Sec 23, Misuse of Drugs Act

Sad Professor

http://www.irishstatutebook.ie/1977/en/act/pub/0012/sec0023.html#sec23

I'm referring of course to the powers of search this piece of legislation confers on Gardai.

Is this effectively a blank cheque? Who decides whether the guard had "reasonable cause" to stop and search someone? A judge? What's to stop them from saying "well, judge, the person looked suspicious and my knowledge of the area led me to believe they might have been carrying drugs"? Is there any way of challenging a guard on the spot as to their use of this power? What's to stop it from being used as a tool of harassment and intimidation?

LowKeyReturn

You've two issues.

(i) you are being detained, See the Supreme Courts consideration in O'Callaghan v Ireland [1994] 1 IR 555. Interesting that it was compared to being an extension of arrest. Presumably one can elect to seek legal advice before the search?

(ii) Although this was a consideration of the search of vehicles DPP v Farrell 2009 IEHC 368 should be informative and available on Bailii.

EDIT it is http://www.bailii.org/ie/cases/IEHC/2009/H368.html

Any updates to my outdated manual welcome

Fred Swanson

This post has been deleted.

Cody Pomeray

That section has been amended by s 12 of the Misuse of Drugs Act 1984, although in substance it remains largely the same.

Sad Professor wrote: »

Is this effectively a blank cheque? Who decides whether the guard had "reasonable cause" to stop and search someone?

The courts. Reasonable suspicion must be founded on some ground which, if subsequently challenged in the courts, will show that the Garda acted reasonably.

What's to stop them from saying "well, judge, the person looked suspicious and my knowledge of the area led me to believe they might have been carrying drugs"?

A situation very similar to what you describe features in Director of Public Prosecutions (at the suit of Higgins) v Farrell [2009] IEHC 368

In that case, a Garda searched a vehicle under S. 23 of the Misuse of Drugs Act 1977 as amended. His 'suspicion' was based solely on the fact that the area had a drugs problem.

The High Court held that this did not amount to a reasonable suspicion. It wasn't specific enough. There are better authorities than this on reasonable suspicion, I'm just citing it because it has direct application to the point you raise.

Is there any way of challenging a guard on the spot as to their use of this power?

Yes, the owner of the chattel (e.g. car) or the person being searched must have the reasons for the search explained to them.

What's to stop it from being used as a tool of harassment and intimidation?

The courts, or the Garda Síochána Ombudsman.

Carawaystick

Cody Pomeray wrote: »

Yes, the owner of the chattel (e.g. car) or the person being searched must have the reasons for the search explained to them.

2 questions,
Does the explanation have to be clear so the person understands the explanation, like when being arrested

if the owner is not present what then?

Fred Swanson

This post has been deleted.

Cody Pomeray

Carawaystick wrote: »

2 questions,
Does the explanation have to be clear so the person understands the explanation, like when being arrested

Yes, the explanation has to be clear. The point of informing a suspect the reason for a search of his body or his vehicle is that the suspect may understand why some his rights are being temporarily supended, which may be of use to him at that time or later; it is a sort of safety mechanism against random and arbitrary police powers. Of course, if a suspect is being awkward and pretending not to comprehend, I can't imagine this would pose any problem. Or where a suspect may not speak English, I don't believe that would be a problem either.

Another exception may be if there is an implied consent. For example, if a Garda approaches you and you immediately get up and start emptying your pockets and opening your car booth. Or when the metal detector beeps at the airport and you immediately stand aside and wait for the attendant to search you. No explanation has to be given in these cases.

intospace

i think that the legality of the search has to be explained to the person in ordinary language, rather than an outline from police officer as to how he/she actually formulated the reasonable cause to suspect you to be in possession of a controlled drug.

Pat Mustard

Sad Professor wrote: »

What's to stop them from saying "well, judge, the person looked suspicious and my knowledge of the area led me to believe they might have been carrying drugs"?

Often, when the Garda statements are taken up in relation to a charge of possession of cannabis, they usually say something along the lines of: "I noticed a strong smell of cannabis from him. I then formed a suspicion that he was in possession of cannabis", or something like that.

And if the defendant pleads not guilty, the Garda will get into the witness box and swear that this is the case.

And you can guess the rest.

Cody Pomeray

intospace wrote: »

i think that the legality of the search has to be explained to the person in ordinary language, rather than an outline from police officer as to how he/she actually formulated the reasonable cause to suspect you to be in possession of a controlled drug.

No it's almost the opposite.

The legality/ statutory provisions enabling the search don't have to be quoted.

However, an explanation as to why the person is being searched, generally speaking, should be offered.