Politicians and Gardaí Confused on Covid Powers
Updated: Oct 26, 2020
The Covid 19 health threat is an existential one which is growing exponentially, and this is no time for wishful thinking. It is an unseen raging forest fire or fires. It requires credible counter measures while a more permanent solution is found. The classic dilemma is that there is no vaccine and no medicines which can combat. It is a six-month-old crisis and it’s reasonable to assume that response options should have been well settled by now. The Covid 19 graph indicates a very clear pattern which started in March. It was a demonstrable case or cases rising, then levelling off and rising inexorably again. It is inexcusable that the Pandemic response to restrictions seemed to be a "ground - hog" day moment with confusion and contradictions very apparent in the messaging.
Basic Preventative Advice
The health advice has been consistently clear,
Good cough and sneezing etiquette
It is agreed that observance of these measures greatly improve one’s protection.
It is certain that many people took these precautions seriously and equally so that many people did not. Certainly, community transmission and super spreader events contributed to the inexorable rise in cases.
There has been marked reluctance to introduce strong powers to deal with the “Trumpians” in our midst. Both Government, the Policing Authority and the Garda Commissioner placed all their faith in voluntary compliance by all to ensure overall protection. At the very start of the Pandemic the Taoiseach made several statements, outlining g his conviction the State would not become a Police State, and this was a theme which was reinforced by powerful influencers. This was a disingenuous position because no one was suggesting that draconian powers were the panacea.
Policing by Consent (PBC)
The PBC principle was advanced as the underlying rationale for this approach. This idea showed a profound misunderstanding of what PBC means. Policing and Security is practiced in a challenging environment. Interaction is often adversarial and dangerous. There is a fine line to be drawn between Law Enforcement and Community Service. The Irish policing model is based on “policing by consent” but the velvet glove contains a strong legal grip. Modern liberal thinking often considers the panacea is a softly focused policing service concentrating on community service. Scepticism is often expressed about the exercise of power. Experience has taught a valuable lesson that a balance must be achieved between the soft and the hard approach. The correct emphasis may well change from one environment to the other. It certainly is not a case of “one size fits all”. Whatever approach is adopted must be conducted firmly within a rule of law context.
Use of Discretion and Exemptions.
Strong enforcement powers must be exercised in a sensitive and humane manner. The new powers have Operational Integrity. Operational Integrity is a simple proposition, where the measures used can achieve a lawful purpose in a coherent and realistic fashion. The law enforcement agency (An Garda Síochána) must have the operational capacity to use the powers effectively. This requires clear training and instruction focused on a tiered approach.
The classic procedure is where a garda is empowered to;
1. Stop an Individual
2. Demand Name and Address
3. Issue a Direction
4. Deal with Non-Compliance
a. Issue a Fixed Charge Notice (New Regulations)
5. Arrest without Warrant or Proceed by caution or summons (Arrest Not Provided under new regs)
These powers are exercised usually in a public place but could be extended for Arrestable Offences to other locations.
A further complication is that the Minister for Health must issue regulations to give effect to the broad detail contained in the new amending Act. So right now, we don’t the full enforcement spectrum.
Confusion and Omissions
The public discourse indicates that powerful figures in Government and the Garda Commissioner do not favour enforcement powers and have said so publicly. The deteriorating public health situation has produced a “U” turn of this policy. The commissioner when asked to explain his position has said rather plaintively,
Earlier this week, Garda Commissioner Drew Harris expressed some reservations about the potential use of the fines as a means to enforce level 5 Covid-19 restrictions. Speaking on Friday, Commissioner Harris said: "The good thing is the piece of legislation backs this up. I'm a public servant, a good and faithful servant at that, and I'll do as I'm told." We have fines, but they are set in an enforcement sphere. We have to discern then what our policy and practice are with respect to that enforcement,”. Irish Examiner
I’ll do what I’m told is not a professional response from the Commissioner. It sends an apologetic signal to the force – we must do this, but we really don’t like, this is weak leadership and not what is needed now.
The well-publicised 3Es, Engage, Explain and Encourage worked well in March and to a limited extent during the Summer. The emergence of strange, suspicious anti-measures groupings stands well outside the considered response of good citizens. Counter measures for these individuals must be robust whilst recognising they may well play the victim card to attract support for their nihilist ideology. Power is necessary to deal with this minority who absolutely will not conform in the public interest no matter what advice is given – the Trumpian factor in other words. It is very unfair to most caring citizens that the Trumpian minority should be allowed to exploit weaknesses in our preventative system.
Fines on the Spot (FOS)
The enforcement effort seems to be built on a declared Fines on the Spot regime i.e. whereby Gardaí issue fines for non-compliance. Wrong, technically there is no such thing as a FOS, insofar as it exists it is a Fixed Charge Penalty Notice (FCPN). This idea is borrowed from the world of road traffic infringements (speeding etc). The FCPN is the start of a process which will eventually go a District Court hearing if the Penalty is not discharged. This is a long drawn out process requiring the issue of follow up notices, the issue of summonses, the service of summonses and the allocation of a court date for hearing. This can be followed on conviction by an appeal process. Such process could last for over two years if indeed summonses are served in the first instance. There are potentially many gaps in this process chain which could easily defeat any beneficial deterrent effect. Gardaí must use other legislative powers to supplement the fragmented new regime.
Policing the Borders
The evidence supports the proposition that cross border movement has a severe impact on the infection rate particularly in our counties in direct contact with Northern Ireland. Self-evidently this means that the same restrictions which applies to us domestically should apply to visitors from Northern Ireland and the exemptions which applies here should also apply to them. I can hear the strident objections that we can’t seal the border, and this is an impossible obstacle. Not so – Enforcement needs to be fast, agile and flexible. There may be a case for main checkpoints on primary routes from time to time, but the primary enforcement must be undertaken by mobile units operating on a selective basis.
However, there is another gaping omission, Gardaí have no power to enforce a turn back direction to our visitors not indeed to our citizens here.
If you want to explore the legalities, follow these links
Concern for the Future
It frightens us particularly the more vulnerable to a very worrying extent. I have neighbours who were afraid to leave their own homes for a small walk when the “lockdown” commenced. This was due in part to poor messaging because they absolutely believed they were forbidden by regulation to leave their homes. They would be doing something wrong and would be punished for that. It was clear when one delved into the situation that they were advised to not compelled to stay home. This was good advice, but the messaging was over the top. Now that lockdown is with us again it is to be sincerely hoped that the messaging will inform rather than terrify.
Good luck to our leaders, let's hope they've learned some valuable lessons and not just wait for "Ground Hog" day when these six weeks are over.