Do you have to give name to Gardaí?

IncredibleHulk

http://www.indymedia.ie/article/82108?author_name=john&comment_limit=0&condense_comments=false

SEE 3a) GARDA STOP, QUESTION & SEARCH POWERS.

Comments welcome

randomer

IndyMedia wrote:

Never cooperating with the Gardaí unless ...
1) You have been informed of a reason why they suspect you of committing an offence,
or
2) You are being assaulted by them and/or threatened with fear for your personal safety or your life.

That seems a bit dramatic to me.

MadsL

That seems a bit dramatic to me

Shell to Sea campaigners may feel differently...odd things seem to happen to the Gardai when policing protests.

Trojan911

IncredibleHulk wrote: »

Comments welcome

That link is more aimed at the Great Unwashed Rent-a-Mob section of society than the ordinary decent citizen.

Hagar

If what that article says is accurate it raises a serious question in my mind. Are the Gardaí systematically trained to abuse their powers?
They all can't come up independently with the same law-bending tactics for dealing with the public?
It would be too much of a coincidence surely.

Del2005

I like the way it's about the Shell to Sea protesters blocking workers getting to a site and they post this:D

Furthermore, "Any person (note: including a Garda) who, without lawful authority or reasonable excuse, wilfully prevents or interrupts the free passage of any person or vehicle in any public place is committing an offence under Section 9 of the CRIMINAL JUSTICE (PUBLIC ORDER) ACT, 1994”.

randomer

Del2005 wrote: »

I like the way it's about the Shell to Sea protesters blocking workers getting to a site and they post this:D

Thats very funny!

PeakOutput

peoples stupidity never ceases to amaze me

AckwelFoley

I think the Gardai are doing a fine job with those shell to sea "protestors"

One thing they dont seem to do is go "french police" style and hammer the sh1t out of them, which is a pity..

Personally i think one would be a pathetic dick, with holding your name.

Tom Young

Hagar wrote: »

If what that article says is accurate it raises a serious question in my mind. Are the Gardaí systematically trained to abuse their powers?
They all can't come up independently with the same law-bending tactics for dealing with the public?
It would be too much of a coincidence surely.

Like any profession or vocation, people can be subject to intertia and institutional abuses.

The Gardai have a particularly hard task. I'd use the 80/20 rule to exemplify the fact that in reality 80% of the time there is valid cause for a question or invokation of a power, whether arrest, detention, search or seizure.

So no the Gardai are not systemically trained to abuse their powers. The powers vested in a Garda are serious, and are individual.

Technically, the proposition about 'law-bending' is an interesting one. I'd say no, but the difficulty in defending that type of an answer is that, like in any situation circumstances may arise where there is a grey area in the law or the process by which a person could/should be detained etc.

There are few members of the public and society (even lawyers) who are going to know precisely to the letter, what a Garda is asking them for, or what indeed the transaction in question might involve. Conversely, the Gardai are trained in the various main-stream acts relevant to the criminal law, but may not always follow processes.

I think there was a good thread on this before.

In general terms there wouldn't be malla-fides / bad faith, in transactions.

Hagar

I'm just curious because the "What's your name, where are you going, where are you coming from" seems so well rehearsed and seems to be used in all situations even where there is apparently no legal basis for the questions. It must be part of their training and those doing the training must be aware it's playing on the legal ignorance of the person being questioned. I'm guessing that 99% of the time a quite correct refusal to answer the above question will lead to their next standard question "Are you getting smart with a Garda".
I may be wrong but the anecdotal evidence is quite compelling.

Tom Young

I guess it's a fair point. There are aspects of the Garda's duty to be courteous and professional also. The Garda would be obliged to answer certain structured questions as to the nature and cause of his/her enquiry and in addition to give certain data pursuant to their station allocation etc.

Let's face it though, 99% of the time a Garda will not ask you that without cause and in the majority of cases they have to deal with the less tasteful members of society.

yayamark

Why wouldnt u tell the gardai what ur name is.?

Whats the problem?

If u have done nothing wrong what have u to be scared of?

I cant see this website helping people with dealing with the gardai.

"I saw on a website that i dont have to tell u what my name is"

Hagar

Agreed Tom, I'm just debating the point in the pursuit of knowledge.

yayamark here's a "yo", I bet if you put it in front of a "u" it will make a valid English word.

Nevyn

Hagar wrote: »

I'm just curious because the "What's your name, where are you going, where are you coming from" seems so well rehearsed and seems to be used in all situations even where there is apparently no legal basis for the questions. It must be part of their training and those doing the training must be aware it's playing on the legal ignorance of the person being questioned. I'm guessing that 99% of the time a quite correct refusal to answer the above question will lead to their next standard question "Are you getting smart with a Garda".
I may be wrong but the anecdotal evidence is quite compelling.

Well they are also meant to give you their name, number, what station they are attached to and the name of their shift super when they are asked by a and I have to say the majority of those that I have asked shirty about it depite the fact they are obliged to give such information when asked civilly.

CLADA

Thaedydal wrote: »

Well they are also meant to give you the name of their shift super when they are asked

Where did you get that from?

johnnyskeleton

Hagar wrote:

Are the Gardaí systematically trained to abuse their powers?
They all can't come up independently with the same law-bending tactics for dealing with the public?
It would be too much of a coincidence surely....
I'm just curious because the "What's your name, where are you going, where are you coming from" seems so well rehearsed and seems to be used in all situations even where there is apparently no legal basis for the questions. It must be part of their training and those doing the training must be aware it's playing on the legal ignorance of the person being questioned. I'm guessing that 99% of the time a quite correct refusal to answer the above question will lead to their next standard question "Are you getting smart with a Garda".
I may be wrong but the anecdotal evidence is quite compelling.

If a garda asks you to strip naked and sing Monto while hopping on one leg, and you do it, there is no abuse of process in that; it's only if they bully or mislead you into believing that you have to that it becomes a problem. They can ask any question they want, this post is about them compelling you to reply. So they will often ask "What's your name, where are you going, where are you coming from" and there is no problem there. The problem is only when they try to force you to answer i.e. with the threat of being arrested.

They have some powers to compel a reply to this, e.g. under Public Order & Offences against the state legislation, or to supply documents, e.g. the immigration act, 2004, and they also have a discretion when they have arrested someone for a minor offence e.g. under s3 of the misuse of drugs act, 1977, to demand their name and if it is given to them, to release the person and then issue a summons (as opposed to bringing them to the station).

So there is nothing wrong with them asking, and yes, they may well be trained to ask those questions, but they are also fairly common sense. If you work in customer service, for example, you will be trained to ask for the person's name first off, so that you know who you are talking to. With the gards it makes sense to know who they are talking to and if they are to issue a summons, they need to know where to send it. Whether you want to co-operate with them or not is your own choice, and if you choose not to co-operate, they must invoke a specific legislative or common law power in order to compell you to reply.

Hagar

I am aware that under certain circumstances where you are suspected of specific offences they have greater rights but under normal circumstances aren't they relying on the ordinary persons fear of arrest to ask questions which they have no right to ask? Let's be honest the criminals have no such fear as most of them are better versed in their rights than the average law abiding citizen.

I'm not saying members of the general public shouldn't be as helpful to the Gardaí as they can in the execution of their duty. I'm just querying the way they carry out their duty.

johnnyskeleton

Hagar wrote: »

I am aware that under certain circumstances where you are suspected of specific offences they have greater rights but under normal circumstances aren't they relying on the ordinary persons fear of arrest to ask questions which they have no right to ask? Let's be honest the criminals have no such fear as most of them are better versed in their rights than the average law abiding citizen.

I'm not saying members of the general public shouldn't be as helpful to the Gardaí as they can in the execution of their duty. I'm just querying the way they carry out their duty.

Most people will give their names to gardai because they want to be good citizens and because it's just polite. But in the execution of all their duties, the gardai usually follow this procedure:

1) ask the person to give their name/be searched/allow them into their home with their permission, and if that permission is given then it's perfectly fine i.e. your rights can't be breached if you agree to the breach.
2) if the person doesn't consent, they will inform the person that unless they co-operate the garda will invoke a power, and they have to specify that power. If the person co-operates at this stage their rights might be breached, but only if:

(a)the gardai unlawfully coerce or induce them to co-operate i.e. "I'm entitled to search you under the Misuse of Drugs Act" but they don't have the reasonable cause to suspect you of committing an offence under that act , or or "I'm a guard, you have to do what I say or I'll arrest you" when they have no power of arrest in the circumstances
(b) if the gardai mislead you into co-operating i.e. "Under the Made Up Act, 1958, you are required to give me your name" or "I'm arresting you under s.4 of the Criminal Justice (Theft and Fraud Offences) Act, 2001" instead of "I'm arresting you under s.4 of the Criminal Law Act, 1997 for an offence under s.4 of the Criminal Justice (Theft and Fraud Offences) Act, 2001"

3) if the person still refuses to co-operate, the garda can invoke their power. If they exercise their power correctly i.e. exactly as laid out in the statute and in the right circumstances, then there is no breach of rights. However, if they do not exercise their powers correctly, then this is a breach of their powers.

As said above, there are a few circumstances where the gardai can invoke these powers, but there is no general power for them to demand this information where the person refuses to co-operate.

It's not a case of gardai being unable to do anything without the right to do so, it's just that they cannot breach a person's rights without specific legal authority. They can make the requests all they like, in the same way that they can patrol public areas, give people directions, have a chat with anyone they know in the area ("staying out of trouble Timmmy?" etc). The fact that people generally co-operate with the gardai doesn't mean that it's an abuse of their powers, or that the gardai are using fear to coerce answers. And as for the way that they carry out their duty, their duty is to keep the peace, prevent crime and apprehend offenders. They can use many different ways of doing so, provided they don't breach someone's rights, and where they have to breach someone's rights, they need to use a specific power.

Our man in Havana

Can the refusal to give your name/address then give them sufficient grounds for a search under the misuse of drugs act?

On a side issue, if you call a Garda station to report a crime are you obliged to give your name? Or are the Gardaí allowed to not investigate i.e. ignore the report because no name was given.

Hagar

Bond-007 wrote:

Can the refusal to give your name/address then give them sufficient grounds for a search under the misuse of drugs act?

No, but I wouldn't bet it doesn't happen.


"The Gardaí acting on an anonymous tip-off...."
All the same I think a report with a name would be given more credence.

thingamajig

I think you would have to give your name to report a crime, otherwise they cant substantiate any information that you give and also you would be a witness to the crime if you report it.

SMERSH

I had a call on my mobile phone a few years ago from a person claiming to be a Garda sgt attached to a Dublin station. It came up as a witheld number on my phone. He asked to speak with someone I had never of before. I told him that he must have rang the wrong number. He said not. He then asked my name. I then asked him under what powers was he making the request. His reply was "Tell me whose phone this is, I command you to tell me!" At that point I hung up.

Our man in Havana

thingamajig wrote: »

I think you would have to give your name to report a crime, otherwise they cant substantiate any information that you give and also you would be a witness to the crime if you report it.

Would the name of the informant be released to the criminals if they was ever a trial? In certain cases that would not be a good thing.

Jo King

The gardai can and do investigate crimes based on anonymous tip-offs. they have limited resources and have to prioritise their responses to various calls on them. A report from an identifiable person is of much greater value than an annonymous one. Hoax calls have to be screened. If a person is a witness in a trial the accused must be put on notice of the evidence that they will give. Many crimes are never prosecuted for this reason as witnesses are unwilling to come forward. It is however essential in the interests of a fair trial that witnesses are seen and heard.

johnnyskeleton

For some offences, e.g. possession of drugs, firearms etc, confidential information is often used to obtain a search warrant. In those cases, it is usually acceptable because the warrant was judicially issued and the drugs were actually found.

It's more difficult when the confidential information is of substance e.g. in Offences Against the State - confidential information that a person is a member of a criminal organisation. For property offences, sexual offences and offences against the person, a complainant is required and obviously that evidence cannot be given confidentially.

yayamark

Hagar wrote: »

Agreed Tom, I'm just debating the point in the pursuit of knowledge.

yayamark here's a "yo", I bet if you put it in front of a "u" it will make a valid English word.

Ok, and have u anything else to say about my post, other than not spelling a word correctly?

Hagar

Yes, here's another "yo".

I think you missing the point of the debate. The discussion is about "do you have to give your name to Gardai" not "are you guilty of something". Nobody is suggesting that there is any guilt on the part of the member of the public that would stop them giving the information. It's discussion on the idea that Gardaí may be over-stepping their powers in asking certain questions where they have no justification to do so.

TheNog

Bond-007 wrote: »

On a side issue, if you call a Garda station to report a crime are you obliged to give your name? Or are the Gardaí allowed to not investigate i.e. ignore the report because no name was given.

If you are an injured party to a crime and you want the crime investigated then you would have to give your name and address so a formal statement of complaint can be taken. If you don't give your name and address, a statement cannot be taken and therefore the crime cannot be investigated. In all crimes a statement of complaint must be taken before an investigation can begin.

Victor

Isn't there a section in the Offences Against the State Act(s) that requires you to identify yourself? It even has an arrest provision where the garda isn't satisifed with the answer.

Hagar wrote: »

I'm just curious because the "What's your name, where are you going, where are you coming from" seems so well rehearsed and seems to be used in all situations even where there is apparently no legal basis for the questions.

Invariably, they aren't looking for that information*, they are looking at your demeanour and type of response. A friend and I were stopped at 2am at a check point, him driving. "So where are ye heading lads?". A rather stern and annoyed "HOME!" from my friend demonstated he hadn't been drinking so we were told to be on our way.

* However, if you claim to be the new Martin Cahill and are coming from the AIB you just robbed and heading to your sekrit lair, all the better.

sunnyse

Hi Guys, just reading your thread and was wondering about a guards right to search.

In the local papers when you see some poor sod caught for a fivers worth of dope the guard says he searched the suspect when he was seen "acting suspiciously". Now I've asked many people but no-one seems to know what constitutes suspicious actions, so does this basically give the guards an automatic right based on his belief you were acting "suspiciously".

If a guard wants to search your pockets as you walk home at night from the pub, what are your rights and how does one prove a lack of suspicious activity:eek::)

Bren1609

Guard can stop and search you as long as he has reasonable grounds and can request your name and address. If theyre not satisfied with the name you gave them they can arrest you. Thats the law.

Our man in Havana

But what constitutes reasonable grounds?

johnnyskeleton

TheNog wrote: »

In all crimes a statement of complaint must be taken before an investigation can begin.

As crimes are investiaged and prosecuted by the state, as opposed to the injured parties, there is no requirement of a statement of complaint or even an informal complaint. In DPP v Tony Monaghan, Charleton J found that they don't need a complaint to start a prosecution, even in assault cases.

Victor wrote: »

Isn't there a section in the Offences Against the State Act(s) that requires you to identify yourself? It even has an arrest provision where the garda isn't satisifed with the answer.

Section 30(5) OAS 1939.

Bond-007 wrote: »

But what constitutes reasonable grounds?

How long is a piece of string. It's a matter of judicial opinion, but it has to be based on evidence; it can be speculative or fanciful.

Villain

Always ensure you ask the Garda his/her badge number in return.

Johnny Utah

How long is a piece of string. It's a matter of judicial opinion, but it has to be based on evidence; it can be speculative or fanciful.


That's exactly the problem. "Reasonable suspicion" is invariably based on the subjective opinion of the individual Garda. Imo there should be an objective standard.

Furthermore, under the present regime, if the Garda finds any drugs, offensive weapons etc during the search, his suspicion is proved correct. Yet, on the other hand if there nothing found is there any recourse for the person who was searched?
It's a lose-lose scenario for the person who is searched...

Victor

johnnyskeleton wrote: »

How long is a piece of string. It's a matter of judicial opinion, but it has to be based on evidence; it can be speculative or fanciful.

Should that be "it can't be speculative or fanciful"?

sunnyse

I agree with this, if a guard searches you and all he can come up with as a reason is "acting suspiciously" he should have to stipulate exactly what you were doing that constitutes suspicious. If I'm wearing a balaclava or heating crack on a spoon I can see the justification, but if I'm some kid walking home with a skinful on me, wheres the justification.

I wonder why this area hasn't been more attacked by solicitors for defendants who obviously haven't been doing anything "suspicious" and been caught. In America these things would be laughed out of court.

Johnny Utah wrote: »

How long is a piece of string. It's a matter of judicial opinion, but it has to be based on evidence; it can be speculative or fanciful.


That's exactly the problem. "Reasonable suspicion" is invariably based on the subjective opinion of the individual Garda. Imo there should be an objective standard.

Furthermore, under the present regime, if the Garda finds any drugs, offensive weapons etc during the search, his suspicion is proved correct. Yet, on the other hand if there nothing found is there any recourse for the person who was searched?
It's a lose-lose scenario for the person who is searched...

Our man in Havana

Wearing a burberry cap would be grounds enough for a search in these parts.

Abraham

sunnyse wrote: »

I agree with this, if a guard searches you and all he can come up with as a reason is "acting suspiciously" he should have to stipulate exactly what you were doing that constitutes suspicious. If I'm wearing a balaclava or heating crack on a spoon I can see the justification, but if I'm some kid walking home with a skinful on me, wheres the justification.

I wonder why this area hasn't been more attacked by solicitors for defendants who obviously haven't been doing anything "suspicious" and been caught. In America these things would be laughed out of court.

REPLY to Above: An illegal search, ie ...a search that is not based on reasonable grounds.....cannot be justified by what turns up afterwards.
To state this more clearly: If your constitutional rights are infringed, the fruits thereof CANNOT, repeat absolutely CANNOT, be used against you in a prosecution. To do so, would make the judiciary and the courts partners in illegality with the Gardai so that when the constitutionality of an illegal search is raised in court, the judge will always uphold the constitution and there's no question whatever about that.

Gardai infringe constitutional rights every day in the ordinary course of their anti-drugs work, in fact it's the norm for them to do so but they are never taken to task for it. They get away with it because an indifferent public allows them a bit of licence in their efforts to deal with the scourge of illegal drugs.
Just in case some of you are trying to work how it happens if it's illegal. this may help to explain it to you : The Garda logic, plain and simple on this issue is that "the end justifies the means".....i.e. if he/she had illegal drugs then this is offered as justification for the search and if nothing incriminating is found then the view is that "there's no harm done". The fact (and it is a FACT, if the Garda was on a fishing expedition) that the search was illegal is never addressed.
As another matter of fact, Gardai do not even record the fact that they have stopped and searched a named individual on the street unless they find something illegal and that's an indication of how little it registers with them in terms of importance.
ONCE they were deemed to be acting in good faith, now people like me are less sure. Hope this helps to clarify de facto Garda methodologies as opposed to de jure methodologies.

sunnyse

It certainly shows the thinking on the part of both the guards and the judges but I still don't understand how more defence lawyers don't tear this to shreds, surely the poison fruit defense would be the obvious course to follow.

Abraham wrote: »

REPLY to Above: An illegal search, ie ...a search that is not based on reasonable grounds.....cannot be justified by what turns up afterwards.
To state this more clearly: If your constitutional rights are infringed, the fruits thereof CANNOT, repeat absolutely CANNOT, be used against you in a prosecution. To do so, would make the judiciary and the courts partners in illegality with the Gardai so that when the constitutionality of an illegal search is raised in court, the judge will always uphold the constitution and there's no question whatever about that.

Gardai infringe constitutional rights every day in the ordinary course of their anti-drugs work, in fact it's the norm for them to do so but they are never taken to task for it. They get away with it because an indifferent public allows them a bit of licence in their efforts to deal with the scourge of illegal drugs.
Just in case some of you are trying to work how it happens if it's illegal. this may help to explain it to you : The Garda logic, plain and simple on this issue is that "the end justifies the means".....i.e. if he/she had illegal drugs then this is offered as justification for the search and if nothing incriminating is found then the view is that "there's no harm done". The fact (and it is a FACT, if the Garda was on a fishing expedition) that the search was illegal is never addressed.
As another matter of fact, Gardai do not even record the fact that they have stopped and searched a named individual on the street unless they find something illegal and that's an indication of how little it registers with them in terms of importance.
ONCE they were deemed to be acting in good faith, now people like me are less sure. Hope this helps to clarify de facto Garda methodologies as opposed to de jure methodologies.

johnnyskeleton

Victor wrote: »

Should that be "it can't be speculative or fanciful"?

My, er, um, keyboard has no ' and t keys.:D

Johnny Utah wrote: »

That's exactly the problem. "Reasonable suspicion" is invariably based on the subjective opinion of the individual Garda. Imo there should be an objective standard.

Furthermore, under the present regime, if the Garda finds any drugs, offensive weapons etc during the search, his suspicion is proved correct. Yet, on the other hand if there nothing found is there any recourse for the person who was searched?
It's a lose-lose scenario for the person who is searched...

There is an objective standard. The garda's suspicion must be reasonable. It's not based on the garda's subjective opinion. A garda can be tested on his reasons for suspecting. Common examples of reasonable suspicion are seeing the person with what look like drugs, seeing the person behave in an irrational manner, knowing the person as a drug dealer, etc.

Just because a garda finds drugs that does not make the search legal, if that's what you mean. If there is nothing found and the search was not based on a reasonable suspicion you can make a complaint to the garda ombudsman and / or start a civil action (with varying degrees of success).

sunnyse wrote: »

I wonder why this area hasn't been more attacked by solicitors for defendants who obviously haven't been doing anything "suspicious" and been caught. In America these things would be laughed out of court.
...
It certainly shows the thinking on the part of both the guards and the judges but I still don't understand how more defence lawyers don't tear this to shreds, surely the poison fruit defense would be the obvious course to follow.

Fruit of the poisoned tree? That's a great analogy, I wonder if it has ever been used in any criminal cases? On what basis are relying on to suggest that defence lawyers don't use this argument?

Abraham

ELABORATION ON "REASONABLE SUSPICION"
Wasn't going to but now feel I should explain further in regard to Reas Suspn.
It can of course be tested but watch what happens when this takes place.

When drawn up under scrutiny in the Court proceedings and the Garda is about to be examined concerning the validity of his/her "reasonable suspicion" search, there are two possible options open to the Garda:-

Option (1) Claim 'Confidential Information' and while an active defender will attempt to probe this, the court will hold that the Garda does not have to reveal his source. Never, ever has a case been upheld in which the Gardai were forced to reveal sources of this nature. Trust me....that is the case here. This is the option most favoured by Gardai whose searches are under scrutiny as part of the evidence gathering process.
In fact, it has wellnigh proved impregnable to date......in effect the Garda has just clambered into the higher branches of that poisoned tree and pulled the ladder up after him when he invokes the "Conf/Info" response to queries.

Option (2) The Garda can offer an explanation of what it is that, in his/her view attracted his/attention and which it is maintained amounted to "Reasonable Suspicion".
Regardles of how the R/S is explained, it will be torn asunder by the defender and the Garda gets mighty bruised in that pursuit. And when he is being roasted on that spit all the time he/she is thinking that all this could have been avoided by merely uttering the magic words "Confidential Information" which have never in the entire history opf Garda policing failed to protect the policeman in a criminal trial.

There is no quick fix to this scenario and were it to change, then a whole lot of other considerations come into play not least the public view regarding the giving of Confidential Info to the Gardai.

This is a minefield are and not easily understood in regard to demonstrating official wrongdoing.

I could go on and on but I'm going to cut it there. That's enough for this discussion

yayamark

Abraham wrote: »

ELABORATION ON "REASONABLE SUSPICION"
Wasn't going to but now feel I should explain further in regard to Reas Suspn.
It can of course be tested but watch what happens when this takes place.

When drawn up under scrutiny in the Court proceedings and the Garda is about to be examined concerning the validity of his/her "reasonable suspicion" search, there are two possible options open to the Garda:-

Option (1) Claim 'Confidential Information' and while an active defender will attempt to probe this, the court will hold that the Garda does not have to reveal his source. Never, ever has a case been upheld in which the Gardai were forced to reveal sources of this nature. Trust me....that is the case here. This is the option most favoured by Gardai whose searches are under scrutiny as part of the evidence gathering process.
In fact, it has wellnigh proved impregnable to date......in effect the Garda has just clambered into the higher branches of that poisoned tree and pulled the ladder up after him when he invokes the "Conf/Info" response to queries.

Option (2) The Garda can offer an explanation of what it is that, in his/her view attracted his/attention and which it is maintained amounted to "Reasonable Suspicion".
Regardles of how the R/S is explained, it will be torn asunder by the defender and the Garda gets mighty bruised in that pursuit. And when he is being roasted on that spit all the time he/she is thinking that all this could have been avoided by merely uttering the magic words "Confidential Information" which have never in the entire history opf Garda policing failed to protect the policeman in a criminal trial.

There is no quick fix to this scenario and were it to change, then a whole lot of other considerations come into play not least the public view regarding the giving of Confidential Info to the Gardai.

This is a minefield are and not easily understood in regard to demonstrating official wrongdoing.

I could go on and on but I'm going to cut it there. That's enough for this discussion

I understand what your saying but in the reality of court the issue of the normal stop and search on the street is rarely
questioned.
This is because the offender is at this stage caught! and to question the search in court prolongs the case, irratates the judge which may lead to a heavier sentence, when if the offender pleads at the earliest opportunity the judge may go easier on him/her.

In fact i have never seen a judge or solicitor question a stop and search under sec 23 m.d.a. when the offender has been found with an illegal substance on them.

Im not saying that is wrong or right but thats what i have seen. Other proples views and experiences maybe different.

TheNog

Abraham wrote: »

As another matter of fact, Gardai do not even record the fact that they have stopped and searched a named individual on the street unless they find something illegal and that's an indication of how little it registers with them in terms of importance.

you are quite wrong with this statement. all searches are/should be recorded whether they are conducted on the street or in the station even if nothing is found.

Abraham

What would the Garda enter in such record in the countless instances in which the details of name, age, address are not asked or noted. Gardai stop and search on the street at night and at the doors of nightclubs and pubs etc and virtually none of these instances are noted except on CCTV overhead. Many but not all Gardai regard themselves as having arbitrary powers, i.e. at their pleasure or inclination regardless of justification.

andrew1839

Hey Abraham, seems to be you have a big problem against the Gardai. Do you carry around illegal substances as you seem to be very concerned about Gardai searching people. If you have nothing to hide whats the problem unfortunely this country is overrunned by drugs and the gardai have done a great job so far in recovering millions of euros worth of drugs.

Abraham

andrew1839 wrote: »

Hey Abraham, seems to be you have a big problem against the Gardai. Do you carry around illegal substances as you seem to be very concerned about Gardai searching people. If you have nothing to hide whats the problem unfortunely this country is overrunned by drugs and the gardai have done a great job so far in recovering millions of euros worth of drugs.

ANDREW....I have no problem with the Gardai and back them 100% when acting legally and in conformity with the legislature....i.e. the laws passed in the Oireachtas and given to them for enforcement. I do not expect the Gardai to act illegally on my behalf, in fact, they should not do so.

In upholding the law the Gardai should not break the law although I do appreciate that some may see things differently.
Most Gardai are very decent people and are fully deserving of public support but no person can make the case that the Gardai should act illegally and that this then should be acceptable.

What I have provided in this thread is an explanation of what "Reasonable Suspicion" means and it should be read in that context. There is some extremely important and accurate information in the various contributions provided in the thread and I suggest that if read carefully it will be seen that the core position is correct. The "Reasonable Suspicion" that the Gardai use is frequently non-existent and when that is the case the detection is illegal.....FACT. An illegal search cannot be rectified by what turns up afterwards.

An illegal search is a violation of human rights and as I have said earlier this cannot be entertained in a court of law. To some extent these are legal concepts and need to be thought through but the basic facts are unalterable....i.e. the Gardai have no authority to conduct illegal searches although they very frequently do that very thing but the illegality is covered up by what the Garda says under oath and which gives the appearance of correct procedure such as will satisfy the presiding judge.

If you have a counter case to this, please articulate it showing why you believe the Gardai should be allowed to act illegally.
For the greater good.....maybe ?

Our man in Havana

If you have a counter case to this, please articulate it showing why you believe the Gardai should be allowed to act illegally.
For the greater good.....maybe ?

They would probably cite public policy reasons.

andrew1839

What has you so wrapped up with the searching anyway?? Usually people give out about speeding tickets or garda not responing quick enough but your the first about searching.

Reasonable suspicion is different in the eyes of everybody. I could see reasonable suspicion as this as some1 else could see it differently. It is not hard to come up with reasonable suspicion and I can't see Gardai searching people if there was not a suspicion there.

Abraham

andrew1839 wrote: »

What has you so wrapped up with the searching anyway?? Usually people give out about speeding tickets or garda not responing quick enough but your the first about searching.

Reasonable suspicion is different in the eyes of everybody. I could see reasonable suspicion as this as some1 else could see it differently. It is not hard to come up with reasonable suspicion and I can't see Gardai searching people if there was not a suspicion there.

ANDREW
I was merely providing some very important information in response to the post of Sunnyse of 24 Jan who had posed a number of excellent questions vis-a-via Garda search powers and in particular about Reasonable Suspicion and the manner in which used by Gardai. Might be useful to read that again just to grasp the queries raised.

Equally enjoyable to me is a whole range of other topics in the civil and criminal law as I make my living from it. I have no hangups about any of them.

Your views on why the Gardai should be above the law when enforcing it is something that I would like to consider if you would undertake to explain that viewpoint. I am a very strong Garda supporter in all appropriate circumstances.

In my chosen field, I would be seen as a stickler for following correct procedure and would point out that incorrect procedure is responsible for more Garda case failures that any other single cause either at trial or on appeal. The very experienced investigators within the Gardai and certainly Garda management know the importance of procedure very well, however, given the numbers involved these would not be in the majority.

Absence of or failure to follow procedure is what caused so much manure to be flung in the Garda direction following the disclosures and findings of the recent Donegal, Omagh (linked case) plus Abbeylara and several other high profile cases one could think of without difficulty.