The Pre-Charge Stage Of The Criminal Process: Are The Rights Of The Public Adequately Protected?

• Author: Gary O'Sullivan
• Position: LLB, LLM
• Pages: 100-111

THE PRE-CHARGE STAGE OF THE CRIMINAL PROCESS: ARE

THE RIGHTS OF THE PUBLIC ADEQUATELY PROTECTED?

Gary O’Sullivan*

A INTRODUCTION

The pre-charge stage of the criminal process has experienced an

important transition in recent decades. Arrest was originally intended to

facilitate a person being charged before a court. In the case of The People

(DPP) v Shaw Walsh J in the Supreme Court of Ireland stated ‘no person may

be arrested (with or without a warrant) for the purpose of interrogation or the

securing of evidence from that person.’1 However, it is now common for gardaí

to arrest a person, detain and question them in relation to an offence. With

the arrival of such practices has come the need to provide adequate safeguards

to protect the rights of the person being detained.

The decision whether to charge a person or not is often taken on the

basis of what has happened in a short period of time when the gardaí are

interrogating a person. These factors make the pre-charge stage of paramount

importance in the criminal process and subsequently the public’s rights must

be protected during this time. In recent years the notion of the rights of ‘the

public’ has been allied with the side of the prosecution in the criminal process.

Legislators discuss erosion of rights as protecting the public against gangland

crime or drug barons. It should be remembered that such legislation affects

everyone’s rights and people charged with criminal offences and tried before

our courts are also members of the public.

The Criminal Justice Act 1984 introduced significant changes to Irish

criminal procedure, including a new regime of detention without charge under

section 4. The section allows for a person to be detained for six hours but in

reality this can result in twenty hours detention.2

Since the 1984 Act the trend

has been to move the criminal process further away from the courts towards

the garda station through legislation such as the Criminal Justice (Drug

Trafficking) Act 1996 and the Criminal Justice Act 2006. Despite the lengthy

periods of detention now provided for in the various pieces of legislation,

adequate safeguards for detainees have not been provided.3

The rights of detainees have been eroded through the same legislation

that has provided for extensive periods of detention, in particular the right to

silence has come under attack. Now at the trial stage inferences may be drawn

from silence, while in some cases silence of itself is sufficient to imprison a

person. While such provisions can clearly be confusing for detainees it is easy

to see that access to a solicitor is necessary in order to explain the

100

* LLB, LLM.

1 [1982] IR 1, 29.

2 s 4(3)(b). This is due to an eight-hour rest period between midnight and 8 a.m. and a further

extension of six hours authorised by a Garda Superintendent.

3 The Criminal Justice (Drug Trafficking) Act 1996 section 2 provides for the possibility of

seven day detention without charge. The Criminal Justice Act 2006 section 9 adds a third 12-

hour period of detention to section 4 of the Criminal Justice Act 1984 which can effectively

lead to 40-hours detention without charge.