constitutionality of S.19 od Intoxicating Liquor act 2008

Carawaystick

Under S19 of the above act, a Gard can confiscate a persons private property when no crime has taken place

s19 wrote:

This section applies where a member of the Garda Síochána believes with reasonable cause that—

(a) a person is in a relevant place alone or accompanied by other persons,

(b) a bottle or container which contains an intoxicating substance is in the possession of the relevant person, and

(c) the relevant person is acting in that place, or the relevant person and some or all of the accompanying persons are acting in that place, in a manner that—

(i) gives rise to a reasonable apprehension for the safety of persons or the safety of property or for the maintenance of the public peace, or

(ii) is causing, or gives rise to a reasonable apprehension is likely to cause, annoyance and nuisance to another person or persons or interference with that other person’s or persons’ peaceful possession and enjoyment by that other person or persons of his or her, or their, as the case may be, property.

(2) Where this section applies, the member may—

(a) seek an explanation from the relevant person as to all or any of the matters to which the relevant belief relates, and

(b) do one or more of the following, if the relevant person fails or refuses to give such an explanation or if such an explanation is given, and in either case the member remains of the relevant belief:

(i) request the relevant person to immediately give the bottle or container to the member (or to another member of the Garda Síochána accompanying the member) and at the same time as the request is made give to the relevant person a warning in ordinary language that a failure or refusal to comply with the request may lead to the seizure of the bottle or container or to his or her arrest or to both (or words to the like effect);

(ii) if the relevant person fails or refuses to comply with the request, seize, detain and remove, without warrant, the bottle or container with the use, if necessary, of such force as is reasonable in the circumstances;

(iii) direct the relevant person and, if appropriate, some or all of the accompanying persons, to desist from acting in the manner referred to in paragraph (c) of subsection (1);

(iv) direct the relevant person and, if appropriate, some or all of the accompanying persons, to leave immediately the place in a peaceable or orderly manner;

(v) request the relevant person to provide the member with his or her name and address.

but the constitution in the article about private property

Bunreacht wrote:

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.

The Supremes have said a rent freeze is unconstitutional, when a landowner still has the right to their land. How is expropriation of a closed can of dutch gold allowed ?

TheSupremes_PresidentReferredBill wrote:

That, in the absence of any justification permitted by the Constitution, the provisions of s. 9 of the bill, depriving the persons affected thereby of substantial portions of their proper rents, constituted an unjust attack on their property rights contrary to Article 40, s. 3, sub-s. 2, of the Constitution

Has this been litigated?

Witcher

Who or what is a 'Gard'?

Peregrinus

Witcher wrote: »

Who or what is a 'Gard'?

I think if you read beyond the first line you'll probably be able to work out what this typo means.

Peregrinus

Carawaystick wrote: »

Has this been litigated?

I don't think so. Probably because the cost of litigating it exceeds the cost of a can of Dutch Gold. If your rights are infringed by the seizure of a can, the quickest and cheapest remedy is to buy another can.

More seriously, Art. 43.1 prevents the state from abolishing outright "the right of private ownership of or the general right to transfer, bequeath and inherit prorpery". But legislating for the seizure of a particular item is not is neither of these things. And Art 43.2 allows the state to "regulate" the exercise of ownership rights "by the principles of social justice". No doubt, if challenged, the state would seek to justify s. 19 by pointing to the circumstances that have to prevail before your can of Dutch can be seized; you have to be acting in a manner that causes or is likely to cause concern about safety, the public peace, annoyance, nuisance, etc. And they'll say that the principles of social justice allow these considerations to be weighed against your right to the can.

In the cases on this, the Supreme Court has developed the concept of the "unjust attack" on property rights — Art. 43 forbids "unjust attacks". As you point out, the recent rent control legislation has been found to constitute an unjust attack on property owners. But, as against that, the planning and development controls have been found not to, even though the zoning of property can adversely affect property values far more than the rent restrictions would have.

Legislation enjoys a presumption of constitutionality, so if you want to challenge s.19 it;s up to you to make the argument that allowing the confiscation of your grog on the terms that it does is an "unjust attack" on your property rights. Simply asserting that it's unjust, or that you find it unjust, is not going to get you very far, and a comparison with rent control legislation isn't a very compelling argument.

Which is not to say that you - or your highly paid team of constitutional lawyers - couldn't frame a colourable argument; maybe they could. But why would you bothe with all that when you can just buy another can?

Mellor

Carawaystick wrote: »

Under S19 of the above act, a Gard can confiscate a persons private property when no crime has taken place

Are you saying that the following is not a crime;

...causing annoyance and nuisance to another person, interference with that other person’s peaceful possession and enjoyment of their property.

As it would seem to me that interfering with somebodies enjoyment of their property is affecting their rights.

Peregrinus

Mellor wrote: »

Are you saying that the following is not a crime;

...causing annoyance and nuisance to another person, interference with that other person’s peaceful possession and enjoyment of their property.

As it would seem to me that interfering with somebodies enjoyment of their property is affecting their rights.

But the Act just say that liquor can only be confiscated if somebody is causing annoyance and nuisance etc.; it says that liquor can be confiscated if a garda "believes with reasonable cause" that a person is "acting in a matter" that "gives rise to a reasonable apprehension is likely to cause" annoyance and nuisance, etc.

The idea is that the liquor gets confiscated before you get around to actually causing any annoyance etc. All that you have to have is a reasonable suspicion that you're behaving in a way that might give reason to a reasonable apprehension that annoyance will be caused. And that's definitely not a crime.

Mellor

Peregrinus wrote: »

But the Act just say that liquor can only be confiscated if somebody is causing annoyance and nuisance etc

I assume you've a typo there.

it says that liquor can be confiscated if a garda "believes with reasonable cause" that a person is "acting in a matter" that "gives rise to a reasonable apprehension is likely to cause" annoyance and nuisance, etc.

I'm aware. I was asking the OP a question about that scenerio.

Victor

Peregrinus wrote: »

Which is not to say that you - or your highly paid team of constitutional lawyers - couldn't frame a colourable argument; maybe they could. But why would you bothe with all that when you can just buy another can?

With the greatest of insincerity, because it is between the hours of 10pm and 10am.

Peregrinus

Mellor wrote: »

I assume you've a typo there.

It was a deliberate error, put in to check if you were reading carefully. That's my story and I'm sticking to it.

Mellor wrote: »

I'm aware. I was asking the OP a question about that scenerio.

Yes, but the OP's original claim, which you quoted, was that under s. 19 a Garda can confiscate a person's private property when no crime has taken place. And that claim is certainly correct; s. 19 does allow confiscation of liquor in circumstances in which no crime has taken place, or is even alleged to have taken place. It may also be applied in circumstances where a crime has taken place, of course, but that would coincidental.

Mellor

Peregrinus wrote: »

Yes, but the OP's original claim, which you quoted, was that under s. 19 a Garda can confiscate a person's private property when no crime has taken place. And that claim is certainly correct; s. 19 does allow confiscation of liquor in circumstances in which no crime has taken place, or is even alleged to have taken place. It may also be applied in circumstances where a crime has taken place, of course, but that would coincidental.

That's fair enough. I was looking at it holistically to see if the OP had an issue with the entirety, and if so, Why? Or if not, to narrow it down to the issues.

This section amended section 8 of the public order act 94 did it not?
so any action taken, such as confiscation of alcohol, would have to be relevant under the public order act.
So, not just randomly taking alcohol?

Peregrinus

bubblypop wrote: »

This section amended section 8 of the public order act 94 did it not?
so any action taken, such as confiscation of alcohol, would have to be relevant under the public order act.
So, not just randomly taking alcohol?

The 2018 Act inserted s. 8A of the Criminal Justice (Public Order) Act 1994. That's not an amendment to s. 8; it's a new section. it's inserted into the 1994 Act because it deals with matters of public order, but it's self-contained. The only conditions that need to be satisfied before the liquor-seizing powers of s. 8A can be used are the conditions set out in s. 8A itself, which are quoted in the OP.

Whitewater-AGS

Also there is a section in the Dublin City bye-laws {8(b)} which gives Garda the power to confiscate alcohol where a person is found or suspected to be consuming same in a public place also interestingly contains its own power of arrest for the offence of drinking in a PP.

Link to bye-laws https://www.drugsandalcohol.ie/32178/1/Intox%20Bye-Laws%202008.pdf

Carawaystick

Mellor wrote: »

Are you saying that the following is not a crime;

...causing annoyance and nuisance to another person,

People get annoyed by other people all the time, and often the annoyer is being a nuisance, but its not a crime.

Mellor wrote: »

interference with that other person’s peaceful possession and enjoyment of their property.

If interference with the person's peaceful posession and enjoyment of their bag of cans, was a crime, would a gard be able to interfere with their peaceful posession and enjoyment of their property?

Mellor wrote: »

As it would seem to me that interfering with somebodies enjoyment of their property is affecting their rights.

yeah, thats my point.
Gards can decide without any review mechanism to take closed containers of drink from people, who they don't suspect of breaking any law;
and they can dispose of it in any way they see fit, which could be to bring it home and drink it themselves, of give it to a friend.


I would say the balance should be at the very least, shifted to tell people to leave before confiscating closed drink containers. because then you have refused to comply with a gard. Which is an offence.
I would also say that a receipt of the property seized by the Gard should be given, and the peoperty returned on request.

usernamegoes

Whitewater-AGS wrote: »

Also there is a section in the Dublin City bye-laws {8(b)} which gives Garda the power to confiscate alcohol where a person is found or suspected to be consuming same in a public place also interestingly contains its own power of arrest for the offence of drinking in a PP.

Link to bye-laws https://www.drugsandalcohol.ie/32178/1/Intox%20Bye-Laws%202008.pdf

Interesting, I didn't know councils were able to make penal provisions. Even if the principles and policies are laid out in the delegation act surely the power to make brand new penal provisions should be retained by the Oireachtas.

Peregrinus

usernamegoes wrote: »

Interesting, I didn't know councils were able to make penal provisions. Even if the principles and policies are laid out in the delegation act surely the power to make brand new penal provisions should be retained by the Oireachtas.

In a sense, it is. S. 205 of the Local Government Act 2001 provides that breach of local authority bye-laws is an offence, and sets out the punishment. So it's the Oireachtas, not the local authority, which criminalises the behaviour and imposes the penalty.

Carawaystick

Carawaystick wrote: »

People get annoyed by other people all the time, and often the annoyer is being a nuisance, but its not a crime.


If interference with the person's peaceful posession and enjoyment of their bag of cans, was a crime, would a gard be able to interfere with their peaceful posession and enjoyment of their property?


yeah, thats my point.
Gards can decide without any review mechanism to take closed containers of drink from people, who they don't suspect of breaking any law;
and they can dispose of it in any way they see fit, which could be to bring it home and drink it themselves, of give it to a friend.


I would say the balance should be at the very least, shifted to tell people to leave before confiscating closed drink containers. because then you have refused to comply with a gard. Which is an offence.
I would also say that a receipt of the property seized by the Gard should be given, and the peoperty returned on request.

Please, it's Gardai or Guards.

As an aside, there's a number of items that must be present for the power to be utilized. Simple having the container isn't enough.

The Dublin bye laws are far more straight forward where possible.

usernamegoes

Peregrinus wrote: »

In a sense, it is. S. 205 of the Local Government Act 2001 provides that breach of local authority bye-laws is an offence, and sets out the punishment. So it's the Oireachtas, not the local authority, which criminalises the behaviour and imposes the penalty.

I wonder if that would pass the principles and policies test? Looking at s199 of the Act it seems to give a very broad authority to make bye-laws which are then criminalised by s205.