Policing house parties 'legally possible' but 'hugely problematic', says legal expert

Legal experts say more detail is needed on government plans to police house parties. File picture

People holding a house party will have less legal protection in any potential prosecution for breaching Covid-19 regulations if the Government makes it a civil, rather than a criminal, offence, a legal expert has said.

Professor Shane Kilcommins said while any house owner prosecuted will be spared a criminal penalty, they will not have the same rights a defendant has in a criminal prosecution.

This includes the burden of proof, which is on the balance of probabilities in a civil action, not beyond reasonable doubt as in a criminal prosecution.

But Professor Kilcommins, head of the School of Law at the University of Limerick, said it was still unclear if State officials would investigate such cases and what legal provision would be put in place to allow such officers enter a home.

Dr Seán Ó Conaill of University College Cork School of Law said it was “not at all clear” what the Government meant by proposing a civil offence and said if there was a provision to enter a private home that it was very hard to see “anyone but the gardaí” given such a sensitive power.

The reaction follows changes announced by the Government last Friday, which axed a previous proposal to make holding house parties a criminal offence, enforceable by the gardaí, and instead make it a civil offence.

This was in relation to gatherings of no more than six people in a home.

Taoiseach Micheál Martin indicated that it would be health officers, not gardaí, who would prosecute such civil cases.

Professor Kilcommins said the Government might have been reluctant to use a criminal mechanism and such a label in entering homes.

He said there were benefits to using a civil approach: “A respondent party cannot rely on the same level of due process safeguards. For example, the presumption of innocence does not apply in a civil setting, and the right to silence or the right not to give evidence cannot be relied upon.” 

He said it would be “interesting” to see if gardaí were involved, but said: “In recent decades, an extensive range of regulatory agencies have emerged with hybrid investigative and prosecution functions, including for example the Health and Safety Authority, the Environmental Protection Agency and so on. They have both civil and criminal powers, but the procedural and substantive rules governing both are very different.” 

He said entry into a private home, whether it is a civil or criminal power, is “forbidden unless it is authorised by law” and home owners could possibly take civil action for trespass.

Dr Ó Conaill said it was “not at all clear” what the Government meant by proposing a civil offence and more detail is needed.

“We do see non-gardaí given extensive powers in areas like customs, animal health, health inspectors, so there are options there but, in reality, given the nature of the issue, it’s very hard seeing anyone but the gardaí really being able to do this job."

He said entry of private homes was "hugely problematic" in terms of the practical issues, but was "certainly legally possible".

He said trying to get all the checks and balances that the system would need to deal with a house party-type context would be “very challenging”.