The legislative powers of the police to stop individuals
Police officers in Ireland have a common law power to approach and speak to members of the public and to search them with their consent. Police also have statutory powers to require an individual to stop in certain circumstances. For example, where a police officer has reasonable cause to suspect that an individual has committed or is committing an offence under the Offences Against the State Act 1939 or the Criminal Justice (Public Order) Act 1994, they can stop the individual and demand that s/he provide their name and address. Police have the power to stop any vehicle to check if it is being driven in accordance with the law (the vehicle is taxed, insured, roadworthy and the driver is in possession of a valid driver’s licence). If a police officer suspects that the vehicle is not being driven in accordance with the law, they can demand that the individual provide his/her name and address. Failure to comply with this demand is a criminal offence.
The police also have the power, under certain circumstances, to stop and search individuals. If a police officer has a reasonable suspicion that an individual has committed or is committing an offence, s/he has various powers that allow him/her to search the individual without the individual’s consent and before the individual has been arrested. The power to stop and search is a statutory power set out in the legislation governing the particular offences to which the power applies. Some common examples include:
- Misuse of Drugs Act 1977 – a police officer can stop and search an individual if s/he has reasonable cause to suspect that the individual is in possession of a controlled drug;
- Firearms and Offensive Weapons Act 1990 – a police officer can stop and search an individual if s/he suspects, with reasonable cause, that a person has an offensive weapon or a realistic imitation firearm in their possession in a public place;
- Public Order Act 1994 – a police officer can stop and search an individual in a place that has been designated a restricted area by a Superintendent under the Public Order Act if the police officer has reasonable cause to suspect that the individual is in possession of alcohol, a disposable container or an article that could be used to injure someone; and
- Offences Against the State Act 1939 – a police officer can stop and search an individual if he/she suspects that the individual is committing or has committed an offence under the Offences Against the State Act (organised-crime and terrorism-related offences).
These are just some common examples. There are numerous other Acts which allow police officers to lawfully search a person.
The obligation to register stops
There is currently no legal obligation on police officers in Ireland to register an identity check or a stop and search. It is, however, police policy for officers to keep records of these events in their own notebooks and to record all physical searches on PULSE (the police computer system). If a search is conducted in a police station, it will be processed through the member in charge of the station and subject to the Garda Custody Regulations.
Legislation procedures which protect citizens from police offences
In order to comply with Article 8 of the ECHR, a stop and search must be necessary and proportionate in the pursuit of a legitimate aim. The Superior Courts in Ireland have also stated that, because the power to stop and search is a serious encroachment on the liberty of an individual, it should be subject to the appropriate formalities pertaining to an arrest, such as informing the suspect of the nature and description of the statutory power which is being invoked to stop and search him/her. It can be extrapolated from judgments of the Supreme Court that if a search is deliberately and consciously unlawful and in breach of a person’s constitutional rights, then any evidence obtained from that search will likely be inadmissible in criminal proceeding. Furthermore, if a person believes that they have been subjected to an unlawful search or that the police have abused their power to stop and search, a complaint can be made to the Garda Síochána Ombudsman Commission (GSOC).
The Garda Síochána Ombudsman Commission (GSOC) is an independent statutory body charged with investigating complaints concerning police conduct. If a member of the public makes a complaint to GSOC, and if the complaint is deemed admissible, GSOC will then decide whether it will investigate the complaint itself or whether it will ‘lease’ it back to An Garda Síochána (Ireland’s Police Service) to investigate. If it is ‘leased’ back to An Garda Síochána, GSOC may still supervise the investigation, if it so wishes. Where a complaint is investigated by An Garda Síochána without supervision from GSOC and an individual is not satisfied with the outcome, a request can be made to GSOC to conduct a review of the investigation. If it appears that there may have been a breach of the Discipline Regulations by a police officer, GSOC may make recommendations to the Garda Commissioner concerning disciplinary proceedings. If it appears that the case may warrant criminal prosecution, GSOC may send a file to the Director of Public Prosecutions. If there is insufficient evidence to support one of the above, the case may be discontinued.