Know Your Rights: My Rights in Dealing With Criminal Law and the Gardai

Download the Know Your Rights chapter on your rights in dealing with criminal law and the Gardaí or browse through the topics below.

[Note: The following material is for your information only. It is not intended to be a substitute for legal advice.]

Victim of a crime

Witness to a crime

Suspected or accused of a crime

Diversion programme

Before the courts as the accused

Probation

Detention
 

Victim of a crime

What are my rights if I have been the victim of a crime?

As a victim of crime, you have the right to report that crime to the Gardaí (police). However, it is up to the Gardaí and the Department of Public Prosecutions (DPP) to decide whether or not to investigate the crime and bring it to court. If the crime involved violence or a sexual offence and it goes to court, the court must take into account the impact that the crime had on you when deciding the sentence.

There is a Victims Charter and Guide to the Criminal Justice System which tell you about your right to services provided by state agencies to crime victims. You can find these on the website of the Probation Service – www.probation.ie.

Am I entitled to compensation if I have been a victim of crime?

That depends. If a suspected offender is found guilty, the judge may order them to give you financial compensation. If you were injured or died as a result of a crime of violence or while helping someone to prevent a crime or when saving a human life, your parent or guardian can apply to the Criminal Injuries Compensation Tribunal on your behalf. See: www.justice.ie/en/JELR/Pages/Criminal_Injuries_Compensation_Scheme.

Who can I talk to if I have been the victim of a crime?

The Crime Victims Helpline is a national helpline offering support to victims of crime. You can contact the helpline by phoning LoCall 1850 211 407 on Mondays from 10am to 7.30pm, Tuesday to Friday from 10am to 5pm and Saturdays between 2pm and 4pm. Or, you can access the helpline online at www.crimevictimshelpline.ie. The National Crime Council has a list of services for victims of crime at www.crimecouncil.gov.ie.

Will I have to speak in court about what happened to me?

As the victim of the crime, you may be asked to appear as a witness to the crime. See below: ‘Will I have to go to court if I am a witness to a crime?’

Witness to a crime

Should I tell the Gardaí if I have seen a crime take place?

You should discuss this decision with an adult you trust. It is good practice to report all crimes to the Gardaí. For some serious offences, such as a sexual offence against a child or a vulnerable adult, it is a crime not to tell the Gardaí what you know.

Will I have to go to court if I am a witness to a crime?

You might. It depends on what you saw or heard and whether the State wants you to be a witness in the case. If you are asked to tell the court what you saw, you may be able to do so by a live television link during the trial from a different room so that you don’t have to go into the courtroom. You might also be asked to speak privately with the judge, possibly in the company of your parents or guardian.

Will the alleged criminals know it was me who reported them?

The alleged criminals will not necessarily be told who reported the crime. But anyone accused of a crime has a right to hear the evidence against them, and so they will be able to see and hear what you say to the court.

Is there support available to me if I am a witness to a crime?
Yes. There are a number of supports available to you such as:

  • the Court Support Service, phone (01) 872 6785, 087 288 552 or visit www.courtsupport.ie;
  • Childline, phone 1800 66 66 66;
  • the Crime Victims Helpline, LoCall 1850 211 407.

Suspected or accused of a crime

Can I be searched without a warrant or without my consent?

A Garda can search you without your consent, if the Garda has good reason to think you have committed an offence. This applies to everyone under the age of 18, including babies. The Garda does not need the consent of your parent or guardian. The Garda should tell you why you are being searched. Gardaí usually need a search warrant to search a house or other premises. A court, or sometimes a senior Garda, can issue a search warrant.

Can a Garda search my car?

A Garda can search your car if the Garda has good reason to think that:

  • you have committed or are about to commit an offence under the Offences Against the State Acts, such as a homicide or other specific offence; or
  • you are in possession of a controlled drug such as cannabis or heroin or others specified under the Misuse of Drugs Acts.

A Garda can also search your car under various other powers.

When can a Garda enter my home?

Generally, a Garda cannot enter your home without your consent. However, there are some exceptions. The most common is if the Garda has a valid search warrant or is chasing a suspect.

Does a Garda need a warrant to search my home?

A Garda needs a warrant for most entries and searches of property but not for all. For example, a Garda can enter your home to arrest someone suspected of committing a crime.

Are shop security guards allowed to search me?

In general, a security guard does not have any power to search you without your permission. He or she should hand you over to a Garda to carry out a search. This should be done as soon as possible.

Can the Gardaí arrest me if I am under 18?

The Gardaí have the same powers whether they are dealing with a child, a young person or an adult. But, if you are under 18, the Gardaí must take more account of your age and your level of maturity.

Will the Gardaí tell my parents if I am arrested and brought to a Garda station?

The Garda in charge of the Garda station must tell your parents or guardian that you are in custody, why you are there and that you have the right to a solicitor. This Garda must ask your parents or guardian to come to the station as soon as possible.

Can the Gardaí question me on my own?

No. You have the right to have a solicitor with you during questioning. In addition, if you are under the age of 18, the Gardaí are not allowed to question you or ask you to make a written statement without your parent or guardian present, except if:

  • they cannot get in touch with your parent or guardian;
  • your parent or guardian has been told but has not come to the Garda station in a reasonable time; or
  • the Gardaí believe that people or property might be at risk of harm if questioning is delayed.

The Gardaí can also refuse to let your parent or guardian sit in on the interview. They can do this if they believe that your parent or guardian could have been involved in the suspected offence or that their presence might cause an obstruction of justice, for example if your parent might interfere with the interview process. However, if the Gardaí want to question you without one parent or guardian present, they must try and arrange for your other parent, another relative or some other responsible adult to be present at the interview.

Where will I be held in the Garda station?

The Garda in charge of the Garda station must make sure that you are not detained with adults unless there is no other secure accommodation available.

Do I have the right to know the reason for my arrest?

Yes. You have the right to be told in clear, easy-to-understand language that you are under arrest and the reason for your arrest.

Where can I find out more about my rights when dealing with the Gardaí?

See the ‘Child and Young Person' section of the Irish Council for Civil Liberties Know Your Rights guide on criminal justice and Garda powers which you can find at www.knowyourrights.ie.

The guide will tell you about your rights when dealing with the Gardaí, and about:

  • Garda search powers
  • Garda powers of arrest
  • Garda public order powers

Diversion programme

A child suspected of breaking the law is generally referred to the Juvenile Diversion Programme by the Gardaí. If you accept responsibility for breaking the law (also known as ‘committing an offence’), and are between the ages of 12 and 18, you can be considered for this programme. You have the right to talk with your parent or guardian and a solicitor before you make this decision.

How does the Juvenile Diversion Programme work?

The Juvenile Diversion Programme aims to prevent young offenders from entering into the full criminal justice system by offering them a second chance.

You, your parents or guardian, your Juvenile Liaison Officer (JLO), and possibly another member of the Gardaí and the victim will attend a meeting to discuss and highlight the seriousness of your offence and its effect on the victim(s).

If your offence was minor, you will receive an informal warning (known as a ‘caution’) from the JLO in your home or at a Garda station. If the offence was more serious, you will receive a formal caution in a Garda station from your JLO or a senior Garda, and possibly also in the presence of the victim. You will have to take steps to make sure you avoid further trouble, such as staying in school and saying sorry to the victim. You may also be supervised by a JLO for up to 12 months.

Will anyone know that I am involved with the programme?

No. Your involvement in the Garda Juvenile Diversion Programme is confidential. The only person who will be told is a judge, if you appear in court for committing an offence after being admitted to the programme.

Is the Garda Juvenile Diversion Programme the same as a Garda Diversion Project?

No. A Garda Diversion Project is like a youth project run by the Gardaí and other community organisations. It aims to help young people, who have come to the attention of the Gardaí or the Child and Family Agency to avoid situations where they might risk breaking the law. There are over 100 Diversion Projects around the country. See www.iyjs.ie

Before the courts as the accused

What is the Children’s Court?

This court hears cases involving children and young people under the age of 18. There is a Children’s Court building in Dublin. Outside Dublin, the Children’s Court is usually held in a District Court building on a different day than the court hearings for adults.

The Children’s Court can deal with most criminal cases which involve a young person under 18. It does not deal with serious offences such as manslaughter. Serious offences must be dealt with in the Central Criminal Court. Sometimes a young person charged with a serious offence can choose to go before the judge of the Children’s Court or be tried in an adult court by a jury.

What are my rights if my case goes to court?

If you do not go into the Garda Juvenile Diversion Programme, you may face prosecution and have to go to court. You will go to the Children’s Court or, if you have committed a more serious crime, you will go either to the Circuit Court or the Central Criminal Court. You have the right to have your parent or guardian present for the hearing.

Will my case be heard differently from an adult case?

Yes. In the Children’s Court, your hearing will be at a different time, on a different day or in a different courtroom than regular adult court hearings. That means you won’t be in the same place as adults who are facing criminal charges. The judge should also run the trial in such a way that you understand what is happening.

Will my identity be made public?

It depends on which court you attend. In general, if you are under 18, the court will sit in private with only court staff, solicitors, your parents or guardians, and the Gardaí present. Your name should not appear in the media or online. If someone tells your identity to the public, they can be fined or sent to prison.

Will a solicitor (a type of lawyer) represent me in court?

Yes. The type of solicitor will depend on the nature of the charges against you, and your family’s ability to pay for one. If your family cannot afford a solicitor, you will qualify for legal aid (a free lawyer). Before you are appointed a solicitor, the Director of Public Prosecutions must decide if you will go before the Children’s Court or the Central Criminal Court for a jury trial.

What should I expect in court?

The courtroom is a formal place and you are expected to behave in a serious way. Ask your solicitor before your hearing to explain what the courtroom looks like, who will be attending your hearing, and where everyone will sit. If you don’t understand what is happening during the hearing, ask your solicitor to explain the hearing to you.

What could happen when my case comes before the court?

One of three things could happen.

  • The judge may hear your case.
  • The judge may adjourn your case – this means that the case will be heard on another day. If this happens, the judge might decide to:
    • remand you in custody (send you to detention until your case is heard – this will only happen if the charge is very serious or if you are continually breaking the law); or
    • grant you bail – this means that your parent or guardian will have to pay money or promise to pay money to keep you out of detention. If the judge grants you bail, it will probably include strict conditions such as staying away from certain people or places, not drinking alcohol or taking illegal drugs, and going to school. If you break these conditions you may be placed in detention.
  • ‘strike out’ your charge – this means that nothing further will happen in your case.

If the judge decides to hear your case, the judge may:

  • put off making a decision on the charge and send you to the Young Persons’ Probation Service for a family conference; or
  • order a probation report – this means that a probation officer will be asked to examine your case and your personal circumstances; or
  • convict you of the charge and sentence you.

What happens if the judge sends me for a family conference?

A family conference is a meeting between you, your family and a probation and welfare officer to work out a plan for you to follow instead of you being convicted and sentenced. Following the plan will help you to stop offending.

Your solicitor will tell you about what will happen at the conference and in court. They will also tell you how you should behave. You should always ask your solicitor if you are unsure about what is happening in court or what will happen afterwards.

What happens if I am found guilty of an offence and convicted?

The judge will sentence you to a punishment. The punishment will depend on the crime you committed and how serious it was, and on your personal circumstances, as assessed by a probation officer. Punishment can include:

  • paying a fine;
  • probation;
  • detention (if the offence is very serious).

Probation and detention are explained in the next sections.

Probation

What is probation?

Probation is a formal warning that the judge may give you instead of sending you to detention. The court may order you to stop committing the offending behaviour and may set down certain conditions for your behaviour for a specific length of time. You will be assigned a probation officer whose job is to make sure that you follow the conditions in the court order.

What happens if I don’t follow my probation conditions?

You can be brought back before the court for punishment and possible detention.

Are my rights affected if I am put on probation?

Your rights will only be affected in that you may have to complete an education or training course, stay under close supervision by the probation officer and remain living in a specific place until the probation period is over.

Is there a special service for young people on probation?

The Young Persons’ Probation (YPP) Service is a special division of the Probation Service which works with young people aged 12 to 18 who come before the courts. The YPP promotes the use of community-based sanctions and restorative justice to reduce re-offending.

Detention

Can I be sent to prison?

This depends on your age and gender. Most young people sentenced to detention will go to a Children Detention School such as Oberstown or Trinity House in Dublin. Children Detention Schools provide education and training, but they are secure facilities which means they are locked and you are not free to come and go.

However, if you are male and aged 17, you may be sent to a young person's unit in an adult prison while the building of a new facility at Oberstown for people your age is ongoing.

What are my rights while I am in detention?

You have a right to have your health, safety and welfare looked after. You must be treated with respect and be protected from discrimination and harm, including bullying. You are entitled to see your family and continue your education.

Can I make a complaint about my treatment in detention?

Yes. If you have a complaint about the way you are being treated in detention, you should complain to the person in charge using the Irish Youth Justice Service’s complaints system. You can find out more about this at www.iyjs.ie.

If you are not happy with the response to your complaint, you can appeal to the Director of the Children Detention School. If you are not happy with the outcome (result) of the appeal, you can complain to the Ombudsman for Children.

Do I have a right to support when I leave detention?

No. There are no formal supports available for those leaving detention although community groups might help you find a job, training placement or somewhere to live (if you do not go home). If you are under 16, your social worker should work with the staff in the Detention School and your family to put a plan in place for you to leave detention and return home, or an aftercare plan if you are 16 or over.

If you are under 18, the Child and Family Agency, Tusla, must support you if you cannot return home.

Do I have to tell people that I have a conviction?

This depends. You may have to tell people about your conviction when you are applying for a job or a visa to visit another country. But if your offence was not serious, you can have your conviction removed from your record if you do not offend for three years after you turn 18. If this happens, you don’t have to tell anybody about the offence. Some convictions cannot be removed from your record, for instance if you were convicted in the Central Criminal Court or if your offence came under the Sex Offenders Act 2001.

Published date: 
Wednesday, August 19, 2015