Arrestable offence

pk82

Assume Person X is arrested and charged under Section 1 1 Non Fatal Offences Against the Person Act. (Quoted below for convenience)



Is this an arrestable offence?

What is the meaning of 'by reason of their frequency'?



Quote:
1 1.—(1) A person who makes any demand for payment of a debt shall be guilty of an offence if—

(a) the demands by reason of their frequency are calculated to subject the debtor or a member of the family of the debtor to alarm, distress or humiliation, or

(b) the person falsely represents that criminal proceedings lie for non-payment of the debt, or

(c) the person falsely represents that he or she is authorised in some official capacity to enforce payment, or

(d) the person utters a document falsely represented to have an official character.

(2) A person guilty of an offence under this section shall be liable on summary conviction to a fine not exceeding £1,500.

ResearchWill

An Arestable offence according to the Criminal Law Act 1997

“arrestable offence” means an offence for which a person of full capacity and not previously convicted may, under or by virtue of any enactment, be punished by imprisonment for a term of five years or by a more severe penalty and includes an attempt to commit any such offence;

http://www.irishstatutebook.ie/1997/en/act/pub/0014/sec0002.html#sec2

Si if you look ato time penalty of section 11



(2) A person guilty of an offence under this section shall be liable on summary conviction to a fine not exceeding £1,500.


No prison time so not an Arestable offence.

by reason of their frequency, means exactly what is says if you are very polite but contacting a person 10 times a day with the intention of causing alarm distress or humiliation.

pk82

Thanks

Assume that a decision has been made to prosecute person X under said section. In practice, this offence being a summary offence, would the decision to prosecute be made by a superintendent or the DPP?

Assume X is visited at his place of work and arrested for the above offence (whether that be right or wrong is beside the point for the purposes of the following question):

In practice for such a situation, who gives the 'go ahead' to arrest a person? For example is it the DPP, Superintendent, the Garda handling the matter or someone else?

ResearchWill

pk82 wrote: »

Thanks

Assume that a decision has been made to prosecute person X under said section. In practice, this offence being a summary offence, would the decision to prosecute be made by a superintendent or the DPP?

Assume X is visited at his place of work and arrested for the above offence (whether that be right or wrong is beside the point for the purposes of the following question):

In practice for such a situation, who gives the 'go ahead' to arrest a person? For example is it the DPP, Superintendent, the Garda handling the matter or someone else?

Summary offence it is usually the Garda who decides to prosecute.

There are many powers to arrest, in the example I gave earlier, that power means a person does need a warrant.

A person can be arrested in certain circumstances without warrant, can be arrest to bring him to a court (more usuall to just summons) can be arrested for the proper investigation of a crime.

pk82

Thanks.

We have established that Section 11 of NFOAPA is not an arrestable offence as defined under Sec 2 Criminal Law Act 1997.

Following on from post #4 is it theoretically possible to obtain an arrest warrant for a non-arrestable offence?

Who are the people that can issue a warrant?

If a warrant were obtained - would the arresting gaurd have to tell the person he is arresting about the warrant OR show it to him? i.e could he arrest on a warrant but not have to say he has one?

MagicSean

I think I see were this is going. There are two questions being asked.

1) Can a person be arrested for the purpose of charge in relation to a summary offence? This question has been asked a few times here. While many people think there is a power, nobody knows where it comes from. It may be a power under common law.

2) If a person believes they were falsely arrested who do they sue? The easy answer would be as many people as possible. But a person would need to obtain a solicitor as soon as possible for this matter.

pk82

Let us keep it simple for the moment.

Let us assume that an arrest warrant can be obtained for a non arrestable offence (if any one can verify this then that would be good)

I would like to know though:

Which people can have the authority to issue an arrest warrant? e.g Garda rank, Superintendent, DPP etc?

Does the Garda executing the warrant have to tell you the arrest is on foot of a warrant AND/OR does he ahve to show you the warrant?

ResearchWill

pk82 wrote: »

Let us keep it simple for the moment.

Let us assume that an arrest warrant can be obtained for a non arrestable offence (if any one can verify this then that would be good)

I would like to know though:

Which people can have the authority to issue an arrest warrant? e.g Garda rank, Superintendent, DPP etc?

Does the Garda executing the warrant have to tell you the arrest is on foot of a warrant AND/OR does he ahve to show you the warrant?

The normal for a summary offence is that either a charge sheet is given to the accused or a summons is issued, if the accused does not turn up then a bench warrant is issued by the DJ.

pk82

ResearchWill wrote: »

The normal for a summary offence is that either a charge sheet is given to the accused or a summons is issued, if the accused does not turn up then a bench warrant is issued by the DJ.

Thanks and I appreciate it but setting the 'normal' situation aside, I would like to specifically know:

Which people can have the authority to issue an arrest warrant (as apart from a bench warrant issued for a no show in court)? e.g Garda rank, Superintendent, DPP, peace commissioner etc. ?

Does the Garda executing the warrant have to tell you the arrest is on foot of a warrant or does he just cite the applicable section of statute AND/OR does he ahve to show you the warrant?

keano007

pk82 wrote: »

ResearchWill wrote: »

The normal for a summary offence is that either a charge sheet is given to the accused or a summons is issued, if the accused does not turn up then a bench warrant is issued by the DJ.

Thanks and I appreciate it but setting the 'normal' situation aside, I would like to specifically know:

Which people can have the authority to issue an arrest warrant (as apart from a bench warrant issued for a no show in court)? e.g Garda rank, Superintendent, DPP, peace commissioner etc. ?

Does the Garda executing the warrant have to tell you the arrest is on foot of a warrant or does he just cite the applicable section of statute AND/OR does he ahve to show you the warrant?

A Garda would apply to a district court judge for an arrest warrant or a summary offence, but if for example it was just to charge the person I believe it's a common law power to arrest for the purpose of charging. I'll double check that and post if I'm wrong.

pk82

keano007 wrote: »

A Garda would apply to a district court judge for an arrest warrant or a summary offence, ...

Thanks.

I did some more research.

It would seem that ONLY (other opinion welcome) a judge can issue an arrest warrant and then only for an indictable offence - which section 11 NFOAPA is not.

DCR 16 - http://tinyurl.com/dcr16

DCR 16 (5) stated that a warrant could ALSO be issued for those offences which allow arrest via statute or common law.

However, this has been deleted from DCR 16 by this: http://tinyurl.com/dcr16-amend


So:

In terms of power/ability to arrest in this case:

- It is unlikely that a warrant could be issued in this case for the section mentioned (not indictable).

- Statute does not make sec 11 an arrestable offence

- So only common law is left (or am i missing something else??)

...but if for example it was just to charge the person I believe it's a common law power to arrest for the purpose of charging. I'll double check that and post if I'm wrong.

Question:

- But wouldn't the ability of being able to arrest for the purpose of charge circumvent the whole idea of arrestable/ non- arrestable offence?

- If arrest for the purpose of charge WERE possible, wouldn't the Gaurd have to say 'I am arresting you to charge you' or 'I am arresting you to charge you with an offence under sec xxx' and NOT 'I am arresting you under sec 11' (in this case ) i.e the latter has no mention of the arrest being specifically to charge.

- Would be good if this point could be hacked out - does any one have access to the Garda Guide - maybe something in there?

- There is also a thread on this but unsure if they came to a conclusion either ...

http://www.boards.ie/vbulletin/showthread.php?p=71163612

- Who can issue an arrest warrant e.g during the time when the courts are on holidays?

ResearchWill

pk82 wrote: »

Thanks.

I did some more research.

It would seem that ONLY (other opinion welcome) a judge can issue an arrest warrant and then only for an indictable offence - which section 11 NFOAPA is not.

DCR 16 - http://tinyurl.com/dcr16

DCR 16 (5) stated that a warrant could ALSO be issued for those offences which allow arrest via statute or common law.

However, this has been deleted from DCR 16 by this: http://tinyurl.com/dcr16-amend


So:

In terms of power/ability to arrest in this case:

- It is unlikely that a warrant could be issued in this case for the section mentioned (not indictable).

- Statute does not make sec 11 an arrestable offence

- So only common law is left (or am i missing something else??)




Question:

- But wouldn't the ability of being able to arrest for the purpose of charge circumvent the whole idea of arrestable/ non- arrestable offence?

- If arrest for the purpose of charge WERE possible, wouldn't the Gaurd have to say 'I am arresting you to charge you' or 'I am arresting you to charge you with an offence under sec xxx' and NOT 'I am arresting you under sec 11' (in this case ) i.e the latter has no mention of the arrest being specifically to charge.

- Would be good if this point could be hacked out - does any one have access to the Garda Guide - maybe something in there?

- There is also a thread on this but unsure if they came to a conclusion either ...

http://www.boards.ie/vbulletin/showthread.php?p=71163612

- Who can issue an arrest warrant e.g during the time when the courts are on holidays?

Judges sit during the Holidays. The High Court has a duty Judge every day. Circuit Courts have a Judge who can sit in emergancy, other than that there are a few days when it is pre arranged they will sit. District Court is only closed August but again a Judge will sit in emergancy and again as far as I knw some pre arranged dates.


I have looked into this a bit more I believe that the only way on summary offence to bring a person before the court is charge sheet or Summons. I could be wrong but have checked with a few people and thats what they think aswell. I have never seen a person brought before DC on summary charge by any other means, but as I say I may be wrong.

pk82

ResearchWill wrote: »

... I have looked into this a bit more I believe that the only way on summary offence to bring a person before the court is charge sheet or Summons. I could be wrong but have checked with a few people and thats what they think aswell. I have never seen a person brought before DC on summary charge by any other means, but as I say I may be wrong.

Thanks but that is not the crux of what I am looking for. I know that it has to be a summons or charge sheet.

Two separate questions concern me:

1) Who, if anyone, apart from a judge can issue an arrest warrant?

2) How is it possible that a person can be arrested for a, according to statute, non- arrestable, non- indictable, summary only offence e.g section 11 NFOATPA?

So in relation to 2)

- A warrant cannot work as it needs a judge and the offence needs to be indictable. I think a warrant is a lot of extra work for the Gardai and normally a summons would be issued instead especially in August as the judges in the DC are mostly on holiday. I do not think a warrant for such an offence constitutes an emergency to have the judge brought in. Even if he were in on another matter, I cannot see a judge signing it because not indictable and wouldn't a judge issue a summons instead of arresting someone if he can? I do not think the DC judges sit on any pre arranged days in August (at least outside Dublin)

- the offence is not an arrestable offence e.g sec 11 NFOAPA- so no arrest powers under statute

- The only outstanding possibility to enable arrest is common law. But if so, how and would it not essentially circumvent the whole point of arrestable and non - arrestable offences??

ResearchWill

pk82 wrote: »

Thanks but that is not the crux of what I am looking for. I know that it has to be a summons or charge sheet.

Two separate questions concern me:

1) Who, if anyone, apart from a judge can issue an arrest warrant?

2) How is it possible that a person can be arrested for a, according to statute, non- arrestable, non- indictable, summary only offence e.g section 11 NFOATPA?

So in relation to 2)

- A warrant cannot work as it needs a judge and the offence needs to be indictable. I think a warrant is a lot of extra work for the Gardai and normally a summons would be issued instead especially in August as the judges in the DC are mostly on holiday. I do not think a warrant for such an offence constitutes an emergency to have the judge brought in. Even if he were in on another matter, I cannot see a judge signing it because not indictable and wouldn't a judge issue a summons instead of arresting someone if he can? I do not think the DC judges sit on any pre arranged days in August (at least outside Dublin)

- the offence is not an arrestable offence e.g sec 11 NFOAPA- so no arrest powers under statute

- The only outstanding possibility to enable arrest is common law. But if so, how and would it not essentially circumvent the whole point of arrestable and non - arrestable offences??

Then there are two possible solutions. The first there is some common law way that so far no one can point to the second option is if such an arrest happened it very well may be illegal.

pk82

ResearchWill wrote: »

Then there are two possible solutions. The first there is some common law way that so far no one can point to the second option is if such an arrest happened it very well may be illegal.

That is it.

I would be happier if I could definitely rule out the common law option though ...


oh and I would still like to know if there is anyone except a judge who can issue a warrant??

Tom Young

In certain instances, though many are under challenge, Senior Gardai can issue warrants; and

Question 2 - There is a power of arrest at common law:

See Thorpe v DPP [2007] IR 502:

At common law, there is a power of arrest - Common Law Power of Arrest

Although the 1994 Act repealed much of the common law in respect of public order offences, it is worth noting that s.26 does not repeal the Garda power of arrest and charge at common law. As such, Murphy J. was satisfied that the powers conferred under the 1994 Act are in addition to, as opposed to a substitute for, the common law offences and the law can therefore be said to include powers of common law in respect of an apprehended breach of the peace.

Breach of the Peace: Common Law offence or Power of Arrest

I use the below as an example of common law power of arrest that recently came before the HC.

In Thorpe, Murphy J. found the common law concept of Breach of the Peace to have multiple meaning and application in law:

“It would seem the category of common law breach of the peace may in this jurisdiction be subdivided into a breach of the peace which is an offence and a breach which is not”.

As an offence it occurs where a person engages in conduct that would cause reasonable alarm and apprehension to members of the public, and importantly this offence exists outside the scope of the 1994 Act and may be enforced as against persons in private dwellings.
In its other form (i.e. otherwise than as an offence) the concept of breach of the peace may present itself as follows:

(a) Where a District, Circuit or High Court judge exercises their discretion under s.54 of the Courts (Supplemental Provisions) Act 1961 and orders a person be bound to keep the peace and/or be of good behaviour as a form of preventative justice; or
(b) Where a member of An Garda Síochána exercises their common law power of arrest (which has been retained by s.26 of the 1994 Act).

MagicSean

pk82 wrote: »

Thanks.

I did some more research.

It would seem that ONLY (other opinion welcome) a judge can issue an arrest warrant and then only for an indictable offence - which section 11 NFOAPA is not.

DCR 16 - http://tinyurl.com/dcr16

DCR 16 (5) stated that a warrant could ALSO be issued for those offences which allow arrest via statute or common law.

However, this has been deleted from DCR 16 by this: http://tinyurl.com/dcr16-amend


So:

In terms of power/ability to arrest in this case:

- It is unlikely that a warrant could be issued in this case for the section mentioned (not indictable).

- Statute does not make sec 11 an arrestable offence

- So only common law is left (or am i missing something else??)




Question:

- But wouldn't the ability of being able to arrest for the purpose of charge circumvent the whole idea of arrestable/ non- arrestable offence?

- If arrest for the purpose of charge WERE possible, wouldn't the Gaurd have to say 'I am arresting you to charge you' or 'I am arresting you to charge you with an offence under sec xxx' and NOT 'I am arresting you under sec 11' (in this case ) i.e the latter has no mention of the arrest being specifically to charge.

- Would be good if this point could be hacked out - does any one have access to the Garda Guide - maybe something in there?

- There is also a thread on this but unsure if they came to a conclusion either ...

http://www.boards.ie/vbulletin/showthread.php?p=71163612

- Who can issue an arrest warrant e.g during the time when the courts are on holidays?

The point of arrestable offences is to allow for detentions.

You're being a bit pedantic in regards to what he must say. The Garda does not really need to say anything in particular. He should inform you you are under arrest and caution you. He should also tell you what offence you are being arrested for.

Tom Young wrote: »

In certain instances, though many are under challenge, Senior Gardai can issue warrants; and

Question 2 - There is a power of arrest at common law:

See Thorpe v DPP [2007] IR 502:

At common law, there is a power of arrest - Common Law Power of Arrest

Although the 1994 Act repealed much of the common law in respect of public order offences, it is worth noting that s.26 does not repeal the Garda power of arrest and charge at common law. As such, Murphy J. was satisfied that the powers conferred under the 1994 Act are in addition to, as opposed to a substitute for, the common law offences and the law can therefore be said to include powers of common law in respect of an apprehended breach of the peace.

Breach of the Peace: Common Law offence or Power of Arrest

I use the below as an example of common law power of arrest that recently came before the HC.

In Thorpe, Murphy J. found the common law concept of Breach of the Peace to have multiple meaning and application in law:

“It would seem the category of common law breach of the peace may in this jurisdiction be subdivided into a breach of the peace which is an offence and a breach which is not”.

As an offence it occurs where a person engages in conduct that would cause reasonable alarm and apprehension to members of the public, and importantly this offence exists outside the scope of the 1994 Act and may be enforced as against persons in private dwellings.
In its other form (i.e. otherwise than as an offence) the concept of breach of the peace may present itself as follows:

(a) Where a District, Circuit or High Court judge exercises their discretion under s.54 of the Courts (Supplemental Provisions) Act 1961 and orders a person be bound to keep the peace and/or be of good behaviour as a form of preventative justice; or
(b) Where a member of An Garda Síochána exercises their common law power of arrest (which has been retained by s.26 of the 1994 Act).

But does that refer only to an arrest for breach of the peace?

keano007

pk82 wrote: »

Thanks.

We have established that Section 11 of NFOAPA is not an arrestable offence as defined under Sec 2 Criminal Law Act 1997.

Following on from post #4 is it theoretically possible to obtain an arrest warrant for a non-arrestable offence?

Who are the people that can issue a warrant?

If a warrant were obtained - would the arresting gaurd the person he is arresting about the warrant OR show it to him? i.e could he arrest on a warrant but not have to say he has one?

I think we need to go back to the basics here:

1) S11 NFOAPA is not an arrestable offence ie. carries a penalty of 5 years or more.

2) There isn't a statutory power of arrest built into the section like there is say for example with S113 RTA - Interfering with an MPV

3) Only a Judge of the district Court can issue an arrest warrant.

4) I would imagine if a member of An Garda Siochana was investigating this type of offence they would complete a file, send it to the DPP or the local Superintendent who would give a direction to prosecute or not.

5) To proceed with a prosecution the Garda could do a number of things:

A) issue a summons
invite the person to the station and charge him/her and either give them station bail or bring them in custody to court.
C) Get an arrest warrant from a judge of the district court as its a summary offence and arrest the person, charge them, and take them to the next sitting of the district court.
In relation to C and your question as to whether the guard should show you the warrant I'm not sure if you are statutorily obliged to be show the warrant but it would be appropriate to tell a person. I can't see any reason why someone wouldn't be told.

I think that's all!!

pk82

Tom Young wrote: »

At common law, there is a power of arrest - Common Law Power of Arrest

Although the 1994 Act repealed much of the common law in respect of public order offences, it is worth noting that s.26 does not repeal the Garda power of arrest and charge at common law. As such, Murphy J. was satisfied that the powers conferred under the 1994 Act are in addition to, as opposed to a substitute for, the common law offences and the law can therefore be said to include powers of common law in respect of an apprehended breach of the peace.

I am more confused. Is this, as another board member asked above, only in relation to breach of the peace?

Common law means at some point a precedent was set and that the law evolved over time according to decisions made - right?

Does a common law power of arrest ONLY apply to common law 'offences'?

What is the point of an offence such as sec 11 NFOAPA being non- arrestable if this can be circumvented by a common law power of arrest?

Or do you mean that if a precedent of arrest was set at some point specifically for sec 11 - then there would be common law power of arrest for it??

So how can you be arrested for a non arrestable, non indictable summary offence?

Procrastastudy

Link to the judgment for you OP in case you want to have a read and don't know where to find them.

http://www.courts.ie/Judgments.nsf/09859e7a3f34669680256ef3004a27de/40ea083a9ebd7676802572430061cf6d?OpenDocument

pk82

Thanks

I had found it and read a good part of it. Doesn'T it only aply to breach of peace or public order?

As in my last post, I still do not understand though if there is a common law power f arrest for the section 11 non arrestabel, non indictable summary offence.

Am i not seeing something here??

Procrastastudy

pk82 wrote: »

Thanks

I had found it and read a good part of it. Doesn'T it only aply to breach of peace or public order?

As in my last post, I still do not understand though if there is a common law power f arrest for the section 11 non arrestabel, non indictable summary offence.

Am i not seeing something here??

Its way over my head - I was just reading it and thought I'd link it. I'm only just starting criminal law and this is something that will probably take me a couple of weeks to understand. I know its small consolation but thanks for starting one for the more interesting threads of late!

All that said my uneducated, probably wrong, interpretation is that a breach of the peace is a catch all term that would include offenses such as ones under S11 of the NFOAPA.

pk82

Procrastastudy wrote: »

I know its small consolation but thanks for starting one for the more interesting threads of late!

No problem. I will try and keep you posted!

All that said my uneducated, probably wrong, interpretation is that a breach of the peace is a catch all term that would include offenses such as ones under S11 of the NFOAPA.

Could be.

Could be that there is (I think as Tom Young wrote) a common law power of arrest

In other words, if they have reasonable cause to suspect an offence has been committed, common law arrest covers it - regardless of if the offence is arrestable or not.

Bit silly then having arrestable and non- arrestable offences if common law makes them all arrestable ...

Or maybe as you say breach of peace is a catch them all under which Sec 11 could be made fit and thus come under common law.

Hard to see sec 11 fitting under breach of peace though.

Maybe then, there are other non arrestable, non indictable offences that do not fit under breach of peace or another common law area where there is NO power of arrest at common law



I would like to pin it down conclusively though.

Procrastastudy

To clarify what I meant - which is probably an exercise in futility as its likely wrong - I think there is a common law power of arrest for 'breaches of the peace' where 'breach of the peace' is defined as per the case linked. I think S11 fits, imo anyway, into the niche carved quite nicely I'm afraid.

From my very limited knowledge there are all sorts of powers of arrest, there's S(12) Licensing Act 1872, various sections of the Road Traffic Act, and S(8) of Criminal Justice (Theft and Fraud Offences) Act 2001. A common law one with fairly narrow powers wouldn't be that surprising.

Tom Young

pk82 wrote: »

I am more confused. Is this, as another board member asked above, only in relation to breach of the peace?

Common law means at some point a precedent was set and that the law evolved over time according to decisions made - right?

Does a common law power of arrest ONLY apply to common law 'offences'?

What is the point of an offence such as sec 11 NFOAPA being non- arrestable if this can be circumvented by a common law power of arrest?

Or do you mean that if a precedent of arrest was set at some point specifically for sec 11 - then there would be common law power of arrest for it??

So how can you be arrested for a non arrestable, non indictable summary offence?

Much of the law relating to the NOAPA must be read in line with the common law and the OAPA 1861.

Tom Young

A more recent airing: http://www.irishstatutebook.ie/2006/en/act/pub/0026/sec0008.html#sec8

and:

http://www.irishstatutebook.ie/2006/en/act/pub/0026/sec0009.html#sec9

keano007

There is NO power of arrest for S.11 and the common. Law power of arrest for a breach of the peace would not be used in its place! I can see no circumstance why it would be.

Tom Young

That actually wasn't the point I was making. I simply used the CJ PO Act '94, as an example of how a common law power of arrest might arise.

I tend to agree that S.11 is anomalous.

Tom

Reloc8

A warrant to arrest for an offence can be issued by a Judge only. Reference earlier to powers of an garda siochana to issue warrants is incorrect if understood to refer to arrest warrants - there is currently issues around members power to issue search warrants as provided for by statute, but they don't have power to issue arrest warrants.

The power of arrest described in Thorpe v DPP is in relation only to an indictable breach of the peace at common law (for clarity there is no summary offence of breach of the peace contrary to common law).

There is no common law power of arrest for a summary only offence. Powers of arrest for such offences come from statute only.

pk82

Getting near to it now lads ....

pk82

Reloc8 wrote: »

A warrant to arrest for an offence can be issued by a Judge only. Reference earlier to powers of an garda siochana to issue warrants is incorrect if understood to refer to arrest warrants ...

Yes, only arrest warrant was meant.

Tom Young wrote: »

I tend to agree that S.11 is anomalous.

Why? Does not Thorpe v DPP consider breach as anything causing 'alarm or apprehension to members of public' whilst sec 11 says 'demands which by reason of their frequency cause alarm ... '. Isn't it the same?

Reloc8 wrote: »

There is no common law power of arrest for a summary only offence. Powers of arrest for such offences come from statute only.

OK. sounds good, but how do we know this for a fact? Are you quoting from experience or literature or something else?

thanks

Procrastastudy

Okay another stab at it for the sake of if nothing else getting it wrong creates a temptation for people to correct

Would it be that if you look back to the days of yore - well until prior to 1997 crimes fell into three categories - treasons, felonies and misdemeanors. The power for arrest without warrant was for felonies only (and treason as a particular type of felony) therefore a common law power of arrest would not have developed for misdemeanor offences - which don't exist anymore but would broadly fall into the category of minor offences.

I'm sure that is all kinds of wrong and will be obliged at the education.

MagicSean

Reloc8 wrote: »

A warrant to arrest for an offence can be issued by a Judge only. Reference earlier to powers of an garda siochana to issue warrants is incorrect if understood to refer to arrest warrants - there is currently issues around members power to issue search warrants as provided for by statute, but they don't have power to issue arrest warrants.

The power of arrest described in Thorpe v DPP is in relation only to an indictable breach of the peace at common law (for clarity there is no summary offence of breach of the peace contrary to common law).

There is no common law power of arrest for a summary only offence. Powers of arrest for such offences come from statute only.

Aren't breach of the peace and escape from custody both common law summary offences?

Reloc8

MagicSean wrote: »

Aren't breach of the peace and escape from custody both common law summary offences?

No.

Breach of the peace contrary to common law is indictable.

So is escape from lawful custody contrary to common law.

The latter is also an arrestable offence under the 1997 Act. As set out in Thorpe there is a power of arrest at common law for breach of the peace contrary to common law. I can't recall off the top of my head whether it is also an arrestable offence but I believe it is (there's some suggestion in the case law that the maximum term of imprisonment is life).

pk82

So lets step back for a minute:

I am trying to determine if there is any way whatsoever under common law that an arrest under sec 11 NFOAPA can be made.

In terms of other methods:

- A warrant has been ruled out.

- The offence is a non arrestable, summary one

Secc 11 (a) states

11.—(1) A person who makes any demand for payment of a debt shall be guilty of an offence if—

(a) the demands by reason of their frequency are calculated to subject the debtor or a member of the family of the debtor to alarm, distress or humiliation

Let us assume that written payment demands are sent be they strong or polite i.e. there is no personal confrontation with the debtor

1) So could it be possible that because 'alarm' was alleged to be caused that this could be interpreted as a 'breach of the peace'? Possible or not??

Then they arrest as a breach of peace but charge under sec 11

2) Assume that a Gaurd arrested someone saying 'arrest under sec 11'

IF he were actually arresting under breach of peace (or another common law if there is one applicable) wuold he not have to say 'arrest under breach of peace' or similar instead??

3) Is there any other common law or 'way' that allows them to arrest for a non arrestable summary offence? Is there a power 'to arrest and charge' or similar?

keano007

pk82 wrote: »

So lets step back for a minute:

I am trying to determine if there is any way whatsoever under common law that an arrest under sec 11 NFOAPA can be made.

In terms of other methods:

- A warrant has been ruled out.

- The offence is a non arrestable, summary one

Secc 11 (a) states

11.—(1) A person who makes any demand for payment of a debt shall be guilty of an offence if—

(a) the demands by reason of their frequency are calculated to subject the debtor or a member of the family of the debtor to alarm, distress or humiliation

Let us assume that written payment demands are sent be they strong or polite i.e. there is no personal confrontation with the debtor

1) So could it be possible that because 'alarm' was alleged to be caused that this could be interpreted as a 'breach of the peace'? Possible or not??

Then they arrest as a breach of peace but charge under sec 11

2) Assume that a Gaurd arrested someone saying 'arrest under sec 11'

IF he were actually arresting under breach of peace (or another common law if there is one applicable) wuold he not have to say 'arrest under breach of peace' or similar instead??

3) Is there any other common law or 'way' that allows them to arrest for a non arrestable summary offence? Is there a power 'to arrest and charge' or similar?

No problems arresting for one offence and charging for another.

I disagree with the power of arrest via a warrant. A guard could get a warrant to arrest for a summary offence.

Reloc8

Its a bit difficult to put some shape on these queries but here's my best effort.

General comments :-

A persons conduct can frequently comprise multiple offences.

The S. 11 'causing alarm' offence requires proof of frequent demand causing alarm where the frequency of the demands is calculated to cause that alarm (or distress or whatever).

This means you couldn't commit a S. 11 'alarm' offence by making one demand, or making a number of infrequent demands (there are other offences under S. 11 which can be committed on the basis of one-off behaviour).

As regards the components of breach of the Peace contrary to common law , these are set out broadly in the Thorpe judgment, and in more detail in AG v Cunningham referred to in that judgment. It is also said by Murphy J. in Thorpe that a component of a breach of the peace contrary at common law is 'some danger to the person'.

Murphy J refers to the English position :-

"In English law, if there is no threat to the person it seems that a threat to property should generally be regarded as insufficient though it may well be that a threat to attack a dwelling house is looked upon with special severity and so is always a breach of the peace if the attack is imminent."

He does not seem to dispute that similar considerations apply in Ireland, or that the arrest for breach of the peace must be immediate to the breach of anticipated breach. In passing it might be noted that is consistent with arrest under the Criminal Justice (Public Order) Act 1994 which permits arrest for offences under the Act where the garda in question finds the person committing the offence (this does not restrict a general power of arrest for the more serious offences which are 'arrestable offences' in law). Thus an arrest for breach of the peace contrary to common law would seem invalid where it is said that the alleged breach was committed by sending letters. This does not mean that the offence could not in theory be committed by sending letters although see above as regards a requirement of there being 'danger to the person'.

Turning to your specific queries in your last post :

1. Highly unlikely in respect of written demands having regard to the observations made by Murphy J as regards breach of the peace contrary to common law incorporating some danger to the person.

1(a) A person can indeed however be arrested for one offence and charged with another subsequently, whether or not charged with the offence for which they were arrested.

2. A garda could not lawfully make an arrest under S. 11 NFOAPA 1997.

2(a) A lawful arrest requires amongst other things that the person arrested be told what they are arrested for in plain ordinary language.

3. No. An Arrest for the purpose of charge can take place as with all arrests where a power of arrest exists in respect of the offence for which the person is arrested.

3(a) There is no independent power of arrest for the purpose of charge. People are frequently arrested to be charged but the arrest takes place in reliance on an independently valid power of arrest. By way of comment in anticipation of potential query an invalid arrest does not vitiate criminal proceedings founded on a charging process which takes place while the suspect is in custody on the invalid arrest.

Reloc8

keano007 wrote: »

I disagree with the power of arrest via a warrant. A guard could get a warrant to arrest for a summary offence.

Can you provide examples of such offences please ?

Such an arrest would then in any event take place on foot of a warrant issued under statute, not a common law power of arrest.

pk82

keano007 wrote: »

I disagree with the power of arrest via a warrant. A guard could get a warrant to arrest for a summary offence.

Unless there is another statute or whatever, which 'overrides' it, does not DC Rule 16 state that the offence MUST be indictable in order to issue a warrant?

As an aside, it must be a judge either from the district where the offence is alleged to have taken place or where the accused resides (often the same anyway.

If purely for example an arrest was made in August, when the (provincial) DC was on holidays, I doubt the judge would be brought in for a summary offence. Even then, he cant issue it as non indictable and may issue a summons instead.

or ask the Gaurd is he sane :-)

pk82

Reloc8 wrote: »

2(a) A lawful arrest requires amongst other things that the person arrested be told what they are arrested for in plain ordinary language.

Let us assume that a guard (whether rightly or wrongly) arrests specifically and only under Sec 11 being a non arrestable, summary offence.

He cannot then claim afterwards that he arrested (rightly or wrongly probably wrongly as no common law power for these offences anyway) by using common law power of arrest such as breach of the peace but then decided to charge under sec 11, can he?

Can a Guard be forced via a Gary Doyle order or similar to lay out his reasoning for the arrest and what law (common or otherwise) he used (rightly or wrongly) at the time to effect it?

pk82

I just happened to find an index of this and a few sample pages on the Internet of Quinn's Criminal law in Ireland.

IN an overview at the end of offences and fines for them it states

Attempt, to commit any crime (common law offence)

Maybe they can arrest willy nilly on this and change the charge afterwards.

Though they would have to say 'arrest on suspicion of attempting a crime' and not 'arrest under sec 11 or sec xx or for whatever' wouldn't they??

MagicSean

pk82 wrote: »

As an aside, it must be a judge either from the district where the offence is alleged to have taken place or where the accused resides (often the same anyway.

If purely for example an arrest was made in August, when the (provincial) DC was on holidays, I doubt the judge would be brought in for a summary offence. Even then, he cant issue it as non indictable and may issue a summons instead.

There are special sittings throughout August where a warrant could be obtained.

CharlieCroker

Never mind, post I quoted was deleted!!

Reloc8

MagicSean wrote: »

There are special sittings throughout August where a warrant could be obtained.

Aaaaaasaaaaaaaaaand I'm done with the thread.

theAwakening

Reloc8 wrote: »

3(a) By way of comment in anticipation of potential query an invalid arrest does not vitiate criminal proceedings founded on a charging process which takes place while the suspect is in custody on the invalid arrest.

what case law is the above point grounded upon?

Procrastastudy

Just some things I'm hitting on as I do my own pre-reading for college OP. Take them at that value - e.g pretty much nowt.

Re O'Laighleis [1960] IR 93 - the suspect must be informed of the factual basis and legal authority for is arrest. However;

DPP v Walsh [1980] IR 294 - No particular words must be used.

Where this is relevant to your hypothetical scenario is;

DPP v Connell [1998] 3 IR 62 - where a guard cited the wrong section of the RTA when arresting someone for drink driving. Held - the suspect need only be informed of the general reason for arrest.

So applying this - could it just be the guard made a mistake and was actually making an arrest under a different power?

ResearchWill

Procrastastudy wrote: »

Just some things I'm hitting on as I do my own pre-reading for college OP. Take them at that value - e.g pretty much nowt.

Re O'Laighleis [1960] IR 93 - the suspect must be informed of the factual basis and legal authority for is arrest. However;

DPP v Walsh [1980] IR 294 - No particular words must be used.

Where this is relevant to your hypothetical scenario is;

DPP v Connell [1998] 3 IR 62 - where a guard cited the wrong section of the RTA when arresting someone for drink driving. Held - the suspect need only be informed of the general reason for arrest.

So applying this - could it just be the guard made a mistake and was actually making an arrest under a different power?

I doubt that as when OP was taken to GS he was given a charge sheet which charged him for the same offence he was arrested for.

Procrastastudy

ResearchWill wrote: »

I doubt that as when OP was taken to GS he was given a charge sheet which charged him for the same offence he was arrested for.

Ah thanks RWill - I completely missed that.

pk82

Some research has unearthed the following:

Following on from an aside topic -

A judge OR peace commissioner can issue an arrest warrant Source: Criminal Law in Ireland - Cases and Commentary Campbell, Kilcommons, O 'Sullivan

However, it is very unusual to let a PC do this as the courts tend not too look favourably upon it and is thus open to challenge (Source: I spoke to a Garda)

Arresting under a warrant:
If arresting under a warrant, it must be stated to the arrestee that a warrant is being used an be shown (if the gaurd has it at the time as he can execute it as long as it has been obtained but may not have itin his hand). If the arrestee asks to see the warrant it must be shown ( as soon as practicable or without delay I think the source wrote) Source: Criminal Law in Ireland - Cases and Commentary. Campbell, Kilcommons, O 'Sullivan pp365

To arrest under a breach of the peace at common law, the garda must witness the breach of the peace. Source: asked a Garda
The two gardai I spoke to could not think of a common law poer of arrest for a non arrestable offence.