ATM attempted robbery

johnnyskeleton · 07-12-2007 12:49AM

John2002 wrote: »

Where in the law does it say that the offence must be punishable by 5 or more years in prison?

I don't see any mention of it here.

It's here.

kopparberg · 07-12-2007 01:45AM

seamus wrote: »

That depends. Is shoplifting punishable by five years in prison?
You may defend yourself, but I very much doubt that you are allowed to use any force whatsoever to detain someone - as Victor points out, imagine someone carrying out a citizen's arrest for breach of the peace and using force to detain the arrestee. Any force whatsoever would be unreasonable, even if the person was walking away.

yes section 4 of the criminal justice act theft and fraud offences is. your right about the brech of the peace also public order type offences dont carry 5 years or more.

it not what sentance people get it what the law allows in the worst case. if a shop lifter stole jewellery worth 20000 euro say

Victor · 07-12-2007 06:38PM

Electricsail wrote: »

I know a similar situation happened a few years ago and the Guard could have been prosecuted under natural justice (whatever that is) for failing to arrest someone who had committed a crime.....

Natural justice is esentially juctice if there was no formal law. In criminal law, it means things like, you are entitled to answer the accusations against you, you are entitled to have an independent advisor, etc. In civil law, it mean thats you are entitled to live, eat, work, marry, etc.

I think the above case, the use is misplaced. There might be an argument for misfeaseance / malfeaseance of office.

hullaballoo · 07-12-2007 10:29PM

Just to clarify one or two aspects here: theft under s 4 of the Criminal Justice (Theft and Fraud Offences) Act, 2001 carries a sentence of up to 10 years. However, if you just think about how ridiculous a situation that could be where someone steals €12 worth of groceries from Tesco, you'll see that there must be something missing.

Under s 53 of the same act, there's provision for the summary trial of indictable offences. Due to that provision, petty theft like the instant case can be and is dealt with in the District Court, where the maximum sentence is 12 months per conviction.

I'm not too sure how, theoretically, that relates back to the 'citizens' arrest' powers that the 1997 Act purports to grant. I say 'theoretically' and 'purports' because the powers are really a fallacy. The power of arrest is wholly different from the power to detain. Only the law enforcement authorities have that power, and only in limited circumstances.

Jo King · 07-12-2007 11:37PM

hullaballú wrote: »

Just to clarify one or two aspects here: theft under s 4 of the Criminal Justice (Theft and Fraud Offences) Act, 2001 carries a sentence of up to 10 years. However, if you just think about how ridiculous a situation that could be where someone steals €12 worth of groceries from Tesco, you'll see that there must be something missing.

Under s 53 of the same act, there's provision for the summary trial of indictable offences. Due to that provision, petty theft like the instant case can be and is dealt with in the District Court, where the maximum sentence is 12 months per conviction.

I'm not too sure how, theoretically, that relates back to the 'citizens' arrest' powers that the 1997 Act purports to grant. I say 'theoretically' and 'purports' because the powers are really a fallacy. The power of arrest is wholly different from the power to detain. Only the law enforcement authorities have that power, and only in limited circumstances.

There is nothing missing. There is a maximum sentence for an offence. The courts have a discretion in relation to the sentence imposed, which must be exercised according to recognised principles. In the case of a summary trial the DPP has to direct summary disposal, the trial judge has to accept jurisdiction, and the accused has to elect for summary trial. The power to arrest derives from the maximum available from the offence not the eventual sentence which may be imposed. A power of arrest implies a power to detain (temporarily) of necessity. What good is arrest for a millisecond? After an arrest a person must be released after a specific time or charged and released on bail or charged and brought before a court as soon as practicable. The power of arrest in respect of a non-garda only arises if the person effecting the arrest believes that the person arrested would attempt to avoid arrest by the garda. It happens every day of the week that shoplifters are apprehended and detained until the garda arrive. Quite often a video recording of the entire episode is played in court.
What happened to the o/p was a disgrace and should result in a criminal charge against the garda in question. It should certainly be reported to the garda inspectorate.

hullaballoo · 08-12-2007 05:21PM

I don't see a difference between what either of us said with regard to the 2001 Act.

However, I dispute on principle any argument that ordinary citizens have any powers of detention - no matter how brief. Even if there are statutory provisions that envisage a situation where vigilant members of the public go about arresting and detaining petty criminals, I don't think it works that way in practice. In fact, my inclination is that it really doesn't work that way.

I'll have to come clean and say that I have quite a good deal more to say on this issue, but that I am not really at liberty so to do given the nature of this thread. If it wasn't a real-life situation involving real people who can be sued, I would be happy to go on, but for the time being, I think it's safer for the parties involved if discussion of some of the material legal aspects to this particular sequence of events is left to a minimum.

I would suggest to the OP that he lodge a formal complaint with respect to the incident, however.

Deesse · 08-12-2007 07:14PM

That's just teasing us Hula! If you have something to say, why not say it? As far as I can see (admittedly I'm quit short sighted:D), people are worrying far too much about being sued here.

The way I see it is this:
If you have an opinion, share it with us please! Surely you can only be sued if the advice you offer is completely wrong, so it seems to me that this is quite a good regulator to stop people talking rubbish or dishing out "pub-talk" type advice on here.

There are nearly 40 posts here now, and we still don't know what the legal position is in this type of situation - in which any of us could find ourselves!

You claim that you dispute any right that the public have of detention. Could you please share the legal reference for us, or quote some legal precedent on this matter. Or is it just a vague area of law? Please, can anybody clear up the legal rights of the common man in this situation? Otherwise, I suggest closing this thread, as it's really very pointless.

johnnyskeleton · 08-12-2007 08:07PM

Deesse wrote: »

There are nearly 40 posts here now, and we still don't know what the legal position is in this type of situation - in which any of us could find ourselves!

The original question was what offence was the OP cautioned for. It's assault, but it's a good defence to show that you were acting to protect another person or prevent property from being stolen.

Deesse wrote:

You claim that you dispute any right that the public have of detention. Could you please share the legal reference for us, or quote some legal precedent on this matter. Or is it just a vague area of law? Please, can anybody clear up the legal rights of the common man in this situation? Otherwise, I suggest closing this thread, as it's really very pointless.

Don't try to suggest that the argument so far has been without references; it is based on the criminal law act 1997. In any case, citizen's arrest is more of a side issue, and you can open another thread to discuss it if you wish.

Deesse · 08-12-2007 09:06PM

Thanks Jonny. I actually provided the Criminal Law reference in post#4, so I wasn't suggesting that the thread is without reference. It is however without any definitive reference or historic court ruling regarding the power to detain a thief.

If I find myself in the position of the op, and am being treated like the criminal, I would like to know what to quote to the garda. You know what I mean? I want to be able to say to the garda:- "No Garda, I have the right to restrain the criminal under section blah blah of the blah act."

I also suspect that is the true question that the majority of viewers of the tread would like to have answered.

Regarding your Citizen's Arrest comment, I feel It's relevant, as that is effectively what the op was doing with the thief. If other people have a different opinion, I'm happy to be corrected.:)

Saruman · 08-12-2007 09:18PM

OP have you contacted his superior or the ombudsman yet?

This seems as ridiculous as not being able to defend your home and the criminal being able to sue if they injure themselves in my home.

My house was burgled the other night, no one home but had i been home i would not have retreated and i should not be expected to run out of the house and hide while my stuff is being taken.

johnnyskeleton · 08-12-2007 10:18PM

Deesse wrote: »

If I find myself in the position of the op, and am being treated like the criminal, I would like to know what to quote to the garda. You know what I mean? I want to be able to say to the garda:- "No Garda, I have the right to restrain the criminal under section blah blah of the blah act."

I also suspect that is the true question that the majority of viewers of the tread would like to have answered.

"Garda, I have the right to arrest the person whom I with reasonable cause suspect to have been in the act of committing an arrestable offence pursuant to section 4(1) of the Criminal Law Act, 1997 and who would otherwise attempt to avoid arrest by a member of the Garda Síochána. Pursuant to s4(5) of the Criminal Law Act, 1997, I am now transferring him into your custody."

Members of the public have no powers of detention. However, there is a difference between arrest and detention. There is inevtiably an element of deprivation of liberty involved with arrest, but it is different to detention. I would add that if someone arrests another and as it transpires the arrested person was not committing an offence, they may be liable for false imprisonment.

Deesse wrote:

Regarding your Citizen's Arrest comment, I feel It's relevant, as that is effectively what the op was doing with the thief. If other people have a different opinion, I'm happy to be corrected.:)

The OP's question was what offence was he hypothetically cautioned for. Assault.

johnnyskeleton · 08-12-2007 10:23PM

Saruman wrote: »

This seems as ridiculous as not being able to defend your home and the criminal being able to sue if they injure themselves in my home.

That's why the law allows you to defend your home (within reason) and as for a criminal suing if they injure themselves in your home, they will only succeed if you have set a trap for them.

Saruman wrote:

My house was burgled the other night, no one home but had i been home i would not have retreated and i should not be expected to run out of the house and hide while my stuff is being taken.

I'm sorry to hear that, and you should not be expected to run out of the house and hide. But you must allow for mistakes being made and extreme over reactions.

GerryRyan · 09-12-2007 03:32PM

Saruman wrote: »

OP have you contacted his superior or the ombudsman yet?

Yes, the Garda ombudsman was contacted. Not in a 'I want to cause trouble for the Garda involved' sort of way. At the end of the day, they do have a hard job - one incident isn't going to change my view on that. It wasn't a Garda bashing thread.

I rang and e-mailed them, as I was curious as to what offence I could have been guilty of and/or my (our) rights and correct course of action if it ever happened again. I've yet to receive a reply.

I posted this to find my legal stance - wasn't making myself out to a hero. Anyone in the situation would have done the same (I hope).
Thanks for the replies.

cormie · 09-12-2007 03:34PM

Let's just hope they don't come and arrest you for admitting what you did:rolleyes:

GerryRyan · 09-12-2007 03:37PM

"Garda, I have the right to arrest the person whom I with reasonable cause suspect to have been in the act of committing an arrestable offence pursuant to section 4(1) of the Criminal Law Act, 1997 and who would otherwise attempt to avoid arrest by a member of the Garda Síochána. Pursuant to s4(5) of the Criminal Law Act, 1997, I am now transferring him into your custody."

Members of the public have no powers of detention. However, there is a difference between arrest and detention. There is inevtiably an element of deprivation of liberty involved with arrest, but it is different to detention. I would add that if someone arrests another and as it transpires the arrested person was not committing an offence, they may be liable for false imprisonment.

Very informative, thanks.

GerryRyan · 09-12-2007 03:39PM

cormie wrote: »

Let's just hope they don't come and arrest you for admitting what you did:rolleyes:

Was careful to word it in a way where I wouldn't be held liable or followed up on.

Instead of "I did/saw this" - "what are the possible offences if person x saw x happening and acted on it ... and if person x believes he/she was wrongly cautioned for acting in someone elses interests? What would be the best course of action?".

You get the gist.

Trojan911 · 09-12-2007 07:38PM

Last night I happened across a drunk sitting in the drivers seat of a vehicle. The engine was running and he had reversed into a parked car & impacted. He was extremely drunk. I established this after approaching him & speaking to him (Glazed eyes, smell of drink, slurred speech etc).

I rang the Gardai & informed them of what I had witnessed & also informed them I was going to seize the keys as he had a small baby strapped into the rear seat in a travel chair.

This I did & handed them over to the officers on their arrival. In theory I detained that man because I removed the keys to his car. He could have walked away with the baby but didn't. (I would have taken the baby if this had been the case). The weather was stormy with high winds and rain.

He blew over immediately when bagged. I recieved praise from the officers for possibly preventing an accident, not a caution.

There is not much of a difference between this post & the OP's.

johnnyskeleton · 09-12-2007 09:32PM

ThatGuy wrote: »

I rang and e-mailed them, as I was curious as to what offence I could have been guilty of and/or my (our) rights and correct course of action if it ever happened again. I've yet to receive a reply.

It's assault, but the garda ombudsman is not a legal advice service. You can read about assault here and see if it applies to you, or you can contact your nearest Free Legal Advice Centre. You might note that there are several defences to this.

Trojan911 wrote: »

This I did & handed them over to the officers on their arrival. In theory I detained that man because I removed the keys to his car. He could have walked away with the baby but didn't. (I would have taken the baby if this had been the case). The weather was stormy with high winds and rain.

Detention, i.e. preventing a person from leaving an area, is different to legal detention, which is an authorisation by statute for the gardai to keep someone in a garda station (or other suitable location) for questioning / search. Technically what you did was appropriate his property and prevent him from driving the car. There is nothing to suggest that if he tried to leave you would have stopped him, so you weren't actually holding him against his will. As for taking the baby though, that sounds a bit odd.

Trojan911 wrote:

He blew over immediately when bagged. I recieved praise from the officers for possibly preventing an accident, not a caution.

And they were right to do so.

Trojan911 wrote:

There is not much of a difference between this post & the OP's.

You didn't actually touch the other person, therefore it is not assault. But it could have been false imprisonment if, for example, it turned out that he wasn't drunk it was just that you assumed that he was.

hullaballoo · 09-12-2007 09:55PM

It couldn't have been false imprisonment, since he was in no way stopped from moving. He could have just walked away.

At the outside, it's theft. Either way, well done TJ.

johnnyskeleton · 09-12-2007 10:04PM

hullaballú wrote: »

It couldn't have been false imprisonment, since he was in no way stopped from moving. He could have just walked away.

johnnyskeleton wrote:

Technically what you did was appropriate his property and prevent him from driving the car. There is nothing to suggest that if he tried to leave you would have stopped him, so you weren't actually holding him against his will. As for taking the baby though, that sounds a bit odd.

.

Victor · 09-12-2007 10:17PM

He was turning off the engine after a car accident in case a fire started. He was really worried, because the driver was incoherent and must have been seriously injured.

Trojan911 · 10-12-2007 01:32PM

hullaballú wrote: »

At the outside, it's theft. Either way, well done TJ.

No. Not theft as I had no intention of permanantly depriving him of his key. I had also informed the station of my intentions and the the intent of handing the key to the first officer on scene. The whole idea was to prevent this driver from continuing to drive. My primary concerns were for the baby. My secondary concerns were for the driver.

johnnyskeleton wrote: »

As for taking the baby though, that sounds a bit odd.

I cannot find the offence but UK law has an offence of being drunk in charge of a minor. Again, the state this person was in, he was barely able to walk when the officers asked him to exit the car.

Had he attempted to walk prior to the arrival of the officers with the baby, my concerns would be he would drop it. The weather conditions were also not suitable for it to be exposed to, thus causing potential harm to it.

Maybe a wrong thing to do but I do not think charges would be preferred against me under the circumstances. However if they were to be then I doubt they would pass the DPP's office and I couldn't see a jury convicting either. Anyway, it didn't happen so we'll never know.

Incidently, is there such an offence here in Ireland?

Cheers.

johnnyskeleton · 10-12-2007 11:03PM

Trojan911 wrote: »

No. Not theft as I had no intention of permanantly depriving him of his key. I had also informed the station of my intentions and the the intent of handing the key to the first officer on scene. The whole idea was to prevent this driver from continuing to drive. My primary concerns were for the baby. My secondary concerns were for the driver.

It is not an element of theft that you intend to permanently deprive a person of their property, only that you intend to deprive them of it. But you could argue that there was no dishonesty.

Trojan911 wrote:

I cannot find the offence but UK law has an offence of being drunk in charge of a minor.

Young people: Never, ever, drink and babysit.

Trojan911 wrote:

Maybe a wrong thing to do but I do not think charges would be preferred against me under the circumstances. However if they were to be then I doubt they would pass the DPP's office and I couldn't see a jury convicting either. Anyway, it didn't happen so we'll never know.

Incidently, is there such an offence here in Ireland?

There is an offence of child abduction which allows for a reasonable excuse. How a jury might see this we can only speculate.

[/QUOTE]

Deesse · 11-12-2007 03:57AM

Ok, I’ve done my own research and it seems to me that the OP was treated completely in the wrong. It seems to me from the following that he had the right to restrain the “scummer”. If I’m wrong please let me know!:)

Seems to me he’s allowed arrest the thief under;

Criminal Law Act, 1997:
Arrest without warrant.
4.—(1) Subject to subsections (4) and (5), any person may arrest without warrant anyone who is or whom he or she, with reasonable cause, suspects to be in the act of committing an arrestable offence.
(2) Subject to subsections (4) and (5), where an arrestable offence has been committed, any person may arrest without warrant anyone who is or whom he or she, with reasonable cause, suspects to be guilty of the offence.
(3) Where a member of the Garda Síochána, with reasonable cause, suspects that an arrestable offence has been committed, he or she may arrest without warrant anyone whom the member, with reasonable cause, suspects to be guilty of the offence.
(4) An arrest other than by a member of the Garda Síochána may only be effected by a person under subsection (1) or (2) where he or she, with reasonable cause, suspects that the person to be arrested by him or her would otherwise attempt to avoid, or is avoiding, arrest by a member of the Garda Síochána.

Where the arrestable offence is defined as follows;
2.—(1) In this Act, and in any amendment made by this Act in any other enactment—
"arrestable offence" means an offence for which a person of full capacity and not previously convicted may, under or by virtue of any enactment, be punished by imprisonment for a term of five years or by a more severe penalty and includes an attempt to commit any such offence

And it seems to me that he was allowed use reasonable force under;
Non-Fatal Offences Against the Person Act, 1997:
Justifiable use of force; protection of person or property, prevention of crime, etc.
18.—(1) The use of force by a person for any of the following purposes, if only such as is reasonable in the circumstances as he or she believes them to be, does not constitute an offence—
( a ) to protect himself or herself or a member of the family of that person or another from injury, assault or detention caused by a criminal act; or
( b ) to protect himself or herself or (with the authority of that other) another from trespass to the person; or
( c ) to protect his or her property from appropriation, destruction or damage caused by a criminal act or from trespass or infringement; or
( d ) to protect property belonging to another from appropriation, destruction or damage caused by a criminal act or (with the authority of that other) from trespass or infringement; or
( e ) to prevent crime or a breach of the peace.
QED ... i think

OTK · 11-12-2007 01:15PM

johnnyskeleton wrote: »

Members of the public have no powers of detention. However, there is a difference between arrest and detention. There is inevtiably an element of deprivation of liberty involved with arrest, but it is different to detention.

What is the difference between arrest and detention? How can you arrest somebody without detaining them? I have seen store detectives physically restraining a shoplifter who was trying to escape. Is this not part of their normal mode of operation, carried out in accordance with the law to prevent being sued?

Victor · 11-12-2007 02:12PM

OTK wrote: »

What is the difference between arrest and detention? How can you arrest somebody without detaining them? I have seen store detectives physically restraining a shoplifter who was trying to escape. Is this not part of their normal mode of operation, carried out in accordance with the law to prevent being sued?

With arrest, one must hand over the arrestee to the Garda as soon as is practical. A civilian can't lock an arestee up in a cell. The arrest is temporary and passing, the detaining is extended and subject to procedure.

Of note, some buildings in private hands, that are sometimes used by the garda do have detention cells.

OTK · 11-12-2007 03:47PM

Victor wrote: »

With arrest, one must hand over the arrestee to the Garda as soon as is practical. A civilian can't lock an arestee up in a cell. The arrest is temporary and passing, the detaining is extended and subject to procedure.

Fair enough. From the OP's description, he held the thief only until the police arrived.

Of note, some buildings in private hands, that are sometimes used by the garda do have detention cells.

The airport, ferry terminals?Anywhere else?

Victor · 11-12-2007 10:21PM

OTK wrote: »

The airport, ferry terminals?Anywhere else?

Sorry, can't tell you.

johnnyskeleton · 11-12-2007 11:31PM

Deesse wrote: »

Ok, I’ve done my own research and it seems to me that the OP was treated completely in the wrong. It seems to me from the following that he had the right to restrain the “scummer”. If I’m wrong please let me know!:)
...
QED ... i think

That's some good original research there, I hadn't thought of it like that.

Jo King · 12-12-2007 12:13PM

The definition of an arrest that I was taught is "the physical seizure of a person in order to detain him". It follows that once the person has been physically seized detention begins. There are restrictions on detention. In the case on a non garda it can only be until the garda arrive. In the case of the garda there are time limits and a requirement to charge or release within the time allowed. On charging there is a requirement to go to court. Any detention after that is subject to the directions of the court.
There are numerous cases reported of thieves being arrested by store security personnel and held until the garda arrive. Occasionally innocent people are arrested and they then sue for damages for false imprisonment and slander.

ATM attempted robbery

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