COVID-19, Powers of Entry, and the Constitutional Protection for the Dwelling

Rachael Walsh, Trinity College Dublin

There has been extensive discussion recently about the constitutionality of powers of entry as a response to increasing COVID-19 case numbers, in particular those linked to gatherings in bars, restaurants, and private houses. On August 31^st, the Government initiated the Criminal Justice (Enforcement Powers) (COVID-19) Bill 2020 in Dáil Éireann to expand the powers of An Garda Siochána to deal with restaurants and bars that fail to comply with public health regulations, including through entry into premises and the issuing of closure orders. On the same day, the Health Act 1947 (Section 31A – Temporary Restrictions) (COVID-19) (No. 4) Regulations 2020 came into operation. Regulation 5 provides:

5. (1) A person shall not organise, or cause to be organised, an event to be held in a private dwelling other than in accordance with paragraph (2).

(2) A person may organise, or cause to be organised, an event to be held in a private dwelling for social or recreational reasons where the person takes all reasonable steps to ensure that the persons attending, or proposed to attend, the event (for whatever reason) -

.                 (a)  subject to paragraph (3), do not exceed 6 in number, and 


.                 (b)  reside in no more than 3 different households, not including the private dwelling. 


(3) For the purposes of paragraph (2), in reckoning the number of persons at an event, gathering or assembly in a private dwelling, or in reckoning the number of households in which persons at such an event, gathering or assembly reside -

.                 (a)  subject to subparagraph (b), an applicable person whose place of residence is the private dwelling shall be excluded, and 


.                 (b)  a person who is not ordinarily resident in the State, regardless of his or her place of residence, shall be included. 


No penal offence is created in the regulations in respect of this provision, nor do the regulations set out any other enforcement mechanism. The Government was apparently influenced by concerns about constitutionality in deciding not to increase the powers of Gardaí to enter private dwellings. Instead, it indicated that it would introduce a civil offence of non-compliance with guidelines in respect of numbers of persons permitted to gather in private homes, although what such a civil offence might entail is not clear.

Article 40.5 of the Constitution, which provides ‘[t]he dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law’, is primarily of significance as a control on entries into and searches of dwellings by State authorities, as well as seizures of property from dwellings in the course of such entries and searches. Its core function is to require lawful authority for non-consensual entry into dwellings by public authorities. However, Article 40.5 has been applied by the Irish courts in some civil law contexts, such as planning law and tort law, overlapping at times with applications of Article 8 of the European Convention on Human Rights, which guarantees a right to respect for one’s home.

 

Taken together, these lines of judicial decisions treat Article 40.5 as a privacy guarantee, protecting a private sphere against State interference, not just for homeowners but for all individuals in their place of dwelling regardless of the legal status of their occupancy and for their invited guests. However, the courts have not elaborated upon the nature or extent of the privacy that they regard as constitutionally guaranteed, in particular on the degree to which Article 40.5 protects the dwelling against incursions that have a legal basis and are procedurally fair. Significantly, the protection in Article 40.5 has been held not to prevent the criminalisation of activities occurring within the dwelling – any protected private sphere is not immune from legal control.

Considered against this backdrop, are concerns about the constitutionality of powers of entry into residential properties that might be conferred on Gardaí to assist in dealing with the COVID-19 crisis justified? This is an important question in light of the statement of the general secretary of the Association of Garda Sergeants and Inspectors (AGSI) this week that Gardaí do not have the power to enter private dwellings. Do constitutionality concerns extend to commercial premises like pubs and restaurants?

Where a power of entry into a dwelling requires a warrant, the Supreme Court has held that the procedure for the issuing of any warrant must be independent – i.e. not determined by an individual involved in the relevant investigation. Practically, this requirement presents a significant barrier to designing an effective power of entry in respect of the COVID-19 crisis given the likely time-lag that would be involved if Gardaí were required to obtain a warrant from some authorised person independent of the investigation to deal with a gathering that apparently breached public health regulations. However, the power to seek a warrant, if granted, might encourage voluntary termination of gatherings – Gardaí arriving on the scene of a gathering might, by indicating their intention to seek a warrant, be better able to encourage voluntary dispersal of guests. Furthermore, a power to enter on foot of a warrant would allow Gardaí to tackle persistent anti-social behaviour of the kind that has been reported during the COVID–19 crisis. As such, the ‘warrant for entry’ route is not entirely useless as a means of tackling non-compliant gatherings, although its greatest effects would likely be in deterrence.

Nonetheless, the practical problems with obtaining a warrant have prompted suggestions that a general power of entry for Gardaí to enforce public health regulations is required. Such general powers, which allow Gardaí to enter dwellings without a warrant, already exist, most notably in Section 6(2) of the Criminal Law Act 1997, which confers a power of entry and search of dwellings for the purpose of arresting a person in connection with an arrestable offence. The validity of statutory provisions permitting authorised officers to enter dwellings without warrants was accepted in principle by Murphy J in Deighan v Hearne (High Court, 1986), where he cited Abbey Films Ltd v Attorney General (High Court, 1981) in support of the proposition that ‘…a statutory provision could confer the power on an authorised officer (without the intervention of the judicial process) to enter into a dwelling house and inspect documents there where such action was warranted by the “exigencies of the common good”.’

COVID-19 and the associated public health threats present a compelling public interest that could meet this standard and justify such a power of entry. In addition, a limited entry for a defined purpose – terminating a non-compliant gathering – would not have a pervasive or sustained impact on the private use and enjoyment of the dwelling, unlike some incursions previously impugned by the courts on substantive privacy grounds, such as persistent watching and besetting of a private dwelling. 

Finally, it is worth nothing that the protection of the dwelling in Article 40.5 has been extended by the courts to commercial premises. In earlier decisions, the courts had resisted this conclusion. However, in more recent decisions, they have recognised Article 40.5 as protecting commercial premises that are subjected to searches and/or seizures. What remains unclear is the level of protection that commercial premises benefit from – it seems likely that they are less protected than dwellings. For example, the Supreme Court in Damache v D.P.P stated ‘[e]ntry into a home is at the core of potential State interference with the inviolability of the dwelling’.

Nonetheless, Article 40.5 is engaged in respect of pubs, bars, and restaurants impacted by the entry and closure powers proposed under the 2020 Bill. The Bill is procedurally robust in providing for staggered lengths of closure orders with opportunities for compliance and appeal on the part of business owners, as well as for judicial scrutiny of the grounds for extending a closure order. However, the initial entry without warrant can be undertaken on foot of s. 3 without any suspicion of a breach of public health regulations having been formed by Gardaí. In contrast, the power of entry under s. 6(2) of the Criminal Law Act 1997 requires that a member of the Garda Síochána wishing to enter a dwelling must either have the consent of the occupier or other person in charge of the dwelling or must show that the person to be arrested has been observed within or entering the dwelling, or that they suspect with reasonable cause that the person would abscond or commit an arrestable offence before a warrant of arrest could be obtained, or that the person to be arrested ordinarily resides at the dwelling in question. In other words, there must be grounds established that indicate that entry without a warrant is urgently required.

Under s. 3 of the 2020 Bill, Gardaí are given the power to enter without warrant to check if compliance is occurring and to act if it is not. They need have no suspicion of non-compliance prior to entry, nor are they required to have evidence of urgent necessity of entry. Although this approach is more intrusive, it seems logically required as a means of tackling the public health challenges posed by COVID-19, and therefore is likely justifiable for constitutional purposes as a temporary measure. However, in light of the analysis above, it remains possible that a court confronted with a challenge to s. 3 if enacted might conclude that the power of entry goes further than is necessary to achieve the relevant public health goals. A court might determine that Gardaí could be required to either establish reasonable grounds to suggest that entry is necessary to break up a non-compliant gathering that is suspected to be taking place or to obtain a warrant for entry from an authorised actor independent of the investigation without those hurdles rendering their enforcement powers impracticable or useless as a means of responding to COVID-19.

Rachael Walsh is an assistant professor in Trinity College Dublin and a member of the COVID-19 Law and Human Rights Observatory.

Suggested citation: Rachael Walsh, ‘COVID-19, Powers of Entry, and the Constitutional Protection for the Dwelling’ COVID-19 Law and Human Rights Observatory Blog (8 September 2020) https://tcdlaw.blogspot.com/2020/09/covid-19-powers-of-entry-and.html