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Explainer: What are the new Garda powers and what fines can be given?

The fines will not come into effect for another week or two.

The fines are to be issued only in cases of a 'last resort', says the justice minister.
The fines are to be issued only in cases of a 'last resort', says the justice minister.
Image: LEAH FARRELL

THE GOVERNMENT’S ANNOUNCEMENT that the entire country would move to Level 5 restrictions under the Living with Covid-19 framework came with a suggestion that this would be accompanied by additional enforcement measures.

Today, the government has published the new Bill for fining Covid-19 breaches. 

Let’s take a look at what all this means. 

How are these new Garda powers different than before?

When Level 3 was announced, Justice Minister McEntee said the Gardaí would not be receiving any new powers.

In fact, the Garda Commissioner said that such powers are not necessary and that significant expansion of Garda checkpoints would suffice.

However, as Assistant Professor of Law at Trinity College David Kenny stated, the Level 3 regulations came with no additional enforcement, because most of the measures that existed under Level 3 regulations were not legally enforceable. 

All the Gardaí could do was recommend that people follow the rules.

Now, under Level 5, the government has moved to introduce what is known as a penal provision, which allows for people to be prosecuted for non-conformity with a potential  fine or imprisonment. 

As pointed out previously by Professor Kenny, in the early days of the lockdown, most of the movement restrictions and other measures were binding rules, with potential criminal sanction for not following them. The Gardaí used these powers very sparingly.

With the new laws (which are yet to be enacted) it is believed this will be the case again.

What are the penalties for hosting or attending a house party?

Last night it emerged that fines of €1,000 will be issued to those who organise house parties during the Level 5 restrictions.

Those who are found to be organising parties or gatherings (either the owner of the property or tenant) will face a fine of up to €1,000 in the first instance or imprisonment for one month, or both.

Second offenders face a fine of up to €1,500 or three months imprisonment, or both.

Third or subsequent offenders face a fine of up to €2,500 or six months imprisonment, or both. The €1,000 fine for organising an unauthorised event can be increased if a court believes there were aggravating factors, including number of attendees, danger to health and compliance with Garda orders.

Gardaí will be allowed to call to homes or other indoor venues and ask those present to disperse.

If people refuse to comply with a garda request to leave the party, those attending the party could be hit with a €1,000 fine.

What about other people that are in the vicinity or about to enter a house party?

The new Bill states that where a member of the Garda Síochána finds a person in a public place and suspects, with reasonable cause, that the person:

(a) intends to enter a dwelling for the purpose of attending an event organised in contravention of a dwelling event provision,

(b) is about to enter a dwelling for that purpose, or

(c) is attempting to enter a dwelling for that purpose, the member may direct the person to leave immediately that place and the vicinity thereof in a peaceable and orderly manner

In those instances, they can be asked by the gardaí to disperse. It shall be an offence for any person, without reasonable excuse, to fail to comply with a direction given by a member of the Garda Síochána under this section, says the Bill. 

Those who don’t comply with directions from gardaí could face a fine of up to €1,000 or one month imprisonment, or both.

Government sources state it is not the intention of the law that someone could be returning from the off licence carrying crates of beer or alcohol, be stopped and questioned by gardaí randomly as where they are going, and face being fined if suspected they are going to a house party.

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They state it is for the above reasons only that a gardaí can turn someone around if they believe they’re attending the house party, and generally for people that are in the vicinity of a known gathering taking place.

Can the gardaí enter my home?

No. Absolutely not. 

Under the current law, gardaí are not legally permitted to enter a home without a warrant.

Under the proposed new legislation, gardaí will still not be permitted to enter the home without a warrant.

The Bill sets out that the gardai will only be allowed to “attend at the main entrance of a dwelling”.

When asked this week about giving gardaí powers to enter into someone’s home, the Justice Minister Helen McEntee said “that is not somewhere we want to go”.

Do I have to give gardaí my details?

Gardaí will be empowered to ask for the name of the owner. Those who don’t comply with directions from gardaí could face a fine of up to €1,000 or one month imprisonment, or both.

What will the penalty be for breaking the 5km travel restriction?

People who breach other aspects of the six-week lockdown, such as the 5km travel restriction, face on the spot fines.

The maximum fine will be €500 but the starting fines are expected to be much lower, potentially €60, although this detail has yet to be agreed and does not feature in the legislation.

Remember, there are exemptions to the 5km rule. Travel beyond this limit is allowed for: 

  • to shop for essential items
  • travel to and from work, where work involves providing an essential service 
  • to attend medical appointments and collect medicines and other health products
  • for vital family reasons, such as providing care to children, elderly or vulnerable people, and in particular for those who live alone, as part of an extended household but excluding social family visits
  • to attend a wedding or funeral
  • for farming purposes i.e. food production and/or care of animals
  • to visit a grave

How the Garda are to determine whether someone is in breach of the 5km or allowed to travel beyond the limit for the above reasons is not set out in the legislation, nor did the minister address the question when asked on RTÉ’s Six One News last night.

McEntee said people will always be engaged with and will be asked to comply. Only as a “last resort” will the fines be issued.

What will the penalty be for not wearing a face covering?

In terms of protests, the justice minister has said under the law there is a right for peaceful protests to be held. 

However, the new legislation will stipulate that any large gatherings such as protests, people will be asked to wear face coverings, and if they refuse, they can be issued with a fixed penalty fine.

When will these laws actually come into force?

This Bill will has to go through the Dail and Seanad like any other. 

The extension of the Health Act powers will be debated in the Dáil during three segments tomorrow. 

The government hopes the Bill will be passed within days. However, it is understood that the gardaí will need a lead in time to get systems prepared for a change in the law. 

The Association of Garda Sergeants and Inspectors has already raised its concerns with the practical application of these new powers, saying that they are “concerning” and unclear”. 

It is believed the new laws could be in place by the end of next week, or possibly early the week after at the beginning of November.

What are the concerns?

As stated above, Garda Sergeants and Inspectors have already expressed concern about about whether the laws are even workable. 

Previous to this Bill, the justice minister herself questioned what would happen if someone refused to pay a fine, and would that lead to unwanted pressure on the courts. 

The Irish Council for Civil Liberties (ICCL) Executive Director Liam Herrick has said “unworkable laws are damaging” and only create “legal headaches”. 

He said no one has yet to put a definition on a “house party”, with some concerns about what constitutes a gathering or an event that is is subject to the fines.

“We have had a success in this country I think over the past six months with a community policing approach,” said Herrick.

He added:

“Steamrolling an extension through the Oireachtas without reflection, scrutiny or debate is an affront to our basic democratic procedures and to the duty of our elected representatives to debate our laws. With legislation that creates such extraordinary powers for Ministers with such significant impact on our rights, these democratic processes take on an even greater importance.”

“The legislation gives wide ranging powers to the Minister for Health to make regulations restricting our rights. That includes our rights to move freely, our rights to meet with others, and to enjoy a private and family life, to organise events, and to earn a livelihood.”

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