Senior gardaí not overly concerned about apparent Covid-19 loophole
‘2km rule’ cannot somehow stretch into the North across the Border – legal source
If a person’s home is not in the Republic, they have no home in the jurisdiction to be more than 2km away from. Photograph: Niall Carson/PA Wire
Senior Garda officers are not overly concerned about an apparent loophole in Covid-19 regulations allowing day-trippers from Northern Ireland, or any other country, to come to the Republic and ignore the so-called “2km rule”.
The purpose of the lockdown measures has been to keep people in their homes so they will not be mixing with each other and the spread of Covid-19 will be slowed.
However, a number of exemptions have been granted to allow people leave their homes for urgent family business – including caring for older or vulnerable relatives – and to go to pharmacies, medical appointments and to shop for essentials.
People are also permitted to exercise but they must stay within 2km of their homes. This rule has been at the forefront of Garda enforcement in recent weeks with 76 arrests of people in breach of it between April 8th and 25th.
A once-off breach is not escalated by gardaí, who explain the rule to those in question and encourage them to go home. However, if people are found more than 2km from home repeatedly without a valid reason or if they are a long way from home the first time they are stopped, they can be arrested.
Out of jurisdiction
However, people who live in the North and who are in the Republic for the day cannot face this kind of enforcement.
Because their home is not in the Republic, they have no home in the jurisdiction to be more than 2km away from. If the Garda still sought to enforce the 2km rule and arrested them, it would be a wrongful arrest and a civil action might result.
The Irish Covid-19 rule stipulating people must stay within 2km of their home cannot somehow reach into the North to be applied to a residence, according to Garda and legal sources.
Similar kinds of issues are encountered every day in policing, on both sides of the Border, and they have always proven insurmountable, according to legal sources.
For example, if gardaí are pursuing criminal suspects in a car that speeds across the Border into the North, gardaí must stop at the Border. Under no circumstances can they go into the North and they have never been permitted to do so because they have no jurisdiction there.
Similarly, the PSNI cannot pursue suspects into the Republic and soldiers from either jurisdiction cannot cross the Border under any circumstances, even for a matter of seconds.
During the Troubles when British soldiers were found on the wrong side of the Border, about 700 metres in Co Louth in 1976, they were arrested and it sparked a major international incident.
Legal and Garda sources pointed out that because there are two jurisdictions on the island of Ireland, and the criminal and legal systems of any two jurisdictions will never knit together perfectly, some issues will always arise.
“If a serious criminal is wanted [in the Republic] to face charges they can be extradited. But for smaller matters, you are not going to kick off an extradition process and the reality is that the law doesn’t allow you to do that,” said one legal source.
The same source pointed out a person could be extradited only if the DPP in Dublin had decided to press charges against them. “You can’t extradite a suspect just to question them or you can’t extradite a witness to question them. So once people go to the North, unless charges are waiting for them in the Republic they can’t be brought back here, they’re out of reach.”
Another source pointed out if a judge in the Republic issued a bench warrant for the arrest of a person for contempt of court, that warrant could not be executed if the person went to the North.
“This 2km rule is slightly different because the person is in the Republic but we still can’t prosecute them . . . in this case, because the law relates to where a person’s home is, [Irish law] can’t stretch across the Border to cover the fact a person’s home is in the North.”
A further legal source said a similar issue arose with Criminal Assets Bureau (Cab) cases. He explained if a suspect is being targeted by Cab they must be living in the Republic or have assets here, in order for Cab to have jurisdiction over the person.
Garda Commissioner Drew Harris has said the Garda was aware from the time the Covid-19 regulations were being drafted that they would not apply to people who did not live in the Republic.