Your Rights & How to Deal with the Gardaí.

mayo | rights, freedoms and repression | opinion/analysis

Sunday April 22, 2007 19:15

by Niall Harnett - Gluaiseacht.

Doonagore, Liscannor, Co Clare.

Never cooperate with the Gardaí unless …

“The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen”. Constitution of Ireland - Bunreacht na h-Eireann, Article 40.3.1.

The wide-spread and systematic corruption of Gardaí that has been exposed in this country might lead us to believe that we should be entering a new era of accountability. No, far from it, the opposite is true. That new era began last October 2006 and continues now with the practical ongoing training and conditioning of hundreds of Gardaí at Bellanaboy, to the use of violence over the rule of law.

In that context of institutionalised Garda violence, I‘d hope that this article could go some way in empowering you to adopt the policy of:

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

Know your rights and exercise them.

This article is an attempt at re-defining and updating ‘the rights’ of those who are actively involved in protest in this country, and who face the potential of Garda abuse of power and violence that is directly associated with state oppression of legitimate dissent.

Advice is given here in the context of the Shell to Sea Protests at Rossport & Bellanaboy, Co Mayo, where experience has taught us much. But I hope that the legal info here and the practical application of it, can be of value to anyone facing similar problems when dealing with members of An Garda Síochána in any protest situation, anywhere in the country.

In Ireland we are lacking in definitive ‘Know your rights’, ‘Bust Card’, ‘Arrest Info’, ‘Custody Rights’ information, publications, and flyers etc. British activists, for example, who are more experienced and practised than us within a larger network, are much more on this case than we are. The simple but very apt ‘Delia Smith Bust Card’ included further down in this article is a fine example.

The Irish Council for Civil Liberties (ICCL), http://www.iccl.ie , provide a ‘Know your rights’ publication here: http://www.iccl.ie/DB_Data/publications/knowyourrights2...3.pdf . It’s quite good with it’s many references to legislation and the ‘Acts’ but it emphasises the powers of Gardaí rather than the powers of the Citizen, which is counterproductive in my opinion, and reading it can leave you with the dangerous impression that the Gardaí can basically do what they want, which is not true. Not true at all.

The ICCL website is also frustratingly difficult to navigate and it’s almost impossible to find stuff unless you already know it’s there?! Their advice seems to err on the side of caution and ‘playing safe’ when dealing with the Gardaí. Surely the point of giving legal advice is to give people the confidence of being certain when exercising those rights and not giving the Gardaí anything they are not entitled to, including, for example your name and address. The ICCL say that “If you are asked, always give your name and address. If you do not you may be committing an offence”. I say that ‘may be’ is not accurate legal info, ‘may be’ empowers them and not us, ‘may be’ is not law. In this article I’ll try and define the law that will clarify when you should and when you should NOT give the Gardaí such personal information.

1) FUNDAMENTAL RIGHTS.

The Bottom (fundamental) line is this.

You and I have the right to free movement and passage, personal privacy and bodily integrity. And the right to protest.

These are fundamental Human Rights of International Law as well as fundamental rights provided by the Irish Constitution, http://www.taoiseach.gov.ie/upload/publications/297.pdf , which is the foundation of all Irish Law.

NO-ONE, not even a Garda, has the right to 'disabuse' you of those rights ... "save in accordance with the law" (Article 40, Irish Constitution).

The Constitution of Ireland, Bunreacht Na h-Eireann gives us these Fundamental Personal Rights which are provided for us in Article 40.

Article 40.3.1 says that 'The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen'.

Article 40.4.1 says that 'No citizen shall be deprived of his personal liberty save in accordance with law'.

Article 40.5 says that 'The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law.

Article 40.6 says that 'The State guarantees liberty for the exercise of the following rights, subject to public order and morality:

i. The right of the citizens to express freely their convictions and opinions and the education of public opinion ...' and

ii. The right of the citizens to assemble peaceably and without arms.

'Subject to Public Order' quoted above in Article 6 gives us a clue as to which act the Gardaí most commonly use with regard to protesting - the Criminal Justice (Public Order) Act 1994, among others such as the Road Traffic Act.

2) EXACT INFO ON LAW IN IRELAND (Irish Statute Book).

Irish Constitutional Law is Primary Law in Ireland.

‘Legislation’ or ‘general day to day law’ which is secondary to the constitution can be found in the relevant ‘Acts of Law’ provided for in the Irish Statute Book - http://www.irishstatutebook.ie .

When I say 'can be found', that's not exactly true, it's a really bad website. Again, you will not find what you're looking for unless you know what your looking for! For example you will not find Public Order legislation unless you already know there is a 'Public Order Act'. And the best way to find that is to google it and get into the relevant part of the Irish statute book that way. Accessing the info is all arseways, just like this country!

In order for a Garda to behave in ways that he thinks is using, upholding or enforcing the law, there must be 'provision' in the law for him to behave that way. 'Provision' must come from a relevant section of a relevant 'Act of Law' which will either 'provide' him with legal excuse to behave that way or it will not. (Google 'criminal justice public order act' for example). If that or any 'relevant' act does not have provision for his behaviour then he is breaking the law and abusing your personal and fundamental constitutional rights and you can remind yourself and the Garda that he is liable to be held accountable for such illegal actions at civil and criminal law himself.

3a) GARDA STOP, QUESTION & SEARCH POWERS.

It is often said that 'If a Garda asks you for your name and address, you must give it to him'.
I've heard a lot of people say it and I hear activists say it to eachother with full conviction. I've heard cops and legal people say it. The ICCL even advise it.

It’s bullshit, it’s a lie and we've got to get that into our heads. If you believe it's true then you must obviously have knowledge of the relevant provision in law, and please post it here as a comment, with ’chapter and verse’ please, if you do.

You can only be stopped or questioned by a Garda in accordance with law.

To be randomly stopped and/or questioned by a Garda is an abuse of privacy and deprivation of personal liberty. You are entitled to walk the street without question or prevention by a Garda, unless your actions or conduct are such that there is provision in law relevant to your behaviour to stop and question you.

YOU MUST ASK QUESTIONS BEFORE THEY ASK QUESTIONS.

If you are stopped or questioned, and this is very important, the first thing you should do is ask the Garda why you are being stopped or questioned. It's so important to ask the Gardaí questions and to get answers to those questions. If a Garda cannot, will not, or refuses to use 'the law' by invoking a relevant act (such as Public Order Act or Road Traffic Act or whatever) then you do not have to engage or cooperate with him in any way. He must invoke the law to use the law ... in accordance with the law! If he refuses, he is not acting in accordance with any law and you should invoke your rights to personal liberty and go about your business.

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

If a garda is insisting, then you must also insist on asking what provision of law he makes such a demand. If he continues to make up some rubbish under 'colour of law' refuse to co-operate and tell him he will be held personally liable at civil and criminal law for wrongful arrest and false imprisonment if he abuses his authority further.

BEING ASKED FOR YOUR NAME AND ADDRESS.

Similarly, a Garda does not have the right, save in accordance with law, to ask you for your name and address. Again, your right to privacy is accepted by the courts to be provided for in Article 40.3 of the Irish constitution. Any attempt by a Garda to deny your privacy must be done in accordance with law. Even if a Garda invokes for example 'The Public Order Act', he cannot demand your name and address unless he is of the opinion that you have committed an offence under that act.

Neither do you have to "comply with the directions of Garda" (section 8) unless you have been informed that you are committing an offence relative to the Public Order Act whereby there is provision in the act to direct you to 'desist or leave the vicinity" (section 8). The offences (and sections) they might use to question (or arrest you) are "wilfull obstruction" (section 9) and "trespass" (section 13) etc. "Disorderly Conduct "(section 5) is one they could throw at you but not unless you are using "offensive conduct causing serious offence".

Therefore - you should never give a Garda your name and address unless you have been told you have committed an offence or you are under arrest for an offence.

You must also be informed of the offence. So again, you should ASK! and keep asking questions until you are fully informed. (Often you can disempower a Garda bully by simply asking questions. Don't let them disempower you, do not be bullied, speak up for yourself and invoke your legal rights)

Below is the only provision in the Public Order Act for a Garda to ask you for your name and address.

CRIMINAL JUSTICE (PUBLIC ORDER) ACT, 1994, Section 24.

24.—(1) Where a member of the Garda Siochana finds any person committing an offence under a relevant provision, the member may arrest such person without warrant.

(2) Where a member of the Garda Siochana is of the opinion that an offence has been committed under a relevant provision, the member may—
( a ) demand the name and address of any person whom the member suspects, with reasonable cause, has committed, or whom the member finds committing, such an offence, and
( b ) arrest without warrant any such person who fails or refuses to give his name and address when demanded, or gives a name or address which the member has reasonable grounds for believing is false or misleading.

(3) Any person who fails or refuses to give his name and address when demanded by virtue of subsection (2), or gives a name or address when so demanded which is false or misleading, shall be guilty of an offence.

The example of legislation above is from the Public Order Act which is most commonly used against protesters. There is other legislation in other 'Acts', but still the 'fundamentals' apply. The Gardaí will also use the Road Traffic Act to stop and harass people in cars.

IMPORTANT: The Road Traffic Act does make provision for the Gardaí to ask you for your name and address in order to identify you as the driver of the car etc. More on the Road Traffic Act later.

The problems are, 1) Guards have a habit of just asking/bullying people for their names and addresses and getting them, and 2) The misconception is out there that 'You must always give your name and address to a Garda when they ask you'. Not true for reasons above. Sometimes they pull the 'Are you refusing to obey a direction of a Garda?' trick. But again, directions can only be given by Gardaí under certain sections of enacted law (Acts) ... in accordance with the law.

BEING SEARCHED

Again, the bottom line is that your right to personal and bodily integrity is enshrined in international and constitutional law. The same applies to your vehicle, your bag/rucksack and your tent/toilet/sittingroom/dwelling/home.

Under any act of law (which must be invoked) there is provision for Gardaí to search if a) they have a warrant issued under a certain act or b) they have reasonable grounds to suspect that there is something illegal in your possession, for example the ‘Misuse of Drugs Act 1994‘ http://www.irishstatutebook.ie/ZZA12Y1977.html . The ‘Misuse of Drugs Act‘ is a straw they like to clutch at when you stand up to them on other acts they‘ve invoked, and it gives them provision to search your person or vehicle without a warrant (provided they have reasonable cause to suspect), but not a building. They must have a warrant to search buildings/dwellings (unless you are in the business of selling drugs) see section 24. Your tent, for example, is your dwelling which for the purposes of this act is a structure or building, but you must insist on this, because they will test you.

Never give them reason to suspect you of carrying drugs, and question them thoroughly if they say they do, because they’ll just be making it up.

The Firearms and Offensive Weapons Act 1990. http://www.irishstatutebook.ie/ZZA12Y1990.html is similar to the Misuse of Drugs Act, in that there is provision for them to search your person for a weapon intended to cause harm, but they must have a search warrant to search your dwelling etc.

It's probably wise not to carry a knife unless you need it for something and can justify carrying it, which is a defence to any charge. For example a penknife is not an offensive weapon, it's a tool and an essential one for campers and travelling lunch eating protesters etc. Some people, for example, always carry a knife and justifiably so, it's the oldest and most useful tool of all.

Other legislation, for example, Offences Against the State Act, the Criminal Law Act, the Misuse of Drugs Act AND the Offensive Weapons Act entitles police officers to search you and/or your vehicle without a warrant. If one of these statutes is being invoked in order to search you without a search warrant, you are entitled to told about it.

Research of these acts is required on this - more than will fit in this article. But I hope you get the picture.

3b) TRAFFIC STOPS, CHECKPOINTS & THE ROAD TRAFFIC ACTS 1961 & 1994 (major ones).

Thanks to the Black Pope for his advice in this (RTA) section of the article.

GENERAL

Before insisting strongly on your rights as outlined below, it is a good idea to be 100% certain the vehicle is in reasonably good condition and you have valid licence + insurance to drive it. Tax disc, tyres, headlights and indicators are the first things will be checked. If all not in order, the best tactic might be to ‘play soft’.

If a purported Garda is not in uniform (including hat on head) or producing a photo warrant card identifying himself (which you are entitled to read), you do not have any legal obligation to co-operate.

It is not the business of any Garda where you are driving from or to, or the purpose of your trip. These are merely nosey questions you are entitled to ignore.

Ask questions and put the onus on the Garda to explain under what provision of law he 1) stopped you, and 2) makes any further demands.

Use audio/video recording devices if you expect any dispute to arise.

No-one is obliged by the Road Traffic Act, (RTA) to exit or open a vehicle in any way. All doors locked and driver’s window down 6mm is enough to permit verbal communication and/or passage of licence etc. This handy physical barrier makes any ensuing discussion much more relaxed (for vehicle occupants) and difficult (for the Gardaí).

Breath-testing is now permitted randomly, so that might have to become a 13mm window slit to get the nozzle in through. A garda’s fingers are generally believed to be about 25mm in diameter and covered in fur.

There is no provision for the searching ofa vehicle under the RTA – in the case of an accident involving an injury, gardai may ask a judge for a warrant to search a place or premises FOR a vehicle. Do not ‘voluntarily consent’ to any search. You are not obliged to wait while they go look for a search warrant.

Possible that they might invoke Misuse of Drugs Act or Firearms and Offensive Weapons Act to effect a search. But, they must have reasonable grounds to suspect you have something in your possession to legally search you rather than just use it as an excuse to bully you. Stand up to them. Question them and use your legal knowledge.

PASSENGERS

Other people in the vehicle are not obliged by any provision of the Road Traffic Acts to give any information at all about themselves, except, in the case where the driver absolutely refuses to identify himself, his name, if they are asked for it.

If a garda is insisting, ask under what provision of law he makes such a demand. If he makes up some rubbish under the RTA refuse to co-operate and tell him he will be held personally liable at civil and criminal law for wrongful arrest and false imprisonment if he abuses his authority further.

LICENCE & INSURANCE – DRIVER(S)

The law does technically say you are ‘required’ to carry driving licence while driving vehicle.

The 1961.s40 law was controversially changed in 1994.s25 to give discretion to gardai to prosecute you ‘for failure to produce licence there and then’, or ask that you produce it within 10 days. However, it appears that the requirement does not translate into any legal obligation which is actually enforced or enforcable - the practise after 1994 has remained the exact same and people are not prosecuted for failing to carry their licence at all times, just for failing to have one at all or produce it at a named garda station within 10 days.

Still, this is no guarantee you will not be the first ‘test case’, but does seem to indicate the provision might not withstand a robust legal challenge (on grounds of constitutional right to free movement, introduction of compulsory ID-card by stealth, etc), so the authorities would prefer not to put it to the test.

If a Garda is being ratty and insisting on this point, ask “Are you prepared to break the standing orders from the DPP’s office that such prosecutions are not to be brought if the person from whom the licence is demanded is willing to produce it at a nominated garda station within 10 days for inspection?” Such a directive probably does (or will be understood by the Garda to) exist. If you pre-empt any demand by volunteering production within 10 days, 95% chance that will short-circuit any dispute on the matter.

If you do not have licence with you, you may be asked for and are legally obliged to give your correct name and address. If you refuse this information, you may lawfully be arrested.

You nominate a station (anywhere in the country) where you undertake to produce licence (and/or insurance if requested) within 10 days. When you do go, always bring a witness, ask for the member in charge (MIC), let them read whatever you are producing, and ensure that a certificate of production be provided in return, according to RTA 1961.s40.1.D

Keep this cert document very carefully, it is your proof and defence against any later charges the gardai may decide to bring through sheer forgetfulness or spite. If the MIC refuses to issue the certificate, ask for the Superintendent and make a written complaint co-signed by your witness. Then keep a copy of that instead.

4) ARREST - What to do if/when you're arrested

I know that British activists are very good at giving workshops on this and putting together comprehensive leaflets and flyers on the do's and don’ts of when you're arrested. In Ireland, I wonder are there any current flyers on this at all. I've seen vague 'bust cards' which are a good effort with some of the basics but we definitely need comprehensive basic guides with sound legal footing.

We in Ireland need to do more work on this and I do not suggest that this contribution from me is enough to cover this area. But, this sample ‘Bust Card’ from the British Guide Book 'Delia Smith's Guide to …‘, is excellent advice that's relevant to Ireland also, and should be followed to the letter, in my opinion.

ARREST ‘BUST’ CARD EXAMPLE. (Just copy and paste for printing and distributing)

DON’T PANIC.

Being arrested is easy, you just stay quiet and wait for them to let you out.

If you can, remember the arresting officers number and ask what it is that you are being nicked for.

You don’t have to tell the police anything except your name and address.

Don’t sign anything except the list of your belongings.

If they ask you anything (especially if you have an interview) answer... "NO COMMENT".

Information is power. Do NOT get into chat/discussion with them. What you work at or where you're staying etc is NONE OF THEIR BUSINESS. Shut up.

Legal Support / Solicitor phone number : ____________

When detained at a Garda station you must be given a leaflet outining your legal rights while in custody. READ IT. It is an offence for the Garda ‘member in charge' not to give you that. Your custody rights include food, phone calls, a visit from a friend, a visit from a doctor, a visit from a solicitor which they must supply if you don't have one of your own, (usually some legal aid no-hoper of their choice).

Fingerprints, Tests and Photographs may not be taken from/of you unless you are detained under the following Acts:
Section 30, Offences against the State Act 1939.
Section 4, Criminal Justice Act 1994 (referring to serious offences with a five year prison penalty).
Section 2, Criminal Justice (Drug Trafficking Act) 1996.

You will have been informed of the offence for which you have been detained. If that offence is not one of the above, then refuse to cooperate with any attempts by Gardaí to test, fingerprint or photograph you, unless … you are assaulted or in fear of assault which is a real threat. Better for you to get out safe and unhurt, then make a complaint afterwards.

5) POSSIBLE CHARGES & PENALTIES FOR CIVIL DISOBEDIENCE etc.

Possible charges and punishments for offences including fines and prison can be read at links below. It's possible to be arrested under the following acts where even a suspicion that you might 'do something' might justify an arrest. Even if you feel you are being 'falsely arrested' you may be charged for resisting arrest.

Public Order Act http://www.irishstatutebook.ie/ZZA2Y1994.html
Road Traffic Act 1961 http://www.irishstatutebook.ie/ZZA24Y1961.html
Road Traffic Act 1994 http://www.irishstatutebook.ie/ZZA7Y1994.html
Criminal Damage Act 1991 http://www.irishstatutebook.ie/ZZA31Y1991.html

CONCLUSION.

I hope all this is a help to people. I see this article as a contribution towards putting some more comprehensive legal info and advice together. We could go on for pages and pages with regard to all this but we should be aiming for 1) gathering and improving our legal knowledge, and 2) being able to edit it down into brief presentable flyers and leaflets etc.

Opinions on the law can be dangerous and misleading, if those opinions are not based in law - 'chapter and verse', 'Act and Section' etc, so I've tried to back up my opinions with reference to constitutional law and national legislation from the 'Irish Statutebook', to try and give an understanding as to how we can protect ourselves when confronted with Garda intimidation etc. Knowing how to exercise you rights when dealing with the Gardaí should be very helpful both in theory and in practice.

But, I must say this - there is no accounting here for the ever present danger of attack and assault by Gardaí when you stand up to them. Shamefully, they are trained to be thugs, be aware of that, be flexible and look after your own safety first. It’s a learning process for us all.