Unlawful arrest and detention
This page explains when arrest or detention is unlawful.
While you are detained, you have the right to:
- Reasonable access to a solicitor
- Have your solicitor in the room with you while you are being interviewed – you cannot be questioned until your solicitor arrives, except in exceptional circumstances
- Be brought before a court at the first possible opportunity
The maximum period of detention ranges from 24 hours to 7 days, depending on which section of the legislation you are being detained under.
Reasons for your arrest
You must be told the reason for your arrest, and this must be explained to you in an understandable way.
For example, if you are arrested for drink-driving, the Garda is not obliged to cite the specific provision ("I am arresting you under the provisions of Section 49 (8) of the Road Traffic Act, 1961").
The Garda just needs to make sure that the provision is explained to you clearly (“I am arresting you for drink-driving”).
Arrests without a warrant
The Gardaí usually need a warrant for your arrest. However, there are exceptions to this.
If you are arrested for an offence that is punishable by a prison sentence of 5 years or more, the Gardaí do not need a warrant. They just need reasonable cause to suspect that you are guilty of an offence. This is provided for under Section 4 of the Criminal Law Act 1997.
Other laws also give the Gardaí specific powers of arrest. For example, you can be arrested under the Road Traffic Acts without a warrant if a Garda suspects that you are committing a drink driving offence.
When is an arrest or detention unlawful?
Your arrest is unlawful if the Garda fails to inform you in ordinary language the reason for your arrest. If this happens the detention which follows is unlawful.
However, if the reasons for your arrest are given to you at any time during your detention, your custody becomes lawful from that point on.
If the arrest is a sham or cover
If your arrest is just a sham or a cover so that you can be questioned in relation to other offences, then that arrest is unlawful.
After your detention ends
If your detention period has expired and has not been extended, the Gardaí must either charge you with the offence or release you from custody. Otherwise, any order that extends the detention after it has ended is invalid and the subsequent detention is unlawful.
The exception to this is if the detention expired while a court application to extend it is pending. In this instance, the detention is deemed not to have ended until the application has been determined.
If your home was entered unlawfully
The Constitution (Article 40.5) states that the dwelling of a citizen shall not be entered forcibly except in accordance with the law. This means that no one, including the Gardaí, may enter the place where you live without a warrant or other legal authority to enter.
If you are arrested as a result of an unlawful entry into your home, your arrest is illegal. Evidence obtained as a result of an unlawful entry onto your dwelling may be inadmissible in court.
Evidence and unlawful arrest or detention
If you have been unlawfully arrested, evidence obtained as a result of that arrest may be inadmissible (not accepted as valid). In the examples below, whether the evidence is admissible or not depends on whether the prosecution can prove the mistake was not intentional.
Arrest under the wrong provision
If you were mistakenly told by a Garda that you were being arrested under the wrong provision, the arrest and any blood sample taken may be unlawful. As a result, it may not be possible to use that blood sample as evidence.
Evidence gathered while you are unlawfully detained
If the Gardaí gathers evidence while you are unlawfully detained, this may be inadmissible. For example, if you have been in custody for longer than the maximum period allowed and you make a confession, that confession may not be admissible in evidence against you.
Access to a solicitor
If the Gardaí obtains evidence while in breach of your right to reasonable access to a solicitor, this may also be inadmissible.
For example, if you request a solicitor and your request is refused, any statements you make to the police will generally be inadmissible as evidence against you.
You can read more about evidence that has been collected unlawfully.