The Republic of Ireland adopted its current Constitution in 1937. It has since undergone a series of amendments, most recently in 2015. It provides that
the state shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.Art. 40(3)(2), 1937 Constitution of Ireland (as amended through October 2015).
Further, it is specified that
no citizen shall be deprived of his personal liberty save in accordance with law,Art. 40(4)(1), 1937 Constitution of Ireland (as amended through October 2015).and that
the dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law. Art. 40(5), 1937 Constitution of Ireland (as amended through October 2015).
Article 40(6) stipulates that:
the state guarantees liberty for the exercise of the right, subject to public order and morality, to assemble peaceably and without arms.
Provision may be made by law to prevent or control meetings which are determined in accordance with law to be calculated to cause a breach of the peace or to be a danger or nuisance to the general public and to prevent or control meetings in the vicinity of (Parliament).
There is a constitutional provision relating to the Gardai (An Garda Síochána), a law enforcement agency first established in 1923. Article 61(1) of the Transitory Constitutional Provisions (which continue to have effect) stipulate that: "On the coming into operation of this Constitution, the Defence Forces and the Police Forces of Saorstát Éireann in existence immediately before the coming into operation of this Constitution shall become and be respectively the Defence Forces and the Police Forces of the State."
|1966 Covenant on Civil and Political Rights (ICCPR)||State Party|
|ICCPR Optional Protocol 1||State Party|
|1984 Convention against Torture (CAT)||State Party|
|Competence of CAT Committee to receive individual complaints||Yes|
|CAT Optional Protocol 1||Signatory|
|1998 Rome Statute of the International Criminal Court||State Party|
|1950 European Convention on Human Rights||State Party|
Police Use of Force
Guidelines on police use of force in Ireland have not been made public. The Code of Ethics for the Garda Síochána stipulates that the Gardaí have wide-ranging powers including stop and search, detain and arrest, the use of force, and to conduct surveillance. Every time they take a decision to use those powers they will be prepared to account for their actions and explain decisions.Mark Hilliard, "New Garda ethics code: main points", The Irish Times, 23 January 2017, https://www.irishtimes.com/news/crime-and-law/new-garda-ethics-code-main-points-1.2947841.Under the 1976 Criminal Justice Act:
A member of the Garda Síochána may use reasonable force in order to compel a person to comply with a requirement to stop a vehicle, and such force may include the placing of a barrier or other device in the path of vehicles.S. 8(3), 1976 Criminal Justice Act.
In February 2018, it was reported that pepper spray had been used by the Gardai more than 500 times in 2017, which is almost double that of the British Metropoitan Police Service."Pepper spray used by gardaí over 500 times in 2017. Met Police and other UK forces use Tasers, which are not widely available to gardaí", The Irish Times, 19 February 2018, https://www.irishtimes.com/news/crime-and-law/pepper-spray-used-by-garda%C3%AD-over-500-times-in-2017-1.3398022.A new policy on the use of incapacitant sprays was subsequently issued by the Gardai. According to the new policy,
Use of an Incapacitant Spray is one of a number of tactical options available to Gardaí when faced with violence or the threat of violence and it is reasonable to believe that such violence or threat of violence may result in injury to themselves or others, including self-harm by an individual.
The policy further states that incapacitants "should not be used at a distance of less than one meter unless the nature of the risk is such that this cannot be avoided. ... Use within this range may cause injury to soft tissue due to the discharge pressure of the liquid. The area of most concern is the eyes. If used within this distance, Gardaí must be prepared to justify not only the use of the spray, but also their decision to use it within this range."
Excessive use of force that does not result in death may amount to assault or assault causing harm or serious harm: a violation of Sections 2 to 4, respectively, of the 1997 Non-Fatal Offences against the Person Act.
There are no specific legal provisions on use of firearms by the Gardai, which is predominantly an unarmed police service. Instead, the law provides an exemption from licensing requirements under the various Firearms Acts for a member of the Garda Síochána when on duty.Darren Martin, "The guard and the gun", Garda Review, 27 May 2016, http://www.gardareview.ie/index.php/the-guard-and-the-gun/.To be lawful, however, the individual Garda officer must honestly believe that there was an immediate and real risk to life and that the use of lethal force was justified in the circumstances.
The MacLochlainn Commission of Inquiry report noted that the Garda Code, as it applied in 1998, set out specific guidelines to members in various scenarios in which force might be used, including as follows:
In self defence …, the discharge of firearms will be justified if an assailant is seen by a member pointing or discharging a gun at the member or at a member of the public, or if by reason of injuries received by felonious assault, and reasonable grounds are adduced for believing the member or other members of the public to be in peril of life and if no other weapon is at hand to make us of, or if the member is rendered incapable of making use of any such weapon by the previous violence received. The discharge of violence would not be justified merely on the suspicion that a person was in possession of firearms.MacLochlainn Commission of Inquiry Report, para. 13.
There are also rules governing the use of less-lethal weapons by the Gardai. Cillian Blake, an expert on use of force rules in Ireland, recalls in a September 2019 blog entry that in 2007 the Irish Department of Justice stated that:
The circumstances under which less lethal weapons could legitimately be used are limited to circumstances where this is necessary to avoid the use of firearms. The use of firearms is permitted only to repel serious attacks on Gardaí, members of the public or property, or in the arrest or re-arrest of persons involved in serious offences. Strict conditions are laid down, including a requirement in all cases that all other means of achieving the purpose in question have been exhausted, before firearms may be used. The test which currently applies to the use of less lethal weapons, that their use is necessary to avoid the use of firearms, is therefore a high one.Department of Justice press release, April 2007.
The Department of Justice and Equality has set a high threshold for a justifiable use of TASER, which aligns with the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT). The CPT threshold for use of an EDW is:
the use of EDW should be limited to situations where there is a real and immediate threat to life or risk of serious injury. Recourse to such weapons for the sole purpose of securing compliance with an order is inadmissible.Doc. CPT/Inf(2010)28-part).
The Garda Síochána Ombudsman Commission (GSOC) is mandated to oversee use of force by the police and to investigate complaints of excessive use of force. Together with the Policing Authority and Garda Inspectorate, it provides oversight of policing in Ireland. As noted below in the section on caselaw, the United Nations Human Rights Committee and the Committee against Torture have questioned the independence and effectiveness of the GSOC. In September 2018, the national Commission on the Future of Policing in Ireland decided on the establishment of a new consolidated oversight body.
Views and Concluding Observations of United Nations Treaty Bodies
In 2014, the Human Rights Committee expressed concern
at the ability of the Garda Síochána Ombudsman Commission to function independently and effectively, and at the requirement for approval from the Minister of Justice to examine police practices, policies and procedures, and the length of time taken to complete investigations due to lack of cooperation by the police.Human Rights Committee, Concluding Observations on Ireland's fourth periodic report, UN doc. CCPR/C/IRL/CO/4, 19 August 2014, §13.
The Committee called on Ireland to adopt swiftly new legislation
to strengthen the independence and effectiveness of the Garda Síochána Ombudsman Commission. It should also ensure that the proposed establishment of the Garda Síochána Authority does not encroach upon or undermine the work of the Commission, but rather complements and supports it.Human Rights Committee, Concluding Observations on Ireland's fourth periodic report, UN doc. CCPR/C/IRL/CO/4, 19 August 2014, §13.
The Garda Síochána (Policing Authority and Miscellaneous Provisions) Act was adopted in 2015. But in its Concluding Observations in 2017, the Committee against Torture expressed its concern about:
The capacity of the Commission to function independently and effectively and to investigate allegations of torture and ill-treatment, including because of financial and staffing limitations.Committee against Torture, Concluding Observations on Ireland's fourth periodic report, UN doc. CAT/C/IRL/CO/2, 31 August 2017, §19(a).
The Committee recommended that Ireland
Strengthen the independence and effectiveness of the Garda Síochána Ombudsman Commission to receive complaints relating to violence or ill-treatment by the police and to conduct timely, impartial and exhaustive inquiries into such complaints.Committee against Torture, Concluding Observations on Ireland's fourth periodic report, UN doc. CAT/C/IRL/CO/2, 31 August 2017, §20(a).
The Committee against Torture further requested Ireland to
provide, by 11 August 2018, information on follow-up to the Committee’s recommendations on ... strengthening the independence of the Garda Síochána Ombudsman Commission.Committee against Torture, Concluding Observations on Ireland's fourth periodic report, UN doc. CAT/C/IRL/CO/2, 31 August 2017, §37.
European Court of Human Rights
There has, to date, been no case against Ireland involving police use of force that has been concluded with a finding of a violation. As noted below, The MacLochlainn Commission was established concerning an alleged violation by Ireland of the 1950 European Convention on Human Rights based on Ireland's failure to conduct an independent investigation into a fatal police shooting in 1998. The decision in Nic Gibb v. Ireland is available for download below.
The Barr Tribunal
The Barr Tribunal (the sole member being Justice Robert Barr) was tasked with investigating the facts and circumstances surrounding the fatal shooting of John Carthy by members of the Gardais at Abbeylara, County Longford on 20 April 2000. Mr Carthy was suffering from serious mental health problems. An Emergency Response Unit (ERU) team from Dublin was present along with ordinary Gardai officers. The Tribunal published its report in 2006, concluding that serious operational and systemic failures had occurred, and recommending that an urgent review be undertaken of Gardai command structures for dealing with sieges; that greater expertise and training in dealing with people with mental illnesses was urgently needed, and that the ERU be equipped with less-lethal options, including an attack dog unit.
Arrest of Anthony Holness
In 2010, a complaint was made to the Garda Síochána Ombudsman Commission by a man who alleged he had been assaulted by police in the course of his arrest. The GSOC investigation led to a 2013 report that recommended prosecution of four Gardai officers. This was the first prosecution by the Department for Public Prospections following an investigation by GSOC to result in custodial sentences for (three of the four) gardaí.
The MacLochlainn Commission of Inquiry
The MacLochlainn Commission was established in August 2014 to undertake a thorough investigation of the fatal shooting of Mr Ronan MacLochlainn by members of the Garda Síochána in the course of an attempted armed robbery of a Securicor van in Co. Wicklow in May 1998. The Commission of Investigation arose from a case taken by Mr MacLochlainn's partner to the European Court of Human Rights concerning an alleged breach by Ireland of the European Convention on Human Rights owing to a failure to conduct an independent investigation into the shooting. The Court struck out the case on foot of an undertaking by Ireland to establish a Commission of Investigation.
The Commission's report, which was published on 20 December 2018, found that the shooting of Mr MacLochlainn was legally justified, but it identified serious deficiencies in the Garda investigation of the shooting, as well as in relation to record keeping, the disclosure of information, and other matters.
Commission on the Future of Policing
In September 2018, Ireland's Commission on the Future of Policing presented its report. It decided that a new body, the Policing and Community Safety Commission, will supersede both the Policing Authority and the Garda Inspectorate. Under the Commission’s proposals, the new body will investigate incidents and not only individuals, to find fault where appropriate, and identify lessons for the organisation. It will carry out all investigations itself, so that police will no longer be investigating themselves as is now sometimes the case. The Commission also called on the Police to develop a plan to deploy body-worn cameras. It had also been expected to offer recomendations on less-lethal weapons, especially tasers, but did not do so.