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HOMECONSTITUTIONAL RIGHTSArticle 40.6.1(i) of the Constitution of Ireland sets out that Irish citizens have a right to express their opinions and convictions freely. This right comes with a caveat which states that the publication or utterance of seditious or indecent matter is an offence which shall be punishable in accordance with law.
Article 40.6.1(ii) of the Constitution of Ireland sets out that Irish citizens also have the right to freedom of assembly, better known as the right to peaceful protest. This right also comes with a caveat which is that you must only assemble peaceably and without arms
(weapons, not limbs).There is also provision in this Article for the legislature to enact laws which are designed to restrict your right to assemble where it is in the public interest. The Coronavirus lock down legislation in 2020 is a good example of such an Act being brought in.
So, the right to protest and the right to express your opinion is a Constitutional right afforded to every citizen of Ireland. You must march peacefully, without weapons, you cannot use hateful, seditious or indecent language, there must not be any restrictive legislation in operation at the time, and you must not be placing any lives at risk. If you are in breach of any of those conditions then the Gardaí have an obligation to step in.
FELONIES & MISDEMEANORSIn the Republic of Ireland we no longer class offences as either misdemeanors or felonies.
Sections 3 and 4 of the Criminal Law Act 1997 repealed and replaced the felony provision to the effect that all offences which carry a minimum prison sentence of 5 years for a first time offender will fall within its remit. This is known as '
an arrestable offence'.
Under S.4 of the above Act any person, including security personnel and the Gardaí, may arrest without warrant any person whom he or she,
with reasonable cause, either suspects to be in the act of committing an arrestable offence, or, suspects to be guilty of having already committed such an offence. The arresting citizen may
only perform the arrest where he or she has reasonable cause to suspect that the presumed guilty party will flee the scene or is already in the act of evading the Gardaí. Once apprehended the suspected person must be given into the custody of the Gardaí without delay.
Where an offence takes place in public, such as in a park or on a street, this offence is governed by statute under the
Criminal Justice (Public Order) Act 1994 which states:
"It shall be an offence for any person in a public place to use or engage in any threatening, abusive or insulting words or behaviour with intent to provoke a breach of the peace or being reckless as to whether a breach of the peace may be occasioned."PUBLIC ORDER OFFENCESThe following is a list of actions deemed under the
Criminal Justice (Public Order) Act 1994 to be an offence:
1. Intoxication in a public place,
2. Disorderly conduct in a public place,
3. Threatening, abusive or insulting behaviour in a public place,
4. Distribution or display of material, in a public place, which is threatening, abusive or insulting,
5. Failure to comply with the direction of a member of An Garda Síochána,
6. Willful obstruction,
7. Entering a building, etc., with intent to commit an offence,
8. Trespass on a building, etc.,
9. Riot,
10. Violent disorder,
11. Affray,
12. Blackmail, extortion and demanding money with menaces,
13. Assault with intent to cause bodily harm or commit an indictable offence,
14. Assault or obstruction of a peace officer.
POWER OF ARREST
S.24 of the 1994 Act further empowers Gardaí to arrest those found to be committing a nuisance to the public. It states that where a member of the Garda Síochána finds any person committing one of the offences listed above, the member may arrest such a person without warrant. Where the Garda is of the opinion that an offence has been committed they may demand the name and address of the person suspected of having committed the offence, or who has been found committing the offence, and may arrest without warrant any such person who fails or refuses to comply, or, gives false or misleading details which the member has reasonable cause to suspect may be false.
Therefore, under S.24, a Garda may only arrest a person where he or she comes upon them actually committing the offence. Where a person is merely suspected of having committed an offence, and a true name and address has been given, then no power of arrest will arise since, with the identification of the suspect established, they may be brought to court through the ordinary summons process. Where the Garda suspects that a false name or address has been given, then the power of arrest will arise.
The
Intoxicating Liquor Act 2008 has since increased the maximum fines applicable to the offences listed in the 1994 Act above.
As felonies have been abolished, the sole remaining power of arrest for Gardaí, under the common law system, is for an offence of 'Breach of the Peace'. Where a person engages in threatening, abusive or insulting behaviour, and the offence occurs in a private residence, the 'Public Order' legislation detailed above will not apply and so the common law breach of the peace doctrine may be used instead. Breach of the peace is an indictable offence which may be dealt with summarily through the local District Court although, for this particular offence, the consent of the Director of Public Prosecutions is actually required in order to prosecute.
Once convicted for a public order offence, an offender may be further issued with an injunctive or supervisory measure in order to prevent further offending. The
Criminal Justice (Public Order) Act 2003 permits a court to issue an exclusion order that prohibits the subject of the order from entering or being in the vicinity of specified catering premises. The
Criminal Justice Act 2006 also allows a court to issue a 'restriction on movement' order which limits the places an offender can go or may require the offender to be in a certain place at a certain time, limited to 12 hours in any one day. Click
HERE to view the full details on such orders.
Further information on Public Order Offences, including information on the Adult Cautioning Scheme, can be found by clicking HERE. 