Criminal Justice Act 2011

9.

Further amendment of Act of 1984.

9.— The Act of 1984 is amended—

( a) by the insertion of the following sections after section 5:

“Questioning of persons detained under section 4 not generally permitted pending access to legal advice.

5A.— (1) Subject to subsections (4) and (5), no questioning of a person detained pursuant to section 4 shall take place until such time as the person has had an opportunity to consult with a solicitor and, the period of time commencing from the time the detained person makes the request to consult a solicitor and ending upon the commencement of such a consultation, shall be excluded in reckoning a period of detention permitted by section 4.

(2) The period that may be excluded under subsection (1) shall not—

( a) in the case of a person who is detained in a Garda Síochána station between the hours of midnight and 8 a.m. where section 4(6)( c) applies, exceed 6 hours or such other shorter period as the Minister may prescribe by regulations under section 5B, or

( b) in any other case, exceed 3 hours or such other shorter period as the Minister may prescribe by regulations under section 5B.

(3) A detained person who refuses to consult with a solicitor who has made himself or herself available for the purpose of consulting with the detained person shall, in so refusing to consult with the solicitor, be deemed to have waived his or her right to consult a solicitor.

(4) Where a person detained pursuant to section 4 waives or is deemed under subsection (3) to have waived his or her right to consult a solicitor the questioning of that person may commence.

(5) A member of the Garda Síochána in charge of a Garda Síochána station may authorise the questioning of a person who is being detained pursuant to section 4 and who has not yet consulted with a solicitor where the member concerned has reasonable grounds for believing that to delay the questioning would involve a risk of—

( a) interference with, or injury to, other persons,

( b) serious loss of, or damage to, property,

( c) the destruction of, or interference with, evidence,

( d) accomplices being alerted or the securing of their apprehension being made more difficult, or

( e) hindering the recovery of property obtained as a result of an offence or the recovery of the value of any proceeds of an offence.

(6) Where an authorisation is given under subsection (5), the member in charge shall give a notice in writing in the prescribed form to the detained person which shall—

( a) state that an authorisation has been given,

( b) specify the time at which the authorisation was given together with the time at which the notice was given,

and that member shall explain to the person orally the effect of the notice so given.

(7) An authorisation under subsection (5) may be given orally or in writing and if given orally shall be recorded in writing as soon as practicable.

(8) In this section and in section 5B—

‘consultation’ means a consultation in private and includes consultation by means of a telephone;

‘consultation in private’ includes consultation within sight of a member of the Garda Síochána but not within hearing distance of the member concerned.

Regulations regarding access to solicitor during detention.

5B.— (1) Without prejudice to section 7 and to the Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Síochána Stations) Regulations 1987 ( S.I. No. 119 of 1987), the Minister shall make regulations in relation to access to a solicitor by persons detained in Garda Síochána stations and, without prejudice to the generality of the foregoing, such regulations may make provision for—

( a) the periods for the purpose of section 5A(2),

( b) the procedures that are to apply in circumstances where a person nominates a solicitor of his or her choice for the purpose of consulting with that solicitor, including the procedures that are to apply in circumstances where the solicitor nominated by the detained person is unable to undertake to make himself or herself available within a specified period,

( c) the procedures that are to apply for the nomination by the member of the Garda Síochána in charge of the Garda Síochána station of another solicitor who can undertake to make himself or herself available within a specified period,

( d) the procedures that are to apply where a detained person refuses to consider whether or not he or she wishes to nominate a solicitor for the purpose of consulting with that solicitor, including the procedures for the nomination, by the member of the Garda Síochána in charge of the Garda Síochána station, of a solicitor who can undertake to make himself or herself available within a specified period,

( e) the periods for the purposes of paragraphs ( b), ( c) and ( d),

( f) the procedures that are to apply in circumstances where a solicitor nominated by the Garda Síochána makes himself or herself available for the purpose of consulting with that person,

( g) the procedures that are to apply in circumstances where a person refuses to consult with the solicitor who makes himself or herself available for the purpose of consulting with that person, including the provision for informing the detained person of the effect under section 5A(3) of such refusal,

( h) the procedures that are to apply in circumstances where—

(i) a person waives his or her right to consult a solicitor, including the form of such waiver, and

(ii) a person is deemed under section 5A(3) to have waived his or her right to consult a solicitor, including the form of such waiver,

( i) the procedures that are to apply in circumstances where a person withdraws his or her waiver, including the form of such withdrawal of waiver,

( j) provision of consultation facilities including facilities to enable a detained person to consult in private with a solicitor in person or by means of a telephone, and

( k) the form for the purpose of section 5A(6).

(2) Regulations under this section may—

( a) make different provisions in relation to different classes of persons detained in Garda Síochána stations, or

( b) for the purpose of the periods under section 5A(2), fix different periods in relation to different areas.

(3) Regulations under this section may contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary or expedient for the purposes of the regulations.

(4) A failure on the part of any member of the Garda Síochána to observe any provision of the regulations shall not of itself render that person liable to any criminal or civil proceedings or of itself affect the lawfulness of the custody of the detained person or the admissibility in evidence of any statement made by him or her.

(5) A failure on the part of any member of the Garda Síochána to observe any provision of the regulations shall render him or her liable to disciplinary proceedings.

(6) Every regulation under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next 21 days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly but without prejudice to the validity of anything previously done thereunder.”,

( b) in section 9, by the substitution of “Sections 4(8), 4(8A), 4(8B), 5, 5A,” for “Sections 4(8), 4(8A), 4(8B), 5,”,

( c) in section 18, in subsection (3), by the substitution of the following paragraph for paragraph ( b):

“( b) the accused was informed before such failure or refusal occurred that he or she had the right to consult a solicitor and, other than where he or she waived that right, the accused was afforded an opportunity to so consult before such failure or refusal occurred.”,

( d) in section 19, in subsection (3), by the substitution of the following paragraph for paragraph ( b):

“( b) the accused was informed before such failure or refusal occurred that he or she had the right to consult a solicitor and, other than where he or she waived that right, the accused was afforded an opportunity to so consult before such failure or refusal occurred.”,

and

( e) in section 19A, in subsection (3), by the substitution of the following paragraph for paragraph ( b):

“( b) the accused was informed before such failure occurred that he or she had the right to consult a solicitor and, other than where he or she waived that right, the accused was afforded an opportunity to so consult before such failure occurred.”.

Annotations

Amendments:

F1

Repealed by Criminal Justice Act 2017 (14/2017), s. 12, not commenced as of date of revision.

Modifications (not altering text):

C1

Prospective affecting provision: para. (b) repealed by Criminal Justice Act 2017 (12/2017), s. 12, not commenced as of date of revision.

( b) — F1 [ ]