Gardaí have some of the most extensive powers of anyone in Ireland. They can legally use force. They can arrest you, detain you and prosecute you.
So when we talk about expanding their powers, we need to be aware that we’re adding to a considerable existing arsenal – and the recent emergency legislation to combat Covid-19 expanded their powers significantly.
At the outset of the crisis, the government took the steps that public health experts said were necessary to stop Covid-19 spreading.
They passed emergency legislation on 20 March which gave the Minister for Health power to make regulations banning events, and making it illegal to move around the country or leave home without a reasonable excuse.
Where somebody breaches these regulations, they could face a €2,500 fine or six months in prison.
In mid-March, the Gardaí launched an operation based on consent and not on new powers because no regulations had been passed. According to Garda Commissioner Drew Harris, there was widespread voluntary compliance. Nevertheless, the government decided to put regulations into effect granting new powers of enforcement to the Gardaí on 8 April.
Gardaí were given the power to ask for names and addresses and where this was refused they could arrest someone. They were given the power to tell anyone they suspected of breaching the regulations to comply or they could arrest them. And they were given the power to assist a medical officer to detain someone refusing to self-isolate.
The Irish Council for Civil Liberties, where I work, asked why these new powers, which moved policing from consent to enforcement, were necessary. After all, there had been widespread compliance with public health advice.
Since then we have seen Garda checkpoints mounted throughout the country, despite the fact that according to the Gardaí’s own statistics we still have almost full compliance. On 1 May, of 13,324 cars checked by police at one checkpoint, only 21 were requested to turn around, and all agreed to do so without any use of the new powers.
Being stopped on the road whether you’re walking, cycling or driving is a significant interference with your right to liberty. In normal times, the Gardaí are only allowed to stop you if they have a reasonable suspicion that you have committed or are about to commit a crime.
Obviously, these are not normal times. But our rights protected by the Irish Constitution and human rights law cannot be suspended. They can only be limited where it is demonstrably necessary and the limits are as minimal as possible to achieve a legitimate aim.
Protecting public health where there is a grave risk to life is a legitimate aim. But is this widespread interference with our liberty across the country the most minimal interference with our rights possible to achieve that aim?
The Risks of Overreach
There are two key risks in expanding Garda powers: an overuse of those powers, and an extension of activity deemed acceptable in emergency times into ordinary times.
On the first risk, reports to the Irish Council of Civil Liberties that Gardaí were checking shopping bags, asking for ID at checkpoints and conducting more stop and searches than usual were of concern. None of these activities are provided for under the legislation.
On the second risk, we have two possible examples already. One is the use of armed police at checkpoints. The second is the introduction of spit hoods into the Garda arsenal.
An Garda Síochána is an unarmed police force – as it has been since the foundation of the state. There are many arguments in favour of continuing this policy beyond the scope of this article. But one thing is clear. If we are to shift to an armed police force we need to have a significant public debate.
Meanwhile, there’s the question of spit hoods. Spit hoods are placed over someone’s entire head against their will to stop them spitting. Placing a hood over someone’s head is regarded from a human rights perspective as unacceptable. It potentially amounts to cruel, inhuman or degrading treatment which is prohibited under human rights law.
Evidence from other jurisdictions suggests that these hoods can exacerbate dangerous situations, cause serious injuries, and in some cases have led to the deaths of detainees.
Spitting is of course repulsive behaviour and is defined as an assault at any time, and can be prosecuted and punished, at any time.
Fears around transmission of Covid through spitting, while understandable, don’t provide sufficient justification for using these hoods if we consider that Gardaí have access to full face visors to protect themselves, and to the normal Personal Protective Equipment (PPE) considered good enough for healthcare staff in hospitals interacting with confirmed cases.
The Garda Commissioner has said their use will be reviewed on 1 September. The Minister for Justice has said he doesn’t want their use extended but we also know 16,000 have been ordered.
I suspect we’ll need to keep a close eye on what happens.
Policing by Consent
Another expanded role for the Gardaí is their potential enforcement of the 14 day quarantine for people travelling into Ireland from abroad. The Minister for Health said this week that he wants to put this requirement on a legal footing.
This is problematic for a number of reasons, not least the fact that the WHO has said it prefers consent over enforcement when it comes to public health compliance to ensure people seek the assistance they need.
Providing people with information, rather than a threat of punishment, encourages them to contact authorities if they have symptoms – which is critical in a public health emergency.
There should also be a clear distinction between any garda operation to enforce quarantine and enforcement of immigration rules. If Gardaí are using Covid checkpoints to carry out ordinary policing, we may see this happen with immigration policing too. Extraordinary powers granted in an emergency should not be used to further other policing State aims, including immigration law.
The Commission on the Future of Policing recommended reshaping An Garda Síochána into a community police force with human rights at its foundation. We have seen during this health crisis that Gardaí can play a significant and valuable role in supporting communities. We know that assistance has been given to vulnerable people and there have been special efforts to support those with particular needs.
This is where the emphasis needs to remain: policing by consent by an unarmed police force that considers human rights standards as the guiding principles in its day to day decisions.
Significantly expanding their powers of enforcement, deploying armed police at ordinary checkpoints and continuing the use of spit hoods beyond 1 September may undermine this goal.