Do You Know Your Rights - Who Does?

ZE wrote:

The whole tenor and purpose of the Public Order Act is to stop trouble
before it starts. This may make you feel misgivings about the act, and
it is indeed a sledgehammer, but that is what it is about.

Agreed. But in this instance, that's not what happened is it. If the act had been successful in this example there would have been no prosecution.

I still hold my position with regard to what I said with regard to the POA and the need for the possibility of influencing members of the public.

Here's a bit of a ruling from an infamous Mangan J. in relation to the prosecution of Conor Cregan for an alleged violation of section 6 of the POA. The case was in 2005. I'm copying and pasting this, so spelling mistakes etc. are not mine. Having possession of the transcript, I know this to be an incredibly accurate court report, despite the aforementioned mistakes:

The Court wrote:

Judge Mangan:I have listened to you all now for over four-and-a-half hours. You can listen to me now, without interruption for four and a hald minutes. I have heard all the evidence and I find it strange that while two detectives testified that Mr. Cregan grabbed a Det by the arm, that he is not charged with interfering in the arrest, or with obstruction, but he is charged only with section 6. use of abusive or threatening language. In which case, it all seems to hanfg on a single sentence. The defence made a well established point, that this language, if used, was not made in earshot of the public. Only the 1st and 2nd gardThere is a total conflict between the evidence of Det. Sgt O’Brien and Det. Garda Fahy on one hand and Mr. Rice and Mr. Cregan on the other hand. The dictaphone tape would have resolved this issue. It is unfortunate that the defence did not give evidence re the efficacy of the dictaphone in recording sound, but I can rely on my own knowledge of dictaphone. In relation to the dictaphone, I note that, Det Fahy seized the dicataphone for no apparent reason, it is not a weapon. Det Fahy did not give the dictaphone to the member in charge. That the dictaphone is not listed in the custody record. In fact there are many holes in the states possession of this item. On this ground, if on no other the charges are dismissed.

Link to the quote

The whole article, though long, is a very worthwhile read for anyone interested in rights and law. Here's a link to the full article itself (In the article itself at one of the latter comments there are a series of links that fill in the full background to the case): Here

I agree with ZE, it's entirely possible that the nazis had a motive, other than camping, in choosing where they set up camp. I particularly dislike the little sign they erected: the "trespassers will be shot" sign. Then again, if the Gardaí hadn't resorted to the catch-all and labour saving POA maybe a proper investigation would have unearthed a suitable charge for these muppets. We'll never know.

My link to the Judge's comment doesn't take you to the comment for some reason. Just scroll down to the second comment (about 4/5 down the page).

I think there is an important factual difference between the cases. An utterance or a gesture dissipates instantaneously. A placard or a display does not. It sits in waiting for the public.

Zhou_Enlai wrote:

I think there is an important factual difference between the cases. An utterance or a gesture disipates instantanaously. A placard or a display does not. It sits in waiting for the public.

I agree, it is different. But I still say that whilst it waits it's not an offence. It's not something I think we should fall out over though, especially since I like and admire what you've said about the constitutionality of the POA. I think we agree on the idea that the POA is used as a sledgehammer.

Something that's intrigued me for a while: the folks that one encounters in one's comings and goings, that display placards with graphic pictures of abortions etc. Why are these folks not pulled under the POA? I'd suggest that if there were a complaint made by a member of the public that either a normal or a private prosecution would result in a conviction. Don't get me wrong I'm fully behind their right to free speech and expression, it's just that I find some of the methodologies used to be inciteful. I've never lodged a complaint mind you, so I guess my point is somewhat hypocritical. In my defence, it's on my 'to do' list, it's far down on it mind you.

Prosecuting the abortion people would involve a lot of work! This thing is to make life easier for the Gardai!

Zhou_Enlai wrote:

Prosecuting the abortion people would involve a lot of work! This thing is to make life easier for the Gardai!

Tis the truth.

Was there not already a case taken? I seem to remember something....

I have a question about my rights.
Is it true that a Garda has no right to search my car unless there is some evidence present that would cause him/her to form an opinion that I'm committing an offence?
Is it also the case that a Garda has to have formed an opinion that an offence is being committed before he can stop me in the street and ask questions?
What's my position with being detained at checkpoints?
Is there a certain proceedure that has to be carried out after which I'm free to go?
I know that in the states if you're stopped for a traffic offence the officer can either write out the ticket or give you a warning. Once the officer signs the ticket and hands it to you you're free to go without another word. The same applies if you're getting a warning, ie. once the officer says "I'm letting you away with a warning" then you can get in your car and drive off without another word.
Is there a similar provision in Irish law?

Hi AfricanDave.

There's a really excellent article written by a good friend of mine that goes into your questions in fine detail here: Link

The second comment in this article is by me. I still stand by it but must point out, that strictly speaking, Niall is correct. Refuse to give your name and you risk arrest, regardless as to how much in the right you are. Personally, I'd refuse to give my name, but I'm willing to take whatever the consequences are. So, I advise folks to always give their name and address if it's requested, even when it's none of the Garda's business.

Jaysus! I almost forgot.

The law with regard to your right to silence after arrest has been changed. Now if you're arrested, anything you say and anything you don't say can be used against you as evidence.

Having spoken to a multitude of solicitors on this very subject, I know that if I was arrested and questioned, I'd remain silent and explain it by answering any question with something along the following lines: "Having received legal advice, I have no comment to make at this time."

I don't know what anyone else might say if they're arrested and haven't received legal advice.

Thank you, Hermes, for this very informative article.
I really like this bit

Quote :

Breath-testing is now permitted randomly, so that might have to become a 13mm window slit to get the nozzle in through. A garda’s fingers are generally believed to be about 25mm in diameter and covered in fur

With regard to the right to silence.... As far as I can remember it was changed so the Gardaí are allowed to draw inferences from your silence. Would this not have an effect on the presumption of innocence?

Quote :

With regard to the right to silence.... As far as I can remember it was
changed so the Gardaí are allowed to draw inferences from your silence.
Would this not have an effect on the presumption of innocence?

In my opinion (and I'm not a legal practitioner), it fundamentally spits in the face of the presumption of innocence. It puts the burden on the defendent to prove his/her innocence.

Say for example you were one of the McBreartys and this law had been enacted whilst you were being fitted up by the Gardaí. If you were to give them information that proved your innocence during questioning, all you'd be really doing would be to give them a heads-up on how to further frame you. It's (again in my non-expert opinion) a disgusting addition to our laws.

Is there a definitive provision in the constitution outlining the presumption of innocence?
Wasn't the law referred to the Council of State (that's what it's called, isn't it?) to ensure it was compatible with the constitution?

Hermes wrote:

Hi AfricanDave.

There's a really excellent article written by a good friend of mine that goes into your questions in fine detail here: Link

The second comment in this article is by me. I still stand by it but must point out, that strictly speaking, Niall is correct. Refuse to give your name and you risk arrest, regardless as to how much in the right you are. Personally, I'd refuse to give my name, but I'm willing to take whatever the consequences are. So, I advise folks to always give their name and address if it's requested, even when it's none of the Garda's business.

It's an offence not to give your name and address when a Garda makes a lawful request for same. Haven't time to read the article but I know that's a prosecutable offence.

Kate P wrote:

It's an offence not to give your name and address when a Garda makes a lawful request for same. Haven't time to read the article but I know that's a prosecutable offence.

Correct. It is the same in the UK for anyone who ever falls foul of the UK justice system. I have experience of both

Kate P wrote:

It's an offence not to give your name and address when a Garda makes a lawful request for same. Haven't time to read the article but I know that's a prosecutable offence.

Possibly the operative word there is lawful? - ie. The request has to be provided for in law.

The article Hermes linked to explains that there are situations where it is lawful for the garda to demand your name, eg if you're driving and they need to make sure it's your car or if they have reason to believe you have commited an offence.

AfricanDave wrote:

if they have reason to believe you have commited an offence.

Indeed, but a Garda won't be asking for your name unless there is some prima facie reason for him to do so. If you believe you are merely being harassed by the Gardaí you are better giving your name and then making a complaint to the Garda Ombudsman Commission.

I've had to give my name twice, once to the Gardaí and once to the Metropolitan Police. Both in fairly humorous circumstances and nothing came of either situation.

I would agree.
I don't have a problem co-operating with gardaí unless I feel they are trying to abuse their authority.
In saying that I rarely come into contact with gardaí - I would say most of the contact I have with them is saying hello while being waved through a checkpoint.

Kate P wrote:

Hermes wrote:

Hi AfricanDave.

There's a really excellent article written by a good friend of mine that goes into your questions in fine detail here: Link

The second comment in this article is by me. I still stand by it but must point out, that strictly speaking, Niall is correct. Refuse to give your name and you risk arrest, regardless as to how much in the right you are. Personally, I'd refuse to give my name, but I'm willing to take whatever the consequences are. So, I advise folks to always give their name and address if it's requested, even when it's none of the Garda's business.

It's an offence not to give your name and address when a Garda makes a lawful request for same. Haven't time to read the article but I know that's a prosecutable offence.

I should have put this into context, my apologies. It's contextualised in the article I linked to but not here.

I would refuse (and have done so on occasion) to give any details, including my name and address, to any Garda when I know he or she has no lawful reason for demanding it. It is only after a Garda has formed a reasonable suspicion about you that he or she has any lawful cause or right to demand anything from you. If I'm sure that I've not broken any law and am sure that I'm not about to, said garda could go f@ck himself or herself. Confrontational I know, but I didn't start it. Let the court sort it out, I'll happily provide them with the recording. Again, I'm not advising anyone to follow this approach. I've been an activist for a number of years and am well aware of the 'game.'

Thanks to MN's "Breaking News" links, I came across the following gem: Teens cleared of assault as judge points to "aggressive garda manner"

It's an interesting read, particularly from a rights based perspective. This case was tossed because the Gardaí were either unaware of rights or didn't bother to observe them. Especially interesting is the fact that the case was binned despite a Garda being dragged to the ground and set upon.

Our courts are slowly waking up. Well done Judge Ryan.

Quote :

This case was tossed because the Gardaí were either unaware of rights or didn't bother to observe them

How did you draw that conclusion? The article states that it was a melée and that things spiralled out of control very quickly - partly because the teenagers responded in a verbally aggressive manner to a simple request. You're assigning ignorance or negligence to the Gardaí and that opinion is not sustained by the information given in the article.

Kate P wrote:

How did you draw that conclusion? The article states that it was a
melée and that things spiralled out of control very quickly - partly
because the teenagers responded in a verbally aggressive manner to a
simple request. You're assigning ignorance or negligence to the Gardaí
and that opinion is not sustained by the information given in the
article.

The article is very clear.

The article wrote:

He approached and asked one of them for his name at which the teen
replied “what’s your fucking name?” He said the boy tried to walk on at
which he put out his hands to stop him but the teen pushed his hands
away.

Meanwhile a second teenager began acting aggressively,
took a “fighting stance” and pulled at him. He turned to arrest that
youth. However, the first youth then grabbed him from behind and pulled
him to the ground by his stab vest.

If a Garda was attacked in this fashion, whilst in the performance of his duty, there would be nothing that could have saved the defendents from a guilty verdict. The fact that the Judge recognised this as a melee is the same as saying that the Garda was not in the performance of his duty.

We also have:

The article wrote:

The defence submitted that the garda had not cited the power of arrest
to the first teenager he spoke to and the second intervened because he
felt his friend was being manhandled.

Dismissing the charges, Judge Ryan said the case against the pair had not been proven beyond reasonable doubt.

It is obvious that the judge accepted that the Garda had not lawfully detained the first youth and indeed that the second youth was well within his rights to come to the rescue of his friend. Some folks might expect some ruling to have been made against the Garda to substantiate this. However, that's not the way it works, the Garda was not on trial. Watch out for a big civil case though - unless the state settles and as a condition of the settlement imposes a gag order - that's the way it normally works.

Bump

Help.

in a dispute with my landlord and not sure of rights.
checked the prtb website and not much help.

story is:
bathroom leaked.
we had to chase (at considerable time and telephone expense) landlord to get plumber.
then chase (again considerable time and expense) plumber to start work.
no heating for past 2 months.
for this week no bathroom at all.
moved out to alternative accommodation.
insurance to landlord covers b&b but no dinner.
we want to withhold 1 months rent and pay accommodation ourselves.
the leak was reported 2 months ago.
place is a building site at the moment.
landlord believes the place is habitable except for bathroom and no serious inconvenience and will take non payment of next months rent as notice of termination.

what options have we?

Go to Threshold. He hasn't got a leg to stand on.

That sounds pretty frustrating zakalwe. Your landlord sounds like a real dick.

I agree with floatingingalway, your landlord doesn't have a proverbial leg to stand on. You should indeed check out Threshold. A visit to your local citizen's advice centre is a must too - they'll advise you as to the extent of your rights and might possibly stick a boot up your landlord's arse to get him moving.

I'd hold off on witholding the rent until you've received some advice on the subject. By witholding the rent you might be heading into troubled territory. Right now your landlord is 100% in the wrong, witholding the rent might mitigate against that. Work out what you've spent on chasing the landlord and the plummer, include your time and have these details for when you head into Threshold and the Citizens advice centre. Also, write a list of inconveniences that having to stay at a B&B is causing you (distance from work, not being able to use the stuff that's at your accomodation, having to constantly travel between the two, etc.).

I know I'm sounding like a litigious git who'd jump up and down at the least provocation. I might be . But, if it does come to having to go postal on your landlord, being prepared from the get go is the most of the battle done with.

Good luck, a crappy time to be messed about with.