What should you do when arrested!

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smellyoldboot wrote: »

I personally know of a Garda involved in a serious sexual assault allegation, was back in the 80s when you daren't pursue such matters through official channels. Anyway his "punishment" was to get shunted into the traffic corps for the rest of his career, this halting any hopes of further progression. Apparently this was standard enough practice for dealing with the bad eggs. May no longer be the case but prob best advised to trust the traffic corps less than any.

wouldn't trust any of them .Ireland has an adversarial justice system.The garda is on the other team.


With respect to the OP Iam surprised anyone does not know their rights when arrested these days. It is googleable and there are books available which won't make anyone a solicitor but give clear info on rights.The most important is keep silent which is why criminals like The General and The Monk do so



I remember reading that some time ago if you willingly gave fingerprints when arrested they could be held on file for ever but if you refused and the garda had to use statutory power to take the prints they could only be kept for a year. It's different now.


There are a lot of 'statutory fingerprints' if you keep a look out

ohnonotgmail

It would probably be easier, and certainly more readable, to just link to the page you copied that from.

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Dunfyy wrote: »

Garda interviews can have “far-reaching ramifications”, which could include a suspect making a confession and being subsequently denied a trial.

“In the absence of a lawyer, a detained suspect is in a vulnerable and disempowered position, not understanding the significance of the interview, not knowing what will matter at a later point, not fully understanding all of the rights which apply,
Dr Conway said solicitors have disclosed that they “lack confidence” in this new role and often refuse to do it. There are an estimated 20,000 people detained in Ireland every year and only 2,600 had consultations with solicitors, The Supreme Court have upheld as valid, a decision made by a District Court Judge to throw out a prosecution for drunk driving (in a case where the Accused was charged with failing or refusing to provide a breath specimen at a Garda Station) on the grounds that when the Accused at the breath machine in the Garda Station asked to speak to a solicitor the Garda mistakenly thought they were prevented from giving in to the request and halting the breath specimen procedure (the State also sought to argue that given the demand facing the driver there was very little advice the solicitor could have given other than provide the sample).

The Supreme Court have endorsed the reasoning and law as stated in the Garda Custody Regulation of 1984 namely that an Accused can as of right speak with a solicitor at any time in the course of their detention.

In case of McCrea, this meant that the denial of access to legal advice in the Garda Station meant that the refusal to give a breath sample made after he asked for a solicitor was ruled out of evidence and the case against Mr. McCrea collapsed.A person under suspicion from the Gardai ,or any Government organisation with prosecutorial powers should never allow themselves be questioned without having taken specialist criminal defence legal advice.

If they got a solicitor wouldn't they still have to give the breath sample? is there a possibility of trying to delay while the blood alcohol level falls. How long would it take a solicitor to arrive at 3 AM?

Claw Hammer

Henrik Agreeable Smoothness wrote: »

If they got a solicitor wouldn't they still have to give the breath sample? is there a possibility of trying to delay while the blood alcohol level falls. How long would it take a solicitor to arrive at 3 AM?

They wouldn't wait for the solicitor to arrive. They would allow a phone consultation only. Even a delay of a few minutes might affect the alcohol levels.

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Claw Hammer wrote: »

They wouldn't wait for the solicitor to arrive. They would allow a phone consultation only. Even a delay of a few minutes might affect the alcohol levels.

So what would be the point as the solicitor cannot tell them to refuse the sample can he?


Would they wait for the phone consult before doing the sample?

80j2lc5y7u6qs9

Does anyone have a link to the DPP vs McFadden full report? I searched courts.ie

ohnonotgmail

Henrik Agreeable Smoothness wrote: »

So what would be the point as the solicitor cannot tell them to refuse the sample can he?


Would they wait for the phone consult before doing the sample?

the solicitor can tell them what they want. they are free to give advice. it would be terrible advice though. If you refuse you will be found guilty of refusing to give a sample which carries the same penalties as being over the limit.

80j2lc5y7u6qs9

ohnonotgmail wrote: »

the solicitor can tell them what they want. they are free to give advice. it would be terrible advice though. If you refuse you will be found guilty of refusing to give a sample which carries the same penalties as being over the limit.

I doubt a solicitor would tell them not to give the sample so it seems pointless if the sample is delayed

ohnonotgmail

Henrik Agreeable Smoothness wrote: »

I doubt a solicitor would tell them not to give the sample so it seems pointless if the sample is delayed

if you think the guards are going to hang around longer than the time allowed because they cant get your solicitor on the phone you are misinformed

80j2lc5y7u6qs9

Dunfyy wrote: »

Garda interviews can have “far-reaching ramifications”, which could include a suspect making a confession and being subsequently denied a trial.

“In the absence of a lawyer, a detained suspect is in a vulnerable and disempowered position, not understanding the significance of the interview, not knowing what will matter at a later point, not fully understanding all of the rights which apply,
Dr Conway said solicitors have disclosed that they “lack confidence” in this new role and often refuse to do it. There are an estimated 20,000 people detained in Ireland every year and only 2,600 had consultations with solicitors, The Supreme Court have upheld as valid, a decision made by a District Court Judge to throw out a prosecution for drunk driving (in a case where the Accused was charged with failing or refusing to provide a breath specimen at a Garda Station) on the grounds that when the Accused at the breath machine in the Garda Station asked to speak to a solicitor the Garda mistakenly thought they were prevented from giving in to the request and halting the breath specimen procedure (the State also sought to argue that given the demand facing the driver there was very little advice the solicitor could have given other than provide the sample).

The Supreme Court have endorsed the reasoning and law as stated in the Garda Custody Regulation of 1984 namely that an Accused can as of right speak with a solicitor at any time in the course of their detention.

In case of McCrea, this meant that the denial of access to legal advice in the Garda Station meant that the refusal to give a breath sample made after he asked for a solicitor was ruled out of evidence and the case against Mr. McCrea collapsed.A person under suspicion from the Gardai ,or any Government organisation with prosecutorial powers should never allow themselves be questioned without having taken specialist criminal defence legal advice.

In case of McCrea



the garda’s mistaken belief that the whole process would be aborted if the procedure were delayed to allow consultation with a solicitor because “she would not be legally entitled to make another request of the accused if she broke the intoxilyser’s machine’s cycle in order to allow him to consult with a solicitor”. This is admitted to be an error but it is, undoubtedly, the source of all the difficulty which has arisen in this case.



https://www.bailii.org/ie/cases/IESC/2010/S60.html

GM228

Henrik Agreeable Smoothness wrote: »

I remember reading that some time ago if you willingly gave fingerprints when arrested they could be held on file for ever but if you refused and the garda had to use statutory power to take the prints they could only be kept for a year. It's different now.

That may have been myself who spoke of this previously, strictly speaking the year requirement could be extended depending on the circumstances, also the no limit on retention for prints obtained via consent rather than under a statutory power still exists, as held by the Supreme Court in the DPP vs Boyce [2008] IESC 62 case, the Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 does not appear to have changed this either as it deals with retention of prints obtained with statutory authority.

That said it's been 12 years since the issue has been tested here that I know of and I suspect it may change in a new case in light of GDPR for example and the issues surrounding biometric data.

Claw Hammer

Henrik Agreeable Smoothness wrote: »

So what would be the point as the solicitor cannot tell them to refuse the sample can he?


Would they wait for the phone consult before doing the sample?

They would wait for the phone consultation. They won't supply phone numbers for solicitors either.
The solicitor could advise them that if they have a medical condition which precludes giving a breath sample they can offer a blood sample. They can advise them to keep the offered sample and to take contemporaneous notes of everything which is happening.

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GM228 wrote: »

That may have been myself who spoke of this previously, strictly speaking the year requirement could be extended depending on the circumstances, also the no limit on retention for prints obtained via consent rather than under a statutory power still exists, as held by the Supreme Court in the DPP vs Boyce [2008] IESC 62 case, the Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 does not appear to have changed this either as it deals with retention of prints obtained with statutory authority.

That said it's been 12 years since the issue has been tested here that I know of and I suspect it may change in a new case in light of GDPR for example and the issues surrounding biometric data.

It may have been here I read it. But isn't it changed now, don't you have to apply to court to have any samples destroyed now?

GM228

Henrik Agreeable Smoothness wrote: »

It may have been here I read it. But isn't it changed now, don't you have to apply to court to have any samples destroyed now?

There are time limits when obtained under statutory authority, it is when these limits are extended that you can apply to the District Court to have them destroyed.

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GM228 wrote: »

There are time limits when obtained under statutory authority, it is when these limits are extended (which can be for a number of reasons) that you can apply to the District Court to have them destroyed sooner.

Garda Powers Law & Practice says

"retention is the deafult position with destruction only on application to senior gardai".I thought it was to court, sorry

Darc19

TheBoyConor wrote: »

The Garda Commissioner is a notorious former RUC thug. In light of that I would be more cautious than ever in what I'd say to a Guard.
The current commissioner was installed in this position for one reason - to co-ordinate more effective cross border suppression of republicans.

Mod
Boards,ie does not agree with this post

The current commissioner is making dramatic changes for the better in the gardai.

Some people love to believe the SF/IRA propaganda because he's causing plenty of strife for a certain criminal and republican element that permeates the SF/IRA party

BuzzMcdonnell

<snip>

Remember that little thing that was democratically voted for called the Good Friday agreement? All of this divisive talk of “direct enemies” and “occupying forces” only serves to make a United Ireland less likely in the near future.

Atlantic Dawn

Having done jury duty and seen how both plays out I would say if guilty say absolutely nothing without a solicitor with you and the very same if innocent, how you can incriminate yourself and then see it later played in court would surprise you, saying absolutely nothing both at interview and in court leaves the jury with a much harder decision to make.

baalad

Is the onus on you to request to speak to a solicitor or does the guard have a duty to give you that option?

I was arrested last year around midnight but i was clueless as i had never been in trouble before so it never occurred to me to ask for a solicitor because 1, i did not know / have a solicitor and 2, it was so late that surely i can't just ring one after midnight and expect him to come to my aid when i never spoke to the guy before in my life and 3, i have no idea what this is going to cost me.

Plus my phone was taken off me so i was not allowed contact anyone which caused my parter a lot of anxiety because she thought i was dead because she did not get a response from me in 3 hours haha

baalad

Atlantic Dawn wrote: »

Having done jury duty and seen how both plays out I would say if guilty say absolutely nothing without a solicitor with you and the very same if innocent, how you can incriminate yourself and then see it later played in court would surprise you, saying absolutely nothing both at interview and in court leaves the jury with a much harder decision to make.

Personally i always thought that if the judge hears a defendant wouldn't talk or kept repeating "no comment" that they would just think you had guilty written all over you!

When your caught up in these situations its so hard to know what the right thing to do is

Peregrinus

baalad wrote: »

Personally i always thought that if the judge hears a defendant wouldn't talk or kept repeating "no comment" that they would just think you had guilty written all over you!

But judges don't convict you because they think you're guilty; they only convict you if the state produces evidence to prove your guilt. Your failure to answer questions put to you is not proof of guilt.

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baalad wrote: »

Personally i always thought that if the judge hears a defendant wouldn't talk or kept repeating "no comment" that they would just think you had guilty written all over you!

When your caught up in these situations its so hard to know what the right thing to do is

Silence can sometimes be taken into account but they cannot convict on that alone. I would nEVER make any comment to any garda either beforer or after a caution or during so called chatting.You are never chatting to a garda.Theyare supposed to tell you your rights to a solicitor and give you a rights sheet detailing your rights.

Samuel T. Cogley

baalad wrote: »

Personally i always thought that if the judge hears a defendant wouldn't talk or kept repeating "no comment" that they would just think you had guilty written all over you!

When your caught up in these situations its so hard to know what the right thing to do is

On this - I was under the, probably mistaken, impression that no comment interviews were not put to the Judge / Jury. They can invoke inference legislation, that I really should know the proper name of, and that can be submitted. Just as an aside those interviews are painful to read!

Anyway posting for clarification on the above ramble for anyone who is willing to do so.

GM228

On the point of a solicitor it should be noted the right is one of access to a solicitor, not presence of a solicitor during questioning.

Samuel T. Cogley

GM228 wrote: »

On the point of a solicitor it should be noted the right is one of access to a solicitor, not presence of a solicitor during questioning.

They do seem to universally allow it though and the expectation, as far as I can tell, is they are expecting it to be challenged if they don't. The most reluctant party to all of that seems to be solicitors!

GM228

Samuel T. Cogley wrote: »

On this - I was under the, probably mistaken, impression that no comment interviews were not put to the Judge / Jury. They can invoke inference legislation, that I really should know the proper name of, and that can be submitted. Just as an aside those interviews are painful to read!

Anyway posting for clarification on the above ramble for anyone who is willing to do so.

You are correct, such can not be put to the court as evidence unless there are specific inference provisions in law.

P.S the proper name is inference drawing provisions.

GM228

Samuel T. Cogley wrote: »

They do seem to universally allow it though and the expectation, as far as I can tell, is they are expecting it to be challenged if they don't. The most reluctant party to all of that seems to be solicitors!

They do allow it because policy allows it, and it has been unsuccessfully challenged and lost both to the Supreme Court and the ECtHR.

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GM228 wrote: »

They do allow it because policy allows it, and it has been unsuccessfully challenged and lost both to the Supreme Court and the ECtHR.

The right to a solicitor has been challenged? By the state?

GM228

Henrik Agreeable Smoothness wrote: »

The right to a solicitor has been challenged? By the state?

No, by a convicted murderer - Barry Doyle.

Cluedo Monopoly

What if you don't have or know a solicitor?
How would you go about picking a suitable one?