Amendment No. 4 in the name of Deputy O'Donoghue is related to amendment No. 2 and both may be taken together. Is that agreed? Agreed.
SECTION 4.
I move amendment No. 2:
In page 4, subsection (2), line 11, after "committed" to insert "and where it is not possible to secure the attendance of a member of the Garda Síochána by taking reasonable steps and where there is a good reason to believe that the identity or location of the suspect could not be ascertained by taking reasonable steps in the future."
Section 4 deals with the question of arrest without warrant. Section 4(1) states: "Any person may arrest without warrant anyone who is or whom he or she, with reasonable cause, suspects to be in the act of committing an arrestable offence." Section 4(2) states: "Where an arrestable offence has been committed, any person may arrest without warrant anyone who is or whom he or she, with reasonable cause, suspects to be guilty of the offence." We suggest that after the word "committed" we insert "and where it is not possible to secure the attendance of a member of the Garda Síochána by taking reasonable steps and where there is good reason to believe that the identity or location of the suspect could not ascertained by taking reasonable steps in the future".
I outlined my objections to the power in the Bill on Second Stage. Under this section the power of arrest is not given solely to the Garda or to other State officials. However, by virtue of section 4(2), it would appear that the power of arrest is given to any person irrespective of whether they have or have not seen the offence being committed. I pointed out on Second Stage that I was of the view that this would have serious consequences. Without wishing to be facetious, I foresee a situation where groups, whom I have nothing against, of tattooed skinheads, hell's angels, punk rockers, bizarre do-gooders and parties of four year olds visiting the zoo will have the power of arrest in respect of offences which they have not seen committed. This could encourage vigilantism and permit the formation of vigilante groups which would pursue their cause with a power of arrest stamped with the seal of approval of the Oireachtas. It could lead to a new game of treasure hunt where people would pour out of public houses after "Crimeline" or "Questions and Answers" in the hope of winning a prize for arresting somebody.
This provision, as it stands, should not be included in the Bill. The Minister should go back to the drawing board as the provision is too broad. We could not seriously expect to have legislation on the Statute Book under which a person is able to arrest somebody without seeing the offence being committed. It could lead to a bizarre situation — Heaven forbid this would ever happen — where the Taoiseach could be arrested by a passing tattooed skinhead, a hell's angel or a punk rocker when driving out of the Dáil. I would not like that to happen to the Taoiseach. Under those circumstances, I ask the Minister to amend the legislation in the interests of all of us.
It would be worse if the Minister was arrested.
Section 4(6) seeks to put the citizen's power of arrest on a statutory basis. This needs further clarification than that contained in the Bill. We also suggest that it would be desirable to put the rights and duties of the arresting citizen on a statutory basis. While the concept of citizen's arrest is worth retaining, it should not be open to abuse as was indicated humorously by Deputy O'Donoghue. There is room for concern that it might be open to abuse given the undesirable level of vigilantism in our society. In practice, many citizen's arrests will be made by private security firms and their staff rather than ordinary citizens indulging in civic heroism. That is a reason for putting the duties of such private security firms on a statutory basis.
We propose a new subsection (5) that would place an obligation on the arresting citizen to inform the gardaí as soon as possible, which is reasonable. Failure to inform the gardaí would have the consequence that the arrest which was lawful at the outset would cease to be lawful. There is a need to inform the gardaí of a citizen's arrest as soon as possible. Under the new subsection (6) we propose that the arresting citizen should not be able to ask questions unless he first cautions the arrested person that there is no obligation to answer the questions. Under new subsections (7) and (8) we propose that a garda may direct the arresting citizen to release the arrested person or transfer him into the custody of the garda.
The new subsection (9) seeks to deal with an issue which may have been overlooked, namely the power of the gardaí to detain a person for questioning under section 4 of the Criminal Justice Act, 1984, which perhaps the Minister would investigate. That section makes it clear that the power to detain for questioning only arises where an arrest without warrant is made by a garda. It would not apply where the original arrest was made by a citizen. There is no logical reason that the availability of detention for questioning should depend on the status of the person making the arrest. We propose that when a garda directs an arresting citizen to transfer the arrested person into his custody, the garda shall be deemed to have made an arrest without warrant for the purposes of section 4 of the 1984 Act. This would be preferable to going through a charade where the citizen would release the prisoner so that the garda could rearrest that person. The new subsections proposed in the amendment point to certain aspects of arrest without warrant by the citizen which need to be further teased out.
Deputy O'Donoghue's colourful description of what might happen the Taoiseach when driving out of the House could happen under common law. It would make some photocall. Somebody could decide to arrest any of us. The purpose of section 4 is to replace the common law powers of arrest without warrant in respect of felonies. We are replacing it with the power of arrest in respect of arrestable offences. It mirrors what already exists in section 19 of the Criminal Law (Jurisdiction) Act, 1976, and section 12 of the Criminal Damage Act, 1991. Those Acts attempted to put into Statute what was available in common law. We are replicating that because it is appropriate to this legislation as well. It is not as if we are doing something new which warrants concern.
These two Acts have worked well since their implementation in 1976 and 1991. My intention is to use opportunities which arise to include common law in Statute. That was obviously the thinking in 1976 and 1991 when a Minister from Deputy O'Donoghue's party was in office. At that time the Minister would have been advised of the opportunity to put common law practice into Statute. If I accepted these amendments, we would have to return to those two Acts otherwise there would be confusion because the common law would remain along with what exists in the Criminal Law (Jurisdiction) Act, 1976, and the Criminal Damage Act, 1991. Most Deputies have said it is time to codify and co-ordinate our laws so that the same concepts arise in legislation.
The reason for this provision is to tighten up common law as regards powers of arrest. Common law powers of arrest require severe control by the arresting citizen. The citizen, in using that common law power and the provision in this Bill, must be careful about what he is doing because he could be sued or arrested and convicted for wrongful arrest. Section 4 (2) states where an arrestable offence is being committed, any person may arrest anyone who is or whom he or she reasonably suspects to be guilty of the offence. The words "reasonably suspects" put an onus on the citizen to make sure he is not getting rid of some angst or taking vengeance on somebody because something happened in another forum. The citizen must reasonably suspect the person is guilty of the offence otherwise he runs the risk of being arrested. That corresponds with the existing common law rule and the sections of the Acts to which I referred.
It confers a power of arrest on suspicion on any person. In reality, this means a private citizen as a member of the Garda Síochána has more extensive powers under subsection (3). The effect of Deputy O'Donoghue's amendment is to introduce a significant modification of a private person's powers of arrest in a manner which is unknown in the context of the existing common law powers of arrest available to that person. Deputy O'Donoghue's amendment would suggest that in taking reasonable steps, a store detective should first ensure that a garda is present before effecting a citizen's arrest or the arrest should be deferred in the hope that the suspected shoplifter might be identified at a later stage. For all intents and purposes, that would be very impractical.
I will put the powers into their proper perspective. First, the exercise of the powers is relatively uncommon. The most notable exception being the powers of store detectives, as Deputy O'Donnell said. The Bill will not significantly affect the extent to which these powers are invoked because it simply restates in statutory form what is already the common law which is also reflected in the Criminal Law (Jurisdiction) Act, 1976, and the Criminal Damage Act, 1991. If it is necessary to make changes to section 4, should the Deputy not also argue for changes in those Acts as well?
It is also important to bear in mind that the law guards against wrongful arrest by a private person. The power of arrest on suspicion is only exercisable by a private citizen if an arrestable offence has been committed. If so, the citizen is immune from civil action if he or she arrests the wrong the person provided the arrest is in good faith. This is a serious responsibility. A private person who gets it wrong will quickly find him or herself facing action for defamation, wrongful arrest or trespass in the civil courts. If force has been used in effecting an arrest, that person could find him or herself before the criminal courts on a charge of assault. The citizen is liable for damages if it turns out that the alleged arrestable offences did not happen. The citizen must be sure there has been an offence.
Furthermore, there is authority in common law that the private person should hand over the arrested person to the Garda as soon as possible. Store detectives, as private citizens, must operate under those strictures at present and that will continue to be the case. I am satisfied the powers of arrest in section 4(2) should not be diluted because existing sanctions in relation to a wrongful arrest on the part of a private person are adequate to ensure these powers will not be used irresponsibly.
It is not necessary to set up the elaborate procedure Deputy O'Donnell's amendment proposes. As far as I am aware, the existing common law procedure operates satisfactorily. We should be cautious about altering a procedure which is operating effectively. Little damage has been caused by this. A difficulty with Deputy O'Donnell's amendment is that it may cause uncertainty about the existing position as regards arrest and the subsequent obligations on the person making the arrest. It seems clear in common law that a private citizen who makes an arrest must hand the arrested person over to the Garda Síochána as soon as possible. The citizen cannot hold a person for two or three days.
Because of the way it is worded, the Deputy's amendment would include a situation where a garda who arrests a person would have to hand the person over to another garda. That could be amended if I wished to accept the amendment. There is a risk of uncertainty about the two Acts which have been changed. The amendment states: "the person making the arrest shall not be entitled to ask any questions of the person so arrested unless he or she has first informed the person so arrested that such a person is not obliged to answer such questions." Such a provision is unnecessary. It is clear under judge's rules that when a garda decides he or she will charge a person with an offence he or she must caution that person about anything the person might say. It is not appropriate to have such a provision where there is an arrest by a private citizen. What would be the consequence for a store detective, for example, if he did not give such a warning? Would the arrest be unlawful and could the store detective be sued? It opens up another area of uncertainty.
Deputy O'Donnell specifically referred to subsection (9). There is case law to support the view that, in effect, a second arrest occurs for the purpose of section 4 of the Criminal Justice Act, 1984, when a private citizen hands over to a garda a person whom he or she has arrested. The case in question is the DPP v. O’Shea, a decision of the Court of Criminal Appeal delivered on 1 July 1996. One of the issues in the case concerned an arrest by a customs officer who called the Garda Síochána. The gardaí arrested the person and brought him to a Garda station where he was detained under the provisions of section 4 of the Criminal Justice Act, 1984. The court went on to quote from and follow an earlier decision by the High Court called In reÓ Laighléis which is to be found in the Irish Law Reports for 1960. Deputy O’Donoghue is great at finding these cases and I am sure he has read this from cover to cover. In that case the court stated:
In the result we do not think that there is any legal principle which prevents a person already in one custody from being arrested and taken into another custody. To put the matter another way, the transfer from one custody to another can be regarded as an arrest, in the ordinary sense of the term, by the new custodian. In ordinary language a person can be properly said to be arrested when he is taken into custody whether he is taken from a state of freedom or of previous restraint.
I am satisfied that this matter of continuous detention and the handing over of a person by a private citizen to a member of the Garda Síochána is settled. I would be concerned that treading into this area of law might give rise to uncertainty. To summarise, I am not convinced we need to introduce elaborate procedures. There is a danger they will complicate an area of law which seems reasonably settled and that they are inconsistent with existing statutory provisions relating to arrest. For these reasons, I cannot accept the amendments and I hope the Deputies see why.
I understand the Minister's reasoning but I am not aware that the power of arrest in common law encompasses a situation where the individual does not see the offence committed. We are discussing a situation where an individual decides to arrest someone on the basis of what he considers a reasonable cause, which is a subjective matter. On no account could it be said that any person would have reasonable cause for arresting the Taoiseach leaving Leinster House on a non-sitting day. On the other hand, the subjectivity of reasonable cause does give rise to that possibility. We talk about an arrestable offence in accordance with section 2(1) where it is defined as being an offence in which a person of full capacity is punished by imprisonment for a term of five years or more or by a more severe penalty. In other words, the person being arrested must be of full capacity. This means the arresting person would need to be an expert in psychoanalysis. Not only that, they would also have to be fairly athletic and hold a senior counsel title after their names as well before they would be sufficiently qualified to effect an arrest. I do not mean to be facetious or colourful but we are talking about giving the power of arrest to a tattooed skinhead or a punk rocker of considerable athletic prowess who is a senior counsel and a psychiatrist. I do not think this was the Minister's intention but I am sure she can see that this is theoretically possible. The common law power of arrest to which she refers has been broadened by this legislation with the caveats to which I have referred and which relate to the definition of arrestable offence. I do not want people to think I am being convoluted as I am trying to put the matter as succinctly as possible and give my opinion. I raise these possibilities not for fun but to alert the Minister to the implications of the legislation with a view to strengthening it.
Deputy O'Donoghue says we are bringing in a power which will result in his colourful description. The power of citizen's arrest exists under common law so we are not bringing in something brand new but putting it on a statutory basis. Deputy O'Donoghue said it is a subjective matter whether there is a reasonable cause to arrest. It may be subjective at the time the person is doing it but it will not be when they end up in front of a judge having to explain what their evidence was and what reason they had for arresting the person. It would be a matter for the judge to decide whether that person was wrongfully arrested and whether the person who arrested them should be subject to some charge for so doing. It is a little disingenuous to paint a picture that everyone can arrest without consequences. The proof of that is that hundreds of cases involving citizen's arrests are not before the courts. It is rare for a citizen's arrest to occur. I do not know of anyone who has arrested someone and handed them over to the Garda. There may be cases where people have grabbed hold of someone escaping after committing an offence. Deputy O'Donoghue's worries are ones which I do not believe will come to pass.
He also spoke about the arrested person being of full capacity. He raised this on Second Stage and I accused him of being gratuitously political in full Fianna Fáil style. He painted a wonderful picture of someone having to do instant psychoanalysis and having to carry a couch with them. The term "full capacity" is already used in statute in the Criminal Justice Act, 1984, and is a standard part of a definition. I do not believe it raises any of the bizarre implications which Deputy O'Donoghue talks about. What we are doing in this section is no more than previous Ministers for Justice did and the Oireachtas accepted in the 1976 and 1991 Acts. It will not have the effects Deputy O'Donoghue outlined and we should not upset something which has been working very well. "Full capacity" is a concept already in law and has not caused the problems about which Deputy O'Donoghue and Deputy O'Donnell expressed concern. It is appropriate it is put into this legislation bearing in mind that, in the majority of cases, arrests will be carried out by a member of the Garda Síochána and not by a private citizen. Even in shops with store detectives, there is a fair amount of caution and they are conscious of the law and rights. They move slowly enough.
There have been cases where people alleged they were wrongfully brought into the manager's office for questioning and the shop had to pay out compensation as a result. That would be before the garda become involved. People are cautious about making citizen arrests. This section does not make citizen's arrests easier and we do not need to strengthen it for that reason.
The phrase "full capacity" is dangerously close to "full to capacity", which is a different matter.
It is. One can be half full and half empty half of the time. Aside from my definition of arrestable offence and those qualified to make such an arrest, I have difficulty with section 4(2), where a person can arrest someone they suspect, with reasonable cause, to be guilty of an offence. They have not seen the offence committed and do not know for a fact that the offence has been committed. They have reasonable cause for suspecting it, which is subjective. I have no difficulty with subsection (1) which, to use the Minister's words, does not bring in anything but restates an existing position. I am subject to correction, but subsection (2) appears to push the boat out a little.
This concern was raised on Second Stage and has been checked. As common law stands, our advice is that a person can arrest somebody, with reasonable cause. As regards felonies, this requires a high level of proof to make an arrest. It raises the bar of proof by the citizen who is carrying out the arrest. When they bring the arrested person to the Garda station, so the citizen's arrest can be followed through, they will have to state the reason they have made the arrest. They cannot say they arrested the person because they did not like their hairstyle or colour of their jeans. They will have to have reasonable cause to suspect they are guilty of the offence. It is not as haphazard as Deputy O'Donoghue suggests.
We are faced with a provision where a person can arrest someone without having seen the event occur, once they have reasonable cause, which is subjective. The person who is arrested must be of full capacity but the person arresting need not be of full capacity. Which of them should have full capacity? A person who is not of full capacity may arrest somebody because they do not like the colour of their hair or they have no hair. When that person goes to the Garda station, little can be done with them because they are not of full capacity. Reasonable cause is extremely subjective. There are people who could become engaged in this practice. I accept we are not bringing in a power of arrest where people see an offence being committed but subsection (2) does seem to go too far.
The purpose of putting down amendments is to clarify this matter. Although there is a common law power of arrest by the citizen, the looseness of the common law is not particularly appropriate to statutory provisions. We are putting this common law power on a statutory basis and it is appropriate that the duties of the arresting citizen should be clear. This is particularly important because of the type of criminality we are experiencing in our cities where vigilantes are operating.
We are dealing with an issue which is topical and needs to have a coherent response by the authorities. When we are putting common law rights such as the power of citizen's arrest on a statutory basis, we have to be clear about those rights. It is for that reason that we are trying to tease out the level of knowledge, suspicion and belief that should exist and the procedures after the arrest, whether it is appropriate or not, which should be followed to maintain the lawfulness of that arrest under statute. It is clear that the extent of the powers which are being put into statute already exist in common law. When we are addressing the statute, we should be clear on the rights and procedures flowing from the power of citizen's arrest.
I am not minimising the concerns of the Deputies. When a measure is transferred from common law into statute, there is a higher degree of requirement. I recall a case where two men made a citizen's arrest following the sexual assault of a woman. When it came to court, the judge commended the two citizens for doing so. I stress I am not breaking new ground. In relation to arrest without warrant the Criminal Damage Act, 1991, section 12(2) states:
Any person may arrest without warrant anyone who is or whom he, with reasonable cause, suspects to be in the act of committing an offence to which this section applies.
Subsection (3) states:
Where an offence to which this section applies has been committed, any person may arrest without warrant anyone who is or whom he, with reasonable cause, suspects to be guilty of the offence.
We have mirrored exactly what exists already. In relation to arrest without warrant, in the Criminal Law (Jurisdiction) Act, 1976, section 19(2) states:
Where an offence under section 2(1) or (3) has been committed, any person may arrest without warrant anyone who is or whom he, with reasonable cause, suspects to be guilty of the offence.
This measure has been translated into statute since 1976 and I do not think the worries the Deputies are expressing have been justified.
Has that provision ever been challenged by a court case? I am worried in the context of vigilantes.
I realise that. Who knows what can be challenged? I cannot quote any instances of this being challenged. The term "with reasonable cause" puts an onus on the citizen. The purpose of somebody arresting another person is to have them brought before the court. It would be foolish of somebody to arrest a person and bring them to court in the hope they would be convicted and leave themselves open to being accused of imprisoning a person wrongly.
I would be more concerned about the Deputies' worries if common law was not already translated into statute. In the 1976 and 1991 legislation, both the sections are identical to what we are proposing. In the fullness of time, if there is more legislation discussing arrests without warrant, I would propose exactly the same measure so that gradually the common law element of arrests would be covered under statute. If it is written in, its administration in the courts would be firmer. I strongly urge that we proceed along the lines I have suggested as it works in other legislation. Somebody may decide to challenge it, but that has not happened.
I want to delve into common law power of arrest in far greater detail, but I will withdraw my amendment until the Fourth Stage.
Amendment, by leave, withdrawn.
I move amendment No. 3:
In page 4, subsection (3), line 16, to delete "may" and substitute "shall".
This relates to section 4(3) which provides that where a member of the Garda Síochána, with reasonable cause, suspects that a person has committed an arrestable offence he or she may arrest that person without warrant. There should be a statutory imperative on the member of the Garda Síochána to arrest without warrant a person whom he suspects to be guilty of an arrestable offence which is what the amendment is designed to achieve.
Section 4 replaces the present common law powers of arrest without warrant in respect of felonies with the power of arrest in respect of an arrestable offence. We are doing away with the concept of felonies and misdemeanours and creating arrestable offences. Section 4(3) provides for the arrest by a garda on reasonable suspicion. This corresponds with the Criminal Law (Jurisdiction) Act, 1976, and section 12(4) of the Criminal Damage Act, 1991. Unlike the position of a private person under subsection (2), it is not necessary in this case for an offence to have been committed. Deputy O'Donoghue's amendment would have the effect of compelling a member of the Garda Síochána, where that member with reasonable cause suspects that an arrestable offence has been committed, to arrest anyone whom the member with reasonable cause suspects to be guilty of the offence. Subsection (3) is a permissive power of arrest based on the powers of arrest available to a member of the Garda under common law in regard to a felony. I am far from convinced a Garda should be required to effect an arrest having formed a suspicion that an arrestable offence has been committed and that a person is guilty of that offence.
There are circumstances where, for operational reasons, a Garda might think it is entirely premature to effect an arrest. I understand that the discretion that a Garda has to delay an arrest is sometimes absolutely crucial to the success of an investigation of an offence and detection of it. There will be circumstances also where a requirement to effect an arrest may at a given time be completely impractical and possibly dangerous to carry through. For example, if an unarmed Garda intercepts an armed gang in the course of a robbery, would the Deputy's amendment prevent the Garda from withdrawing to radio for assistance from colleagues or armed detectives? What legal obligation would such an amendment place on a Garda? What sanction would apply in law for not discharging the arrest requirement immediately? That flexibility should remain. It is possible in the circumstances I outlined that a Garda could be sued for breach of statutory duty where he or she failed to make the arrest the instant he or she knew an offence was being committed.
In practical terms, if a single Garda on his or her own sees a major crime in progress, the first thing they would do is radio in a report and request reinforcements. The Deputy's amendment means the Garda would have to go straight in, arrest the people and wait. I caution against that as the enabling nature of the powers should be maintained for legal operation and practical reasons. I ask the Deputy to withdraw his amendment.
I will withdraw the amendment. There is a certain amount of logic in what the Minister says. However, a Garda would not be required to do anything which a reasonable man would not do, which would be the interpretation in the final analysis. The Minister's reply shows that words can be used to advance an argument while the same words also can advance a counter argument. The Minister spoke about "reasonable cause" being enough for suspicion. Earlier she said suspicion should be based on a high degree of knowledge on the part of the arresting officer. I do not mean to engage in semantics but it is worth making the point.
The Garda are being given more powers in the issue of arrest than a citizen. The gardaí can arrest somebody even if only on suspicion. There is no doubt about that and I did not indicate anything other than that. The onus of proof on a citizen is being increased because of the issue the Deputy rightly raised of people who might decide to take the law into their hands through vigilantism. The hurdle has been set higher for citizens.
I withdraw the amendment but I am not sure about that. Subsection (3) states that where a member of the Garda Síochána, with reasonable cause, suspects that an arrestable offence has been committed, he or she may arrest without warrant anyone whom the member, with reasonable cause, suspects to be guilty of the offence. I am sure the power of arrest exists elsewhere in regard to felonies etc. but in this subsection the words "reasonable cause" are used in regard to a member of the Garda Síochána just as they are used in terms of an ordinary citizen.
Amendment, by leave, withdrawn.
Amendment No. 4 not moved.
Section 4 agreed to.