It is often said: ‘If a Garda asks you for your name and address, you must give it to him’. I’ve heard a lot of people say it and I hear activists say it to each other with full conviction. I’ve heard cops and legal people say it. The ICCL even advise it.
The fact is, that’s a lie and we’ve got to get that into our heads. If you believe it’s true then you must obviously have knowledge of the relevant provision in law, and please post it here as a comment, with ’chapter and verse’ please, if you do.
To be randomly stopped and/or questioned by a Garda is an abuse of privacy and deprivation of personal liberty. You are entitled to walk the street without question or prevention by a Garda, unless your actions or conduct are such that there is provision in law relevant to your behaviour to stop and question you.
If you are stopped or questioned, and this is very important, the first thing you should do is ask the Garda why you are being stopped or questioned. It’s so important to ask the Gardaí questions and to get answers to those questions. If a Garda cannot, will not, or refuses to use ‘the law’ by invoking a relevant act (such as Public Order Act or Road Traffic Act or whatever) then you do not have to engage or cooperate with him in any way. He must invoke the law to use the law … in accordance with the law! If he refuses, he is not acting in accordance with any law and you should invoke your rights to personal liberty and go about your business.
Furthermore, “Any person (note: including a Garda) who, without lawful authority or reasonable excuse, wilfully prevents or interrupts the free passage of any person or vehicle in any public place is committing an offence under Section 9 of the CRIMINAL JUSTICE (PUBLIC ORDER) ACT, 1994”.
If a garda is insisting, then you must also insist on asking what provision of law he makes such a demand. If he continues to make up some rubbish under ‘colour of law’ refuse to co-operate and tell him he will be held personally liable at civil and criminal law for wrongful arrest and false imprisonment if he abuses his authority further.
Similarly, a Garda does not have the right, save in accordance with law, to ask you for your name and address. Again, your right to privacy is accepted by the courts to be provided for in Article 40.3 of the Irish constitution. Any attempt by a Garda to deny your privacy must be done in accordance with law. Even if a Garda invokes for example ‘The Public Order Act’, he cannot demand your name and address unless he is of the opinion that you have committed an offence under that act.
Neither do you have to “comply with the directions of Garda” (section unless you have been informed that you are committing an offence relative to the Public Order Act whereby there is provision in the act to direct you to ‘desist or leave the vicinity” (section . The offences (and sections) they might use to question (or arrest you) are “wilfull obstruction” (section 9) and “trespass” (section 13) etc. “Disorderly Conduct “(section 5) is one they could throw at you but not unless you are using “offensive conduct causing serious offence”.
Therefore – you should never give a Garda your name and address unless you have been told you have committed an offence or you are under arrest for an offence.
You must also be informed of the offence. So again, you should ASK! and keep asking questions until you are fully informed. (Often you can disempower a Garda bully by simply asking questions. Don’t let them disempower you, do not be bullied, speak up for yourself and invoke your legal rights)
Below is the only provision in the Public Order Act for a Garda to ask you for your name and address.
24.—(1) Where a member of the Garda Siochana finds any person committing an offence under a relevant provision, the member may arrest such person without warrant.
(2) Where a member of the Garda Siochana is of the opinion that an offence has been committed under a relevant provision, the member may—
( a ) demand the name and address of any person whom the member suspects, with reasonable cause, has committed, or whom the member finds committing, such an offence, and
( b ) arrest without warrant any such person who fails or refuses to give his name and address when demanded, or gives a name or address which the member has reasonable grounds for believing is false or misleading.
(3) Any person who fails or refuses to give his name and address when demanded by virtue of subsection (2), or gives a name or address when so demanded which is false or misleading, shall be guilty of an offence.
The example of legislation above is from the Public Order Act which is most commonly used against protesters. There is other legislation in other ‘Acts’, but still the ‘fundamentals’ apply. The Gardaí will also use the Road Traffic Act to stop and harass people in cars.
IMPORTANT: The Road Traffic Act does make provision for the Gardaí to ask you for your name and address in order to identify you as the driver of the car etc. More on the Road Traffic Act later.
The problems are, 1) Guards have a habit of just asking/bullying people for their names and addresses and getting them, and 2) The misconception is out there that ‘You must always give your name and address to a Garda when they ask you’. Not true for reasons above. Sometimes they pull the ‘Are you refusing to obey a direction of a Garda?’ trick. But again, directions can only be given by Gardaí under certain sections of enacted law (Acts) … in accordance with the law.
Again, the bottom line is that your right to personal and bodily integrity is enshrined in international and constitutional law. The same applies to your vehicle, your bag/rucksack and your tent/toilet/sittingroom/dwelling/home.
Under any act of law (which must be invoked) there is provision for Gardaí to search if a) they have a warrant issued under a certain act or b) they have reasonable grounds to suspect that there is something illegal in your possession, for example the ‘Misuse of Drugs Act 1994‘ http://www.irishstatutebook.ie/ZZA12… . The ‘Misuse of Drugs Act‘ is a straw they like to clutch at when you stand up to them on other acts they‘ve invoked, and it gives them provision to search your person or vehicle without a warrant (provided they have reasonable cause to suspect), but not a building. They must have a warrant to search buildings/dwellings (unless you are in the business of selling drugs) see section 24. Your tent, for example, is your dwelling which for the purposes of this act is a structure or building, but you must insist on this, because they will test you.
Never give them reason to suspect you of carrying drugs, and question them thoroughly if they say they do, because they’ll just be making it up.
The Firearms and Offensive Weapons Act 1990. http://www.irishstatutebook.ie/ZZA12… is similar to the Misuse of Drugs Act, in that there is provision for them to search your person for a weapon intended to cause harm, but they must have a search warrant to search your dwelling etc.
It’s probably wise not to carry a knife unless you need it for something and can justify carrying it, which is a defence to any charge. For example a penknife is not an offensive weapon, it’s a tool and an essential one for campers and travelling lunch eating protesters etc. Some people, for example, always carry a knife and justifiably so, it’s the oldest and most useful tool of all.
Other legislation, for example, Offences Against the State Act, the Criminal Law Act, the Misuse of Drugs Act AND the Offensive Weapons Act entitles police officers to search you and/or your vehicle without a warrant. If one of these statutes is being invoked in order to search you without a search warrant, you are entitled to told about it.
Research of these acts is required on this – more than will fit in this article. But I hope you get the picture.
by Niall Harnett – Gluaiseacht
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The above analysis does lead to the question of whether the imputed right to privacy in the person and property would extend to foreign nationals, visiting. For example, in the US, any person within the borders (“on US soil”) is afforded the same rights and protections guaranteed under the Constitution as any citizen, although there seems to be some question as to the obligation to produce an immigration visa or a passport to a Federal official (not local).
I must say I am surprised that you have these issues. I never pictured Ireland as being other than laid-back and rather casual. Being stopped and questioned in the street is not quite what tourists have in mind.
@ Jan van Eck. I don’t think there is a threat that tourists would be questioned/searched in the street. Of course every country has these issues but in relation to tourists Ireland is quite ‘laid-back’. I think this article is directed towards certain groups in particular e.g. protestors and people who attend festivals. For instance, the ‘Party against the Pipe’ festival in Mayo, which is a protest against the Shell gas pipeline , has a whole section on their website to do with dealing with the gardai. Due to the particulary volatile situation there, gardai will be more inclined to question/search anybody for any reason. I think people need to be aware of their rights to protect themselves in such situations.