TREATMENT OF PERSONS IN CUSTODY: Legal safeguards for persons with learning disabilities

Inspector Owen O’Donnell, Garda College, wrote this article which first appeared in the Down Syndrome Association of Ireland Newsletter


People detained in Garda Síochána stations in connection with the commission of criminal offences, especially those detained for the first time, may feel traumatised or vulnerable. Where a person detained has a particular disability, permanent or temporary, it is most important that the effect of the disability on the detainee is taken into account. Gardaí are conscious of the special difficulties involved. Over the years the Irish courts have also been vigilant in adjudicating on any case in which the circumstances and treatment of persons in custody have been called into question. The requirements of the criminal law and standard Garda procedures combine to ensure justice for detainees.

The main legal provisions protecting persons with a learning disability while in policy custody are contained in the Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Síochána Stations) Regulations 1987. These regulations are designed to provide safeguards for persons in custody from improper behaviour by members of the Garda Síochána, and also to provide safeguards for Gardaí against whom unjustified allegations may be made.

The custody regulations are prefaced by the requirement that, in carrying out their functions, Gardaí shall act with due respect for the personal rights of persons in custody and their dignity as human persons, and shall have regard for the special needs of any of them who may be under a physical or mental disability. This standard of conduct of members of the Garda Síochána is set out in the Code of professional and Ethical Standards issued to each individual member of the force.

The member in charge

The regulations require the appointment of a particular person known as ‘the member in charge’ who has a general responsibility for overseeing the application of the regulations; his duties include visiting persons in custody from time to time and making any necessary enquiries in relation to them.

The custody record

A written record is kept in respect of each person in Garda custody. All details in relation to the arrested person are recorded, including: a) the date, time and place of arrest and the name of arresting Garda; b) the time of arrival at the station; c) the nature of the offence or other matter in respect of which he was arrested; and d) any relevant particulars relating to his physical or mental condition.

There is also a general requirement that all other matters having relevance to the custody of the arrested person be likewise recorded.

Information which must be given

The member in charge must, without delay, inform an arrested person, or cause him to be informed, in ordinary language of the offence or other matter in respect of which he has been arrested and that he is entitled to consult a solicitor. Where the arrested person has a learning disability handicapped, he will be informed that a parent or guardian is being requested to attend at the station without delay. The parent/guardian will be informed of the custody in the station, the offence in respect of which the person has been arrested, and his entitlement to consult a solicitor. The parent/guardian will also be requested to attend at the station without delay.

Access to solicitor

Where a solicitor has been requested, he will be notified as soon as practicable. The person in custody is entitled to have reasonable access to his solicitor and to be enabled to communicate with him privately. Such consultation may take place in the sight of, but out of hearing of, a Garda.

Questioning of persons in custody

Only in exceptional circumstances may a person with a learning disability in Garda custody be questioned in relation to an offence, or be asked to make a written statement, without a parent/guardian being present. The member in charge may authorise questioning only in circumstances where it has not been possible to communicate with a parent/guardian or where no parent/guardian has attended at the station within a reasonable time of having been requested to attend. Questioning may also be authorised where the member in charge has reasonable grounds for believing that to delay questioning would involve a risk of injury to persons, serious loss or damage to property, destruction of or interference with evidence, or escape of accomplices.

Even in these exceptional circumstances, the member in charge must arrange for the presence of some other adult, i.e. an adult relative or some other responsible adult other than a member of An Garda Síochána. The responsible adult referred to shall, whenever practicable, be a person with experience in dealing with persons with a learning disability. Any of the above persons may request the attendance of a solicitor on behalf of the person in custody.

Any questioning of an arrested person must be conducted in a fair and humane manner. The Garda conducting the questioning must identify himself and any other members present by name and rank to the arrested person and other persons, as appropriate. Interviews should, as far as practicable, only take place in rooms set aside for that purpose. Where a request for the attendance of a solicitor has been made, the arrested person should not be asked to make a written statement in relation to an offence until a reasonable time for the attendance of a solicitor has elapsed.

Any prolonged periods of interviewing should be either terminated or adjourned for a reasonable time, with adequate rest periods, refreshments and toilet facilities provided. Only in exceptional circumstances may the member in charge authorise questioning between midnight and 8 am.

There is a general requirement that no member of the Garda Síochána shall subject a person in custody to ill-treatment of any kind, or the threat of ill-treatment (whether against the person himself, his family or any other person connected with him), or permit any other person to do so.

Charging of offence

Where a person with a learning disability has been charged with an offence, a copy of the charge sheet containing particulars of the charge should be given to him and also to his parent/guardian.

The taking of fingerprints, etc.

Fingerprints, palm-prints or photographs shall not be taken of, or swabs or samples taken from, a person in custody (otherwise than pursuant to a power conferred by law, e.g. Section 6 of the Criminal Law (Forensic Evidence) Act 1990), except with his written consent. In the case of persons with a learning disability, the written consent of an appropriate adult is also required.


All persons in custody in Garda stations can feel vulnerable and, no doubt, a person with a disability may experience detention in a more traumatic and fearful way. The custody regulations cannot eliminate trauma and fear, but the safeguards contained in them are designed to protect the civil rights of citizens who find themselves in police custody. Parents and friends of persons with a learning disability can be reassured that within our system of justice the rights of persons with a disability are protected, and that Gardaí are sensitive to their special needs.


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