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Bill extends detention periods and brings in single power of arrest
Pic: RollingNews.ie

14 Jun 2021 / policing Print

Bill extends detention, and gives single power of arrest

Justice minister Heather Humphreys has published the general scheme of the Garda Síochána (Powers) Bill following approval by Government.

The bill is a key commitment in the Justice Plan 2021 and will modernise existing law and make it more consistent.

In line with a recommendation of the Commission on the Future of Policing in Ireland, the bill will provide a transparent statutory basis for existing police powers of search, arrest and detention, supported by statutory codes of practice. 

A strong focus on human rights will cover both the rights of suspected or accused persons, as well as the human rights of all members of society to live free from violence, abuse, crime and fear.

New measures included in the bill include:

  • The introduction of a single power of arrest. This will increase the scope of garda arrest powers, but also make the power subject to conditions to ensure the arrest is necessary in the particular circumstances. This is in line with other common law jurisdictions,
  • The garda caution will be put on a statutory basis and the requirement for a written contemporaneous note of a garda interview will be removed in cases where it can be recorded by other means,
  • Placing current practice on a statutory footing, a statutory right for the accused to have their lawyer present at interview will be introduced,
  • A power for An Garda Síochána and other bodies to require a person to provide passwords for access to electronic devices when carrying out a search warrant,
  • A new requirement to make a written record of a stop and search. This will facilitate the collection of data necessary to assess the effectiveness and use of the relevant powers by garda management and oversight bodies,
  • Statutory codes of practice will be drawn up to provide guidance for gardaí in using their powers under the bill,
  • Special measures will be taken for suspects who are children and suspects who may have impaired capacity (whether because of an intellectual disability, mental illness, physical disability, or intoxication). 

Minister Humphreys said: “The law in this area is currently very complex, spread across the common law, hundreds of pieces of legislation, constitutional and EU law.

“Bringing it together will make the use of police powers by gardaí clear, transparent, and accessible. The aim is to create a system that is both clear and straightforward for gardaí to use and easy for people to understand what powers gardaí can use and what their rights are in those circumstances.

“At the same time, where we are proposing to extend additional powers to gardaí, we are also strengthening safeguards. The bill will have a strong focus on the fundamental rights and procedural rights of the accused. I believe this will maintain the crucial balance, which is key to our criminal justice system, while ensuring greater clarity and streamlining of garda powers.

“This bill, along with the implementation of the other recommendations of the Commission on the Future of Policing in Ireland, will improve and copper-fasten a policing practice which is focused, intelligence-based and underpinned by community confidence and support. It will enhance the bedrock of safeguards for good policing – trust, legitimacy and authority.”

The new bill will enhance the rights of those in custody, and bring together the existing powers to detain people for the purpose of an investigation. 

It will  bring in longer detention periods for the investigation of multiple offences being investigated together, for a maximum of up to 48 hours.

It will also allow for a week’s detention for suspects in human trafficking offences, which are currently subject to a maximum of 24 hours detention. This is because of the control that is often exerted by the perpetrators over their victims.

The maximum detention periods are subject to authorisation by a court.

Right to a lawyer

The rights of detained suspects are provided for in detail, including:

  • The right to rest,
  • The right to medical attention,
  • The right of access to a lawyer. 

Elements dealing with search warrants will also apply to the Office of the Director of Corporate Enforcement (ODCE) and the Competition and Consumer Protection Commission (CCPC). 

Most of the recommendations of the Law Reform Commission’s 2015 Report on search warrants have been included.

The scheme does not include the powers of search, arrest and detention under the Offences Against the State Acts, as that legislation is separately the subject of a review chaired by Mr Justice Michael Peart.

The general scheme will now be sent to the Oireachtas Joint Committee on Justice for pre-legislative scrutiny.

The key reforms being introduced by the bill are as follows:

Single power of arrest

At the moment, there are several hundred powers of arrest on the statute book going back at least two hundred years, many of which apply to very minor offences. The proposed introduction of a single power of arrest will replace the majority of the existing powers of arrest on the statute book with a single power of arrest.

This new provision expands the power of arrest to a greater number of offences, but the new power of arrest is now subject to conditions to ensure an arrest is necessary in the particular circumstances.

Under the proposed legislation, the arresting garda must be satisfied that the arrest is necessary for one of a list of reasons, for example to prevent harm, or to establish the person’s identity. This type of power is the norm in other common law jurisdictions. 

Garda caution on a statutory basis 

At present, there is a requirement that garda interviews are taken down in writing, even if they are being video-recorded. This is time consuming and inefficient and can also unnecessarily prolong a person’s detention.

The general scheme aims to do away with this requirement by putting the garda caution on a statutory footing and rewording it to remove the requirement to take a written contemporaneous note of garda interviews in circumstances where the interview is being recorded by other means.

A statutory right to have lawyer present

It has been current practice for the accused to be entitled to have their lawyer present at interview following a Supreme Court decision in 2014. The new bill will put this right on a statutory basis.

Provision of passwords for electronic devices 

The bill will give gardaí and other bodies carrying out a search warrant the power to require a person to provide a password to a device.

This was recommended by the Law Reform Commission and by the Garda Inspectorate in its follow-up review to its report on responding to child sexual abuse.

Written record of a stop and search

Gardaí currently have a power to stop and search a person where they reasonably believe they have certain items on them, for example drugs. However, at present, there is no requirement on gardaí to make a record of when they stop and search a person. This is a common requirement in other jurisdictions.

The new legislation will codify the existing garda powers to stop and search a person where a garda has reasonable grounds to suspect that the person is in possession of some prohibited article, such as drugs, firearms or stolen goods.

It also replaces an existing power for a garda to stop and search a vehicle and any persons in the vehicle where the member has reasonable grounds to suspect that a specified serious or terrorist offence is occurring or is about to occur.

At present, there is a power for gardaí to carry out random searches of cars where the gardaí suspect that a specific serious or terrorist offence has occurred or about to occur, for example at roadblocks. This is being extended to abduction and trafficking offences, so that where a child has been abducted, for example, it will allow a roadblock to be set up where gardaí can randomly check vehicles.

Powers around custody

The new bill will set out and enhance the rights of persons in garda custody, and bring together the existing powers to detain people in garda custody for the purpose of an investigation.

Reflecting the current law, it will allow gardaí to detain suspects for up to 24 hours for serious offences (those carrying a maximum penalty of five years or more), and for up to 168 hours for certain offences listed in Schedule 5 (these include offences linked to organised crime and drug trafficking).

It will bring in longer detention periods for the investigation of multiple offences being investigated together, and for human trafficking offences, and for all forms of murder (currently, it just applies to certain forms of murder). The rights of detained suspects are provided for in detail, including the right to rest, the right to medical attention and the right of access to a lawyer.

Special measures for suspects with impaired capacity

The bill will place fundamental rights principles on a statutory basis and make provision for the use of powers in respect of children and persons with impaired capacity (whether because of an intellectual disability, mental illness, physical disability or intoxication).

This is to reflect the fact that such persons may lack capacity to make decisions for themselves for example.

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