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

AuthorGary O'Sullivan
PositionLLB, LLM
Gary O’Sullivan*
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
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.

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