Well, there will be, allegedly, a Judicial Council. What complaints will it receive? Possibly not all it should.

It will not accept complaints which amount to an attack on the outcome of a case, nor should it. It will not accept complaints which are calculated to sap the spirit or determination of the judge. This latter class is of interest. After all, any complaint accepted by the Council would sap the determination of a normal person at the receiveing end of the complaint. In reality, only objective evidence of poor standards of judicial conduct will make it to the Council.

What would that be? It is hard to be dogmatic, but there are some events which, when reported, point almost invariably towards bad judicial behaviour as an explanation. (Oddly, and significantly, these events are often not reported by the media; most people try to get along without conflict).
In principle, a judge who issues a warrant for the arrest of the local Superintendent of the Garda Siochana is wrong. This is not to say that the Superintendent is beyond the law, just that the part played by the Garda Siochana in the normal functioning of the court’s business is supportive and could hardly be otherwise. It is more likely that a judge has become a lunatic than that the police function has become a maverick. (If the police function has become maverick, which can and has happened, the judiciary are, inevitably, complicit in that.)
What of other figures of power? Surely the Chief Executives of State bodies should not be permitted to cock a snook at the courts? Should they not be arrested?

Well, no.

What about legal practitioners? Should disruption of the court by defence counsel not be curbed by a timely arrest?

Well, no.

The actual problem, for the future, is to elicit complaints to the Council from the victims of such judicial behaviour. What Superintendent would not prefer to limit the unpleasantness already experienced and avoid a full blown investigation of an embarrassing clash with a judge? Would he/she receive support from the Commissioner in pursuing a complaint to the Council?

Probably not.

Finally, if there exists a Judicial Review list in the High Court consisting of cases from the work of one judge, is it not time to look at the judge, as well as his errors?

The law relating to the arrest of suspects is complex.

Every arrest must be in accordance with law. Members of the Garda Síochána have extensive powers of arrest, but do not have a right to arrest on a whim, or for a wrongful purpose.

Members of the public have a power of arrest in some circumstances, but this post does not deal with that.

It is a criminal offence to resist a lawful arrest, but not an unlawful arrest. Some unlawful arrests are plainly that; more often than not they are seen to be unlawful with hindsight.

Therefore, as a practical matter, even if a person believes that his/her arrest is unlawful, it is wiser to submit and challenge the arrest and its consequences later. (See Section 18 (6) Non-Fatal Offences against the Person Act 1997).

The general purpose of an arrest is to charge the suspect with a crime and bring him/her before the courts.

In Ireland, there are exceptions to this. (Strictly, these exceptions should be thought of as “detention” rather than “arrest”).

Under Section 30 of the Offences against the State Act 1939 (as amended), a Garda may arrest a suspect (whom it is suspected has committed one or more of certain offences) and take him/her to a Garda Station for questioning.

Likewise, under Section 4 of the Criminal Justice Act 1984 and Section 2 of the Criminal Justice (Drug Trafficking) Act 1996 a Garda may arrest a suspect and take him/her to a Garda station.

These detentions are subject to rules and regulations. Commonly, suspects are released without charge after such detentions; but equally commonly the suspect is charged with an offence and brought before a court.

The charging document may be a charge sheet or it may be a summons. The charge sheet will be delivered to the suspect at the Garda station whereas the summons will be delivered later when it issues from the District court.

A person charged on a charge sheet needs bail; no bail is needed on a summons.

The Gardaí may give bail or the court may determine the bail when the accused appears there.

(This bail will be a personal bail; a promise to pay a sum of money if default in appearance in court occurs, or it may be that AND a similar promise from a third party). The Irish bail system is unlike the system in the USA.

Equally unlike the USA, in Ireland we do not have “the Perp Walk”.

The question in the title to this post is very likely a common question to be put to suspects by Gardai.

The reason is found, firstly, in the terms of Section 19A of the Criminal Justice Act 1984 (as inserted by Section 30 of the Criminal Justice Act 2007) and secondly, in the fact that, here in Ireland, not many Garda stations are equipped for electronic monitoring of questioning of suspects.

Under Section 19A an adverse inference may be drawn from the failure of an accused to mention a fact, later relied upon by him in his defence, while he is being questioned etc., by the Gardai.

Section 19A contains the following sub-section:

(6) This section shall not apply in relation to the questioning of a person by a member of the Garda Síochána unless it is recorded by electronic or similar means or the person consents in writing to it not being so recorded.”

Section 19A only applies if the person is charged with “an arrestable offence”.

“an arrestable offence” was defined in the Criminal Law Act 1997 as:

“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;”

To put that in context, Section 4 (6) of the Criminal Justice (Theft and Fraud Offences) Act, 2001 provides:

(6) A person guilty of theft is liable on conviction on indictment to a fine or imprisonment for a term not exceeding 10 years or both.”

Few people charged with theft are sentenced to ten years in prison, but they might be, and that is sufficient to make theft “an arrestable offence”.

Consequently, while being questioned about the theft of groceries in a supermarket, say, the Garda Síochána, in preparation for any subsequent trial, knowing that the questioning will not be recorded electronically, are very likely to say,

…sign here, to say you don’t mind us not recording you”.

In 1984 President Ronald Reagan visited Ireland. There were public protests and demonstrations at his visit. He stayed for a time in the residence of the US ambassador in the Phoenix Park. A number of women took up position in a grassy area across the road from the entrance to the ambassador’s residence with the apparent intention of signaling their protest to President Reagan as he entered and left. He never saw them. They were arrested by the Garda Siochana and held for two days without bail. When they were released President Reagan had left Ireland. The women were charged with stated offences; when they came before the court one week after their arrest the charges were dropped.

This incident was never publicly resolved. The dropping of charges could only mean, to the mind of everybody in Ireland, that there was no substance to the charges in the first place.

If that was an accurate perception, great damage was done to the citizens of Ireland. In 1984, as now, an arrested and detained person was entitled to be brought before a court at the earliest opportunity. In 1984 an arrested person was entitled to bail unless a court had grounds for believing the person either would not turn up for his/her trial or would interfere with witnesses.

In 1984 the Taoiseach was Garrett Fitzgerald. His government took no steps to inquire into or explain this incident. Indeed, if the incident were to happen today the only additional feature might be the involvement of the Garda Ombudsman Commission.

In 1984 as now, a person had a constitutional right to protest and to exercise free speech. The latter right has been recently affirmed, although in less than convincing terms, by the High Court.

Now, as then, the effective guarantee of vindication of the rights of a person wrongly arrested is a civil action by the arrested person. It is not usual for the individual agent of the State to be a defendant in those proceedings. There is therefore, no effective sanction against, say, a member of the Garda Siochana who abuses the rights of a citizen.

Ireland was one of the original signatories to the European Convention on Human Rights.
Under the Convention a person may only be detained in specified circumstances; to serve a sentence upon conviction; to be brought before a court for trial; to be denied unlawful entry to the country and to be lawfully deported.

Because Ireland is a dualist state, that is, a state wherein international obligations become part of the domestic law only when specifically adopted and incorporated into domestic law, the Convention is not part of Irish law.

Ireland “incorporated�? the Convention into Irish law in an oblique manner by virtue of the European Convention on Human Rights Act 2003. Rights under the Convention may now be pleaded in Irish courts. The courts are obliged to interpret legislation, insofar as possible, compatible with the Convention. The High Court and the Supreme Court are empowered to declare law not to be compatible with the Convention and the Plaintiff may apply to the Attorney General for compensation, ex gratia, for loss or damage suffered due to the operation of the offending law. Thus, the European Convention on Human Rights, which represents the “gold standard�? for civilized treatment of citizens and persons across the European Union members, is not accorded validity in Ireland to the degree to which the Constitution is. What is at issue is the identity of the interpreters of these documents; only the High Court and the Supreme Court may interpret the Constitution; the interpretation of the European Convention on Human Rights takes place in the European Court of Human Rights in Strasbourg.

I unintentionally caused a post to be private. I have now made it public. It retains its date order in the website but can be seen HERE.

The current Irish law on “shoplifting” is to be found in Section 8 of the Criminal Justice (Theft and Fraud Offences) Act 2001. The side note for the Section descriptively reads “Making off without paying�?.

The Section provides:

8. —(1) Subject to subsection (2), a person who, knowing that payment on the spot for any goods obtained or any service done is required or expected, dishonestly makes off without having paid as required or expected and with the intention of avoiding payment on the spot is guilty of an offence.

Shoplifting is a form of theft and could also be charged as theft under Section 4 of the Act, which provides:

4. —(1) Subject to section 5 , a person is guilty of theft if he or she dishonestly appropriates property without the consent of its owner and with the intention of depriving its owner of it.

The relevant differences between Section 8 and Section 4 are that the penalty under Section 4 is considerable; a fine or imprisonment for a term not exceeding 10 years or both.

The penalty under Section 8 is smaller: a fine not exceeding £3,000 or imprisonment for a term not exceeding 2 years or both.

In addition, Section 8 makes specific provision for the circumstances in which a suspected shoplifter may be arrested in a “citizen’s arrest�?. It provides:

An arrest other than by a member of the Garda Síochána may be effected by a person under subsection (3) only where the person, 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.