Drunk tank

Garda Review drunk tankDetaining the intoxicated in a garda station requires consideration of the many legal issues writes Darren Martin.

Darren Martin Garda ReviewThere is no such thing as the ‘drunk tank’ in this jurisdiction, nor can there be under current legislation. Ireland is not the only jurisdiction where this applies given the requirements of the European Convention on Human Rights (ECHR) on member States domestic laws. Police cells are not the appropriate place to put people who are so intoxicated as being unable to look after themselves. The UK’s Association of Chief Police Officers (ACPO) expressed this view; police cells should not be the solution.

There is no denying that Ireland has had a long relationship with alcohol. Its production and consumption is a celebrated part of the Irish identity around the world and often provides a staged photo opportunity for a visiting head of State.

The darker side of alcohol consumption is the social problems it causes, not to mention the gardaí who confront so many situations where alcohol is a factor. Many social occasions and national holidays are linked to over-indulgence. In policing terms most members will have arrested someone under the influence of alcohol to such an extent to appear to be a risk to themselves or others.

The legal provisions of the Criminal Justice (Public Order) Act 1994 provides specific offences for being intoxicated in a public place and other associated offences. It is often one of the first arrests that a junior garda will make and may represent their first experience with processing a prisoner at the station.

Section 4(1) states, “It shall be an offence for any person to be present in any public place while intoxicated to such an extent as would give rise to a reasonable apprehension that he might endanger himself or any other person in his vicinity.”

The offence itself has a specific power of arrest provided for at section 24 of the Act. Neither the Public Order Act nor any other statute provides a power of detention beyond the processing of the person at the station for an offence under the 1994 Act. Often suggested is the use of the detention under section 25 of the Licensing (Ireland) Act 1874: “Every person who, in any highway or other public place, whether a building or not, is so drunk as to be incapable of taking care of himself, may be detained by any constable until he can, with safety to himself, be discharged, but if so detained he shall be summoned in due course to answer for such offence, and he shall not by such discharge be relieved from the liability to any penalty to which he is subject.”

This may be problematic. The section is arbitrary in how it is worded, vague in its application and questionable as to its constitutionality. It refers to being drunk and not intoxicated. The detention is open-ended with no specific period of time for the detention; it is a subjective test which requires a garda who is not medically trained to make the determination a person is ‘drunk’, not ‘intoxicated’, that determination being made by the arresting garda or the member in charge of the station. There is also the requirement that the person must be ‘summoned’ if the section is used. It is not permissible for legislation to automatically result in issuing proceedings once used. It is a consequential prosecution without consideration as to whether court proceedings should be issued by or on behalf of the DPP.

An additional legal concern is that it excludes the possibility of the person being issued a fixed charge notice as an alternative to going to court as per section 23B of the Criminal Justice (Public Order) Act as amended by the Criminal Justice Act 2006. If a person is arrested under the 1994 Act there is no apparent nexus between the two Acts and no apparent intention of the Oireachtas that the 1994 Act was to be used in conjunction with the 1874 Act. The section of the 1874 Act is still on the Irish statute books but it is questionable if it would withstand a constitutional challenge as the law applies today. It is certainly questionable if it would comply with Article 5 of the ECHR, the right to liberty and security of the person given that it may qualify as preventive detention. It may fall into the category of preventative detention rather than a detention to progress a criminal investigation for confirming or discounting suspicions that provided the grounds for the person being detained.

The Criminal Justice (public order) Act 1994 provides that a person may be arrested and taken to a garda station for the specified offences. The associated legislation provides the requirements in how they are to be treated once there. They may be released on bail, where it is prudent to do so, if there are no court orders requiring them to be kept in custody or they must be released from the station. The real concern is what happens if the person is still so intoxicated as to represent a continued danger to themselves or others. With no specific power of detention available under the Criminal Justice Act, the options are limited to releasing them or calling an ambulance to take them to a hospital.

Gardaí may not be the appropriate persons to deliver medical care or to monitor a person who is intoxicated beyond the requirements of a first responder. The added concern is they may have other substances in their body contributing to their intoxication; illegal or prescription medication that could require emergency intervention from trained medical staff. Some medical conditions can present as intoxication when they are not, including conditions resulting from diabetes.

Garda Review Drunk Tank 2The European Court has held that in some extremely narrow circumstances a person may be held in custody for their own protection – but this is in regard to a danger from others in the form of threats. The ECHR allows preventative detention but none of which applies to anyone who is intoxicated and held for their own safety. Article 5(1)(e) does refer to detention of alcoholics but case law from the European Court has indicated that this is not a person who is intoxicated in a once-off public order situation. It also held that detention should be the last resort.

The custody regulations 1987 and 2006 provide how a person is to be treated when taken to a garda station and include reference to those who are intoxicated. These regulations provide that a person who is suspected of being drunk should be spoken to and, where necessary, roused by the gaoler every 15 minutes, as per regulation 19(6). This applies in conjunction with regulation 21 and the provision of medical treatment while in custody which specific reference is to intoxication in regulation 21(1) (b) and (c). It places the responsibility on the member in charge to seek medical assistance in specific circumstances.

All of which relates to the person’s time in the station whether being processed or detained under a provision of law which permits their detention. There are the various statutory provisions in Irish Law allowing for the detention of a person for specific periods of time for the proper investigation of the offence for which they were arrested. Some of which are specific to particular criminal offences contained in the statute or the schedule to the Act. The above regulations apply in all of these detentions once the detention has been applied.

There have been coroners’ inquests and tribunals of inquiry into the deaths of people who died during or after being released from garda custody where suspected intoxication was present when arrested; in some cases the coroner has recommended that garda powers be extended to detain a person who is a danger to themselves. This may have an obvious rationale, but does not address the main issue that garda stations are not the appropriate location to detain a person who is intoxicated as to be a continued risk to themselves or others.

It is highly likely that many new recruits may make their first arrest for an offence under section 4 of the Criminal Justice (Public Order) Act, as it was for many of their colleagues. It remains that there is no power of detention within that Act allowing preventative detention for an intoxicated person. It places gardaí in a position where they are required to ensure the safety for a person in their care but with questionable legal powers in doing so other than an Act from 1874. Obligation to the protection of life under the ECHR and the responsibilities under section 7 of the Garda Síochána (2005) Act applies – but there must be a legal basis for garda action.

If any member is concerned that there is any danger to life in a garda station, is the garda station the appropriate place for that person? It leaves a member-in-charge with the duty of care to the person and the decision to release with a possibility they remain under the influence of an intoxicant. There is no detention provision under the current legislation and the situation shall continue to present a policing issue.

Recent developments in road traffic legislation provided a power of detention beyond their processing at the station when arrested for drunken driving. This power to detain is justifiable and proportionate as the processing at the station, if a breath specimen is given and there is presence of alcohol in the breath, or blood or urine specimen is given where a medical doctor is called to the station and the medical opinion is that the arrested person is intoxicated. What results is a report from the intoxilizer or a qualified medical opinion that the person is intoxicated – which can support the garda’s opinion that the person is still intoxicated and not eligible for release for a fixed period provided. An arrest under the Criminal Justice (Public Order) Act is very much a subjective application.

The Pogues and Kirsty MacColl sung about celebrating Christmas Eve in the drunk tank, but that was in America; the drunk tank cannot exist in this jurisdiction under current legislation. It leaves members of An Garda Síochána in the impossible position to navigate their legal powers to ensure that the person is given the best treatment while in custody and that such actions have a basis in law. In the absence of a specific power to detain, it may require a member to seek intervention from a trained medical professional to monitor their recovery, whether in a garda station or an alternative location. 

Darren Martin is a D/Garda. He holds a BL, Barrister-at-Law from the Honourable Society of Kings Inns. A Master of Laws (LL.M) A Master of Science (MSc) in Police Science and Management, A Bachelor of Civil Law (BCL), and a Bachelor of Arts Hons (BA) Administration of Justice. All views expressed do not constitute legal advice.

For full and in-depth coverage, see the current printed edition of Garda Review.

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