Do you have to give name to Gardaí?

lennox1

Have been following this thread with interest.Reasonable suspicion as it seems to stand according to some posters here is a ridiculous way to operate both for the Garda and the public.I think that sometimes the role and right of the Garda is too loosely defined,too wishy washy by far,e.g reasonable suspicion.'Reasonable' as defined in the Oxford dictionary,'having sound judgement,moderate,ready to listen to reason,in accordance with reason,not absurd'
Posters here say that lawyers should tear the reasonable suspicion of the Garda to shreds in court.What is the legal,solid definition of reasonable suspicion?Is the definition written anywhere? If it is then it should be followed strictly.If however,the legal people who draw up the laws have not defined it very clearly and in a watertight fashion so that the Garda and lawyers know exactly what it is,it is surely not the Gardas fault if he,acting in good faith stops and searches someone on his 'reasonable' grounds.

andrew1839

I would agreed that most cases are the result in not following the correct procedure. Like all jobs we learn from our mistakes and move on. An Garda Siochana is becoming a very young force with the amount of new recruits being trained so you would have to expect mistakes.

johnnyskeleton

yayamark wrote: »

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.

A judge is not entitled to impose a heavier sentence because someone runs a trial - that is their legal right. Prolonging the case and irritating the judge are not good reasons to plead guilty.

yayamark wrote: »

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.

I wouldn't necessarily agree with this. As solicitors are bound by their clients instructions, I don't think this is a solid foundation to suggest that the questioning of a garda search is a rare occurence.

johnnyskeleton

lennox1 wrote: »

Have been following this thread with interest.Reasonable suspicion as it seems to stand according to some posters here is a ridiculous way to operate both for the Garda and the public.I think that sometimes the role and right of the Garda is too loosely defined,too wishy washy by far,e.g reasonable suspicion.'Reasonable' as defined in the Oxford dictionary,'having sound judgement,moderate,ready to listen to reason,in accordance with reason,not absurd'
Posters here say that lawyers should tear the reasonable suspicion of the Garda to shreds in court.What is the legal,solid definition of reasonable suspicion?Is the definition written anywhere? If it is then it should be followed strictly.If however,the legal people who draw up the laws have not defined it very clearly and in a watertight fashion so that the Garda and lawyers know exactly what it is,it is surely not the Gardas fault if he,acting in good faith stops and searches someone on his 'reasonable' grounds.

Reasonable suspicion is a term of art because different statutes usually have different wordings. "With reasonable cause suspects" is the phrase in the act, and this means that there must be some evidence, information or circumstance upon which the garda can decide that a search would be appropriate.

Examples might include confidential information received, sight of the person acting like they are dealing drugs and more dubiously, how the person looks/acts or knowledge that they are "well known to the gardai" for possessing drugs.

Victor

johnnyskeleton wrote: »

A judge is not entitled to impose a heavier sentence because someone runs a trial - that is their legal right. Prolonging the case and irritating the judge are not good reasons to plead guilty.

At the same time, its well known that a early guilty plea and cooperation will get a more lenient sentence.

Abraham

Victor wrote: »

At the same time, its well known that a early guilty plea and cooperation will get a more lenient sentence.

VICTOR.....I'll agree with that no problem. In fact, the only reason that the courts can cope is because most people plead guilty so the time in court is minimal. In the UK, it's virtually a standard now that if one pleads, a half sentence is the norm for punishment but if one pleads not guilty and is convicted after the evidence is heard then the full permissible penalty is given. The minds of the criminal classes are greatly exercised in making their decisions before arraignment over there !.

It would be good to hear the views of others who may be following this thread. How about it folks? It is after all merely a forum for discussion which is dependent on contribution of a diverse nature to sustain interest. This has proved an excellent thread and should be encouraged.

TheNog

Abraham wrote: »

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.

There is a possibility here that the person being searched is well known to Gardai so they would not have to ask for name and address. Having said that I'm sure that there are some Gardai out there who do not follow procedure or the law to the letter.

Abraham wrote: »

Many but not all Gardai regard themselves as having arbitrary powers, i.e. at their pleasure or inclination regardless of justification.

Any Garda who feels this way is playing a dangerous game indeed. They can leave themselves open to civil action and/or dismissal from the job.

Trojan911

Abraham wrote: »

It would be good to hear the views of others who may be following this thread. How about it folks? It is after all merely a forum for discussion which is dependent on contribution of a diverse nature to sustain interest. This has proved an excellent thread and should be encouraged.

Abraham,

I am with you on the stop & search in the sense that Gardai do abuse their powers of search, I have witnessed this first hand (not me).

I don't agree with the "fishing expedition" method as it causes the officer to act unlawfully to achieve his/her goal.

Reasonable cause can be a mixture of anything i.e. I saw him flick something away as I approached him or I could smell cannabis coming from the car as he opened the window or I saw the passenger making a movement under the car seat as I approached the vehicle etc. Those to me would be reasonable causes to stop & search a person/vehicle. Evasive behaviour, unable to account for his movemnts in the area at the time would also be acceptable for M.D.A & going equipped to commit any theft, burglary or cheat.

A stop in the street & a quick spin of the outer coat/jeans etc with the words "Do you have anything on you, that you shouldn't have" is not suffice. That is your perfect "fishing expedition".

I expect an officer, irrespective of their service time, to treat me as I would treat them, that is with respect & courtesy. My liberties are very important to me & I will not stand to have them abused.

johnnyskeleton

Abraham wrote: »

VICTOR.....I'll agree with that no problem. In fact, the only reason that the courts can cope is because most people plead guilty so the time in court is minimal. In the UK, it's virtually a standard now that if one pleads, a half sentence is the norm for punishment but if one pleads not guilty and is convicted after the evidence is heard then the full permissible penalty is given.

I thought the unofficial standard in the UK and Ireland was up to a 25% reduction for a guilty plea, depending on when it was entered and the circumstances of it. Even still, if a judge imposed the full permissible penalty just because someone didn't plead guilty it would be an error in principle becuase they must look at the appropriate range of sentences for such an offence, the place on that scale where the particular offence would lie, any aggravating factors, any mitigating factors (including guilty plea, co-operation etc) and the personal circumstances of the offender. So while a guilty plea can be a factor, it is not always determinative, especially since an Irish judge is entitled to impose the maximum sentence even when there has been a guilty plea.

Abraham wrote: »

The minds of the criminal classes are greatly exercised in making their decisions before arraignment over there !.

The criminal classes? :eek:

CLADA

As outlined by some posters already there are a number of factors that can place reasonable suspicion in the mind of the Garda.

Factors to be considered are the amount of information available and the source and credibility of that information. It is not neccesary to take all steps open to the Garda to verify the accuracy of this information provided the facts that come to his attention furnish reasonable and probable cause.

If the results of a search of a person prove negative it does not mean that the suspicion which formed the basis for the search was unreasonable.

The test for reasonable suspicion relates to what was in the mind of the searching officer when the power was exercised. If the judge and jury are happy with that.........

Abraham

Clada......your posting is bang on....absolutely 100% correct. and it's quite close to the wording of the case law references (mostly from the neighbouring jurisdiction) so I do believe you've done your research and that's excellent.
Now could I ask, given what we now know to be the case about the legality of searches, how would the Gardai satisfy themselves that they have Reasonable Suspicioun to a sufficient extent to make it permissible for them under the law to search people en masse, i.e. the Slane or Punchestown or Midlands music festivals where sometimes people are lined up and searched in relays. There is no such thing as a general power of search. Maybe everyone there is under suspicion depending on who's playing ?
The year the R/Stones played Slane way back whenever, has, I believe, the record number of drug arrests at an Irish music fest.
Now there's a great case of "Reasonable Suspicion" !!!

Victor

aren't there specific rules regarding such events, concerts, sports, events, etc. where gardai can search for drink, weapons, etc. even off the premises.

alfie

Abraham wrote: »

Clada......your posting is bang on....absolutely 100% correct. and it's quite close to the wording of the case law references (mostly from the neighbouring jurisdiction) so I do believe you've done your research and that's excellent.
Now could I ask, given what we now know to be the case about the legality of searches, how would the Gardai satisfy themselves that they have Reasonable Suspicioun to a sufficient extent to make it permissible for them under the law to search people en masse, i.e. the Slane or Punchestown or Midlands music festivals where sometimes people are lined up and searched in relays. There is no such thing as a general power of search. Maybe everyone there is under suspicion depending on who's playing ?
The year the R/Stones played Slane way back whenever, has, I believe, the record number of drug arrests at an Irish music fest.
Now there's a great case of "Reasonable Suspicion" !!!

http://www.irishstatutebook.ie/1994/en/act/pub/0002/sec0022.html#zza2y1994s22

This gives the power to search for alcohol etc. at the barriers entering these events so i'd imagine thats what power they are using

Johnny Utah

johnnyskeleton wrote: »

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).

I'm fully aware, that evidence obtained in an illegal or an unconstitutional search can be inadmissible at trial. To be blunt, my original point was aimed rather at abuse of power by the Gardai. I apologise if I was unclear, but let me explain...

In theory, there is an objective standard and you have provided three perfectly good examples of where reasonable suspicion might arise.


However, the reality at present is that often a Garda (on a power trip) will conduct a search of a law-abiding person or their vehicle because he wants to (this is the subjective element), despite the fact that there is clearly no reasonable suspicion existing for such a search. This is a clear abuse of power, and it is widespread (ie. not confined to Co. Donegal).
Then, if the "reasonable suspicion" is challenged at trial, that Garda can rely on "confidential sources", as Abraham pointed out. I can understand that perhaps confidential information is required for a major drug gang, or a well-known terrorist, but not for the average teenager driving a Citroen Saxo.


Finally, I think the majority of law-abiding citizens would prefer to stay well away from the Garda Ombudsman/civil action for fear of repercussions ala Chief Wiggum-style:D (A civil action can be costly for most people too.)




So, the question remains; do you accept that there is widespread abuse by Gardai of the stop and search powers at present?







(Sorry about the delay in reply. This is a good thread but it seems to have gone off topic from the OP's question- perhaps we should start a new thread on stop and search powers?)

johnnyskeleton

Johnny Utah wrote: »

Then, if the "reasonable suspicion" is challenged at trial, that Garda can rely on "confidential sources", as Abraham pointed out. I can understand that perhaps confidential information is required for a major drug gang, or a well-known terrorist, but not for the average teenager driving a Citroen Saxo.

If the circumstances suggest that he just conducted a random search, then this will come out in cross examination (e.g. "If you had confidential information about this person, how did you know he would be walking down the street at that time?" "why did you ask his name?" etc. Confidential information does not mean "don't ask any more questions", it just means that the garda is unwilling to reveal his source. There isn't much reality to a garda saying he had confidential information relating to a small amount of drugs on some random person walking down the street. You can also ask them about their duty roster e.g. that they were just patrolling as opposed to being on operation anville etc.

Johnny Utah wrote: »

Finally, I think the majority of law-abiding citizens would prefer to stay well away from the Garda Ombudsman/civil action for fear of repercussions ala Chief Wiggum-style:D (A civil action can be costly for most people too.)

I don't. A lot of civil claims are a waste of time, but the Ombudsman is new and taking a lot of complaints, so we'll see how it goes. Obviously a law abiding citizen will be more prepared to make a complaint.

Johnny Utah wrote: »

So, the question remains; do you accept that there is widespread abuse by Gardai of the stop and search powers at present?

I accept there is abuse, but I don't think it is widespread.

Abraham

johnnyskeleton wrote: »

If the circumstances suggest that he just conducted a random search, then this will come out in cross examination (e.g. "If you had confidential information about this person, how did you know he would be walking down the street at that time?" "why did you ask his name?" etc. Confidential information does not mean "don't ask any more questions", it just means that the garda is unwilling to reveal his source. There isn't much reality to a garda saying he had confidential information relating to a small amount of drugs on some random person walking down the street. You can also ask them about their duty roster e.g. that they were just patrolling as opposed to being on operation anville etc.



I don't. A lot of civil claims are a waste of time, but the Ombudsman is new and taking a lot of complaints, so we'll see how it goes. Obviously a law abiding citizen will be more prepared to make a complaint.



I accept there is abuse, but I don't think it is widespread.

JohhnyS & JohnnyU.....> I find myself in agreement with both of ye in very large measure.
Many young Gardai however, are not trained in regard to the law of the land concerning Reasonable Suspicion and flout it frequently. Even the highly informative information provided via this thread would not be known to an awful lot of Gardai. Judging from my conversations with many very active young Gardai they are quite lacking in the intricacies of Reas/Suspn.
Indeed many can't get their heads around the fact that an illegal search is not made legal by reason of the finding of an illegal substance.

My Slane reference goes to an instance of which I am aware when 8 cars were stopped on an approach road and the occupants plus the cars were searched thoroughly and let continue then without even a name being asked for or a driving licence sought. The occupants of two cars that were stopped by the Gardai stated they were not going to the festival and were let proceed without search.
One of the cars stopped and searched was in fact going to a nearby religious house for a Retreat.
Is a Gardai entitled to go out on the public road and stop and search let's say 20 people and their cars and not take any details of what he has done for the police record. A search of one's person is an invasion of privacy and as such can only be permitted in justifiable circumstances and that can not include the whim of a Garda. But how to ensure that it is not abused ?
A Garda I know in a casual conversation on this topic told me offhandedly that he'd had "a load" of drug detections on the street and never once did he have prior knowledge or reasonable suspicion. Asked how many he had searched where no drugs were found he replied "Oh hundreds, I suppose because you don't expect everyone to have drugs but if you search enough of them you'll always get a few".
EH...???
All those searches, imho, were random and therefore illegal. That guy would not be able to raise enough money to pay the awards against him were he to be caught out in his illegal actions. Plus the State won't pay up to save his bacon because the Minister will say that he does not hire, train and/or pay Gardai to act illegally. Furthermore, if he was told during his training that he would occasionally be required to act illegally thereby putting his job and family security at risk, I wonder what his response would have been ?
Interesting or what ?

johnnyskeleton

Abraham wrote: »

Many young Gardai however, are not trained in regard to the law of the land concerning Reasonable Suspicion and flout it frequently. Even the highly informative information provided via this thread would not be known to an awful lot of Gardai. Judging from my conversations with many very active young Gardai they are quite lacking in the intricacies of Reas/Suspn.
Indeed many can't get their heads around the fact that an illegal search is not made legal by reason of the finding of an illegal substance.

Indeed, but young guards are just more grist to your mill!

Abraham wrote: »

Is a Gardai entitled to go out on the public road and stop and search let's say 20 people and their cars and not take any details of what he has done for the police record. A search of one's person is an invasion of privacy and as such can only be permitted in justifiable circumstances and that can not include the whim of a Garda. But how to ensure that it is not abused ?
A Garda I know in a casual conversation on this topic told me offhandedly that he'd had "a load" of drug detections on the street and never once did he have prior knowledge or reasonable suspicion. Asked how many he had searched where no drugs were found he replied "Oh hundreds, I suppose because you don't expect everyone to have drugs but if you search enough of them you'll always get a few".

Which is why I think the Garda Ombudsman is a great idea. People should take the name and badge number of the garda and report them.

Abraham wrote: »

All those searches, imho, were random and therefore illegal. That guy would not be able to raise enough money to pay the awards against him were he to be caught out in his illegal actions. Plus the State won't pay up to save his bacon because the Minister will say that he does not hire, train and/or pay Gardai to act illegally. Furthermore, if he was told during his training that he would occasionally be required to act illegally thereby putting his job and family security at risk, I wonder what his response would have been ?
Interesting or what ?

You would have an action if the illegal searches, while illegal, were within the range of the garda's duties, or were purportedly in the course of his duties. It's a bit of judicial juggling, but all the schools etc that were sued because they hired child abusers were found liable on the basis that taking care of the children is was part of the abusers duty as an employee, so therefore the abuse came within the scope of his duty. There was another case where an employee in an off licence was robbed and he used a customer as a human shield to save himself. The court found that he was acting in the course of his employment. You could also argue malfeasance of public office if you can pin the garda down to a specific act of negligence. But the most likely recourse would follow from the ombudsman.

Victor

Abraham wrote: »

Plus the State won't pay up to save his bacon because the Minister will say that he does not hire, train and/or pay Gardai to act illegally.

This does not sit well with the proceeding at the Donegal tribunal. Individual gardai were indemnified for their costs by the commissioner. It cost the McBreartys so much that their legal team couldn't continue.

sunnyse

Abraham wrote: »

A Garda I know in a casual conversation on this topic told me offhandedly that he'd had "a load" of drug detections on the street and never once did he have prior knowledge or reasonable suspicion. Asked how many he had searched where no drugs were found he replied "Oh hundreds, I suppose because you don't expect everyone to have drugs but if you search enough of them you'll always get a few".
EH...???
All those searches, imho, were random and therefore illegal. ?

This is exactly the type of policing that led me to ask the question in the first place...Why isn't this type of abuse being fought tooth and nail by defending solicitors up and down the country. It seems to me that it is easier for a defending solicitor to focus on dealing with the aftermath of a search and convincing the judge that this was "Tommys first time and he's a good lad and wants to go to America when he leaves college " etc etc etc.
This system is like so many other issues in Irish culture that don't get altered because there is no impetus to do so by the people that are required to make those changes.
Our defence solicitors are trained at the teats of those that went ahead of them to operate cases in a certain way, they don't want to tread on any toes, be it the guards or the judges. They know that they'll be back in this court house the following week with another list of average joes to defend and the last thing they want is to be on the bad side of anyone.


Abraham, you've been fantastically efficient with the legalities of stop and search and reasonable cause and I applaud you for making such an effort but I'd like to hear what you think of the above, have we lumbered ourselves with a legal system where everyone knows their places and work almost in conjunction with each other to make the system work as efficiently as is possible in this country.
The solicitors get through more cases the guards get more arrests and convictions and the judges are seen to be having an effect. No-one really considers the defendant (and I'm mainly talking about the small bit cases that result from night time stop and searches) and his right to walk the street without being accosted without due cause.
I deal a lot with solicitors but from a property side of things and I see this malaise exist in that area too, everyone knows when the client walks out the door that the solicitor and auctioneers still have to have a working relationship in the future and will definitely be doing business together again, so no one gives any one else a hard time.

Bit repetitive I'm afraid but I hope you get the gist of my feelings.

Trojan911

sunnyse wrote: »

Our defence solicitors are trained at the teats of those that went ahead of them to operate cases in a certain way, they don't want to tread on any toes, be it the guards or the judges. They know that they'll be back in this court house the following week with another list of average joes to defend and the last thing they want is to be on the bad side of anyone.

That paragraph is so true. The simple answer is, those solicitors are just not doing their jobs properly, no doubt they are still charging top dollar though.

I've sat in different courts, or old school rooms as they mostly appear, & listened to some cases where I have questioned myself "why didn't he ask this question" or "why didn't he ask that question". It surprises me that this goes on, or is it a case of legal aid, don't really care, got a guilty plea & will plead with the judge re saving courts time etc etc, will still get paid anyway processing belt syndrome?

I gave evidence recently for the prosecution re a driving offence I had witnessed. The night before I went through my photocopied statement & wrote out a list of potential questions I thought I would by asked by the defence. I also wrote out the answers to those questions so I would be primed.

I was asked one question by the defence which was not relevant in my opinion & that was it. It beggars belief.

Abraham

The important thing about so many of the drug possession cases that are processed in the District Court to a successful conclusion by the Gardai is that the cases are just plain illegal but when presented in a certain plausible way have the appearance of being correct.

Certainly, there is little chance of proving the illegal Garda action in the District Court because this is after all what is known as the "Court of first resort" i.e. the entry point to the trial process and the lower end of the scale. The vast bulk of cases are dealt with in the District Court and this is the only way the judicial system can function. This statement might help to clarify further: Something like 92% of prosecutions are dealt with in the District Court while the remainder go on indictment for Judge & Jury trial to the Circuit Court. The Circuit Court cases are the more serious cases and there is a process overseen by the DPP by which the cases are selected and sent forward for trial. There are simply not enough resources available to try every case by judge & jury as the system would be swamped by case overload.

There is a much better chance of a barrister taking on the illegal search issue in the Circuit Court but the problem there is that the more pragmatic view of the reality of possession is all pervasive and tends to swamp out of sight an attempt by the defence to fight the case by showing that the search was illegal and that the accused can't be convicted on evidence obtained in contravention of basic human rights.

But one further thing stands out to be said about obtaining evidence based on bodily integrity and it's this. In Drink Driving cases, what is known as the "Legal Proofs" i.e. the application of certain verbal cautions which MUST be administered in a timely fashion and a number of other procedural requirements MUST be shown to have been applied 100% correctly or the case will be dismissed instantly. And that applies even where the prosecuted driver is pleading Guilty.....the solicitor defending will say to the judge something like; ...."my client is pleading subject to the proofs being in order" and if the proofs don't survive scrutiny then GOOOOOOOODnight. And it don't matter a tuppeny hoot how drunk he/she was at the time of detection because flaws of the Proofs are fatal and that's that.

There is no foolproof method of ensuring propriety in regard to Garda drug law enforcement. However, one measure that would go a long way to ensure that such abuses were curtailed would be to require the Gardai to record in their personal daily record (notebooks) and later on return to their stations to record same in some station record maintained for that purpose preferably electronically.
That may sound like a cumbersome way of dealing with this but I haven't a better suggestion right now. Maybe someone else has.
This much I do believe.....It should not be acceptable that a Garda can select at random and stop and physically search (even strip search....yes that too) any person whom that Garda decides on a whim should be subjected to such search procedures and that there can not be a proper review of the totality of the incident once that Garda claims to have acted on receipt of "Confidential Information". The strip searches usually take place in stations but apparently some are carried out in the back of patrol cars and even doorways as friends wait nearby awaiting the outcome.

This is a most difficult area of law enforcement and I sincerely believe that the Gardai do not find it easy to police it. The public at large support must them in their efforts but not in corrupt practices but the devil as always is in the detail.
This is yet another instance in which 'two wrongs don't make a right'.

Our man in Havana

+1

I agree 100% with you.

johnnyskeleton

sunnyse, Trojan911 and Abraham, your issue seems to be with solicitors (and with solicitors in your local area by the sound of it). It is not relevant to the law or to legal practise and if you are unhappy with your solicitor, get another one. Your argument seems to be ignoring one constant principle of both criminal practise and of good marketing - i.e. make sure the customer (in this case the regular offender) always comes back for more. Recidivists know which solicitor will fight for them and which wont, hence some solicitors become established as busy criminal lawers and some dont.

As for the asking of questions, you can't really say whether your questions were better than those of the solicitor - because you don't know the client's instructions. What you might think is relevant might actually cause damage to the client's case.

I've never heard of pleading subject to the proofs being in order - if the proofs i.e. if it has been proved beyond reasonable doubt that the person is guilty they will be convicted.

I'm also quite sick of saying it (and Abraham saying he agrees with me but...), but confidential information is not something that gardai can rely on in all cirucmstances. If they really were doing a truly random search they couldn't say they had confidential information because it wouldn't make sense and it would, under cross examination, be exposed as untrue. But genuine confidential information is used in the type of case such as where a search warrant is obtained or a sting operation is organised. When a garda has gone before a judge and requested a search warrant, or where the superintendent has organised a sting operation there will be evidence of these things being done prior to the search. But someone where it is a completely random search, they won't have done any of those things.

Oh and by the way Trojan911, Solicitors get paid the more work they do, so by running more trials and appeals, they get more money than they do from just pleading.

Abraham

JohnnyS....your last post is very seriously misleading and confused in several respects. I haven't got time to address these things now but will return to it in a day or so.
There are several contradictory contentions that make a nonsense of what you are saying.
P.S. I suspect that you just don't know the realities of the situation (there's another word for that beginning with i....... but if I use it, you may think I'm having a go at you personally but that's not so. You have some good postings but you are dead wrong on this one.

Trojan911

johnnyskeleton wrote: »

sunnyse, Trojan911 and Abraham, your issue seems to be with solicitors (and with solicitors in your local area by the sound of it).

No, the solicitors were not in my area. A good solicitor will know what powers the Gardai can excercise or not and should know how to broach this in court, but they didn't appear to when I was sitting in the various courts listening while waiting for my evidence to be heard.

I cannot foresee me ending up in court for posession of drugs as I don't touch the stuff but in any instance I will be very aware of the solicitor representing me should any occasion ever arise.

What I have witnessed is Gardai searching people on "Fishing Expeditions" which in my book is just not on. It is a clear abuse of power/authority. A persons liberties are not to be played about with just because an officer decides on a whim to spin someone on the street.

The more this is exposed in the courts by solicitors the better it will be highlighted, whether it be the media, word of mouth etc. Civil actions against the State for unlawful search/detention etc will spurn a new set of rules on how to stop & search & hopefully cut out the "Fishing Expeditions".

johnnyskeleton

Trojan911 wrote: »

No, the solicitors were not in my area. A good solicitor will know what powers the Gardai can excercise or not and should know how to broach this in court, but they didn't appear to when I was sitting in the various courts listening while waiting for my evidence to be heard.

I cannot foresee me ending up in court for posession of drugs as I don't touch the stuff but in any instance I will be very aware of the solicitor representing me should any occasion ever arise.

What I have witnessed is Gardai searching people on "Fishing Expeditions" which in my book is just not on. It is a clear abuse of power/authority. A persons liberties are not to be played about with just because an officer decides on a whim to spin someone on the street.

The more this is exposed in the courts by solicitors the better it will be highlighted, whether it be the media, word of mouth etc. Civil actions against the State for unlawful search/detention etc will spurn a new set of rules on how to stop & search & hopefully cut out the "Fishing Expeditions".

Again, your criticism centres around solicitors and not on garda powers of stop and search. I would re-iterate the caution that it is difficult to know why they did or did not ask the questions. You will also find top senior counsel not asking questions which most educated, non-party observers would consider should be asked, and you must remember that sometimes a question can cause far more harm than good.

To give you an extreme example, some offences carry a mandatory sentence. The correct legal advice would be the fight those cases anyway, but yet some of them still plead guilty. A lot of it depends on the client's instructions, and without knowning what those are, it is hard to say what should be asked in court.

Trojan911

johnnyskeleton wrote: »

Again, your criticism centres around solicitors and not on garda powers of stop and search.

No, I don't feel it does.

johnnyskeleton

Trojan911 wrote: »

No, I don't feel it does.

You have made numerous references to solicitors not asking questions, and having a "don't really care, got a guilty plea & will plead with the judge re saving courts time etc etc, will still get paid anyway" attitude. You have also made reference to abuse of garda powers and that's fair enough, but the law allows that to be challenged. Is there anything about the law that you think should be changed or improved that would prevent these abuses? Or is it that you feel that Solicitors are not asking enough questions etc?

Trojan911

johnnyskeleton wrote: »

and having a "don't really care, got a guilty plea & will plead with the judge re saving courts time etc etc, will still get paid anyway" attitude.

They were questions I posed i.e. I was hoping for an answer... Full text below.

Trojan911 wrote:

I've sat in different courts, or old school rooms as they mostly appear, & listened to some cases where I have questioned myself "why didn't he ask this question" or "why didn't he ask that question". It surprises me that this goes on, or is it a case of legal aid, don't really care, got a guilty plea & will plead with the judge re saving courts time etc etc, will still get paid anyway processing belt syndrome?

johnnyskeleton

Trojan911 wrote: »

They were questions I posed i.e. I was hoping for an answer... Full text below.

...is it a case of legal aid, don't really care, got a guilty plea & will plead with the judge re saving courts time etc etc, will still get paid anyway processing belt syndrome?

No. You can't know why a solicitor does or does not ask certain questions unless you know more about the case. He might have a very good reason for not asking some questions i.e. because the answer would harm his case more than help it. A lot also depends on what his client's instructions are too.

Abraham - well?

Our man in Havana

A lot also depends on what his client's instructions are too.

So basically the crims are a bit thick really?

johnnyskeleton

Bond-007 wrote: »

So basically the crims are a bit thick really?

Well, in the sense that some of them tell their solicitor that they are guilty which dramatically reduces the solicitor's options for presenting the case i.e. he is only entitled to test the evidence, and cannot elicit evidence which he knows is false or would mislead the court.

Another reason might be that the garda is not leading certain evidence because it is not relevant and which would cast the accused in a very bad light. If the solicitor knows this from the client's instructions, they will avoid asking questions which might bring about the undesired answer.

And of course, as Rumpole would say, never ask a question you don't already know the answer to. This again depends very much on what the client says.

Johnny Utah

Abraham wrote: »

A Garda I know in a casual conversation on this topic told me offhandedly that he'd had "a load" of drug detections on the street and never once did he have prior knowledge or reasonable suspicion. Asked how many he had searched where no drugs were found he replied "Oh hundreds, I suppose because you don't expect everyone to have drugs but if you search enough of them you'll always get a few".
EH...???
All those searches, imho, were random and therefore illegal.

I agree with you. I have heard many similar accounts myself, which would tend to suggest that there is a frequent abuse of power by Gardai. It is pretty naive to think otherwise.

The reality of everyday life is that some Gardai belive it is their right to stop, search, harass and intimidate certain drivers, particularly young male drivers who drive flashy cars. They stop the car, check for tax/insurance/nct, then proceed to search it (without any reasonable suspicion), then check tyres, exhaust, and God knows what else. It is a fishing expedition, designed to harass and intimidate the person who is searched.




The gardai have always been like that and they'll never change. The Gardai frequently abuse their position of power, not just in relation to stop and search powers. It has bee proven that they have beaten up people in custody, illegally tapped up phone lines, lied under oath, taken bribes etc, etc, the list goes on.

And furthermore, they'd never do a colleague for drink driving or speeding:mad:, but hey that's the great Gardai for you!




@ Johnny Skeleton: Often the Garda will not provide his id card, or else may be a detective in plain clothes- ie. no badge numbers on his shoulders.
However, I do agree with you on the difficulties of challanging such evidence in court.

Abraham

johnnyskeleton wrote: »

sunnyse, Trojan911 and Abraham, your issue seems to be with solicitors (and with solicitors in your local area by the sound of it). It is not relevant to the law or to legal practise and if you are unhappy with your solicitor, get another one. Your argument seems to be ignoring one constant principle of both criminal practise and of good marketing - i.e. make sure the customer (in this case the regular offender) always comes back for more. Recidivists know which solicitor will fight for them and which wont, hence some solicitors become established as busy criminal lawers and some dont.

JohnnyS.....I apologise for my delay in reverting to this thread and will do so now. On a careful reading of your posting of Feb 5th, I find that I'm less inclined to dispute it overall than when I first read it. In fact there's much that I can agree on but a few issues remain so here goes.

Par 1 - No real issue with this contention since I wasn't aiming at solicitors.

As for the asking of questions, you can't really say whether your questions were better than those of the solicitor - because you don't know the client's instructions. What you might think is relevant might actually cause damage to the client's case.

Par 2 - The uninitiated may think and usually do think that a criminal trial will sift out the truth and expose that which is false. A trial is not an objective search for truth regardless, and it follows that such truth as may be established is that which falls within certain restricted parameters.


I've never heard of pleading subject to the proofs being in order - if the proofs i.e. if it has been proved beyond reasonable doubt that the person is guilty they will be convicted.

Par 3 - Meaning of "subject to proofs"......even where a client is pleading guilty, solicitors, quite correctly, will ensure that the essential proofs are in order, i.e. that (in a drugs case) the certificate from the forensic scientist is available for examination and is in order in all material respects, i.e. that the substance was a banned substance, that the test was positive plus date and signature of analyst, etc
It would be a very foolish solicitor who would allow the hearing proceed to conviction without ensuring that these fundamental proofs are in order. Indeed I know of two cases that collapsed when the state were not in a position to produce the analyst's certificate owing to some oversight or carelessness. It is not unknown for the State ((Gardai) not to be able to produce some crucial piece of evidence for a very simple reason i.e. ( forgot to bring it to court ? someone removed it from the file ? it got lost in all the masses of documentation in which cases are mired ? another officer has it and is not in court because of the guilty plea ? )

These matters are essential proofs which must reflect precise factual information and without the production of such satisfactory evidence, it cannot be expected that a conviction will take place. Any District Court Judge who disregards such safeguards will inevitably find himself/herself overturned instantly on appeal.

I'm also quite sick of saying it (and Abraham saying he agrees with me but...), but confidential information is not something that gardai can rely on in all cirucmstances. If they really were doing a truly random search they couldn't say they had confidential information because it wouldn't make sense and it would, under cross examination, be exposed as untrue. But genuine confidential information is used in the type of case such as where a search warrant is obtained or a sting operation is organised. When a garda has gone before a judge and requested a search warrant, or where the superintendent has organised a sting operation there will be evidence of these things being done prior to the search.

"Confidential Information" has wider application than in the obtaining of search warrants. A randon search, by it's very nature has no prior arrangement so the question of finding a justification for the such search does not arise unless and until the search produces a positive result.

But someone where it is a completely random search, they won't have done any of those things.

Your "completely random search" point is completely lost on me, I'm afraid. I will try to explain more explicitly what my contention is in case we are at cross purposes. If the Gardai do a random search and find e.g. an illegal substance.....then to cover their tracks regarding the legality of the search, the individual Garda will say, in the event of a prosecution, that the stop and search was carried out on foot of "Confidential Information" and can not be dislodged from there because beyond a few preliminary questions, the Garda will not be required to reveal his source of information.

If the Garda admits the search was random, then the case collapses there and then regardless of what was found. And just to satisfy the curious, the drugs will not be given back to the accused because they are an illegal substance and therefore are liable to seizure by the state. (NB - there are plenty of ifs and buts arising in this situation but what I've stated is, broadly speaking, the prevailing position.)

"Reasonable Cause" has been explained elsewhere in this thread and so I feel it unnecessary to engage in any further repeating of what has gone before.

I trust I have matters clearer.

Oh and by the way Trojan911, Solicitors get paid the more work they do, so by running more trials and appeals, they get more money than they do from just pleading.

I take no position in regard to lawyers/solicitors and do accept that they act invariably in the best interests of their clients.

IMHO, this is an excellent thread with many fine contributions from several people. Let's keep it going.

yayamark

Johnny Utah wrote: »

I agree with you. I have heard many similar accounts myself, which would tend to suggest that there is a frequent abuse of power by Gardai. It is pretty naive to think otherwise.

The reality of everyday life is that some Gardai belive it is their right to stop, search, harass and intimidate certain drivers, particularly young male drivers who drive flashy cars. They stop the car, check for tax/insurance/nct, then proceed to search it (without any reasonable suspicion), then check tyres, exhaust, and God knows what else. It is a fishing expedition, designed to harass and intimidate the person who is searched.




The gardai have always been like that and they'll never change. The Gardai frequently abuse their position of power, not just in relation to stop and search powers. It has bee proven that they have beaten up people in custody, illegally tapped up phone lines, lied under oath, taken bribes etc, etc, the list goes on.

And furthermore, they'd never do a colleague for drink driving or speeding:mad:, but hey that's the great Gardai for you!




@ Johnny Skeleton: Often the Garda will not provide his id card, or else may be a detective in plain clothes- ie. no badge numbers on his shoulders.
However, I do agree with you on the difficulties of challanging such evidence in court.

Utter Horse ****.

That line about not arresting another member for drink driving is horse****. That means no garda has ever been arrested for drink driving so?

You my friend have issues go to a doctor get tablets you should feel better then.

johnnyskeleton

Abraham wrote: »

Par 2 - The uninitiated may think and usually do think that a criminal trial will sift out the truth and expose that which is false. A trial is not an objective search for truth regardless, and it follows that such truth as may be established is that which falls within certain restricted parameters.

Restricted parameters such as, for example, whether a garda had formed the requisite opinion i.e. reasonable cause to suspect, before searching. In any event, I do not see how this in any way contradicts my point that a neutral observer cannot really know what questions are relevant without knowing the clients instructions, or shows that it is misleading or confused.

subject to proofs"......even where a client is pleading guilty, solicitors, quite correctly, will ensure that the essential proofs are in order, i.e. that (in a drugs case) the certificate from the forensic scientist is available for examination and is in order in all material respects, i.e. that the substance was a banned substance, that the test was positive plus date and signature of analyst, etc

A lawyer will often check that the proofs are in order prior to deciding whether to plead guilty or not, and as such will request statements etc, but that is not at all the same as what you call pleading guilty subject to the proofs. If you plead guilty you are admitting the offence as charged (or as agreed with the state). You can't plead guilty subject to the proofs, instead you would plead guilty to test the proofs, and if they are not complete you would be entitled to an acquittal. A solicitor might indicate that a person will take a certain course, but to plead guilty is to admit the facts, and to plead guilty subject to the proofs sounds like having your cake and eating it too. What you call pleading guilty subject to the proofs, other people call pleading not guilty.

It would be a very foolish solicitor who would allow the hearing proceed to conviction without ensuring that these fundamental proofs are in order.

When someone pleads guilty there is no hearing as such, there is a plea/sentence hearing. You can't challenge the prosecution evidence if you plead guilty. Furthermore, if a person pleads guilty, the judge doesn't need to "proceed to conviction" because they have pleaded guilty.

Furthermore, I disagree that it would be a very foolish solicitor who would (I take it that you mean allow someone to plead guilty without ensuring that the proofs are in order), because a solicitor serves his client, not the other way around, and many people want to simply plead guilty and if that is their instruction, a solicitor cannot ignore this and run the case anyway.

Indeed I know of two cases that collapsed when the state were not in a position to produce the analyst's certificate owing to some oversight or carelessness.

Collapsed as in the person pleaded not guilty and contested the matter? Where is the pleading guilty subject to the proofs in that?

It is not unknown for the State ((Gardai) not to be able to produce some crucial piece of evidence for a very simple reason i.e. ( forgot to bring it to court ? someone removed it from the file ? it got lost in all the masses of documentation in which cases are mired ? another officer has it and is not in court because of the guilty plea ? )

At hearing. If the person pleads guilty this will not arise. This is already a digression on a side point of an aside to the original post, but still I'm not saying that evidence cannot be challenged, I'm saying that you can't plead "subject to the proofs".

"Confidential Information" has wider application than in the obtaining of search warrants. A randon search, by it's very nature has no prior arrangement so the question of finding a justification for the such search does not arise unless and until the search produces a positive result.

The whole point is that a random search is illegal, i.e. what happens prior to the search, the garda correctly exercising his legal powers, is what legitimises it. If you are suggesting that gardai always conduct random searches and then try to retrospectively justify their actions, I don't agree with you. This can be tested in cross examination, and a garda who really does conduct a random search will have difficulty justifying that.

If the Gardai do a random search and find e.g. an illegal substance.....then to cover their tracks regarding the legality of the search, the individual Garda will say, in the event of a prosecution, that the stop and search was carried out on foot of "Confidential Information" and can not be dislodged from there because beyond a few preliminary questions, the Garda will not be required to reveal his source of information.

Again I disagree, they will most likely seek to rely on "he was acting suspiciously", "I saw another man pass him a small plastic bag", "I asked him did he have any drugs on him and he said 'yes'", or the more dodgy "I know him as a drug user/dealer" "that area is well known for drugs", "I saw a small plastic bag fall out of his pocket" etc. The idea that a garda walks around with a head full of confidential information on the comings and goings of small time dealers is inherintely unbelievable. Some questions might include were you on patrol at that time? when did you receive the confidential information? what exactly were you told? where were you told the person would be? why did you not go there directly from the station? if you had confidential information, why did you ask the person his name on arrest? did you inform any other gardai about the confidential information? if you had confidential information about the accused, why did you search his friend as well? etc.

Reasonable Cause" has been explained elsewhere in this thread and so I feel it unnecessary to engage in any further repeating of what has gone before.

Your verson of reasonable cause has been explained elsewhere, i.e. that you believe that confidential information can be used as a catch all in any circumstance where the gardai had no other reasonable cause to suspect. I simply don't agree with you. It can only be used where the garda has actual confidential information. It is open to scrutiny (other than that which might reveal the source) and it is not an infallable reason for a search.

But other than your bald assertion that gardai will use confidential information as a catch all reasonable cause (which I do not accept is true of the law or of the reality), how is what I posted in any way misleading, confused, contradictory or nonsense (other than from the purely subjective view that because I don't agree with you, I must be wrong in your eyes)?

Johnny Utah

yayamark wrote: »

Utter Horse ****.

That line about not arresting another member for drink driving is horse****. That means no garda has ever been arrested for drink driving so?

You my friend have issues go to a doctor get tablets you should feel better then.

Uh Oh! I think I may have hit a nerve!


Welcome to boards.ie Garda Mark

Abraham

JohnnyS.....this is becoming one of those circular arguments with no end in sight.
You have your beliefs and so have I and never the twain, etc...although there may be some common ground.
It would be interesting to hear other views on the topic because I'm fairly sure that there's quite a lot of people who may have a view on personal searches at the hands of the Gardai in circumstances where they felt harassed without just cause.

I'm still 100% in support of the Gardai and was motivated to contribute to this thread because of certain knowledge I have and which caused me to become interested and to read up on the matter largely for my own enlightenment. I don't believe that a majority of Gardai act illegally in carrying out searches particularly drug searches. However, some do and that's my concern.

I feel at this stage that I've said all I wish to say. There's plenty of food for thought in the thread overall including, as I have acknowledged earlier, some of your own contributions. What do others think ?

dermot_sheehan

yayamark banned for two weeks for personal abuse.


This thread has turned from a quite reasonable discussion about whether there is an obligation to supply the gardai with your name to a bash the gardai rant and therefore is being locked.

Have a nice day.