Q&A - What can gardaí do to enforce public health rules in pubs?

The Berlin D2 venue on Dame Street, Dublin. Photo:Gareth Chaney/Collins

So, what’s all the fuss with this pub?

A short clip taken from the Berlin bar, in Dublin city centre, on Saturday showed a barman pouring drink from a spirit bottle into the mouths of four people standing or dancing near each other at the bar. Owner Jay Bourke said it occurred during what he claimed was otherwise a well-controlled “pre-booked brunch”.

A right kick in the gut & middle finger to everyone in our country who has worked so hard & sacrificed so much, to everyone who has lost a loved one or been sick with #Covid19, to every frontline worker and to every responsible business owner who have suffered so much. Shameful https://t.co/g16bwoEn16

— Simon Harris TD (@SimonHarrisTD) August 16, 2020

What was the reaction?

Health minister Stephen Donnelly called it “reckless” as did acting chief medical officer Dr Ronan Glynn. Mr Donnelly said it was up to gardaí as to whether or not a file should go to the DPP, but he added the actions posed a threat to public health and life and that pubs that breached regulations “need to be shut down”.

And is there a garda investigation?

Yes. Gardaí went to the pub after the footage was circulated on social media. Mr Bourke said he met the licensing inspector at Pearse Street Station on Sunday and handed in four hours of CCTV.

So, what offences have been committed?

This is where you risk falling down the rabbit hole. As it turns out, at least according to gardaí, there are only certain public health regulations that they have a legal basis to enforce. While all the regulations are the law of the land, only some are “penal provisions” and carry a criminal penalty. 

The only such one in this context, in relation to pubs, is whether or not they are serving a “substantial meal” (over €9) with alcohol. This penalty is set out under Section 31A – (Temporary Restrictions) (Covid-19) (No. 3) Regulations 2020 (S.I. No. 234 of 2020). In all cases, gardaí will not initiate a prosecution, but will submit to the DPP for direction.

Is that the only thing pubs, like Berlin, can be prosecuted for?

It seems so, at least under the Covid-19 regulations. But if Berlin can show that they served food with the alcohol, including to the four people captured having drink poured into them, then they might have no case to answer. Or to put it more accurately, gardaí would need to prove they didn’t and would need to rely on witnesses, CCTV footage or bar tills/food orders.

Are there any other powers?

Gardaí can use general liquor licensing laws, for example to deal with situations where alcohol is being served after hours. Gardaí could also make their views known when it comes to renewing a pub’s liquor licence.

How many cases have there been?

Gardaí said on 12 August there had been a total of 126 potential breaches of the public health regulations or the licensing laws since 3 July, including 14 in the week ending 9 August.