S.14 Intoxicating Liquor Act 2008

Carawaystick

As I read this, A Gard can decide to take what the gard thinks is intoxicating liquor from a person under 18 and dispose of both the bottle and the contents, without checking the liquor is intoxicating, or without any oversight or grounds of appeal for the young person.

This hardly seems constitutional? To deprive someone of their property without any evidence other than a belief?


Found this section from clicking on a commencement order for a different part of the same act, lest anyone thinks I'm feeling hard done by...

Consider a young person with a valuable hipflask filled with a non-alcoholic drink.
Gard sees person drinking from the hip flask, and decides it has alcohol.
Gard asks person whats in the bottle, person says <insert non-alcoholic drink of your choice here>
Gard doesn't believe him.
Gard asks for the bottle.
Now S14.(5)(a)dispose of the bottle or container in such manner as he or she considers appropriate

MarkAnthony

ARTICLE 40

1 All citizens shall, as human persons, be held equal before the law.

This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.

3 1° The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.

2° The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.

ARTICLE 43

1 1° The State acknowledges that man, in virtue of his rational being, has the natural right, antecedent to positive law, to the private ownership of external goods.

2° The State accordingly guarantees to pass no law attempting to abolish the right of private ownership or the general right to transfer, bequeath, and inherit property.

2 1° The State recognises, however, that the exercise of the rights mentioned in the foregoing provisions of this Article ought, in civil society, to be regulated by the principles of social justice.

2° The State, accordingly, may as occasion requires delimit by law the exercise of the said rights with a view to reconciling their exercise with the exigencies of the common good.


I'd hang my hat on anyone or more of the sections in bold. Simple proportionality test of whether losing 500ml of Tizer is a greater right the the protection of the young person from drink and the community at large from drunken young people.

robman60

You're probably right regarding the proportionality test but not requiring any evidence to expropriate something from a member of the public seems quite unfair. The problem with any constitutional challenge, in my view, is the fact that the constitutional rights that could apply are subject to the public good and I can imagine the courts would see an overriding public good in combating underage alcohol consumption.

Carawaystick

The state could make it so the gard has to check for intoxicating liquor, or dispose of the liquor and return the container. Or the state could make it a crime for a child to posess intoxicating liquor, and prosecute, needing a chain of evidence and oversight.

None of the above would impose a huge barrier for the state.


Consider a law that said if a gard believed you were speeding, they could take your car and dispose of it
"in such manner as he or she considers appropriate"

That wouldn't hold up.

source

Carawaystick wrote: »

The state could make it so the gard has to check for intoxicating liquor, or dispose of the liquor and return the container. Or the state could make it a crime for a child to posess intoxicating liquor, and prosecute, needing a chain of evidence and oversight.

None of the above would impose a huge barrier for the state.


Consider a law that said if a gard believed you were speeding, they could take your car and dispose of it
"in such manner as he or she considers appropriate"

That wouldn't hold up.

Two very different circumstances there, your driver is legally entitled to drive and possess a car, the under age drinker is not legally entitled to possess alcohol.

arthur daly

I would imagine the gard might take the hip flask and say collect it tomorrow?
Unless the gardai carry alcohol test kits how would they know considering the huge variety of of both alcoholic and not,different flavors smells etc

Carawaystick

source wrote: »

Two very different circumstances there, your driver is legally entitled to drive and possess a car, the under age drinker is not legally entitled to possess alcohol.

Almost all drivers are not legally allowed to exceed the speed limit.

If possession of alcohol was a crime, then the thing to do would be to prosecute, like the gardaí do for people in possession of small amounts of cannabis.

There is no test for alcohol in the law, and there is the confiscation of the container, which if its not a beer bottle or can, could have standalone value.

nuac

Apart from that section, many towns have bye-laws allowing Gardai to confiscate alcohol if it is being drunk in a public place.

That is to allow them deal with youngsters drinking up alley-ways etc.

Unlikely to find expensive hip flasks with those lads

Peregrinus

Carawaystick wrote: »

Almost all drivers are not legally allowed to exceed the speed limit.

If possession of alcohol was a crime, then the thing to do would be to prosecute, like the gardaí do for people in possession of small amounts of cannabis.

There is no test for alcohol in the law, and there is the confiscation of the container, which if its not a beer bottle or can, could have standalone value.

The section in question allows the guard to "dispose of the bottle or container in such manner as he or she considers appropriate".

But "dispose of" doesn't have to mean "destroy" or "confiscate". Whatever you do with the container after you have finished with the purpose for which you took it, that's disposing of it. You can, for instance, dispose of it by returning it to the person to whom it belongs. And, presumably, if its e.g. a personally engraved hip-flask, that's what the guard will do.

He can, of course, do whatever he "considers appropriate". But you could certainly take legal proceedings if what he considered appropriate was, e.g, to add it to his personal collection of hip-flasks, or to throw it into a crusher, or to sell it and keep the proceeds. Just because an agent of the state has a power to do so something doesn't mean that they are free to use that power oppressively, or that there is no recourse if they do.