help needed rapid.!

fireblade93

Hi guys a friend of mine got a phone call off a guard yesterday saying the my friend was
Speeding, no L plates, no full license driver.. my friend admitted that he was max 5mph over the limit overtaking a car but he had L plates and a full licensed driver but the guard doesn't believe this, as he overtook this same guard, bear in mind this guard was off duty on his way home when this happened and he stated this to my friend on the phone.. The guard wants him to be at the guard station for 9pm tonight so he can look at his car to see if it's road legal all because there was a break light out.. my friend driver a 03 car that passed the nct the same day this happened.. I think the guard is looking for a reason to get him into the station with the car so he can find something to do him over or to impound the car.! I don't think the guard can do anything to him as he was off duty.. is there any truth in this and any advice on what to do.? Also my friends panicking now because he has his medical for the army this month and the last thing he needs is trouble with the guards.. any help or advice greatfully appreciated

ABajaninCork

Tell your mate to present himself at the station when the Gard tells him to. Have all the documents to hand. Bring the friend who was in the car at the time.

It's possible the brake light blew after the NCT. Remember - All the NCT will say is the car was road legal at the time it was tested. Fix it before you present the car to the Gard. Doesn't cost a lot, and doesn't take long...

And yes - AFAIK, the Gard doesn't have to be on duty to nick someone.

Pro Hoc Vice

ABajaninCork wrote: »

Tell your mate to present himself at the station when the Gard tells him to. Have all the documents to hand. Bring the friend who was in the car at the time.

It's possible the brake light blew after the NCT. Remember - All the NCT will say is the car was road legal at the time it was tested. Fix it before you present the car to the Gard. Doesn't cost a lot, and doesn't take long...

And yes - AFAIK, the Gard doesn't have to be on duty to nick someone.

But what power does AGS have to demand or request a persons presents at a given time and place with a car and another person. I'm not saying he does not have the power to do so I'm asking where is such a power.

Of course a Garda can request anything he wants but unless he has a power it remains a request and no more.

I agree a Garda does not need to be on duty to charge a person with a road traffic offense.

ABajaninCork

I have assumed that the Gard gave the friend a producer? Is that the case, OP?

billy few mates

I'd dismiss it as a prank call, if the Gardai want to speak to me they know where I live....

daz1988

arrive at the station on time and make sure an have a full licence driver with him again as some guards tried that around here make sure the car is working correctly as in bulbs and the lot once everything is there and on the windscreen he is ok as the speedo in his car can be slighty out you have a small km usage just make sure and be there and with a full licence driver with him

billy few mates

Why...?
I wouldn't go if I received a call like that, that's not how AGS go about their business. If there was any follow up I'd say I thought it was a prank caller, if they did want to speak to me about something like this I'd invite them to call round to my house so we could discuss the matter.

fireblade93

I was just talking to him there and he said that the guard is saying that he was doing 120 in an 80 zone.? But he said the car that he passed was a good bit behind him but he was on the limit the whole time after he passed him, so how would the guard be able to tell what speed he was doing from that distance.? If they wer both doing the speed limit and there was a big difference in the distance of the cars the guard wouldn't ave been able to tell his speed as he wouldn't have been close enough.? But if he did try catch up the guards speedo would be going faster in order to catch him so his judgement of the speed my friend done would be off anyways.? It doesn't seem fair to me being honest.. and if the guard does do him for it the poor chap will lose his place in the army

Little CuChulainn

fireblade93 wrote: »

I was just talking to him there and he said that the guard is saying that he was doing 120 in an 80 zone.? But he said the car that he passed was a good bit behind him but he was on the limit the whole time after he passed him, so how would the guard be able to tell what speed he was doing from that distance.? If they wer both doing the speed limit and there was a big difference in the distance of the cars the guard wouldn't ave been able to tell his speed as he wouldn't have been close enough.? But if he did try catch up the guards speedo would be going faster in order to catch him so his judgement of the speed my friend done would be off anyways.? It doesn't seem fair to me being honest.. and if the guard does do him for it the poor chap will lose his place in the army

How will he lose his place in the army?

The Garda is giving him an opportunity to avoid a prosecution on some of the offences. He can take it or not. If he doesn't, it's unlikely the Garda will go away. Your friend obviously did something to draw his attention and piss him off to the extent that he followed it up himself. The fact he was off duty is completely irrelevant.

Aint Eazy Being Cheezy

Tell your 'friend' not to go. You don't have to say or do anything to incriminate yourself, showing up with the car is just presenting the garda with an opportunity to find fault, or get you to sign a statement.

Stay at home, and if you do hear anymore about it, just say what the other poster said; that you thought it was somebody playing a joke on you.

coylemj

Duracell Bunny wrote: »

Stay at home, and if you do hear anymore about it, just say what the other poster said; that you thought it was somebody playing a joke on you.

+1 It does sound like a windup.

OP, how did the Garda get your friend's phone number?

The Gardai can't make any kind of formal demand over the phone, ignore it.

Little CuChulainn

coylemj wrote: »

+1 It does sound like a windup.

OP, how did the Garda get your friend's phone number?

The Gardai can't make any kind of formal demand over the phone, ignore it.

Is there legislation or caselaw to support the claim that a formal demand cannot be made over the phone?

I'd be fairly sure this is not a windup and doing nothing will not make it go away.

sw33t_r3v3ng3

OP don't bother going. A family member of mine was pulled over by a guard for going through a red light, her and the passenger both said they didnt. He told her to go to the station with licence etc and that shed be receiving a summons in the post.

She went down said she was stopped, showed the person on duty her license and he said "That's grand there". And off she went. No summons no fine. Nothing. Just shows that they actually don't give 2 sh*ts. Id say not to bother going because they'll probably just forget about it.

coylemj

Little CuChulainn wrote: »

Is there legislation or caselaw to support the claim that a formal demand cannot be made over the phone?

Even if there is, the Garda can't prove that he/she was speaking to a specific individual so any prosecution which relies on such a demand wouldn't stand up. It's face to face or a formal document or nothing.

No demand for the production of licence and insurance and talk of a broken brake light when the guy was overtaking him at 120 kph?

If it was a Garda, they would have asked the OP's friend to nominate a Garda station to which they would attend to produce licence and insurance. It doesn't work the other way around, hence I say it's a windup.

Pro Hoc Vice

Little CuChulainn wrote: »

Is there legislation or caselaw to support the claim that a formal demand cannot be made over the phone?

I'd be fairly sure this is not a windup and doing nothing will not make it go away.

A formal demand for what, either AGS have a power or not I can think of no power AGS have to tell a person be in a certain place at a certain time with a certain object that sounds like arrest to me and there sure as hell is no power of arrest for speeding or driving unaccompanied.

If is formal demand to produce documents that's with in a certain time at nominated station.

Five Lamps

Sounds like a wind up.

Does the Garda know the driver - it wouldn't have been possible for him to know if the driver was the owner of the car and what type of licence that person held.

Call the Garda station and ask to confirm the appointment.

RustyNut

Little CuChulainn wrote: »

Is there legislation or caselaw to support the claim that a formal demand cannot be made over the phone?

I'd be fairly sure this is not a windup and doing nothing will not make it go away.

Would it be an offence for the friend to ignore the call ?

ABajaninCork

Did the OP's mate get a producer? We still don't know...

Little CuChulainn

Five Lamps wrote: »

Sounds like a wind up.

Does the Garda know the driver - it wouldn't have been possible for him to know if the driver was the owner of the car and what type of licence that person held.

Call the Garda station and ask to confirm the appointment.

Garda can make a demand on the owner to state who was driving. Failure to comply is an offence in itself. Garda stations don't have appointment books. Gardai keep their own appointments. Best ops friend can do is confirm the Gardas name.

Potus

fireblade93 wrote: »

Hi guys a friend of mine got a phone call off a guard yesterday saying the my friend was
Speeding, no L plates, no full license driver.. my friend admitted that he was max 5mph over the limit overtaking a car but he had L plates and a full licensed driver but the guard doesn't believe this, as he overtook this same guard, bear in mind this guard was off duty on his way home when this happened and he stated this to my friend on the phone.. The guard wants him to be at the guard station for 9pm tonight so he can look at his car to see if it's road legal all because there was a break light out.. my friend driver a 03 car that passed the nct the same day this happened.. I think the guard is looking for a reason to get him into the station with the car so he can find something to do him over or to impound the car.! I don't think the guard can do anything to him as he was off duty.. is there any truth in this and any advice on what to do.? Also my friends panicking now because he has his medical for the army this month and the last thing he needs is trouble with the guards.. any help or advice greatfully appreciated

Little CuChulainn wrote: »

Is there legislation or caselaw to support the claim that a formal demand cannot be made over the phone?

I'd be fairly sure this is not a windup and doing nothing will not make it go away.

Sorry for being late to the discussion. Have read the other views expressed here. I would support the view that a Garda can't make a demand over the telephone. However a Garda can make a lawful demand as per section 69 road traffic act 1961 (as amended) for associated documents post an incident.

I can't post links here as it says I'm a new user but have a look at the legislation anyway. It makes no mention of over the telephone demands. What is not permissible in law is therefore ultra vires the Garda's powers (above the law) if they do make them anyway.

It appears that the Garda can only require a vehicle to be brought to a place for examination after having first stopped it. (Section 20 (2) (a) RTA 1961) and to my mind there is no provision in law aside from this unless the Garda subsequently seizes the vehicle as evidence following a serious accident.

Another point worth remembering is that a Garda cannot give uncorroborated evidence of speeding if he/she didn't have a speed detection device in use at the time of the alleged speeding. Section 21(4) of the Road Traffic Act 2002 provides as follows..."if proof of the offence involves proof of the speed at which a person (whether the accused or another person) was driving, the uncorroborated evidence of one witness stating his opinion as to that speed shall not be accepted as proof of that speed" (Also refer to section 81 of the Road Traffic Act 2010 which sets the onus of establishing amongst other things the speed in question at the time of the alleged offence).

The main speeding offence is provided by section 47 of the Road Traffic Act 1961 (as substituted by section 11 of the RTA 2004) and I should mention in any event that it is also a fixed penalty offence meaning the Garda is required to issue a fixed charge notice first. If you fail to pay the fine within 56 days a summons would then issue.

I would try to make contact the Garda in question and get his/her name and station details. Then politely enquire what legal requirement they are making to produce the car for examination.

Sorry I cannot give a more detailed answer here but hope the above helps.

Little CuChulainn

Section 69 makes no mention of the form the communication must take. While there may be a difficulty in proving the demand was made to the person, that hardly makes it something which is ultra vires.

And like I already said, the ops friend is merely being given an opportunity to attend the station. He can choose to go or not to, but I wouldn't expect the matter to disappear.

Also, the Garda need not prosecute for speeding when an offence under section 51 is just as appropriate.

Pro Hoc Vice

Maybe I missed it but can someone show me where the OP said that the Garda wanted him to show his insurance.

Potus

Little CuChulainn wrote: »

Section 69 makes no mention of the form the communication must take. While there may be a difficulty in proving the demand was made to the person, that hardly makes it something which is ultra vires.

And like I already said, the ops friend is merely being given an opportunity to attend the station. He can choose to go or not to, but I wouldn't expect the matter to disappear.

Also, the Garda need not prosecute for speeding when an offence under section 51 is just as appropriate.

Yes you are correct in some respects, the section does not stipulate the manner in which the demand is to be made. But the demand under section 69 is in relation to documents only, not for the production of the vehicle. That's my point. A Garda to my knowledge does not have such a power in law to demand post the driving (absent being stopped at the scene) the production of the vehicle and were he to do so then ultra vires could arise. I could stand corrected though.

I disagree with you in the sense that a Garda cannot possibly prove to a court that the person he spoke to on a telephone and made the demand of documents of was the person in law he was entitled to make the demand of.

If you mean by section 51 offence, driving without reasonable consideration I doubt the Garda would have sufficient evidence for that offence if he cannot corroborate the speed the car was being driven at which would be a necessary proof of a section 51A offence given the facts presented here by OP.

Potus

Pro Hoc Vice wrote: »

Maybe I missed it but can someone show me where the OP said that the Garda wanted him to show his insurance.

See my comment in response to Little CuChulainn

Pro Hoc Vice

Potus wrote: »

See my comment in response to Little CuChulainn

I read your post, but my question was where did the OP say insurance was demanded. He says the Garda has made allegations of speeding, unaccompanied learners permit driver and asked him to produce a car at station at a certain time, I may be going blind been up since very early but I can't see any reference by OP that insurance was requested hence my question, as lots of people mentioning insurance and I seem to have missed it in OP.

Potus

Pro Hoc Vice wrote: »

I read your post, but my question was where did the OP say insurance was demanded. He says the Garda has made allegations of speeding, unaccompanied learners permit driver and asked him to produce a car at station at a certain time, I may be going blind been up since very early but I can't see any reference by OP that insurance was requested hence my question, as lots of people mentioning insurance and I seem to have missed it in OP.

My point was that the only circumstances in which a Garda can make demands after the fact involving driving of a car is for documents (hence referencing section 69). In demanding anything else be produced he may be acting ultra vires. Because the OP stated a demand was made I referenced the only demands to my
Understanding that can be made by a Garda under the circumstances the OP presented in his question. Sorry if I confused.

Pro Hoc Vice

Potus wrote: »

My point was that the only circumstances in which a Garda can make demands after the fact involving driving of a car is for documents (hence referencing section 69). In demanding anything else be produced he may be acting ultra vires.

I am not disagreeing with you I asked a question of the thread not referencing any other poster other than the OP to show me where the OP said insurance was requested to be produced.

Potus

Pro Hoc Vice wrote: »

I am not disagreeing with you I asked a question of the thread not referencing any other poster other than the OP to show me where the OP said insurance was requested to be produced.

He didn't. But because he referenced a demand as having been made, I pointed out the only demand which could lawfully have been made in the circumstances. Hence the demand to produce the vehicle in my view has no legal basis. I thought it would help that if he chose to take my offered advice and asked of the Garda what legal requirement was being made of him, that it would be important to know if section 69 was quoted then that only refers to documents. I hope that clears up the matter and apologies if I confused people by introducing the matter of insurance, as OP didn't make any reference to insurance.

Little CuChulainn

Alani Green Memento wrote: »

Didnt read the whole thread. Your friend should have hung up.

Did you have a camera gard? Did you stop me personally driving the car gard? Well then no I wasnt speeding and to be honest I doubt I was even driving. Good night mr gard.

NOT LEGAL ADVICE. But if goes down after being "requested" to do so well hes not doing himself any favours.

If a Garda makes a demand on an owner to state who was driving a vehicle then it's an offence not to tell him.

Overtaking at high speed can be proven without a camera.

Little CuChulainn

Alani Green Memento wrote: »

Is it an offence to say no comment?

Unless that was the drivers name.

Potus

Alani Green Memento wrote: »

Im no solicitor but I would like a second opinion on this.

Yes it is an offence. Section 107(3) RTA 1961 provides as follows "(3) Where a person, when his name and address is demanded of him under this section, refuses or fails to give his name and address or gives a name or address which is false or misleading, such person shall be guilty of an offence."

Little CuChulainn

Alani Green Memento wrote: »

Im no solicitor but I would like a second opinion on this.

http://www.irishstatutebook.ie/1961/en/act/pub/0024/sec0107.html#sec107

107.4.b

if the owner of the vehicle states that he was not actually using it at the material time, he shall give such information as he may be required by the member to give as to the identity of the person who was actually using it at that time and, if he fails to do so, shall be guilty of an offence unless he shows to the satisfaction of the court that he did not know and could not with reasonable diligence have ascertained who that person was

whomitconcerns

call the station and ask to speak to teh guard in question maybe? A non specific call saying someone called using his name so you dont put yourself in?

Simple solution

mynamewasgone!

If the guard was off duty how could he possibly try and charge someone with speeding. Without a calibrated speed gun or something similar there is no proof of such an event taking place. "He looked like he was speeding" would never hold up in court.

Little CuChulainn

Alani Green Memento wrote: »

I thought this is if they stop you there and then. They can hardly call you up on the phone after the event and "demand" you tell them? Would they come arrest you if you hung up? Especially since gard was off duty.

It doesn't matter in the slightest bit if a Garda is off duty. He can still witness a crime and prosecute it. A demand for information on who was driving does not need to be made at a traffic stop. That would be pretty pointless. It's usually done via a call to the door by the local Gardaí. Sometimes by registered post. There is nothing specifically preventing a Garda doing it by phone but he would have the extra burden of proving he was speaking to the actual owner.

RustyNut

Assuming that the Guard on the phone is considering a prosecution then how would it be in the friends best interest to turn up voluntarily at the Garda station with his car.
Would it not be in his best interest to ensure that the Guard has jumped through all the legal hoops that are in place, IE legal demand rather than questionable phonecall, before giving the Guard any information that would assist the prosecution.
It would appear that he has all ready admitted to speeding over the phone altho I don't know how that would go in court so if he does turn up he should at least take good legal advise to prevent himself from incriminating himself any further.

Little CuChulainn

If the Garda wanted to he could simply summons the ops friend right now for careless driving, no L plates and no accompanying driver. Or he could fine him for an offence under Section 51a and add additional charges in court if the ops friend fails to pay. I'm not sure why people think the Garda has to go through so much effort just to prosecute someone for a traffic offence.

RustyNut

Little CuChulainn wrote: »

If the Garda wanted to he could simply summons the ops friend right now for careless driving, no L plates and no accompanying driver. Or he could fine him for an offence under Section 51a and add additional charges in court if the ops friend fails to pay. I'm not sure why people think the Garda has to go through so much effort just to prosecute someone for a traffic offence.

If he has the evidence to support these charges then why do just that?

Little CuChulainn

RustyNut wrote: »

If he has the evidence to support these charges then why do just that?

I presume you mean why not just do that. And like I already said, it looks to me like he is giving the ops friend an opportunity not to be prosecuted.

RustyNut

Or an opportunity to drop him self in it.
If it might affect his future ie joining the PDF I would recommend dropping a few euros and get some professional legal advice before doing anything.

conorh91

Quite a bit of what is contained in that video has no relevance in light of Irish criminal procedure, and would therefore be bad advice in this jurisdiction.

Pro Hoc Vice

conorh91 wrote: »

Quite a bit of what is contained in that video has no relevance in light of Irish criminal procedure, and would therefore be bad advice in this jurisdiction.

The basic right to silence still stands in this jurisdiction and other than some slight tinkering in the vast majority of situations a person is best advised to STFU.

conorh91

Pro Hoc Vice wrote: »

The basic right to silence still stands in this jurisdiction and other than some slight tinkering in the vast majority of situations a person is best advised to STFU.

I'm not talking about the 5th amendment.

The DPP is prohibited from employing some of the questionable tactics employed by US prosecutors, whose guiding aim is to secure a conviction, unlike the case this jurisdiction.

There are circumstances where informing the DPP or a Garda of mitigating circumstances or defences can avail an accused person, particularly where the accused is without legal representation, whereby the Prosecution will then make the court aware of such circumstances as appropriate.

Pro Hoc Vice

conorh91 wrote: »

I'm not talking about the 5th amendment.

The DPP is prohibited from employing some of the questionable tactics employed by US prosecutors, whose guiding aim is to secure a conviction, unlike the case this jurisdiction.

There are circumstances where informing the DPP or a Garda of mitigating circumstances or defences can avail an accused person, particularly where the accused is without legal representation, whereby the Prosecution will then make the court aware of such circumstances as appropriate.

As legal aid is available in most cases their is no excuse in any case where an accused is at risk of prison to not have a solicitor and if necessary counsel. I still stand by my statment tell AGS nothing, if the matter is at mitigation stage then either their has been a finding of guilt or a plea and no problem in talking at that stage. But in the majority of cases do not say anything to AGS.

Little CuChulainn

There are many cases in Ireland where remaining silent is an offence, particularly in the case of traffic matters.

Pro Hoc Vice

Little CuChulainn wrote: »

There are many cases in Ireland where remaining silent is an offence, particularly in the case of traffic matters.

No it's not an offence in such cases to remain silent, but the person may be presumed to be guilty of a specific offence. Example the owner of a vehicle that is caught speeding, but the presumption can be rebutted.

Can you point out the many situations where staying silent is and of itself an offence.

Little CuChulainn

Pro Hoc Vice wrote: »

No it's not an offence in such cases to remain silent, but the person may be presumed to be guilty of a specific offence. Example the owner of a vehicle that is caught speeding, but the presumption can be rebutted.

Can you point out the many situations where staying silent is and of itself an offence.

Off the top of my head.

Failing to provide name and address and date of birth when demanded under the road traffic act.

Failure for an owner to state who was driving a vehicle at a particular time and place.

Failure to provide name and address when demanded under the public order act.

Pro Hoc Vice

Little CuChulainn wrote: »

Off the top of my head.

Failing to provide name and address and date of birth when demanded under the road traffic act.

Failure for an owner to state who was driving a vehicle at a particular time and place.

Failure to provide name and address when demanded under the public order act.

That is not the same as your right to silence, the name and address can not in it self incriminate you which section are you referring to in relation to point 2.

Little CuChulainn

Pro Hoc Vice wrote: »

That is not the same as your right to silence, the name and address can not in it self incriminate you which section are you referring to in relation to point 2.

Section 107 of the Road Traffic Act. I'm well aware of the right to silence. I just think it's pretty reckless to tell people to not talk to Gardai when following that advice can get you a criminal record.

Pro Hoc Vice

Little CuChulainn wrote: »

Section 107 of the Road Traffic Act. I'm well aware of the right to silence. I just think it's pretty reckless to tell people to not talk to Gardai when following that advice can get you a criminal record.

You must have missed this bit "But in the majority of cases do not say anything to AGS."

I am to be clear talking about the right against self incrimination, which is an issue after been given the caution.

Esel

What about the OASA which allows an inference to be drawn if the accused failed to answer questions?