Are the guards compelled to act?

I put this to my brother and he was positive that despite the use of "shall" in some instances that the Gardaí still have discretion in applying the law and therefore they are not compelled to act, this is due to a common law power of discretion they hold by virtue of their office and dates back to the birth of the force.

With a little research and help from the Garda Press Office I've discovered this would appear to be in fact the case.

The common law power of discretion was not limited, but could only be applied to minor offences leaving no power of discretion to serious offences due to it being an offence not to follow up on a felony, but due to the abolition of felonies the offence of not following up on such can't be applied as they don't exist anymore meaning that they can technically apply discretion for all their duties.

So where does this common law power of discretion come from? I was pointed in the direction to an excellent extract from the book "Criminal Justice in Ireland" by Paul O'Mahoney in which Dermot Walsh (professor of law, director of the Centre for Criminal Justice at the University of Limerick and advisor to the Dept of Justice) explains where this common law power of discretion originated from.

Common Law Peace Officer

The fact that the force lacks a legal personality separate and distinct from that of its individual members suggests that even today, more than two hundred years after organised police forces were first established in this country, the legal concept of police is still dominated by the ancient common law peace officer.

This perception is reinforced by the fact that the legislation establishing the Garda Siochana does not entrust the full complement of police powers and duties to a centralised figure such as the Garda commissioner or the minister who could then delegate police tasks to members of the force. Instead the legislation seems to have adopted by default the arrangements which have informed organised policing in Ireland since 1786 and which are quintessentially English in origin.

Under these arrangements it is the individual member of the force, as distinct from the Garda commissioner or minister, who is the primary legal actor.” The full complement of police powers and duties are invested by law in the office held by each individual member. Many of these powers and duties emanate from the common law and inhere in each member of the force by virtue of his or her status as a peace officer. Such fundamental police duties as preventing and detecting crime, maintaining public order and keeping the peace are not entrusted statutorily on each member of the force. There is no need. They already inhere in each member by virtue of his or her status as a common law peace officer. The same applies to such basic powers as the use of force in keeping the peace and restoring public order. Of course many police powers today derive from a statutory source.

Significantly, the legislation creating such powers confers them directly on each member of the force, as distinct from the garda commissioner or Minister forJustice, Equality and Law Reform.

Independence of members

The retention of the individual peace officer as the primary legal actor in an organised police force has important constitutional implications for the exercise of police powers.

Since police powers and duties vest in each member of the force by virtue of the office which he or she holds, it follows that they can be exercised only on the responsibility of the individual member concerned.

When engaged in the investigation and detection of a crime, it is a matter for the individual member to decide whether, for example, to effect an arrest. Of course, he or she may be requested to effect an arrest by a senior officer. Ultimately, however, the decision to act must be his or hers alone. The request from a senior officer cannot in itself provide a complete legal basis for the member’s actions. Even if the objective preconditions for the exercise of his or her power of arrest are present, it will still be a matter for the discretion of the individual member whether or not to effect the arrest. If he or she exercises that discretion in favour of arrest purely on the basis that he or she had been instructed to do so, the member will have failed to exercise a genuine discretion and the arrest will be unlawful. It follows that no executive authority, not even the Garda commissioner or the minister, can lawfully direct how a member of the Garda Siochana should exercise his or her police powers or discharge his her law enforcement duties in any individual case. The individual member is independent in such matters. This independence of a member of the Garda Siochana can be explained partly by the fact that he or she is exercising powers which are conferred statutorily on him or her. Ultimately, however, the member’s independence arises from his or her status as an office-holder.

When enforcing the law in his or her capacity as a peace officer he or she is exercising an original authority attaching to that common law office.

Ok so that was written just before the Garda Siochana Act 2005 so does the power still apply since that act?

In 2004 when the Garda Siochana Bill was being debated the protection of the power of discretion came up and Brian Lenihan confirmed it had never changed and it was important to protect it:-

http://oireachtasdebates.oireachtas.ie/debates%20authoring/debateswebpack.nsf/takes/seanad2004120800006

Mr. B. Lenihan: The Minister for Justice, Equality and Law Reform has examined the issues raised in subsection (4) but is not prepared to accept the amendment.

In common law, certain matters on which a garda can exercise a discretion relate to his or her position as an officer of the peace and a constable. That common law position has never been altered in this jurisdiction.Each individual member of the Garda Síochána has an individual discretion in certain matters. For example, a garda has the discretion as to whether to arrest an individual and whether to proceed in the prosecution of certain types of summary and minor offence. However, the Minister for Justice, Equality and Law Reform cannot direct a garda to arrest or prosecute an individual, who, for example, may have infringed the road traffic code by not having adequate illumination on a bicycle. These and many other matters are left to the Garda. This is of great importance to the citizen who needs the reassurance that a garda cannot be subject to a direction.

Section 22 gives the Minister power to issue to the Garda Commissioner written directives concerning any matter relating to the Garda Síochána. While it is drafted with a wide scope, subsection (4) ensures this wide power to be conferred on the Minister cannot be exercised to limit the independence of the Garda Síochána in performing functions in the investigation or prosecution of an offence. I gave the example of the exercise of the power of arrest. The same principle applies to many of the investigative powers which the Garda exercises at common law or statutory level. Equally, in the prosecution of an offence, a discretion rests with the Garda on a wide range of matters which come before the District Court. In the District Court, the Director of Public Prosecutions does not have power over the [1922] Garda, as a matter of law. He may have certain powers in practice but not as a matter of law. It is important that this discretion, essential to the confidence in the community enjoyed by the Garda, is safeguarded and respected by the legislation.

And so they were protected as per the Garda Siochana Act 2005, section 7 gives Gardaí their powers and functions as conferred in law, but 7 (4) protects their power of discretion from duties conferred in law:-

7(4) This section does not affect any powers, immunities, privileges or duties that members of the Garda Síochána have by virtue of any other enactment or at common law.

But would this protection apply to the use of shall in legislation, the answer would appear to be yes as highlighted by the penalty points issue and as confirmed by the Attorney General, the GSCO and the Garda Professional Standards Unit the Gardaí have the right to use discretion even though the application of penalty points seemed to be mandatory by the use of the word shall in legislation.

Take the Road Traffic Act 1961 Section 103 (2)(a):-

103 (2) Where a member of the Garda Síochána has reasonable grounds for believing that a fixed charge offence is being or has been committed by a person—
(a) if the member identifies the person, the member shall serve, or cause to be served, personally or by post, on the person a notice under this section

This piece of legislation and the use of shall became centre piece in the penalty points saga a few years ago and it was shown that Garda discretion still applied due to their common law power of discretion.

From the Garda Professional Standards Unit:-

http://www.justice.ie/en/JELR/FINAL%20GPSU%20Report%20on%20FCPS%2023_04_13.pdf/Files/FINAL%20GPSU%20Report%20on%20FCPS%2023_04_13.pdf

Members of An Garda Síochána have the ability to exercise a power of discretion in deciding if someone will be subject to a penalty, for example a member may decide to formally charge a person or to issue a warning. Discretion is the freedom of being able to make that choice. Those who are in a position of power are able to exercise discretion but it is how they exercise their discretion that has to be considered. Each case has to be considered on its own merits.

The function of the Garda Síochána is set out in Section 7(1) of the Garda Síochána Act 2005 which includes the provision of policing and security services for the State with the objective of protecting property, vindicating the human rights of each individual, preventing crime, and bringing criminals to justice, including by detecting and investigating crime.

Section 7(4) of the Garda Síochána Act 2005 provides that
“this section does not affect any powers, immunities, privileges or duties that members of the Garda Síochána have by virtue of any other enactment or at common law”.

The Minister may issue to the Garda Commissioner written directives concerning any matter relating to An Garda Síochána, however the Minister’s power may not be exercised to limit the independence of a member of the Garda Síochána in performing functions relating to the investigation of a specific offence or the prosecution of an offence as authorised by Section 8 of the Garda Síochána Act 2005.

An examination of Section 103 of the Road Traffic Act 1961 has established that it does allow for discretion as to whether or not to issue a notice. The legislation does not say that a prosecution must be instituted, it actually states in subsection (8)(b) that a notice contains a term in respect of “a person liable to be prosecuted” and Section 103(18) sets out the time periods in which a prosecution “may be brought”.

The Attorney General further stated that the legislation “has to be read against the backdrop of the long established general principle that “there is no obligation on prosecuting authority to prosecute in any given case”. The cancellation of a notice is simply saying that the notice that was issued is no longer going to be pursued any further and a prosecution will not be instituted.

The cancellation policy states that “Cancellation is defined as the decision of a Cancelling Authority to discontinue proceedings and to withdraw the Notice for a Fixed Charge Offence after carrying out a review”. In this respect, the Attorney General advises that:
“I do not see anything in the wording of the legislation that would displace the normal prosecutorial discretion that is enjoyed by a prosecuting authority. The criminal justice system would quite simply grind to a halt if the Gardaí were obliged to prosecute every single infraction of the law no matter how technical or no matter what the public interest is”.

The Attorney General stated that it is a good strategy to have guidelines as and when discretion could be exercised. It would be more convenient for members to have some guidance and a policy on what to consider. The following extract reflects this view: “If you are entitled to exercise discretion not to prosecute it is difficult to see why you should not be able to, as a matter of administrative convenience for your staff, set out general policy consideration and examples of when such discretion might be exercised”.

The same was also confirmed by the Garda Commissioner:-
http://www.justice.ie/en/JELR/Report_to_Minister_on_FCPS.pdf/Files/Report_to_Minister_on_FCPS.pdf

In the context of FCN terminations, members of the Garda Síochána have an inherent common law power of discretion, by virtue of their office, from time immemorial.

sections 7 and 8 of the Garda Síochána Act 2005, in relation to the statutory functions of An Garda Síochána, provides that such functions "do not affect any powers, immunities, privileges or duties that members ... have ... at common law". Section 25 of the 2005 Act specifically provides that the Minister's power in relation to the issue of directives "may not be exercised to limit the independence of a member ... in performing functions relating to the investigation of a specific offence or the prosecution of an offence ...”.

In general terms, it is a well established fact that the use of discretionary powers has served An Garda Síochána well since the foundation of the State. This discretion is exercised by members of An Garda Síochána at every level in the exercise of their daily duties and responsibilities. It is an intrinsic feature of good policing, the application of which continues to assist in maintaining the positive relationship the organisation has developed with the general citizenry over its history.

So it would appear the answer to your query Kings Inn is no the Guards can't be compelled to act even by the use of shall in legislation. The use of discretion is also recognised in the Garda Code and Declaration of Professional Standards and Ethical Standards I'm advised.

snubbleste wrote: »

If the Garda "fails to detect an offence", is he not negligent in his duty?

To be negligent there must first be a duty of care. Gardaí owe no dury of care to the public as confirmed by the High Court in M vs Commissioner of an Garda Siochana & Ors [2011 IEHC 14].

Same applies in the US, the UK and no doubt most countries.

Kings Inns or bust wrote: »

That's someone's homework well and truly done if they ever figure out the search function, excellent work GM228.

Although I think we're at cross purposes in relation to compelled - of course no one can grab them and make them do something but there are cases where they will face sanction.

How are we at a cross-purpose in relation to compelled?

In any case how do you sanction someone for exercising a legal right of discretion which is protected by statute and encouraged to be used by the Garda code? Or are you talking about matters not in relation to applying the law?

Little CuChulainn wrote: »

Disciplinary procedures still occur when a Garda uses discretion. Wasn't there a case in England last year where an officer caught someone breaking into a business and let them off with a warning? She was reported by her partner and subsequently sacked despite claiming she was simply using her power of discretion.

A Guard can only be disciplined for using discretion if they abuse the power for their own personal gain, not for using discretion in general.

The officer in Merseyside was sacked for gross misconduct, by doing something contrary to their book of standards I believe, they may not have the same protection for their discretionary power as is the case here, without knowing if they do or not we can't compare. In any case a Guards use of discretion is encouraged as per the Garda code so miscoduct couldn't apply.

Excellent post GM228, probably the best thing I've ever read on Boards! Well done.

Kings Inns or bust wrote: »

Apologies for introducing a semantic element here again but I submit that it is merely the distinction abolished by the Criminal Law Act 1997



Furthermore LM v Commissioner of An Garda Síochána [2015] IESC 81, seems to deal with a duty of care in negligence cases as opposed to criminal liability which is imposed in this scenario for an omission.Therefore I believe Bartley to still be good law and not at all in conflict with your excellent posts above re discretion. I see them as spate issues to be frank.

Sorry I perhaps indicated that I was going to give you more. Apologies, but I’m far from finished arguing if you’re not! :pac:

PS Wording might have gone very college assingment on my part - sorry!

PPS Just seen I've crossed cases M is still a claim in damaged but I'll read it more closely tonight - trying to do this at work at the mo! I welcome any intermediate correction!

Bartley can't be applicable law as it centres around a common law offence based on a felony. It's a well known that the 2007 Act abolised the use of common law offences in regard to a felony.

The debates around the Criminal Law Bill confirmed common law offences and powers based on felony would be abolished:-
http://oireachtasdebates.oireachtas.ie/debates%20authoring/debateswebpack.nsf/takes/seanad1997022600006?opendocument

Most notably Judge Yvonne Murphy noted this during the Church sex abuse scandal in relation to the little known offence of "misprison of felony" - a person who knew that a felony had been committed and, although not a party to it, concealed it from the authorities, was thereby guilty of misprision of felony.

She basically noted that due to the abolishment of the "distinction" by the 2007 Act that common law offences regarding felonies could no longer be applied and such offences were effectively abolished.

They have full discretion. Not compelled by law. But can face disciplinary action if found negligent, fraudulent(for gain etc) or endanger a life purposefully AFAIK.

But is this about the interpretation of law or real life use. Not interested in interpretation as words can be interpreted a long way within ever expanding boundaries in court.

Kings Inns or bust wrote: »

Aye, putting aside the serious crimes aspect my own, poorly conducted, research backs up everything GM228 says in relation to minor offences. The peace office discretion is incredibly interesting.

I do hope you're studying/practicing GM - this would make an excellent paper, one enthusiastically read by junior members of AGS I would imagine!

I have my doubts whether the discretion is blanket of course, but the offences to which it applied would be fascinating!

get yourself a copy of the garda code....i dont think its a thing that is looked at case by case rather than following a standard (discretion) guideline.

Fred Swanson wrote: »

Is the Garda code publicly available?

Unfortunately not.

Sorry to dig up this thread again, but I believe I have traced (with a lot of help of Sir William Blacksone and William Lambarde writings) the origins of the Garda common law power of discretion back to circa 925 under King Athelstan's code of law and the "tithing-man" (also known as the boroes ealder/borsholder, boroehead, headboroe, or chief pledge depending on area and local custom) under the original system of policing which eventually became know as the "frankpledge" under King Canute circa 1017, I think many believe that the system of frankpledge first came about under King Henry II's The Assize of Clarendon 1166, it didn't, it was a system of Canute, the 1166 Act only restored the system after it fell apart following the conquests. I often mistakenly refer to King Canute as the C**t King by the way (he was commonly known as Cnut the Great)

In order to ensure that the system operated properly the King divided the country into shires or counties, and in each appointed as his representative a "scir-gerefa" (aka the High Sheriff). Tithingmen were the heads of "tythings" (groupings of 10 families, and 10 tythings were known as the "hundred"), ironically those who were not part of the tythings were the Franklin class - aka the Freemans and they were constantly at odds with the new legal order (I guess some things stand the test of time ) and so excluded from the protection of the law that the tythingmen gave.

Tithingmen eventually became constables after the Norman conquests, and in 1252 they became Petie Constables (having authority only in one area) and the new High Constable (having authority over the hundred):-

William Lambarde (The Duties of Constables, Borsholders, Tithingmen, and such other Low Ministers of the Peace) 1538 wrote:

petie Constables were devised in townes and parishes, for the aide of the Constables of the Hundreds: so of latter times also, Borsholders, Tythingmen, Headboroes and suche like, have bene used as petie Constables, within their owne boroes and tythings. And yet not so universally, but that some of them have at this daye none other but their old office. For in some of the Western parts of England, you shal see that where there be many Tythingmen in one parish, there only one of them is for the Queene that is a Constable, and the rest do serve but as the auncient Tythingmen did.

William Blackstone (Commentaries on the Laws of England (4th Ed) Vol I: Of The Rights of the Persons) - 1876 wrote:

These petty constables have two offices united in them: the one ancient, the other modern. Their ancient office is that of head-borough, tithing-man. or borsholder; . . . their more modern office is that of constable merely; which was appointed, as was observed, so lately as the reign of Edward 111.''' in order to assist the high constable

Circa 1195 King Richard I appointed Knights to ensure all males over 15 took an oath to keep the peace, the Knights later became the Conservators or Wardens of the Peace circa 1250. As constables had a local rather than sovereign power it is believed they developed a close working relationship with the wardens for political reasons and to ensure a smoother justice system. In 1344 the Wardens of the Peace were given powers to determine minor crimes and in 1360 the power to determine all crimes. These wardens eventually became Justices of the Peace circa 1360 (and so we have the birth of judges), resulting in the wardens loosing some of their power:-

FD Price (The Wigginton Constables' Book 1691-1836) - 1971) wrote:

During the Middle Ages, as the institutions and instruments of royal government were evolved, this "head man" came also to be seen as the representative of the village community to whom orders could be transmitted and upon whom local responsibility for their enforcement could be imposed by higher authorities: the government of the realm operating through the justices of assize and. later, the justices of the peace. The history of the constable is thus one of the gradual adapting of an ssentially local officer, created to meet the needs of an autonomous village community, to serve the purposes of a wider, national government.

Constables also became known as common law peace officers, and Gardaí are still members of that common law peace office. Tythings also held court sessions to punish law custom breakers and regular meetings to decide how to run the shires or counties so the origins of the role of a court and local government could also be traced back to them.

The original tithingmen had complete discretion in how they upheld the law and were even permitted to kill anyone who broke the law with complete impunity, that power of discretion remained when they became constables/peace officers and those powers were recognised under the common law from day one, thankfully the power to kill no longer applies.

Victor wrote: »

Is the last bit correct? If a hundred is only ten families, just how many people would a Petie Constables have authority over?

Typo, well spotted.

Thythings were groupings of 10 families, and a group of 10 tythings were known as the hundred.