Correct arrest or not?

jd80

Let's assume a summary only offence e.g. section 2 assault Non fatal offences

This attracts a fine and a maximum of 6 months imprisonment. It is not an arrestable offence as specified by Section 2 (1) criminal law act 1997 as it does not have a five year sentence.


A complaint about a sec 2 assault is made to AGS. The complainant states that he was assaulted but that he is unharmed

A guard who did not witness the assault but has reasonable suspicion arrests the alleged perpetrator at a location other than where the assault occurred


He states that he is arresting under Section 4 Criminal Law Act 1997 for the purpose of charge under Section 2 Non Fatal

(assume the Guard knows that it can only be a Sec 2 assault and not a sec 3 or 4)

Section 4 Criminal Law act allows anyone to arrest as long as the offence is an arrestable one

Is the arrest legal?




Links:

CLA Section 4

CLA Section 2 (1)

CLA Section 2 (1) amendment

Section 2 Non Fatal Offences 1997

Kevin3

It can be a section 3 assault if there is any 'pain'. There's not many assaults that don't actually cause any pain at all.

Going by your scenario and saying it's definitely a section 2 it comes down to the question of whether there is a common law power of arrest for the purpose of charge for summary offences.

I don't think there is. I'd say the arrest is illegal but I don't think it would bar the garda from later applying for a summons.

NoQuarter

http://www.boards.ie/vbulletin/showthread.php?p=80886251

Might not be 100% clear but we gave a good go of it here. Either way, its arguable that its ok IMO.

jd80

Putting aside common law and attempts at section 3 Non fatal. assuming that it is a pure Section 2 summary offence and nothing else then:

In itself, section 4 Criminal Law act does not confer a power of arrest?

Section 4 only gives power if arrest as long as an arrestable offence, as defined by section 2(1) of Crim Law Act, is committed?

What I am trying to say is that there must be a valid arrestable offence for Sec 4 to be used

So if he says 'arrest under Sec 4 Crim Law Act for the purpose of charge under Sec 2 non fatal' it is illegal?

If he later says 'oh well, it was sec 3 Non fatal I arrested him under and charged with sec 2 - I just did not say sec 3 but I said Sec 4 Crim Law act just to cover it' then it is also illegal as he should have truthfully said what he was arresting under (Christie vs Leachinsky)

Any way, if he really wanted to arrest under Sec3 non fatal why even mention Sec 4 Crim Law Act as it itself gives no power of arrest

NoQuarter

I accept and understand what you are saying. I still think you can be arrested under s4 Criminal Law Act. Look at is this way, s.4 of the 97 Act requires " he or she, with reasonable cause, suspects to be in the act of committing an arrestable offence."

So, as a Garda, if I saw someone committing a simple s.2 assault, I could reasonably suspect that they were in the act of committing a s.3 assault which is arrestable. Therefore, I get around the illegal arrest.

You can reasonably suspect that a s.3 assault was committed, make the arrest and the the accused is subsequently charged with only s.2.

Also, being arrested under a certain power does not limit, by any rule of law, what offences you can be charged with. You could be arrested under s.30 of the Offences Against the State Act which gives the power of arrest for certain offences and during the investigation, the Guards could realise that the accused has committed other offences that arent scheduled in the OAS Act and there is no bar to charging the accused with those offences along with the scheduled offences under the OAS Act.

Kevin3

jd80 wrote: »

So if he says 'arrest under Sec 4 Crim Law Act for the purpose of charge under Sec 2 non fatal' it is illegal?

I'd say yes. The only thing is that as long as the offence is not more than six months old it wouldn't prevent them for applying for a summons after realising their mistake.

jd80 wrote: »

Any way, if he really wanted to arrest under Sec3 non fatal why even mention Sec 4 Crim Law Act as it itself gives no power of arrest

What?? Section 4 of the Criminal Law Act 1997 does give the power of arrest for an arrestable offence.

Any power of arrest allows a garda to later charge under Order 17 of the District Court Rules:

Procedure on arrest


Particulars to be set out charge sheet

1.(1) Whenever a person is arrested and brought to a Garda Siochana Station and is being charged with an offence, or where an offence is alleged against a person who is already on remand to the Court and a summons in respect of the offence is not issued, particulars of the offence alleged against that person shall be set out on a charge sheet Form 17.1, Schedule B.

(2) When particulars of any offence are set out on a charge sheet in accordance with this rule, a copy of the particulars shall be furnished as soon as may be to the person against whom the offence is alleged.

(3) A charge sheet to which this rule applies shall be lodged as soon as possible with the Clerk for the court area in which the case is to be heard.

jd80

Yes, I understand both your points, but it is not exactly what I am getting at.

I will have to go and rephrase it and post again

What?? Section 4 of the Criminal Law Act 1997 does give the power of arrest for an arrestable offence.

It ALLOWS anyone to arrest as long as the offence is an arrestable one - BUT what I meant here is that he must actually (according to Christie v Leachninsky) state what he is arresting you for - he cannot simply state 'I am arresting you under Section 4 Crim law act' and leave out stating 'Sec 3' if he were arresting under sec 3

So:

WRONG: I am arresting you under sec4 Crim Law act for the purpose of charge under xxxx - no valid power of arrest

CORRECT: I am arresting you under Sec 3 non fatal for the purpose of charge under xxxx - valid power of arrest

In the second instance Sec4 Crim law act allows him to make the arrest - but it is not mentioned

See what I mean?

It is clear that he can charge with something else other than what he arrests for.

NoQuarter

jd80 wrote: »

Yes, I understand both your points, but it is not exactly what I am getting at.

I will have to go and rephrase it and post again




It ALLOWS anyone to arrest as long as the offence is an arrestable one - BUT what I meant here is that he must actually (according to Christie v Leachninsky) state what he is arresting you for - he cannot simply state 'I am arresting you under Section 4 Crim law act' and leave out stating 'Sec 3' if he were arresting under sec 3

So:

WRONG: I am arresting you under sec4 Crim Law act for the purpose of charge under xxxx - no valid power of arrest

CORRECT: I am arresting you under Sec 3 non fatal for the purpose of charge under xxxx - valid power of arrest

In the second instance Sec4 Crim law act allows him to make the arrest - but it is not mentioned

See what I mean?

It is clear that he can charge with something else other than what he arrests for.

You've completely mixed up your wrong and correct there.

The WRONG one you have mentioned is how you arrest someone. You tell them they are being arrested pursuant to the act that gives them the power of arrest such as s.4 CLA 97 and the reason, in plain language, for the arrest, ie assault.

The CORRECT scenario you mentioned is actually the invalid arrest as you cannot arrest someone under s.3 of the NFOAP Act or under any other piece of legislation that sets out an offence such as s.4, s.2 assaults, theft, burglary etc etc.

If the second scenario happened and someone tried to rely on it to invalidate an arrest, it would be a very difficult burden to prove!

And remember, whilst you are relying heavily on Christie v Leachninsky, its an English case so is only of persuasive authority and certainly wont trump Irish legislation.

NoQuarter

Sorry, I just looked at the OP again, I'd say there is an argument there for what you are saying alright.

Kevin3

jd80 wrote: »

It ALLOWS anyone to arrest as long as the offence is an arrestable one - BUT what I meant here is that he must actually (according to Christie v Leachninsky) state what he is arresting you for - he cannot simply state 'I am arresting you under Section 4 Crim law act' and leave out stating 'Sec 3' if he were arresting under sec 3

Christtie v Leachninsky basically means that the person must know the reason for their arrest. It doesn't mean that the guard has to say they are 'arresting under section 4 of the criminal law act 1994....' because if they said that most people wouldn't have a clue what they are talking about. It mearly means that they have to be informed in ordinary language what they are being arrested for, for example 'I am arresting you on suspicion of assault causing harm, or drink driving or burglary etc.'

jd80 wrote: »

So:

WRONG: I am arresting you under sec4 Crim Law act for the purpose of charge under xxxx - no valid power of arrest

CORRECT: I am arresting you under Sec 3 non fatal for the purpose of charge under xxxx - valid power of arrest

In the second instance Sec4 Crim law act allows him to make the arrest - but it is not mentioned

See what I mean?

It is clear that he can charge with something else other than what he arrests for.

What you really should be saying is that they are 'arrested under Section 4 of the Criminal Law Act 1997 for an offence under Section 3 of the Non-Fatal Offences Against the Person Act 1997.'

Again the garda should know this themselves and may say it but is only required to inform the person of the reason for their arrest in ordinary language ie. on suspicion of assault causing harm.

SB2013

The Garda doesn't need to cite the legislation when arresting you. In fact he is better of not doing so because if he does it wrong or cites the legislation wrong he can find his case struck out.

He states that he is arresting under Section 4 Criminal Law Act 1997 for the purpose of charge under Section 2 Non Fatal

I would not be confident that this is a lawful arrest with the wording used. As mentioned, it has been discussed before as to wether there is a power of arrest to charge for a summary offence. I don't believe there is, and if there is, I highly doubt it is under S4 CLA. The question then is wether this would affect the criminal case or simply provide a seperate civil action.

jd80

SB2013 wrote: »

The Garda doesn't need to cite the legislation when arresting you. In fact he is better of not doing so because if he does it wrong or cites the legislation wrong he can find his case struck out.

But he does need to give the reason for the arrest albeit no particular or special wording must be used (DPP v Walsh 1980)

IMO Sec 4 CLA in itself is not a reason - it invokes a power of arrest for an arrestable offence. Said offence is then the reason for arrest not S4 CLA