A MINISTER OF STATE, the Garda Representative Association, and a solicitor have raised questions about the use of discretion by gardaí and the inconsistent way it is treated within the force.

It comes amid two unusually high-profile uses of discretion by gardaí: Garda Commissioner Drew Harris yesterday said gardaí will apply discretion in dealing with outdoor dining licensing laws. At the same time, concerns have been raised about an internal garda probe into discretion used by five road policing gardaí in County Limerick.

Niall Collins, the Limerick-based Minister of State for Further and Higher Education, Research, Innovation and Science questioned why gardaí should face investigation in some situations when they use their discretion to waive potential offences, but not in others. 

Dan O’Gorman, a solicitor who is representing a number of gardaí who are the focus of the investigation into the use of discretion in issuing road traffic offence tickets in Limerick, said that garda discretion has been ‘engrained in the force since its foundation’ and gardaí are now ‘very concerned’ about the inconsistencies in applying it. 

O’Gorman called for garda management to put together a policy statement to clarify how and when gardaí are allowed to use discretion in certain cases. 

A spokesperson for the Garda Representative Association (GRA) said that “the powers of Garda discretion are being eroded”. 

In An Garda Síochána, discretion around road traffic offences is colloquially known as “squaring” of tickets and often involves representations by phone or in person from senior gardaí or members of the public.

Gardaí have the power to choose whether to issue a ticket or not depending on their power of discretion.

The Garda Press Office described discretion to The Journal as ‘an important facet of providing a policing service’. 

The five gardaí in Limerick have been under investigation for two years over the use of discretion, after a team of detectives from the National Bureau of Criminal Investigation (NBCI) were tasked by Commissioner Drew Harris to examine corruption in Limerick city in October 2019. 

As part of that investigation, five members of the Road Policing Unit (RPU) in Limerick fell under suspicion for cancelling penalty point offences during the course of their duties. These gardaí are currently suspended and have not been charged with any offence. 

They were interviewed by senior members of the National Bureau of Criminal Investigation at various stations under caution – they were not arrested. It is understood that, during interviews, they were offered the opportunity to be witnesses in the case.   

Minister Collins told The Journal: “People in Limerick are saying to me that there is a hypocrisy and double standard around the application of discretion for publicans and it isn’t lost on gardaí and people in Limerick.

““It is okay for [gardaí dealing with] publicans but when a member of An Garda Síochána exercises discretion or when requested to do so by a higher rank, they find themselves under investigation,” he said.

Solicitor Dan O’Gorman told The Journal that he had raised concerns about the lack of guidance for gardaí in the use of discretion for road traffic matters.

“What I do know is that rank and file gardaí are very concerned that the community policing response of discretion, that has been engrained in the force since its foundation, appears to be something that may now put them in jeopardy.

“Therefore what appears to me to be appropriate is that a specific policy statement should be issued from management.

“Rank and file policing is an incredibly difficult and nuanced job and one has to know one’s powers, one’s authority and, in this case, one’s discretion.

“The public has to have certainty and confidence in their police force. There is certainly an issue around discretion and its application,” O’Gorman said.

Sources with a knowledge of the garda probe said that it has been broken into several phases, with phase one focusing on the squaring of tickets for people linked to Limerick GAA.

The second phase is now looking at all other instances uncovered in the NBCI enquiry which came from the examination of text messages.

“The targets for this phase include members of the public, other gardaí, members of the legal profession and even members of the judiciary may be asked for a statement around summonses being withdrawn in court.

“A large number of gardaí have been questioned so far and there are a large number yet to be questioned. Phones have also been seized as part of this enquiry. 

“The investigation, led by the NBCI, has completely changed from the original probe which was looking at an alleged leaking of information to a criminal gang,” a source said.

The Garda Press Office told The Journal: “Discretion is an important facet of providing a policing service. The Commissioner is not aware of any circumstances where a member of An Garda Síochána has been disciplined for the appropriate use of discretion.

“The Commissioner’s instruction [about gardaí using discretion for dealing with licensing law questions] was specifically in relation to licensed premises.”

Frank Thornton, President of the GRA said that he welcomed the intervention yesterday by Minister Humphreys and Commissioner Harris but also voiced concerns for the general use of discretion.

“The powers of Garda discretion are being eroded in practice,” he said. 

“In recent times the message is coming to our members loud and clear that should you observe any breach in the law there has to be direct action or else the gardai concerned may face disciplinary action.

“The common sense approach is one that has always been applied with strong and sound policing, yet this recent atmosphere of fear has adversely affected the ability of our frontline gardai to safely manage this,” he said. 

He said the reality for frontline gardaí was that they were “armed with little more than their own operational experience and professional judgment”.

“The question being asked by the members we represent is whether this instruction applies only to the isolated issue of unlicensed outdoor drinking or is applicable to other spheres of policing,” he added. 

The Department of Justice said that the use of discretion is an “operational matter” for An Garda Siochána, adding that there is a “wide margin of discretion in the decision to prosecute” cases. 

One former Garda Commissioner explained the tensions around discretion before an Oireachtas Committee, saying:

“It is the case that when one is dealing with a discretionary issue, it is extremely hard to be absolutely either prescriptive or descriptive in legislating because people meet individual circumstances and have to deal with them as best they see fit using their professional judgment.”