Detention after arrest
The criminal law 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.
The main pieces of legislation that govern detention after arrest are:
- 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
- Sections 16 and 17 of the Criminal Procedure Act 2010
These pieces of legislation recognise the concept of detention after arrest by the Gardaí to assist with their investigations. The Gardaí must have reasonable grounds for believing your detention is necessary to properly investigate the offence.
See "Further information" below on the offences to which detention applies.
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 Justice 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 2 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 maximum periods of detention applying under the various sections of legislation are given in the following table:
|First extension authorised by Superintendent
Second extension authorised by Chief Superintendent
|First extension authorised by District or Circuit Court
|Second extension authorised by District or Circuit Court
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.
If you are arrested under Sections 16 or 17 of the Criminal Procedure Act 2010 the periods of detention applying are the same as those applying to Section 4 detentions (see table above).
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. However, you must consent to this suspension. Also, if you are certified by a doctor as unfit for questioning, 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.
The Criminal Justice Act 2011 amended detention under Section 4 for certain arrestable offences to allow your detention to be suspended and for you to be released during the suspension. These offences include offences in the areas of banking and finance, company law, money laundering, fraud, corruption, competition, consumer protection and cybercrime. The total period of the suspension cannot be longer than four months.
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 normally 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 2 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 2 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.
Offences to which detention applies
Section 4 of the Criminal Justice Act 1984
A Section 4 detention applies to any offence for which an adult (who hasn't been previously convicted), may be punished by imprisonment for a term of five years or more. Most offences for which you can be arrested carry a penalty like this, so they come within the scope of Section 4.
Section 42 of the Criminal Justice Act 1999
Section 42 of the Criminal Justice Act 1999 allows the Gardaí to arrest a prisoner who is serving a sentence or awaiting trial. The detention must be in relation to an arrestable offence or offences other than the one for which you are in prison. (Note: an arrestable offence means an offence for which you could be punished by imprisonment for five years or more).
Section 30 of the Offences Against the State Act 1939
While Section 4 of the Criminal Justice Act 1984 and Section 42 of the Criminal Justice Act 1999 cover detention in relation to a wide range of offences, Section 30 of the Offences Against the State Act 1939 only provides for a period of detention in relation to the following offences:
- Offences under the Explosive Substances Act 1883
- Offences under the Firearms Acts
- Offences under the Offences Against the State Act 1939
- Offences under Sections 6-9 and Section 12 of the Offences Against the State (Amendment) Act 1998
Section 2 of the Criminal Justice (Drug Trafficking) Act 1996
Section 2 of the Criminal Justice (Drug Trafficking) Act 1996 allows for you to be detained where the Gardaí believe you have committed a drug trafficking offence. A drug trafficking offence is:
- An offence under any Regulations made under Section 5 of the Misuse of Drugs Act 1977 which involves the manufacture, importation, exportation, supply, or transportation of a controlled drug
- An offence under Section 15 of the 1977 Act of possessing a controlled drug for unlawful sale or supply
- An offence under Section 15A of the 1977 Act of possessing a controlled drug in excess of a certain value for unlawful sale or supply
- An offence under Section 15B of the 1977 Act of importing controlled drugs in excess of a certain value
- An offence under Section 20 of the 1977 Act of helping or inducing the commission in another country of an offence punishable under a similar anti-drug-trafficking law in that country
- An offence under the Customs Acts in relation to the importation or exportation of a controlled drug
- An offence under Section 31 of the Criminal Justice Act 1994, or other money laundering offence, in relation to the proceeds of drug trafficking
- An offence under Section 33 or 34 of the 1994 Act (drug trafficking offences involving ships)
- An offence of helping or conspiring to commit any of the above offences or inciting another person to do so
Section 50 of the Criminal Justice Act 2007
Section 50 of the Criminal Justice Act 2007 applies to detention in connection with the following offences:
- Murder involving the use of a firearm or explosive
- Murder to which Section 3 of the Criminal Justice Act 1990 applies (includes the murder of a Garda or prison officer)
- An offence under Section 15 of the Firearms Act 1925 (replaced by Section 42 of the Criminal Justice Act 2006)
- An offence under Section 15 of the Non-Fatal Offences against the Person Act 1997 involving the use of a firearm (false imprisonment)
- An offence under Part 7 of the Criminal Justice Act 2006
Section 16 and Section 17 of the Criminal Procedure Act 2010
Section 16 allows for you to be arrested again for certain types of offences in respect of which you have already been acquitted. Section 17 applies if you are in prison when you are being arrested again. The types of offences to which they apply are set out in the Schedule to the Act.