LAST UPDATE | 9 Nov 2022
GARDAÍ WILL ENGAGE with individuals before any enforcement is taken under plans for safe access zones around clinics that provide abortion services.
However, Gardaí told an Oireachtas committee today that from a policing perspective, it has a number of concerns around the new legislation.
The new law will designate a protest exclusion zone of 100 metres around all healthcare facilities, including those that provide abortion services.
In effect, this would introduce exclusion zones around all hospitals, GP practices and family planning clinics. It applies to any facility that can provide abortion services, not just ones that currently do so.
Garda Deputy Commissioner Anne Marie McMahon told the committe that there should be no ambiguity about where a safe access zone begins and ends and called for signage to be placed so people and officers know when an infringement is taking place.
She told the Oireachtas Health Committee today there is a lack of “practical” clarity on the 100-metre zones outside abortion facilities.
She said there is an issue with the practicalities of the locations as there are different entry and exit points to facilities.
McMahon said the process needs to manage two competing rights – the right to protest and the right to access to abortion services.
“We have to respect both, so it’s really important that both sides know when an infringement is taking place and, equally, when a party should and could and is entitled to expect that free access zone,” she added.
“It’s about being clear, so that we can be fair with everybody and that there is no ambiguity around where that zone begins and ends.
The committee is continuing its discussion on the Health (Termination of Pregnancy Services (Safe Access Zones)) Bill 2022.
Engagement before enforcement
She also welcomed the proposed graduated response where it is intended that engagement with individuals will occur before any enforcement, which is similar to the approach taken to Covid-19 legislation.
The gardaí utilised a four ‘E’s approach (Engage, educate, encourage, enforce) during the pandemic, McMahon is expected to tell the committee, and that gardaí intend to adopt a similar approach with regard to the implementation of this legislation.
However McMahon said there are areas of concern from a policing perspective including the issue of warnings; what powers the gardaí will have; and the specific offence of harassment.
“An Garda Síochána have concerns on the practicalities of warning given for a specific zone and this warning remaining in place for a zone in another part of the country. A fresh express warning in respect of each safe access zone would be more effective from a policing perspective,” the deputy commissioner said.
Gardai have been called to various protests and demonstrations at premises which provide abortion services.
The committee was told no arrests have been made at the protests.
Sinn Fein health spokesman David Cullinane stated that a record of warnings will make it easier to manage “serial offenders” who attend multiple locations.
“In the absence of record keeping, people could just move on from one healthcare facility to the other, getting warnings in each one,” Cullinane said.
“There’s nothing really that the guards can do about it, if it’s the case that you have to issue a fresh warning for each and every healthcare facility.
“Whereas if the warnings are consistent across all of the facilities, no matter which one you’re at, then that can be tracked by records that are kept. I would imagine from a policing perspective, that would be more beneficial.”
Kate Mulkerrins, executive director of legal and compliance with An Garda Siochana, said “mens rea” is key to the offence.
Mens rea, also known as criminal intent, would in this instance likely refer to protesters who were unaware of the fact they were within the boundaries of a safe access zone.
She said people moving in large numbers, the inability to take names and addresses and no signage will be “problematic” for gardaí.
Mulkerrins also said signage at safe access zones will help to avoid the defence of honest mistake.
McMahon told the committee that the proposed powers within the Bill “fall short of providing An Garda Síochána with an effective investigatory tool in the context of detentions or searches and seizures of evidence where suspected offences are serious in nature”.
For example, in a situation where there is repetitive behaviour of intimidation or harassment of a service provider under the Bill, there is no power to detain individuals or to conduct searches as the proposed offences are summary in nature.
Leinster House
The gardaí have also raised an issue with one aspect of the proposed legislation which states that a safe access zones cannot be created within 100 metres of the Houses of the Oireachtas.
While the gardaí said the purpose of the exception is clear, there could be unintended consequence, and the exception may require some rewording in the legislation.
Concerns have been raised about the gardaí asking for individuals to voluntarily hand over their mobile phone that they may be using to take photos or film with.
“Bearing in mind that the offences are summary in nature it is unclear as to what power the Gardaí have in terms of searching a phone device and the proportionality of any such search in regard it its intrusiveness into the right to privacy balanced against the gravity of the offences concerned (summary offences).
“While there is a power of seizure, there is no power of search for a device for example if a person put the device in their pocket or bag. It is suggested that these matters are clarified,” said the gardaí.
McMahon told the committee that the gardaí look forward to assisting the committee to ensure the Bill is “effective from an operational policing perspective”.
Plans for exclusions zones around medical facilities were originally agreed by all three Government parties in the Programme for Government, with Donnelly saying he was “fully committed” to the plan.
Eilís Mulroy, of the anti-abortion Pro-Life Campaign, has previously said the Government’s plan to introduce exclusion zones sets a “very dangerous precedent for denying freedom of expression and the right to peacefully assemble in public areas”.
She described the proposals as “regressive and draconian”.
With additional reporting from PA
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