Arrests normally happen where you are deprived of your liberty in circumstances where it is suspected that you are committing, have committed or are about to commit an offence.
You should be told that you are being arrested. However, this is normally clear if force is being used by a member of An Garda Síochána.
You should be told why you are being arrested, for example, because you are suspected of having stolen goods. Again, in some cases, this may be clear from the circumstances of arrest, for example, you are seen running from a shop carrying goods the shop sells. In those cases, it is not absolutely necessary for the Gardaí to say why you have been arrested.
The Gardaí do not have to inform you in any particular form the reason and legal basis for your arrest. However, you do have to be informed in an understandable way why you are being arrested.
If you go voluntarily to a Garda station to assist the Gardaí with their enquiries and are subjected to questioning or interrogation, you must be told and it must be clear to you, that you are free to leave the station at any time unless you are arrested. However, you may be arrested as a result of information provided while ‘helping the Gardaí with their enquiries’.
Often an arrest is on foot of a warrant. However, a warrant is not always necessary.
Arrest without a warrant
You may be arrested without a warrant when a Garda, with reasonable cause, suspects that an arrestable offence has been committed and that you are guilty of the offence (Section 4 of the Criminal Law Act 1997). An 'arrestable offence' is an offence for which the penalty, for a person who has no previous convictions, can be 5 years imprisonment or more. Specific laws give the Gardaí specific powers of arrest as well. For example, a Garda can arrest you under the Road Traffic Acts without a warrant if he/she suspects that you are committing an offence in relation to drinking and driving
Entry and search of a premises to carry out an arrest
If a Garda has obtained a warrant to arrest you, they may enter and search any premises where they suspect you to be. They must identify themselves, demand entry and state why they are there. It is not necessary to show you the warrant at the time of arrest. However, it must be shown to you soon after the arrest. If the Garda is refused entry, they may use reasonable force to gain entry to the premises.
When a Garda does not have an arrest warrant, they may similarly enter and search any premises (other than a dwelling) where they, with reasonable cause, suspect you to be, if it relates to an arrestable offence.
However, if the premises is a dwelling, the Garda cannot enter for the purpose of arresting someone for an arrestable offence unless:
- The Garda has the permission of the person who lives in the dwelling
- You ordinarily live at the dwelling
- A member of An Garda Síochana has seen you inside or entering the dwelling
- The Garda, with reasonable cause, suspects that before they can get an arrest warrant, you will either abscond or you will obstruct the course of justice
- The Garda, with reasonable cause, suspects that before they can get an arrest warrant, you will commit an arrestable offence
Manner of arrest
Force can only be used to make an arrest if it is reasonably necessary. Once an arrest is made, a member of An Garda Síochána may use such force as is necessary to ensure the arrest is maintained.
However, if excessive force or physicality is used, you can take a case to the Garda Ombudsman. You can also sue the arresting Garda/An Garda Síochána for assault where the force used was excessive.
When a Garda arrests you, they will actually touch your body or otherwise restrain your liberty. If you are arrested on a criminal charge, you must be informed at the time you are arrested of the charge unless this is very clear (for example, if you are arrested while committing an offence).
If you are brought to the Garda station, you must be cautioned in the following words:
"You are not obliged to say anything unless you wish to do so, but whatever you say will be taken down in writing and may be given in evidence."
If it is then decided to charge you, details of the offence must be set out in a 'charge sheet'. A copy of the details must be given to you. The Garda will formally charge you by reading each charge over to you and you will be cautioned after each charge is read out. The Garda must keep a note of any reply you make.
After you have been charged, the Garda must again caution you using the same words.
Search of the arrested person
A Garda may search you after your arrest and take:
- articles that they believe to be connected with, or evidence relating to, the offence charged or
- articles that they believe to be connected with, or evidence relating to, some other offence or
- articles that you might use to injure another person or property or to escape
Normally, the search will be confined to a body frisk and a search of your outer clothes. In limited circumstances, a strip search may be justified.
Procedure after arrest
Once you are charged and cautioned, you must be
- released on bail by the member in charge of the station (a form of bail known as station bail)
- transferred from the Garda Station to the District Court as soon as reasonably possible. If you are arrested after 5 pm you may be brought to the District Court as early as possible before noon the following day. At the District Court, you may be released on bail or remanded in custody by the judge.
Only in certain specific circumstances may you be detained in a Garda station for a length of time before being brought to court. Under the Criminal Justice Act 1984, you may be detained in a Garda station for up to 24 hours. The offence of which you are suspected must be one that may be punished by imprisonment for at least 5 years. The 24-hour period runs from the time of your arrest but you may agree to a rest period between 12 midnight and 8 am and this will not be included in the 24 hours.
Under Section 30 of the Offences Against the State Act you may be detained for up to 48 hours before being brought to Court.
In general, if you are arrested you do not have to say anything. However, if you are detained under the Criminal Justice Act 1984 you must tell the Gardaí your name and address. The Gardaí have no general power to take fingerprints or make forensic tests. They may do these things if you consent or if they have specific power under specific laws, for example, under the Offences Against the State Act, Criminal Justice Act 1984 or the Criminal Law (Jurisdiction) Act of 1976.
If you are detained you must be informed of your right to consult a solicitor. See our document on treatment in custody.
Immunity from arrest
- Ambassadors and their suites and other diplomatic agents who represent foreign governments while living in this country cannot be arrested.
- Members of each House of the Oireachtas cannot be arrested while going to, returning from and within the confines of either House of the Oireachtas, except in the case of treason, felony or breach of peace.