves his client 'in the dark' for three months, ignoring the client's requests to make contact?

Milk & Honey

jd80 wrote: »

not yet - upcoming - but an illegal arrest does not cancel a charge apparently

Stupid solicitor should have initiated a Jr (if possible) or civil action - might have made the gaurds more inclined to strike out their action or at least make them look like muppets

whereby I can still initiate civil action - I just wanted to know if the JR would have been possible and the better thing to do.

a positive result from a JR would mean the civil action would only really be a formality

Maybe that is the wrong way to think though

Were you in a position to pay for a JR or civil action?

Pat Mustard

jd80 wrote: »

I would be more than happy for someone competent to take the weight from me.

Unfortunately, that has not been the case. Do you think it is good enough that a solicitor leaves his client 'in the dark' for three months, ignoring the client's requests to make contact?

No, I don't think that it is good enough to ignore a client for three months.

You are looking for a new solicitor. I would suggest that you should get a family member or a friend to recommend a solicitor who may either be in a position to advise you himself or else give you an impartial recommendation on a solicitor to advise you.

I'm pretty sure that the mods frown on boards.ie users recommending solicitors.