Garda Síochána Act 2005

PART 1 Preliminary Matters

1. Short title.

1.—This Act may be cited as the Garda Síochána Act 2005.

2. Commencement.

2.— (1) This Act comes into operation on the day that the Minister may, by order, appoint.

(2) Different days may be appointed under this section, by one or more than one order, for different purposes or different provisions of this Act and, in relation to the repeals effected by section 4, for the repeal of different provisions of the enactments referred to in Schedule 1 or for the repeal for different purposes of those enactments.

3. Interpretation.

3.— (1) In this Act, unless the context otherwise requires—

F1[“Authority”means the Policing Authority established bysection 62B;

“Chief Executive”means the chief executive officer of the Authority appointed undersection 62P;

“committee”means a committee of the Authority established undersection 62K;]

“Committee of Public Accounts” means the committee of Dáil Éireann established under the Standing Orders of Dáil Éireann to examine and report to Dáil Éireann on the appropriation accounts and reports of the Comptroller and Auditor General;

“complaint” means a complaint made under Part 4;

“Disciplinary Regulations” means—

(a) the 1989 Regulations, as amended under section 128, for as long as they continue to be in force under that section, or

(b) any regulations in force under section 123;

“document” means any book, record or other written or printed material in any form, including information stored, maintained or preserved by means of any mechanical or electronic device, whether or not stored, maintained or preserved in legible form;

“establishment day” means the day appointed under section 63;

F1[“establishment day of the Authority”means the day appointed undersection 62A;]

“Garda Commissioner” means the Commissioner of the Garda Síochána;

“functions” includes powers and duties and references to the performance of functions include, with respect to powers and duties, references to the exercise of the powers and the carrying out of the duties;

“joint policing committee” means a committee established under section 36;

F1[“local authority”has the meaning it has in theLocal Government Act 2001;]

“member”, in relation to the Garda Síochána, means—

(a) a member of any rank (including the Garda Commissioner) appointed under Part 2 or under an enactment repealed by this Act, and

(b) a reserve member,

but does not include a member of the civilian staff of the Garda Síochána;

“Minister” means the Minister for Justice, Equality and Law Reform;

“Ombudsman Commission” means the Garda Síochána Ombudsman Commission established under section 64;

F1[“policing principles”shall be read in accordance withsection 3B;

“policing services”means the functions of the Garda Síochána referred to insection 7other than the provision of security services;]

“prescribed” means prescribed by regulation;

“regulations” means regulations continued in force under this Act or made by the Minister under this Act;

“1989 Regulations” means the Garda Síochána (Discipline) Regulations 1989 (S.I. No. 94 of 1989);

“reserve member” means a person appointed under section 15 as a reserve member of the Garda Síochána.

F1[“security services”shall be read in accordance withsection 3A;

“Service”means the Public Appointments Service.]

(2) In this Act—

(a) a reference to a section, Chapter, Part or Schedule is to a section, Chapter or Part of, or a Schedule to, this Act, unless it is indicated that reference to some other enactment is intended,

(b) a reference to a subsection, paragraph or subparagraph is to the subsection, paragraph or subparagraph of the provision in which the reference occurs, unless it is indicated that reference to some other provision is intended, and

(c) a reference to any other enactment is to that enactment as amended by or under any other enactment, including this Act, unless the context otherwise requires.

3A. F3[Security services

3A.(1) In this Act "security services", subject tosubsection (2), means the functions of the Garda Síochána referred to insection 7that are concerned with—

(a) protecting the security of the State including, but not limited to, the following:

(i) preventing, detecting and investigating offences under the Offences against the State Acts 1939 to 1998, theCriminal Law Act 1976, theCriminal Justice (Terrorist Offences) Act 2005and theCriminal Justice (Money Laundering and Terrorist Financing) Act 2010;

(ii) protecting the State from—

(I) espionage,

(II) sabotage,

(III) unlawful acts that subvert or undermine, or are intended to subvert or undermine, parliamentary democracy or the institutions of the State, and

(IV) acts of foreign interference that are, or are intended to be, detrimental to the interests of the State and are clandestine or deceptive or involve a threat to any person,

whether directed from, or committed or intended to be committed within, the State or not,

(b) identifying foreign capabilities, intentions or activities within or relating to the State that impact on the international well-being or economic well-being of the State, and

(c) co-operating with authorities in other states and international organisations aimed at preserving international peace, public order and security.

(2) The reference insubsection (1)to the functions of the Garda Síochána referred to insection 7that are concerned with protecting the security of the State does not include lawful advocacy, protest or dissent by any person.

(3) Where a question or dispute arises as to whether a particular matter relates to policing services or security services, the question or dispute shall be submitted to the Minister for determination.

(4) The determination by the Minister of the question or dispute referred to him or her undersubsection (3)shall be final.]

3B. F4[Policing principles

3B.In this Act "policing principles" means—

(a) the principle that policing services are to be provided—

(i) independently and impartially,

(ii) in a manner that respects human rights, and

(iii) in a manner that supports the proper and effective administration of justice,

and

(b) the principle that effective and efficient policing is dependent on securing the confidence, support and co-operation of local communities and engaging with those communities.]

4. Repeals.

4.— Each enactment specified in Schedule 1 is repealed to the extent specified in column (3) of that Schedule.

5. Expenses.

5.— The expenses incurred in respect of the Garda Síochána F5[and the Authority] under this Act and any other expenses incurred in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of money provided by the Oireachtas.

PART 2 Garda Síochána

Chapter 1

6. Continuation of Garda Síochána.

6.— (1) The police force called the Garda Síochána continues in being under this Act as a police service.

(2) The Government may continue to maintain, equip and pay the Garda Síochána.

7. Function of Garda Síochána.

7.— (1) The function of the Garda Síochána is to provide F6[policing and security, including vetting, services for the State] with the objective of—

(a) preserving peace and public order,

(b) protecting life and property,

(c) vindicating the human rights of each individual,

(d) protecting the security of the State,

(e) preventing crime,

(f) bringing criminals to justice, including by detecting and investigating crime, and

(g) regulating and controlling road traffic and improving road safety.

(2) For the purpose of achieving the objective referred to in subsection (1), the Garda Síochána shall co-operate, as appropriate, with other Departments of State, agencies and bodies having, by law, responsibility for any matter relating to any aspect of that objective.

(3) In addition to its function under subsection (1), the Garda Síochána and its members have such functions as are conferred on them by law including those relating to immigration.

(4) This section does not affect any powers, immunities, privileges or duties that members of the Garda Síochána have by virtue of any other enactment or at common law.

(5) This section is not to be taken to confer on any person a right in law that he or she would not otherwise have to—

(a) require the Garda Síochána to perform a function or provide a service referred to in this section or to desist from any action, or

(b) seek damages for a member of the Garda Síochána’s performance of, or failure to perform, such function or for his or her provision of, or failure to provide, such service.

8. Prosecution of offences by members of Garda Síochána.

8.— (1) No member of the Garda Síochána in the course of his or her official duties may institute a prosecution except as provided under this section.

(2) Subject to subsection (3), any member of the Garda Síochána may F7[institute or conduct] prosecutions in a court of summary jurisdiction, but only in the name of the Director of Public Prosecutions.

F8[(2A) Where a prosecution is instituted by a member of the Garda Síochána pursuant tosubsection (2), the prosecution may be conducted by that member or any other such member.]

(3) In deciding whether to institute and in instituting or conducting a prosecution, a member of the Garda Síochána shall comply with any applicable direction (whether of a general or specific nature) given by the Director of Public Prosecutions under subsection (4).

(4) The Director of Public Prosecutions may give, vary or rescind directions concerning the institution and conduct of prosecutions by members of the Garda Síochána.

(5) Directions under subsection (4) may be of a general or specific nature and may, among other things, prohibit members of the Garda Síochána from—

(a) instituting or conducting prosecutions of specified types of offences or in specified circumstances, or

(b) conducting prosecutions beyond a specified stage of the proceedings.

(6) If a prosecution is instituted or conducted by a member of the Garda Síochána in the name of the Director of Public Prosecutions—

(a) the member is presumed, unless the contrary is proved, to have complied with this section and any applicable direction given by the Director under this section, and

(b) nothing done by the member in instituting or conducting the prosecution is invalid by reason only of the member’s failure to comply with this section or that direction.

(7) Nothing in this section—

(a) precludes the Director of Public Prosecutions from, at any stage of the proceedings, assuming the conduct of a prosecution instituted by a member of the Garda Síochána, or

(b) authorises a member of the Garda Síochána to institute a proceeding without the consent of the Director of Public Prosecutions if an enactment prohibits the institution of that proceeding except by or with the Director’s consent.

(8) For the purpose of this section—

(a) a direction is of a general nature if it relates to a class of prosecutions, and

(b) a direction is of a specific nature if it relates to the prosecution of a person for a specific offence.

Chapter 2

9. Appointment of Garda Commissioner.

F9[9.(1) Subject to this section, the appointment of a person to be the Commissioner of the Garda Síochána shall, upon the nomination of the Authority, be made by the Government.

(2) The Authority shall not nominate a person undersubsection (1)unless it has, with the prior approval in writing of the Government, invited the Service to undertake a selection competition for that purpose and the Service has undertaken such a competition.

(3) The Authority shall, with the approval of the Minister, agree with the Service the requirements relating to knowledge, ability and suitability for appointment as the Garda Commissioner for the purposes of a selection competition under this section.

(4) A person shall not be nominated by the Authority undersubsection (1)unless it is satisfied that the person is suitable for appointment as the Garda Commissioner by reason of his or her possessing such relevant experience, qualifications, training or expertise as is appropriate having regard, in particular, to the functions assigned to the Garda Commissioner by or under this Act.

(5) The Service shall provide the Authority with particulars of the experience, qualifications, training and expertise of a person whom it recommends for nomination by the Authority undersubsection (1)for appointment as the Garda Commissioner.

(6) Subject tosubsection (7), where the Authority nominates a person for appointment as the Garda Commissioner undersubsection (1), the Government shall accept the nomination.

(7) (a) In exceptional circumstances, where the Government, for substantial and stated reasons, are unable to accept the nomination by the Authority of a particular person for appointment as the Garda Commissioner, they shall inform the Authority of that fact and the reasons for it and request the Authority to nominate another person for appointment.

(b) The Authority shall—

(i) consider the Government’s reasons provided in accordance withparagraph (a), and

(ii) unless the Authority disagrees with those reasons and wishes to make representations to the Government in that behalf,

nominate another person for appointment.

(8) A person who holds the office of Garda Commissioner may resign from office by notice in writing addressed to the Minister and the resignation shall take effect on the date the Minister receives the notice or, if a date is specified in the notice and the Minister agrees to that date, on that date.

(9) The Government shall, as soon as may be, inform the Authority of the resignation of a person undersubsection (8).]

10. Appointment of Deputy and Assistant Garda Commissioners.

F10[10.(1) The Government may determine the number of persons who may be appointed to the rank of Deputy Garda Commissioner and, subject to this section, the appointment of a person to that rank shall, upon the nomination of the Authority, be made by the Government.

(2) The Authority shall not nominate a person undersubsection (1)unless it has, with the prior approval in writing of the Government, invited the Service to undertake a selection competition for that purpose and the Service has undertaken such a competition.

(3) The Authority shall, with the approval of the Minister, agree with the Service the requirements relating to knowledge, ability and suitability for appointment to the rank of Deputy Garda Commissioner for the purposes of a selection competition under this section.

(4) A person shall not be nominated by the Authority undersubsection (1)unless it is satisfied that the person is suitable for appointment to the rank of Deputy Garda Commissioner by reason of his or her possessing such relevant experience, qualifications, training or expertise as is appropriate having regard, in particular, to the functions that may be assigned to a member of that rank.

(5) The Service shall provide the Authority with particulars of the experience, qualifications, training and expertise of a person whom it recommends for nomination by the Authority undersubsection (1)for appointment to the rank of Deputy Garda Commissioner.

(6) Subject tosubsection (7), where the Authority nominates a person for appointment to the rank of Deputy Garda Commissioner undersubsection (1), the Government shall accept the nomination.

(7) (a) In exceptional circumstances, where the Government, for substantial and stated reasons, are unable to accept the nomination by the Authority of a particular person for appointment to the rank of Deputy Garda Commissioner, they shall inform the Authority of that fact and the reasons for it and request the Authority to nominate another person for appointment.

(b) The Authority shall—

(i) consider the Government’s reasons provided in accordance withparagraph (a), and

(ii) unless the Authority disagrees with those reasons and wishes to make representations to the Government in that behalf,

nominate another person for appointment.

(8) A person who holds the office of Deputy Garda Commissioner may resign from office by notice in writing addressed to the Minister and the resignation shall take effect on the date the Minister receives the notice or, if a date is specified in the notice and the Minister agrees to that date, on that date.

(9) The Government shall, as soon as may be, inform the Authority of the resignation of a person undersubsection (8).]

11. Removal of Garda Commissioner, Deputy Garda Commissioner or Assistant Garda Commissioner from office.

F11[11.(1) Subject tosection 12, a person who holds the office of Garda Commissioner or Deputy Garda Commissioner may be removed from office by the Government, but only for stated reasons, including because—

(a) the person has failed to perform the functions of the office with due diligence and effectiveness or, in the case of the Garda Commissioner, has failed to have regard to any of the matters specified insection 26(2),

(b) the person has engaged in conduct that brings discredit on the office or that may prejudice the proper performance of the functions of the office, or

(c) the removal of the person from office would, in the opinion of the Government, be in the best interests of the Garda Síochána.

(2) The Authority may, for the purposes ofsubsection (1), recommend to the Government the removal from office of a person who holds the office of Garda Commissioner or Deputy Garda Commissioner if the reasons for removal relate to policing services, and the Government shall consider any such recommendation.

(3) Subject tosection 13A, a person who holds the office of Assistant Garda Commissioner, chief superintendent or superintendent may be removed from office by the Authority, but only for stated reasons related solely to policing services, including because—