Detention after arrest

Introduction

The criminal law in Ireland gives the Gardaí certain powers to detain you in their custody after you have been arrested.  The purpose of detaining you after your arrest is twofold:

• To ensure that you appear before a court to answer charges
• To ensure that criminal offences are properly investigated

It is important to understand that the powers of detention depend on the offence for which you have been arrested.

If you are charged and brought before the District Court, you may be either released on bail or detained in custody while waiting for your trial. This is called being on remand.

Detention before being charged

If you are arrested for an offence which does not allow for your detention, then you must be charged with that offence and brought before a judge of the District Court as soon as possible. If you are arrested after 5pm on any evening and the District Court is sitting before noon the following day, it is acceptable to bring you before the District Court at the beginning of that sitting.

If, on the other hand, you are arrested for an offence which allows for your detention in a Garda station to assist with a Garda investigation, then you will normally be detained for the period allowed by law.

There are five main pieces of legislation that govern detention after arrest:

• Section 4 of  the Criminal Justice Act 1984
• Section 42 of the Criminal Justice Act 1999
• Section 30 of the Offences Against the State Act 1939
• Section 2 of the Criminal Justice (Drug Trafficking) Act 1996
• Section 50 of the Criminal Justice Act 2007

These five pieces of legislation recognise the concept of detention after arrest by the Gardaí to assist with their investigations. Tthe Gardaí must have reasonable grounds for believing your detention is necessary to properly investigate the offence.

Further information on the offences to which detention applies is available in More about this topic.

How long can I be detained for?

The maximum period of detention ranges from 24 hours to 7 days depending on which section of the legislation you are being detained under. In most cases, you can be initially detained for up to 6 hours on the authorisation of the member in charge of the Garda station. For offences under Section 30 of the Offences Against the State Act 1939 your initial detention period can be up to 24 hours. To detain you under Section 42 of the Criminal Justce Act 1999 the Gardaí have to first obtain a warrant from the District Court authorising your arrest and initial detention. You can then be taken from the prison to a Garda station.

Generally, after your initial period of detention ends, up to two further detention periods can be authorised by a Garda of the rank of Superintendent or higher. Depending on the section of the law applying to your detention, the authorisation for a further extension may have to be given by a Garda of the rank of Chief Superintendent or higher.

Further periods of detention may be granted following application to the District or Circuit Court by a Garda of the rank of Chief Superintendent or higher. For Section 30 of the Offences Against the State Act 1939 application can be made to the District Court by the Superintendent.

The periods of detention applying under the various sections of legislation are given in the following table: 

Note 1: First extension must be authorised by a Garda Chief Superintendent (or higher rank).

Note 2: The extension is authorised by the District Court following application by a Garda Superintendent.

Does the clock stop at any time during my detention?

It may. If, during your detention, you are taken from the Garda station to a hospital or other suitable place for medical attention, any period of absence from the Garda station is not taken into account in the calculation of your detention.

Other periods may not be counted, depending on the section of legislation you are detained under. If you are detained under Section 4 or Section 42 and questioning is suspended for a period of time between midnight and 8am to allow you to rest, the time the questioning is suspended is not counted. If you are detained under Sections 4, 42 or 50 and you attend court in connection with an application relating to the lawfulness of your detention, the time you are absent from the Garda station is not counted

If your period of detention would end while you are at the venue where an application is being made by the Gardaí for a further detention period, it is considered not to end until the final decision of the court on the application.

Can children be detained?

Apart from detention under Section 30, the detention of suspects who are under 12 years of age is not allowed.  If, however, the member in charge of the Garda station has reasonable grounds for believing that the suspect is not below the age of 12 years, this prohibition does not apply.  It will be necessary for the member in charge to justify these grounds if it transpires subsequently that the suspect was in fact under 12 years of age. More information on the treatment of children in Garda custody is available here.

What happens when my detention ends?

If the Gardaí no longer have any grounds for believing that your detention is necessary to properly investigate the offence or your detention period has expired, then you must be either charged with the offence or released from custody. If you are being charged with the offence you are brought before the court.

If you are detained under Section 42 and your detention is no longer required or it has expired, you are returned to prison without being charged.

Detention for administrative purposes

There are a number of other instances where you may be detained by Gardaí. These could be described as detention for administrative purposes and don't require the authorisation of anybody other than the arresting Garda.

Examples of this are:

• Detention after arrest for drink driving for the purpose of providing a sample of blood, urine or a breath specimen
• Detention after arrest for the purpose of being charged with an offence
• Detention after arrest for the purpose of submitting to a drugs search
• Detention under the Mental Treatment Acts 

On remand in custody

When you are brought to the District Court for the first time after you are charged, the court has two options:

• It may remand you in custody for a period of no longer than 8 days. This means that you are detained in custody until a particular date when you will be brought back before the court. This date is called the remand date. If you are remanded in custody in Dublin, you will be brought to Cloverhill Prison.
• It may remand you on bail for a period that is longer than 8 days if you and the prosecution consent. This means that you are released on bail but you must appear before the Court on a particular date (the remand date).

When you are brought before the District Court for the second and subsequent times, the court has two options:

• It may remand you in custody for a period of 15 days or less.
• It may remand you in custody for a period of 16 to 30 days, if you and the prosecution consent.

If you are unable to go to court due to illness, the court may remand you in custody in your absence.

If you have been remanded in custody and there is no sitting of the court on the remand date, you will be remanded in custody to the next sitting of a court in the same District Court District.

If you have been remanded on bail and there is no sitting of the court on the remand date, you will be remanded to the next sitting of a court in the same District Court Area.

If you are remanded in custody for a period of 4 days or less, the court may commit you to the custody of the Gardaí. This means that you are kept at a Garda station instead of in a prison.