Emergency Services RTA Exemption

ED E

Hi Folks

2010 amends Sec 87 as follows

(1) Requirements under the Road Traffic Acts 1961 to 2010 relating to vehicles and requirements, restrictions and prohibitions relating to the driving and use of vehicles, other than those provided under sections 49, 50, 51A, 52 and 53 of the Principal Act, sections 12, 13 and 15 of the Act of 1994 and sections 4, 5, 11, 12 and 14 of this Act, do not apply to—

(a) the driving or use by a member of the Garda Sh, an ambulance service (provided by a.. {SNIP}) or a fire brigade of a fire authority (within the meaning of the Fire Services Act 1981 ) of a vehicle in the performance of the duties of that member, or

(b) a person driving or using a vehicle under the direction of a member of the Garda Sh,

where such use does not endanger the safety of road users.”.

Is a member of AGS performing their duties if uninformed but on their dinner break?

Additionally following the letter of the law would say parking on a junction corner be endangering road users or would what constitutes said be entirely up to a judges interpretation in a hypothetical case?

Ta.

Claw Hammer

ED E wrote: »

Hi Folks

2010 amends Sec 87 as follows


Is a member of AGS performing their duties if uninformed but on their dinner break?

Additionally following the letter of the law would say parking on a junction corner be endangering road users or would what constitutes said be entirely up to a judges interpretation in a hypothetical case?

Ta.

The usual view is that it must be a car owned by the minister. A garda is a garda 24/7. Even off duty he could see a suspect he has been trying to speak to for months and may have to break the RTA.

ED E

Thats fine, but if he's going to spar during his break is that part of his duty too (in a patrol car)?

coylemj

Claw Hammer wrote: »

The usual view is that it must be a car owned by the minister. A garda is a garda 24/7. Even off duty he could see a suspect he has been trying to speak to for months and may have to break the RTA.

He wouldn't be covered by insurance driving his own car chasing after a suspect.

Claw Hammer

coylemj wrote: »

He wouldn't be covered by insurance driving his own car chasing after a suspect.

Unless he has business use. He might pull in to park and watch a suspect or shadow the suspect.

lifeandtimes

As is said before a guard is a guard 24/7.

If theu parked on a double yellow during his lunch it's fine because if a call came in and him/her needed to respond immediately they would need quick access to their car and wouldn't have time running through a car park.

So in that view I think we can all agree it's ok for them to park there.

Same goes for EMTs etc

ED E

lifeandtimes wrote: »

So in that view I think we can all agree it's ok for them to park there.

Cant say I agree if it causes another road user to end up under a bus for the sake of 10m and 10 seconds.

GM228

ED E wrote: »

Is a member of AGS performing their duties if uninformed but on their dinner break?

A member of Gardaí is considered to be performing their duties once they are on duty. As they have paid breaks they are at the disposal of their employer and so are on duty.

ED E wrote: »

Additionally following the letter of the law would say parking on a junction corner be endangering road users or would what constitutes said be entirely up to a judges interpretation in a hypothetical case?

That would be open to interpretation of a judge, but unless something actually happened as a potential result of where a Garda vehicle was parked the issue would never arise.

GM228

Claw Hammer wrote: »

The usual view is that it must be a car owned by the minister. A garda is a garda 24/7. Even off duty he could see a suspect he has been trying to speak to for months and may have to break the RTA.

Hum.

Nothing requires the vehicle to be owned by the state. The exemption applies to the member driving "a vehicle", not to a state vehicle. The qualifying criteria is based on being a member of the emergency services, not being a state owned vehicle.

An off duty Garda can't legally break the RTAs, there is a huge difderence between a Garda's duties and their statutory powers. Exercising a statutory power whilst off duty is not the same as performing their duties whilst on duty.

Powers are not duties, powers supplement duties.

Claw Hammer

GM228 wrote: »

Hum.

Nothing requires the vehicle to be owned by the state. The exemption applies to the member driving "a vehicle", not to a state vehicle. The qualifying criteria is based on being a member of the emergency services, not being a state owned vehicle.

An off duty Garda can't legally break the RTAs, there is a huge difderence between a Garda's duties and their statutory powers. Exercising a statutory power whilst off duty is not the same as performing their duties whilst on duty.

Powers are not duties, powers supplement duties.

The situation is that a garda exercises his statutory powers in powers in the course of his duty. He does not have the authorisation to use the powers at any other time.

lifeandtimes

Claw Hammer wrote: »

The situation is that a garda exercises his statutory powers in powers in the course of his duty. He does not have the authorisation to use the powers at any other time.

So a guard can't arrest a suspect on the run they have been investigating they see on the street while off duty?

That is not true, a citizen can even perform a citizens arrest.

source

Claw Hammer wrote: »

The situation is that a garda exercises his statutory powers in powers in the course of his duty. He does not have the authorisation to use the powers at any other time.

This is incorrect, a Garda is a Garda 24/7/365, when attested he takes on his statutory powers. The only time he can't exercise these powers until the day he leaves AGS is when outside the jurisdiction.

In practice, it can often be too dangerous for an off duty Garda to intervene due to lack of PPE. In this situation the Garda will monitor until his colleagues who are working can get to the scene. But the power to intervene is there.

Claw Hammer

source wrote: »

This is incorrect, a Garda is a Garda 24/7/365, when attested he takes on his statutory powers. The only time he can't exercise these powers until the day he leaves AGS is when outside the jurisdiction.

In practice, it can often be too dangerous for an off duty Garda to intervene due to lack of PPE. In this situation the Garda will monitor until his colleagues who are working can get to the scene. But the power to intervene is there.

If he is exercising the powers he is on duty. The powers are given to him for the purpose of use on duty. It would be an abuse to use them at any other time.A guard cant stop traffic just for fun on his day off. If he is on his day off and decides to arrest a suspect he encounters he is on duty as he is carrying out an official duty.

source

Claw Hammer wrote: »

If he is exercising the powers he is on duty. The powers are given to him for the purpose of use on duty. It would be an abuse to use them at any other time.A guard cant stop traffic just for fun on his day off. If he is on his day off and decides to arrest a suspect he encounters he is on duty as he is carrying out an official duty.

Again, not correct. A Garda is on duty when he is rostered to work.

He is always a Garda.

Claw Hammer

lifeandtimes wrote: »

So a guard can't arrest a suspect on the run they have been investigating they see on the street while off duty?

That is not true, a citizen can even perform a citizens arrest.

That is nonsense. A citizen can't arrest a suspect. A guard always can.

lifeandtimes

Claw Hammer wrote: »

That is nonsense. A citizen can't arrest a suspect. A guard always can.

You really need to do your research before commenting.

Criminal Law Act, 1997

4.—(1) Subject to subsections (4) and (5), any person may arrest without warrant anyone who is or whom he or she, with reasonable cause, suspects to be in the act of committing an arrestable offence

http://www.irishstatutebook.ie/eli/1997/act/14/section/4/enacted/en/html#sec4

Victor

Claw Hammer wrote: »

A citizen can't arrest a suspect.

Not quite. A non-Garda can arrest where a power of arrest exists. For ordinary citizens, this exists with serious crimes at the time of the offence.

Claw Hammer

lifeandtimes wrote: »

You really need to do your research before commenting.

Criminal Law Act, 1997

4.—(1) Subject to subsections (4) and (5), any person may arrest without warrant anyone who is or whom he or she, with reasonable cause, suspects to be in the act of committing an arrestable offence

http://www.irishstatutebook.ie/eli/1997/act/14/section/4/enacted/en/html#sec4

It has to be an arrestable offence. Many offences are not arrestable. There are other pre-conditions as well which don't apply to a guard. The power of arrest is not confined to a citizen either. Any person can mean a non citizen.

source

Claw Hammer wrote: »

It has to be an arrestable offence. Many offences are not arrestable. There are other pre-conditions as well which don't apply to a guard. The power of arrest is not confined to a citizen either. Any person can mean a non citizen.

We're all aware that any person can be a non citizen as you put it, however the coloquial term for that section of legislation is "Citizens Arrest".

The fact that you're splitting hairs over such a thing just further proves you don't know what you're talking about.

Victor

ED E wrote: »

2010 amends Sec 87 as follows

Note that a new section 87 was inserted by section 23 of the Road Traffic Act 2014 http://www.irishstatutebook.ie/eli/2014/act/3/section/23/enacted/en/html with changes at (1) and (a). This relates to Preliminary impairment testing and types of ambulance.

Claw Hammer wrote: »

The usual view is that it must be a car owned by the minister.

No. The act contemplates gardaí using other vehicles and even "a person driving or using a vehicle under the direction of a member of the Garda"

A garda is a garda 24/7. Even off duty he could see a suspect he has been trying to speak to for months and may have to break the RTA.

And there is a procedure for the garda to contact their station to be on-duty for such situations.

coylemj wrote: »

He wouldn't be covered by insurance driving his own car chasing after a suspect.

As above, they can come on duty for such purposes and therefore be covered by the minister.

lifeandtimes wrote: »

If theu parked on a double yellow during his lunch it's fine

Only if it is safe, as contemplated by the act.

lifeandtimes wrote: »

Same goes for EMTs etc

Again, only within specific criteria, which are tighter for an ambulance than a garda.

GM228 wrote: »

A member of Gardaí is considered to be performing their duties once they are on duty. As they have paid breaks they are at the disposal of their employer and so are on duty.

Note the wording is "in the performance of the duties of that member", so if they are doing some private business (stopping to talk to a family member, dropping a letter to the post box) while on duty, I can't see how that is covered.

GM228 wrote: »

That would be open to interpretation of a judge, but unless something actually happened as a potential result of where a Garda vehicle was parked the issue would never arise.

Parked on footpath in bus stop forcing elderly lady to board bus in middle of road?

GM228 wrote: »

The qualifying criteria is based on being a member of the emergency services

Rather, being a member of certain emergency services - Coast Guard, mountain rescue, etc. aren't covered.

Claw Hammer wrote: »

The situation is that a garda exercises his statutory powers in powers in the course of his duty. He does not have the authorisation to use the powers at any other time.

That authorisation can be gained by contacting their station and/or out of necessity - there was a case years ago of an off-duty garda intervening in an armed robbery at a bookmakers. There is an arguable obligation on them to use their powers to prevent (very) serious crime (UK case law, persuasive but no binding here).

lifeandtimes

Claw Hammer wrote: »

It has to be an arrestable offence. Many offences are not arrestable. There are other pre-conditions as well which don't apply to a guard. The power of arrest is not confined to a citizen either. Any person can mean a non citizen.

I think most people would have the foresight to know what is and is not an arrestable. Anyway my point was in reference to an off duty police still being able to arrest someone who has broken the law.

Regarding the original post police officers on lunch can park on double yellow etc as they are still on duty.

If an accident is caused it's up to the judge to see who's at fault however the term" you cant hit a parked car" would come into play and as another thread was started a few days ago regarding this matter, liability will fall to the person who did not observe due care and was negligent while driving

Claw Hammer

lifeandtimes wrote: »

I think most people would have the foresight to know what is and is not an arrestable. Anyway my point was in reference to an off duty police still being able to arrest someone who has broken the law.

Regarding the original post police officers on lunch can park on double yellow etc as they are still on duty.

If an accident is caused it's up to the judge to see who's at fault however the term" you cant hit a parked car" would come into play and as another thread was started a few days ago regarding this matter, liability will fall to the person who did not observe due care and was negligent while driving

Very few people without legal training would know what offence was being committed let alone know if it was arrestable. I don't know what foresight has to do with it.

coylemj

coylemj wrote: »

He wouldn't be covered by insurance driving his own car chasing after a suspect.

Victor wrote: »

As above, they can come on duty for such purposes and therefore be covered by the minister.

I'm pretty sure that Gardai are expressly forbidden from using their private vehicles for official duties. And nowhere does it say that an employer is obliged to provide cover to an employee who drives their private car on business while disobeying an explicit instruction not to do so.

ED E

The problem with boards is you get some great input from some users and some woeful input from others :rolleyes: Thanks to all those with real contributions.

GM228 wrote: »

A member of Gardas considered to be performing their duties once they are on duty. As they have paid breaks they are at the disposal of their employer and so are on duty.

Could radio status be said to put them somewhat out of the disposal of their employer? I dont know the internals of AGS but with the NAS at least crews have a radio status such as tasked, clear (awaiting a callout) and break. If on the latter they aren't normally tasked unless something excessively urgent occurs.

GM228 wrote: »

That would be open to interpretation of a judge, but unless something actually happened as a potential result of where a Garda vehicle was parked the issue would never arise.

Unless you could convince one member to issue another member a FCPN :pac:

Claw Hammer

coylemj wrote: »

I'm pretty sure that Gardai are expressly forbidden from using their private vehicles for official duties. And nowhere does it say that an employer is obliged to provide cover to an employee who drives their private car on business while disobeying an explicit instruction not to do so.

There is no ban on using a vehicle for official purposes but the mileage expenses won't be covered unless it has been approved in advance in writing. A Superintendent would often be allowed use his own car if travelling a long distance to a meeting as opposed to using public transport or an official vehicle.

Victor

coylemj wrote: »

I'm pretty sure that Gardai are expressly forbidden from using their private vehicles for official duties. And nowhere does it say that an employer is obliged to provide cover to an employee who drives their private car on business while disobeying an explicit instruction not to do so.

So, an off-duty detective garda observes an armed robbery in progress. While armed, the detective is outnumbered, doesn't confront the robbers and awaits support. Should the garda follow the robbers?

As I understand things, there is a procedure for such situations.

Claw Hammer

Victor wrote: »

That authorisation can be gained by contacting their station and/or out of necessity - there was a case years ago of an off-duty garda intervening in an armed robbery at a bookmakers. There is an arguable obligation on them to use their powers to prevent (very) serious crime (UK case law, persuasive but no binding here).

That relates to their official duties. They can't use the powers capriciously.

Claw Hammer

source wrote: »

We're all aware that any person can be a non citizen as you put it, however the coloquial term for that section of legislation is "Citizens Arrest".

The fact that you're splitting hairs over such a thing just further proves you don't know what you're talking about.

This is a legal discussion not a language forum. An arrest to be lawful has to be technically correct or it is a breach of the constitution. The fact that you arfe not prepared to be technically correct just further proves you don't know what you're talking about.

Victor

Claw Hammer wrote: »

It has to be an arrestable offence. Many offences are not arrestable. There are other pre-conditions as well which don't apply to a guard. The power of arrest is not confined to a citizen either. Any person can mean a non citizen.

The vast majority of people are citizens of somewhere.

Claw Hammer

Victor wrote: »

The vast majority of people are citizens of somewhere.

Like the rohingya

GM228

coylemj wrote: »

He wouldn't be covered by insurance driving his own car chasing after a suspect.

That depends, the use of un-official vehicles are covered by the SIDW insurance scheme when used in an emergency. What is considered an emergency for the purposes of the scheme however I don't know.

Claw Hammer wrote: »

The situation is that a garda exercises his statutory powers in powers in the course of his duty. He does not have the authorisation to use the  powers at any other time.

You are confusing exercising powers with performance of duties. A duty is no more than a requirement (a discretionary requirement in the case of Gardaí) to perform what is required of your job which does not require them to perform when off duty.

When off duty Gardaí can use many of their powers, many powers are simply afforded to for example "a member of Gárda Síochána", as opposed to an "on duty member". Gardaí have a duty to detect and prevent crime for example when on duty, but no part of that duty requires them to act when off duty. When they do exercise these powers that does not mean they are in the course of their duties, when they exercise a power whilst off duty that is all it is, an exercise of a power, not a performance of a duty.

This has been recognised by the courts in the few times it has arose, judges simply establish if the member was on duty or off duty, if on duty they are exempt, if off duty they are not exempt. Obviously we need some guidance from the higher courts to set the precedent but the lower courts are applying that reasoning.

Claw Hammer wrote: »

If he is exercising the powers he is on duty. The powers are given to him for the purpose of use on duty. It would be an abuse to use them at any other time.A guard cant stop traffic just for fun on his day off. If he is on his day off and decides to arrest a suspect he encounters he is on duty as he is carrying out an official duty.

Based on the same reasoning:-

If an off duty member of the AA decides to help a broken down motorist and fixes their vehicle are they carrying out an official duty?

If an off duty fireman who runs into a burning house to help is he/she carrying out an official duty?

Carrying out an official duty and doing something you are legally allowed to do when off duty is not the same.

Victor wrote: »

Note the wording is "in the performance of the duties of that member", so if they are doing some private business (stopping to talk to a family member, dropping a letter to the post box) while on duty, I can't see how that is covered.

The courts seem to have adopted the view of being on duty is enough to satisfy the exemption, obviously that is at DC level so no precedent and other judges may look at it differently - but it's the position which seems to have been taken in the few times it arose.

Here's one such case where a superintendent was speeding in his private vehicle:-

Garda superintendent has speeding charge struck out after telling judge he was on duty

Supt English said that as a member of An Garda Siochana who was on duty at the time of the offence he was asking to have the case struck out under exemptions from prosecution for gardai contained in the 2010 Road Traffic Act.

Judge Kilrane then addressed Insp Mulderrig for his view and he replied: “I know of the statutory exemption; I’m aware of it.”

The judge said in view of the exemption contained in the Act he was striking out the case.

Under legislation, all members of the force are exempt from penalties for exceeding the speed limit if they are on duty, whether they are driving their personal or official vehicles.

Victor wrote: »

There is an arguable obligation on them to use their powers to prevent (very) serious crime (UK case law, persuasive but no binding here).

There used to be such a requirement here, but no longer.

 

ED E wrote: »

Could radio status be said to put them somewhat out of the disposal of their employer? I dont know the internals of AGS but with the NAS at least crews have a radio status such as tasked, clear (awaiting a callout) and break. If on the latter they aren't normally tasked unless something excessively urgent occurs.

It's an employment term I use. When we speak of "at the disposal of their employer" it basically means in or at work and able to perform duties at all times except when on a rest interval as per the Organisation of Working Time Act 1997. Gardaí are exempt from the OWT Act though and so all time in work is considered working time and at their employers disposal unless they don't get paid for their break which they do.




 

source

Claw Hammer wrote: »

This is a legal discussion not a language forum. An arrest to be lawful has to be technically correct or it is a breach of the constitution. The fact that you arfe not prepared to be technically correct just further proves you don't know what you're talking about.

Do you not see that your assessment of the exemption for emergency personnel is based on a flawed understanding of the language used within the section? At the end of the day, the language of statute and the language of regular discussion share the same words but often have differing, or more strict meanings. Language (in this case to the layman would be called legaleze) and your understanding of said language is an integral part of a legal discussion.

I have no problem discussing or debating the legislation, and I think I have proved that point over the last number of years that I have been posting here. I do have a problem with doing so with a person who repeatedly refuses what almost every other poster has stated refuting his opinion.

This thread is not a discussion, it's merely a soapboxing exercise on your part.

Claw Hammer

source wrote: »

Do you not see that your assessment of the exemption for emergency personnel is based on a flawed understanding of the language used within the section?

The section has to be construed using the normal rules of statutory interpretation. The issue of vacarious iability also has to be considered.

Claw Hammer

GM228 wrote: »

That depends, the use of un-official vehicles are covered by the SIDW insurance scheme when used in an emergency. What is considered an emergency for the purposes of the scheme however I don't know.







Based on the same reasoning:-

If an off duty member of the AA decides to help a broken down motorist and fixes their vehicle are they carrying out an official duty?

No. He is not going about his employer's business.

If an off duty fireman who runs into a burning house to help is he/she carrying out an official duty?
Yes. If he is going about his employers business.
Carrying out an official duty and doing something you are legally allowed to do when off duty is not the same.


 

A power is only given to a person for the purpose of carrying out their duties. Any other exercise is wrongful. If they are exercising it for their employers business they are on duty. What business has an off duty guard arresting anyone or indeed even following a suspect unless it is for the purpose of official business?

source

OP, the issue here from what I can see, is that you're trying to apply standard employment concepts onto an organisation to which those concepts do not apply.

AGS is liable for the policing actions of it's members, both on and off duty, this is why off duty members are investigated by GSOC when involved in RTCs.

Gardai are not standard employees, they are sworn officers of the state, and as sworn officers of the state they maintain their power to act on illegal activity as they observe it.

This power does not cease to exist when they check out at the end of their tour. The powers bestowed on Gardai in legislation refer to members of AGS, not on duty members of AGS.

GM228

Claw Hammer wrote: »

The section has to be construed using the normal rules of statutory interpretation. The issue of vacarious iability also has to be considered.

What has Vicarious Liability got to do with it?

Claw Hammer wrote: »

A power is only given to a person for the purpose of carrying out their duties. Any other exercise is wrongful. If they are exercising it for their employers business they are on duty.

But they are not exercising it for their employer are they, no, they are exercising because they have the legal ability to, wonder if you realise that Gardaí are technically independent to the commissioner and indeed the Minister for Justice? Yes that's correct, An Garda Siochana lacks any legal personality separate and distinct from that of its individual members.

Claw Hammer wrote: »

What business has an off duty guard arresting anyone or indeed even following a suspect unless it is for the purpose of official business?

What business has any person got arresting someone for an arrestable offence in that case? Gardaí exercise an original authority vested in them through the office they hold, as common law "peace officers" they can exercise their powers independently and not for official (Garda) purposes.

I suppose this could support the argument that Gardaí are exempt from the RTAs when off-duty if they enact their powers, but the courts have not dealt with such an issue, until it does we can only go by the stance the lower courts take which is it only applies when on-duty.

Claw Hammer

GM228 wrote: »

What has Vicarious Liability got to do with it?





But they are not exercising it for their employer are they, no, they are exercising because they have the legal ability to, wonder if you realise that Gardaí are technically independent to the commissioner and indeed the Minister for Justice? Yes that's correct, An Garda Siochana lacks any legal personality separate and distinct from that of its individual members.

The garda commissioner and the minister for justice are always sued in the event of wrongdoing by a garda. A person can only be arrested for the purpose of charging them or for investigation of an offence. A guard cannot bring a common law prosecution. He has to prosecute in the name of the DPP. A guard can't arrest someone just because he can. He can arrest someone for the purpose of eventually having that person charged by the DPP or to obtain evidence which would enable the DPP to decide not to charge.



What business has any person got arresting someone for an arrestable offence in that case? Gardaí exercise an original authority vested in them through the office they hold, as common law "peace officers" they can exercise their powers independently and not for official (Garda) purposes.

I suppose this could support the argument that Gardaí are exempt from the RTAs when off-duty if they enact their powers, but the courts have not dealt with such an issue, until it does we can only go by the stance the lower courts take which is it only applies when on-duty.

The garda commissioner and the minister for justice are always sued in the event of wrongdoing by a garda. A person can only be arrested for the purpose of charging them or for investigation of an offence. A guard cannot bring a common law prosecution. He has to prosecute in the name of the DPP. A guard can't arrest someone just because he can. He can arrest someone for the purpose of eventually having that person charged by the DPP or to obtain evidence which would enable the DPP to decide not to charge.
The District Court is not going to enquire deeply into this matter. If a guard says he is on duty in that he was going about official garda business, it is difficult to disprove that. Even if he is not rostered for duty he can become involved in detecting and investigating a crime or apprehending a suspect or a person committing a crime.

GM228

Claw Hammer wrote: »

The garda commissioner and the minister for justice are always sued in the event of wrongdoing by a garda.

I know, but what point are you making?

As a side and in relation to the OP wrongs committed by the use of a mechanically propelled vehicle belonging to the State are exempt from any liability.

Claw Hammer wrote: »

A guard cannot bring a common law prosecution. He has to prosecute in the name of the DPP. A guard can't arrest someone just because he can. He can arrest someone for the purpose of eventually having that person charged by the DPP or to obtain evidence which would enable the DPP to decide not to charge.

You need to do some more homework, a Garda (just like any person) can bring a private prosecution in their own name under the common informer system when not in the course of their duties - with the DPPs permission though, they are not required to bring a prosecution in the name of the DPP at all times - that only applies when bringing a prosecution in the course of official duties to a court of summary jurisdiction.

They can also initiate a private prosecution for an indictable offence, however in that case the DPP must then take the case forward in their name.