With college nights out to the city centre already back in full swing and nightclubs opening in the near future, now seems like the best time to familiarise yourself with your rights if stopped by a member of the Gardaí. While everyone may have a general idea of what these rights are, a few things have changed over the last year and so this article aims to set out the key things that you need to know!
Recent Developments in This Area
This year saw the introduction of the ‘Garda Síochána (Powers) Bill 2021’. This Bill was introduced as a way of affording Gardaí additional search powers but it was also introduced as a mechanism for cracking down on the arbitrary manner in which stop and search powers have been exercised in the past. This Bill is yet to be enacted although it is expected to pass and be enforced from 2022.
Before considering the specifics of the Bill let’s look at the law as it stands at present. The current law is incredibly convoluted and spread across the common law, hundreds of sections of legislation as well as EU and Irish Constitutional law. The best way to consider the law as it stands is by way of asking some key questions.
When does a Garda have the right to stop me?
This is a question that has caused a lot of issues for young people seeking to understand their rights. Frankly, there are countless reasons for a Garda to request you to stop and subject you to a search, be it at home, at work or on the street.
This leads to the general statement of law that a Garda has the power to approach and search you if they have reasonable suspicion that you have broken the law. If there is reasonable suspicion that you have committed a crime your consent is not necessary in order for you to be searched, however, you should be told why you are being searched and the Garda should identify themselves as such.
What should I do if I am stopped and searched by a Garda?
While this is obviously a stressful and sometimes scary situation to find yourself in, the first thing you should do is remain as calm as possible and be as transparent as possible in case you need to rely on this transparency at a later stage.
Next, ask to see the ID of the Garda who has stopped you and ask on what suspicion you have been stopped and under what law you are being searched. While it is important to cooperate, it is also important to ensure that you have been stopped and searched on legitimate grounds and these should be taken note of. Inform the Garda that you wish to record or take note of the event for your on personal records should you later need to rely on it.
If this stop and search leads to an arrest you should be informed of exactly what grounds you are being arrested under and your rights should be read to you before you are taken to the Garda station. You will have to surrender your personal items at the station so make a note of what you brought with you to ensure it is returned, subject to its exclusion from any investigation.
A strip search should only be carried out if totally necessary and should not be used as a form of intimidation or harassment. Be sure that the reasons for the search are explained in clear language and you are told exactly what law the search is being carried out under. You may request that an officer, or in some cases doctor, of the same sex carries out this search in order to make you more comfortable.
What is changing under the new Garda Powers Bill?
There are a large number of reforms included in this Bill but three are particularly relevant to the issue of stop and search procedure.
1. A statutory right for the accused to have their lawyer present at the interview will be introduced.
This means that should you be arrested and taken to a Garda station you will have the legal right to have a solicitor present before you say anything to the questioning Garda. While this is largely the current practice, the Bill affords extra security to the accused by making this practice a statutory right.
However, questions could be raised regarding the provision of legal aid. If there will be a statutory right for an accused to have a lawyer present at an interview and the accused is in no position to finance this it will be up to the State to take on these costs.
2. Garda can require the provision of passwords for electronic devices when acting under a search warrant.
This has sparked large debate concerning the right to privacy, however, the Bill is quite specific in providing that this power only exists under a search warrant and as such evidence will be adduced to the effect that there is reasonable suspicion the device in question has been used in the course of an illegality.
3. A new requirement to make a written record of a stop and search.
This is a very welcome development as now a written record must be made by all Garda conducting a stop and search, no matter how informal the stop may have seemed to the parties involved. It is the hope that this reform will crack down on arbitrary use of stop and search procedures as well as holding Garda accountable for improper practice in the course of a stop and search.
It is the hope that the introduction of this Bill will bring some much-needed regulation to the area of Garda powers and will signal the end of the use of stop and search in an arbitrary or discriminatory manner. But for now, know your rights and don’t be afraid to assert them if you feel that proper procedure has not been followed in the case of a stop and search!
Louise Kennedy – Law Correspondent
