I move: "That the Bill be now read a Second Time."
The purpose of the Bill, which forms part of a comprehensive programme of reform of the criminal law which I have under way at present, is three-fold: firstly, it updates the law in relation to public order offences; secondly, it provides for an offence specifically aimed at racketeering; and, thirdly, it provides for the implementation of certain recommendations made by the Committee on Public Safety and Crowd Control.
The proposals on public order contained in Part II of the Bill represent a radical overhaul of criminal justice legislation in this area. The proposals arise in part from recommendations made by the Law Reform Commission in two reports: their report on offences under the Dublin Police Acts and related offences and their report on vagrancy and related offences. I am happy to use this opportunity to pay tribute to the work of the commission in this area.
The proposals also arise in the context of increasing problems of public disorder in recent years which cannot be coped with effectively under existing legislation. By and large, existing legislative provisions are based on 19th century legislation; they are not geared to modern realities and they provide for outdated and inadequate penalties.
While the process of devising proposals in the area of public order legislation inevitably gives rise to complex issues, it is the view of the Government that measures of the kind contained in the Bill are necessary to help to protect the vast majority of our people who want to be free to go about their business unencumbered by those who behave in a way — by harassment, intimidation or otherwise — that has no regard for the basic rights of others.
I am sure the House will accept that it is very important in devising proposals in his area to avoid knee-jerk reactions which, however understandable, would be likely to give rise to proposals which would be at best ineffective and at worst counterproductive. That is why the Government's primary concern in this area has been to devise a series of proposals which are measured and balanced. We must avoid needless restraint on the freedom of people to behave as they will while at the same time provide effective protection for those whose quality of life is endangered by the bad behaviour of others. I believe that the measures contained in the Bill strike the right balance and I am heartened by the widespread public welcome for what we are proposing.
I shall now deal in some detail with the main provisions of the Bill. The measured approach to which I have referred is reflected in sections 4 to 8, which provide for and distinguish between a range of offences, of varying degrees of seriousness, against public order. What we have tried to do in these sections is to address comprehensively and fairly the types of disorderly behaviour which have given rise to so much public concern. Members of the House, through their role in their consituencies, will be more familiar than most with the problems which arise in the area of public disorder, the major concerns to which these give rise and the demand by the public that we, as legislators, should address this issue.
I want to make it clear to the House that the proposals in the Bill are not, of course, written on tablets of stone. I will listen with an open mind to the views which Deputies on all sides of the House have on these matters. If there are problems which Members feel are not being adequately addressed by the present legislation I will certainly take these views into account and have them fully examined. By the same token, if Deputies have any fear that what we are proposing in any way goes further than what is reasonably necessary, I will consider those points with an open mind. If needs be, suggested changes can be addressed on Committee Stage; and I would remind the House that because as part of my programme there will be a number of Bills in the criminal justice area in the autumn, we will have a substantial degree of flexibility in taking on board proposals in this area over the coming months.
In this context I should mention that I propose on Committee Stage to bring forward an amendment in relation to the advertising of brothels. This amendment will be broadly along the lines of one proposed by Deputies McDowell and Harney when the House was considering the Criminal Law (Sexual Offences) Bill. The House will recall that at that time I was not in a position to accept the amendment. One of the reasons for this was that I was not sure — for technical reasons — that the amendment would in fact achieve what was being sought to be achieved. Since then I have had the matter considered in detail and I am confident that on Committee Stage I will be able to bring forward an amendment to deal effectively with what I accept is a problem which our criminal law should address.
Section 4 deals with intoxication in a public place. I should stress that for an offence to be committed under this section the person must be intoxicated to such an extent as would give rise to a reasonable apprehension that he or she might either be a danger to himself or herself or any other person in the vicinity. The Law Reform Commission did not recommend the creation of a specific "drunk and disorderly" offence and we are following the commission's approach. Disorderly conduct, whether caused by intoxication or not, can be dealt with under the provisions of section 5, which I will come to in a moment. Section 4 provides as a penalty a fine of up to £500. While clearly the imposition of the maximum penalty would be inappropriate in the case of a person of limited means, it should be borne in mind that, as in the case of fines imposed in all legislation, the court must take into account the ability of the person to pay. Section 4 also gives the Garda the important power, where it is suspected that an offence is being committed under the section, to confiscate intoxicating substances. This is a power which the Garda already have in relation to underage drinkers.
Section 5 deals with disorderly behaviour which will arise where a person engages in shouting, singing or boisterous conduct in a public place either between the hours of midnight and 7 a.m. or at any other time, having been requested by a member of the Garda Síochána to desist. The behaviour must also be such as to give reasonable cause for annoyance to others. Again, a fine of up to £500 is being proposed as a penalty. I should emphasise that in using this definition we are not setting about penalising anyone's normal social activities; rather we are trying to ensure that other people's rights to peaceful enjoyment of their lives is not upset. On the one hand, it is surely not wrong to penalise the behaviour of groups of people behaving in a rowdy and noisy fashion in the early hours of the morning and on the other, it would hardly be suggested that the merely exuberant behaviour of, say, leaving certificate students who have just received their examination results should be the business of the criminal law.
Section 6 provides for the more serious offence of engaging in threatening, abusive or insulting words or behaviour in a public place with intent to provoke a breach of the peace or whereby a breach of the peace may be occasioned. The more serious nature of the offence is reflected in the penalty which is provided: a fine of up to £500 or imprisonment for up to six months or both. This section will replace section 14 (13) of the Dublin Police Act, 1842, which sets a maximum fine of £2 for this type of offence.
In dealing with the provisions of sections 4, 5 and 6 I should also mention section 9, which gives the Garda power to direct a person indulging in the type of behaviour referred to in sections 4, 5 and 6 to "move on". The Garda are also being given the power to "move on" a person who is loitering in circumstances that give rise to a reasonable apprehension for the safety of persons and property. The effect of the Supreme Court decision in the King case in 1981 is that all of the part of section 4 of the Vagrancy Act, 1824, relating to the offence of loitering with intent is no longer part of Irish law.
In drafting this Bill we looked at the possibility of creating a new loitering with intent offence but we concluded that any replacement type of offence would be unlikely to withstand constitutional challenge on similar grounds to those used in the King case. We recognised, however, that there was a need for some provision to assist the Garda in this area and what we now propose, while not making loitering of itself an offence, will give the power to the Garda to "move on" people loitering in the circumstances which I have outlined. Failure to obey such a direction from a garda will be an offence subject to a penalty of a fine of up to £500 or imprisonment for up to six months or both.
A power for the Garda to "move on" people where they are acting contrary to the provisions of sections 4, 5 and 6 represents a sensible approach which avoids the need to deal with every difficulty which can arise from the type of behaviour involved by invoking the full rigours of the criminal law through arrest and charging. It will give the Garda powers to nip in the bud a potentially difficult situation and the people involved an opportunity to desist from behaviour which they may genuinely not have realised was giving rise to concern. Equally, giving the Garda power to ask people who are loitering in the circumstances specified in the Bill to "move on" should greatly increase the power of the Garda to deal with the activities of those who stalk certain locations with a view to preying on others.
There are other aspects of the proposals contained in Part II of the Bill which I feel should be brought to the specific attention of the House at this stage.
Section 7 makes it an offence to distribute any writing, sign or visible representation which is threatening, abusive, insulting or obscene with intent to provoke a breach of the peace or whereby a breach of the peace may be caused.
Section 8 deals with disorderly conduct at a public meeting. The provision will allow us to repeal in its entirety the Public Meeting Act, 1908. I should emphasise that we are not making disorderly conduct at a public meeting of itself an offence. That conduct will have to be indulged in for the purposes of preventing the transaction of the business of the meeting. In other words, the problem we are trying to deal with here does not arise from people trying to make forceful and dissenting points at a public meeting. Instead, it is designed to deal with those who deliberately set about trying to prevent a meeting being able to transact its business through the use of disorderly behaviour. The section also deals with others who incite people to behave in that — clearly undemocratic — way. A person guilty of an offence under this section will be liable to a fine of up to £500 or imprisonment for up to three months or both.
Section 12 provides for an offence of entering a building or its surroundings as a trespasser with intent to commit an offence. Section 14 provides that it will be an offence for a person, without reasonable excuse, to trespass in a building or its surroundings in a manner which causes, or is likely to cause, fear in another person. Section 13 provides for a related amendment of section 4 of the Vagrancy Act, 1824.
Sections 10 and 11 provide simply for increases in the penalties for wilful obstruction and common assault or battery. Wilful obstruction involves the prevention or interruption of the free passage of any person or vehicle in any public place. Section 13 (3) of the Summary Jurisdiction (Ireland) Act, 1851, specifies a fine for this offence of not more than 20 shillings. Clearly that penalty is unreasonable in this day and age and section 10 provides for a maximum fine of £200. Section 11 (2) of the Criminal Justice Act, 1951, provides for a fine of up to £50 or imprisonment for up to six months for the offence of common assault or battery. Section 11 of the present Bill amends the 1951 Act by substituting a fine of up to £1,000 or imprisonment for up to a year. Section 19 of the Bill recreates various assault provisions contained in section 38 of the Offences Against the Person Act, 1861, and replaces the offence of assault with intent to commit a felony with a new offence of assault with intent to cause bodily harm or to commit an indictable offence. It provides for a penalty, on summary conviction, of a fine of up to £1,000 or imprisonment for up to a year or both; on indictment the penalty will be an unlimited fine, imprisonment for up to five years or both.
The maximum term of imprisonment for assaulting what is referred to in the Bill as a "peace officer" is being increased, under section 20, from two years to five years. A "peace officer" is defined in subsection (5) and includes members of the Garda Síochána and the Prison Service. I believe that most Members of this House would accept that increasing the penalty which can be imposed on those who assault the people charged with protection of the community and enforcement of the law is an appropriate response to mark the absolute unacceptability of such acts. Section 20 also restates in modern form the provisions of section 38 of the Offences Against the Person Act, 1861, and, as well as dealing with assault, includes an offence of resisting or wilfully obstructing a peace officer acting in the execution of his duty.
The effect of section 21 of the Bill is that, by amending the Criminal Justice Act, 1951, a person accused of an offence under section 20 of assault or obstruction of a peace officer will no longer have an automatic entitlement to opt for a trial by jury in the Circuirt Court rather than have the matter dealt with by a judge of the District Court. It has been represented to me that some persons accused of minor assault of a peace officer which could be more than adequately disposed of by the District Court are at present insisting on having their cases referred to the Circuit Court. I have not been persuaded of any good reason why this situation should be allowed to continue and, accordingly, propose to end this entitlement. I should emphasise, however, that it will still remain open to a judge of the District Court to decide that a case is not minor in nature and to refer it to the Circuit Court. Equally it should be borne in mind that the outcome of cases in the District Court can be appealed to the Circuit Court.
The opportunity has been taken in Part II of the Bill which deals with riot, violent disorder and affray to restate and modernise the law in relation to the major public order offences. As a consequence the common law offences of riot, rout, unlawful assembly and affray are being abolished. The approach which is being taken involves stating clearly and in modern language all of the elements of each offence and, in terms of penalties, distinguishing between the offences on the basis of their gravity. The House will appreciate that much of what is involved in this is quite technical in nature but it might be helpful if I outlined at this stage the main ingredients of each of the proposed offences.
Section 15 provides that when 12 or more persons who are present at any place use — or threaten to use — unlawful violence for a common purpose and the conduct of these persons is such that would cause a person of reasonable firmness present to fear for their own or other people's safety, then each of the persons using unlawful violence for the common purpose will be committing the offence of riot. The section also provides that it will be immaterial whether or not the 12 or more persons use or threaten to use unlawful violence simultaneously; the common purpose may be inferred from conduct; and no person of reasonable firmness need actually be present or be likely to be present. A person guilty of the offence of riot will be liable on indictment to an unlimited fine or imprisonment for up to ten years or to both.
Section 16 provides that when three or more persons who are present at any place use — or threaten to use — unlawful violence and the conduct of those persons is such as would cause people of reasonable firmness present to fear for their own or other peoples' safety, then each of the persons threatening or using violence will be guilty of the offence of violent disorder. The section goes on to provide that it will be immaterial whether the three or more persons use or threaten to use unlawful violence simultaneously; no person of reasonable firmness need actully be present or be likely to be present; and a person will only be guilty of the offence if the person intends to use or threatens to use violence or is aware that his conduct may be violent or threaten violence. A person guilty of violent disorder will be liable, on summary conviction, to a fine of up to £1,000 or to imprisonment for up to six months or to both; on indictment the penalties are unlimited fines, imprisonment for up to five years or both.
Section 16 provides that when two or more persons at any place use — or threaten to use — violence towards each other, the violence used or threatened by one of those persons is unlawful, and the conduct of those persons is such as would cause people of reasonable firmness present to fear for their or other peoples' safety, then each such person will be committing the offence of affray. The section further clarifies — along the lines of what I have already outlined in relation to the offences of riot and violent disorder — the circumstances to be taken into account by the court in determining whether an offence has taken place.
The last provision of Part II of the Act to which I should draw the House's attention is section 18 which deals with blackmail, extortion and demanding money with menaces. This is a provision geared to deal with the problem of racketeering. There is no point in pretending that there are not enormous difficulties associated with the prosecution of this type of behaviour — not least because of the reluctance of victims to give evidence. There is existing law which can be used to deal with this type of offence. The main provisions are contained in section 30 of the Larceny Act, 1916, and section 3 of the Criminal Damage Act, 1991. But neither of these provisions is specifically tailored to deal with the problem of racketeering. The Government has concluded that it would be appropriate to create a specific offence in this regard and to mark the seriousness of that offence by providing for a penalty, on indictment, of up to 14 years imprisonment.
Part III of the Bill deals with crowd control at public events. The provisions are along the lines of recommendations made by the Committee on Public Safety and Crowd Control which was chaired by Mr. Jusice Hamilton. I am sure that all Members of the House will join with me in expressing appreciation of the work done by that committee. The committee was set up against the background of the disaster at Hillsborough where many football fans lost their lives because of overcrowding in the stadium. The House will recall that one of the key factors which led to that tragedy was the fact that a crowd of a size which could not be accommodated within the stadium itself had congregated directly around the stadium. The decision was taken to allow that crowd into the stadium with tragic consequences. But, as the subsequent official report into the incident highlighted, to allow a situation to develop where that number of people were present immediately outside the stadium was, in effect, a receipe for disaster.
Part III of the Bill is designed to give the Garda a comprehensive and clear statutory basis on which they can deal with crowd control rather than rely, as at present, on common law powers.
Section 23 provides for the erection by the gardaí of barriers on roads up to one mile from where a particular event is taking place. The gardaí will have the power to divert persons and, where possession of a ticket is required for entrance to the event, to prohibit people who have no tickets from passing the barrier. Section 24 gives the gardaí power to search a person going to an event and to seize intoxicating liquor or any disposable container or any other article which could be used to cause injury. I think that most people would regard the provisions in Part III of the Bill as both sensible and necessary. Putting it simply, they are designed to allow people to attend major events without their personal safety being put in jeopardy.
Part IV of the Bill contains a number of miscellaneous provisions perhaps the most important of which is contained in section 25. That section allows a member of the Garda Síochána to arrest, without warrant, a person committing any of the main offences dealt with in the Bill. I believe that it follows inevitably that if we are going to provide for such offences we must give the Garda a power of arrest without warrant where those offences are taking place. I think that it will be clear from what I have had to say that the Bill which the House now has to consider represents a major reform of our criminal law relating to public order. While I have already said that I will be more than happy to take into account suggestions made during the course of the debate, I believe that the kind of proposals which we have included in the Bill represents a considered and balanced response to the very real and difficult problems we are trying to address.
I therefore commend the Bill to the House.