Garda powers to be modernised and updated under new Bill

A new bill published today by The Minister for Justice, Heather Humphreys, will see the updating and modernisation of Garda powers to take into account technological and and social changes.

The bill entitled the General Scheme of the Garda Síochána (Powers) Bill is set to be approval by Government today.

Publication of the Bill was a key commitment in the Justice Plan 2021. The Bill will modernise existing law and make it more consistent.

Speaking on the bill 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.

In line with a recommendation of the Commission on the Future of Policing in Ireland, the Bill aims at providing “a clear and transparent statutory basis” for the existing police powers of search, arrest and detention, supported by statutory codes of practice.

It will also have a strong focus on human rights. This includes 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.

Key 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 Bill will see the Garda caution 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 Bill has balanced the rights of the individual with the need to support policing: “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,” Minister Humphreys said.

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.

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. The longer detention period is warranted because of the control that is often exerted by the perpetrators over their victims.

“It's important to note that these are the maximum detention periods permitted. They can only be used where necessary to investigate the offence and they are subject to authorisation by a Court,” Minister Humphreys said.

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.

The Department has consulted extensively in the formulation of the Bill, including with human rights bodies, policing oversight bodies, as well as An Garda Síochána and the Office of the Director of Public Prosecutions.

The Part of the Scheme dealing with search warrants will also apply to the Office of the Director of Corporate Enforcement and the Competition and Consumer Protection Commission.

The proposals relating to the rights of accused persons will strengthen the measures in place to implement the EU Directive on the Right to Information and facilitate the State opting-in to the EU Directive on Access to a Lawyer. The General Scheme also implements the majority of recommendations of the Law Reform Commission’s 2015 Report on Search Warrants.

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. Following the completion of that review, any implications for this Scheme will be considered.

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