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”.

Under Section 154 of the Planning and Development Act 2000 a planning authority may issue an enforcement notice on an owner or occupier of land in relation to any development.

The matters to be specified in the notice are set out in Section 154. Suffice to say that, pursuant to Section 154 (8), failure to comply with the notice is a criminal offence.

This is very strange.

Firstly, the Planning and Development Act 2000 places no express obligation on the prosecution to prove that the “development” is unauthorised. Development, whether of use or of works, is not unauthorised unless it post-dates 1st October 1964.

Secondly, the Planning and Development Act 2000 makes no express provision for some obvious defences to any requirement that might be made in a notice, such as;

that the “development” is authorised;

that the “development” is not unauthorised;

that the “development” is exempted development:

In short, the offence seems not to be related to planning (sustainable or otherwise), just a failure to follow what may be a caprice of a planning authority official.

If that is true, it raises constitutional issues in any prosecution under Section 154 (8).

“Seems”, in this context is important. It is not inevitable that the offence actually constitute a failure to comply with a notice simpliciter.

The District Court (the offence is triable summarily) is at liberty to interpret the the Section and the evidential burden on the prosecution to avoid working a breach of the constitution. Under the European Convention on Human Rights Act 2003, there is an obligation on Irish courts to interpret legislation to avoid breaches of the European Convention on Human Rights (in this particular instance Article 6 thereof). It is regularly asserted that the Irish constitution already embodies standards equal to if not greater than the European Convention on Human Rights. A prosecution under Section 154 (8) is the ideal occasion to show that this is true.

A well-wisher has directed me to page E-137 of the Garda Síochána Guide, in answer to the query (implied) as to the offence of the Dog Poop Girl, (if any), if she were to feature on the Luas or the DART.

It refers to Section 22 of the Litter Pollution Act 1997 and reads;

22.—(1) Where faeces has been deposited by a dog in any place to which this subsection applies, the person in charge of the dog shall immediately remove the faeces and shall ensure that it is properly disposed of in a suitable sanitary manner.

(2) Subsection (1) applies to a place that is—

( a ) a public road,

( b ) land forming part of a retail shopping centre,

( c ) a school ground, sports ground, playing field or recreational or leisure area,

( d ) a beach,

( e ) the curtilage of a dwelling the occupier of which has not consented to the presence of the dog in the curtilage, or

( f ) such other place as may be prescribed.

(3) Subsection (1) does not apply in respect of—

( a ) a guide dog kept and used for the guidance of a blind person,

( b ) a working dog being used—

(i) for the herding of livestock, or

(ii) by a member of the Garda Síochána or the Customs and Excise service in connection with the official functions of the member, or

( c ) a dog in such other circumstances as may be prescribed.

(4) A person who contravenes subsection (1) shall be guilty of an offence.

Neither the Luas nor the DART are encompassed by 22 (2) (a) or (b) or (c) or (d) or (e);

What of 22 (2) (f)? “Prescribed�? means prescribed by the Minister. So, if the Minister has prescribed the Luas and/or the DART under the Section, the Dog Poop Girl will have no complaints under Article 7 (1) of the ECHR as “transposed�? into Irish law by Section 3 of the European Convention on Human Rights Act 2003.