The House will recall that amendment No. 15 is being taken with amendment No. 5.
Criminal Justice (Public Order), Bill, 1993: Report Stage (Resumed).
Debate resumed on amendment No. 5:
In page 4, to delete lines 7 to 11, and substitute the following " `public place' includes—
(a) any highway.
(b) any outdoor area to which at the material time members of the public have or are permitted to have access, whether as of right or as a trespasser or otherwise, and which is used for public recreational purposes,
(c) any cemetery or churchyard,
(d) any premises or other place to which at the material time members of the public have or are permitted to have access, whether as of right or by express or implied permission, or whether on payment, or otherwise, and
(e) any train, vessel or vehicle used for the carriage of persons for reward.".
—(Minister for Justice).
As the House will recall, I had responded to amendment No. 15. In the course of doing so I had given Deputy Michael McDowell the added privilege of hearing my views on his amendment which he had not even moved at the time.
I was making the point last evening that I felt we had to apply different standards to people's behaviour, how we controlled it in public places to which the general public had access, compared to private back or front gardens where people behaved in a particular manner. I hope I explained as fully and comprehensively as I could to Deputy Michael McDowell why I might not be in a position to accept his amendment whenever he chooses to move it.
Amendment agreed to.
I move amendment No. 6:
In page 4, line 11, after "reward" to insert the following:
"and includes for the purposes of sections 5, 6 and 7 any place adjacent to, or in the vicinty of, a public place from which persons in that public place can see or hear the behaviour prohibited by those sections".
This amendment is designed to deal with the realities, as opposed to the theory, of the situation to which the Minister's remarks yesterday evening were addressed.
In an ordinary street or roadway it would be quite absurd to allow a group of young people to congregate on private property, say, an industrial premises, a disused building, the roof of a factory or the forecourt of a shop. It would also be quite absurd to allow people to congregate on private property and engage in behaviour which was just as disruptive of public order as if they were standing on the thoroughfare itself. It defies belief that the advice to the Minister can seriously suggest she should draw a distinction between what people can do in their front gardens on a suburban road in this city, at midnight or 2 o'clock in the morning, and what they can do outside their front gate. It also defies belief that the Minister is advised it is right to give the Garda powers to prevent a cider party on the pavement but wrong to prevent them from doing precisely the same thing inside somebody's front gateway.
It is wrong that the Minister should come into the House with an amendment which leaves the Garda powerless to deal with, for instance, a very frequent happening, of, say, 20 youths up on the roof of a building, a factory or a disused building shouting and roaring all night, playing their transisters or ghetto-blasters, drinking and throwing bottles, bricks and stones. Children do not stand in the middle of the street to do that; they do it somewhere just off the street. When they know the Minister said in this House that that is legal but to do it on the public street would be illegal, she may rest assured that, when the word gets out she is drawing that distinction, the Garda will have to contend with more and more problems of that kind.
How can it possibly be right that 20 children get up on the roof of a factory premises in one of the suburbs of this city, shout and roar all night, play ghetto-blasters, wake up everybody in the area and that the Garda can do nothing about it because, according to the section it is a matter for the civil courts? The Minister told the Dáil it would be an infringement of civil liberties if the Garda were given powers to deal with that kind of happening. The Minister is mistaken if she thinks that a law of this kind which promises to deal with problems but which does not cover cider parties on derelict sites, in disused premises, on the roofs of premises and in people's front gardens, will work. I warn her that she will be creating a recipe for a very big problem here if she attempts to draw the distinction which I think ought not be drawn between what is property dedicated to the public and behaviour conducted on property immediately adjacent to the public thoroughfare but from which all the adverse effects the sections in question are supposed to deal with can be easily heard and appreciated.
The Minister said yesterday — and I listened carefully — that there would be a danger, on a civil liberties basis, of saying that what people did in their back gardens could be the subject of Garda interference. The Minister should just think that argument through. For instance, what could somebody do in their back garden that would constitute an offence under the provisions of sections 4, 5, 6 or 7, that to stop it would involve an invasion of their civil liberties? For instance, if between the hours of 12 midnight and 7 o'clock in the morning someone in a back garden starts shouting, or playing a ghetto-blaster, is the Minister saying that Garda should not be entitled to intervene, that they should stand outside the front garden and appeal for quiet? How could it possibly make sense that somebody can get out their ghetto-blaster, throw a cider party in the front garden, jeer and shout at their neighbours as they go up and down the road but, as long as they do not put their toe outside the gate, commit no offence? It simply does not make sense.
Although the wording I propose in my amendment may seem to the Minister to be flawed in some respects — doubtless it could be polished up — I appeal to her to accept the principle that this Bill will be a dead letter unless rowdy, disruptive, intimidating and threatening behaviour is outlawed in a public place as long as it is audible or visible there. That is the point I am endeavouring to get across. After enactment of this Bill incorporating the Minister's amendment, the Garda may come on a scene in a suburb of Dublin — Ranelagh, for example, because I will be accused of making a point if I do not mention my own area— and find 20 youths up on a school or factory roof, shouting and roaring all night, playing ghetto-blasters and the like. When they politely request those youths to come down off the roof they will be told that the Minister, Deputy Geoghegan-Quinn, told the Dáil they were entitled to do this, that it would be an infringement of their civil liberties to provide any power of arrest, that if anybody had an argument with what they were doing, they could consult a solicitor and get a civil injunction. It will bring the law of the land into grave disrepute.
Amendment No. 6 may not be perfect but it is proposed to say that, within the context of sections 4 to 7 inclusive of this Bill, the definition of a "public place" is to include, for the purposes of criminalising disorderly behaviour, places immediately adjacent to a public place from which the behaviour in question is audible or visible. That is a perfectly rational, reasonable thing to do. I know the Minister is sensitive about civil liberties groups arguing about the issue——
The Deputy is, too.
I know the Minister feels she has received negative publicity for what are claimed to be draconian aspects of this legislation——
I am not worried about it.
——some of the points made contain some substance. To shy away from making a workable law on the basis that in some way it would infringe people's civil liberties to allow a garda to prevent them from using a front garden or private property to create mayhem in their community is a major mistake.
Our amendment No. 6 proposes to insert the following:
and includes for the purposes of sections 5, 6 and 7 any place adjacent to, or in the vicinity of, a public place from which persons in that public place can see or hear the behaviour prohibited by those sections.
If, for instance, a group of 20 children was found in the area of a Georgian house in any of the streets near here having a cider party, shouting and roaring and playing ghetto blasters, that would be covered by the offence. The garda can tell them to turn off the ghetto blaster or whatever and to go home without infringing their civil liberties. He is merely trying to preserve public order. Our amendment is reasonable.
The Minister's attempt to deal with the issue in amendment No. 5, paragraph (b), is not enough. There are plenty of places from which disorderly behaviour will be directed towards public places which are in private ownership and are not used for public recreational purposes such as schools, buildings, ruins of buildings, peoples' front gardens, gardens of abandoned houses and building sites. These are the places we have to deal with if we are to be realistic about the issue. For example, how would a melee on a building site fall into any of the categories of "public place" as set out in paragraphs (a) to (e) of the Minister's amendment? It is true that a building site is an outdoor area and an area to which people may have access as trespassers but it is certainly not used for public recreational purposes.
We are dealing with a law which must be practical and must deal with the real problems which will arise. Disorderly youths will understand — as they will when word goes out from the Bridewell in Dublin and the equivalent courts in every city in the country — that when they are on private property or property which does not fall into any of the categories specified by the Minister they are safe. The Garda will be in a most embarrassing situation and neighbours will be giving out socks to them to stop something happening on private property. Gardaí will be in a position to say: "I am sorry but the Minister in Dáil Éireann deliberately chose to leave that kind of behaviour without any criminal sanction".
I appeal to the Minister to accept my amendment or to indicate now or in the Seanad that she will further amend the definition of a "public place" in this Bill so as to extend it to places adjacent to a public place, which themselves are not a public place, but where the prohibited behaviour is visible or audible in a public place. If that is not done this Bill is a dead letter.
Deputy McDowell has made a very compelling case in relation to this issue. As he is aware from the debate on Committee Stage I have no desire to exclude derelict buildings, schools, community centres or such places. My main concern in relation to his amendment was that virtually everywhere would now become a public place. However, having listened to him, I do not think that is what he wants to achieve. I am concerned that places or premises in private ownership which may be unoccupied at the time may be used or that there may be a loophole in this legislation which would allow them to be used by gangs of youths engaging in the type of activity we are seeking to outlaw under this Bill. I hope he will accept my bona fides when I say I will accept his amendment but that I need time between now and the Seanad debate to ensure that his amendment is fully in order. It may be necessary — I am not saying it will — to add something to it on Committee Stage in the Seanad.
I wish to thank the Minister.
(Carlow-Kilkenny): I will say what I intended even though the acceptance of the amendment has taken somewhat from it. I was about to say I agreed with the comments of Deputy McDowell but that may be held against me in future years.
Not by me.
(Carlow-Kilkenny): We can go overboard about defending civil liberties when in fact we are impinging on other peoples' civil liberties. I do not know whether any area should be defined but if misconduct takes place and it interferes with other people I do not understand why the Garda cannot protect the innocent victims. Long ago when I was teaching I used to advise children going on holidays to enjoy themselves but to make sure they did not interfere with others. For example, young boys who are full of enegry, can have great fun kicking a tin can up and down a street at 11 p.m. when elderly people in the locality may be trying to sleep. I am not for one minute suggesting that they should be arrested but the Garda should be in a position to tell them to stop and move on. If we define areas and are worried about civil liberties we may forget that there are victims of that defence of civil liberties. We can go overboard in giving rights to people which, in turn, interfere with the rights of others.
Frankly, I am surprised that the Minister has agreed to accept this amendment. This is not the first time I have come in to support the Minister's Bill only to find that she has undermined my position——
(Carlow-Kilkenny): This partnership is falling apart.
——and has accepted amendments to her Bill.
(Carlow-Kilkenny): She is a very progressive Minister.
It is a new departure. I would like to echo the concerns expressed in relation to the civil liberty aspects of this legislation. Under any circumstances we must regard the Bill as far-reaching and radical in dealing with behaviour which is generally regarded as acceptable but which previously would be perceived as an annoyance rather than a crime. We are taking steps to deal with considerable problems in the community from hooligans and people engaging in abusive, insulting and intimidatory behaviour. The line as to what constitutes a crime and what is, in effect, an annoyance in a democratic society is very narrow.
In section 5 there is a distinction between the public and the private domain. I was happy to go along with that distinction considering that we are going into the area of shouting, singing or boisterous conduct. Under very few circumstances would boisterous conduct constitute a criminal offence. Once we move beyond the public domain and impinge on the private domain, as propounded in amendment No. 6 and sections 5, 6 and 7 as any place adjacent to, or in the vicinity of, a public place that constitutes the privacy of one's home.
We had a disagreement while debating the Road Traffic Bill about gardaí entering the homes of people without warrants on suspicion that an offence had been committed. While the argument can be cogently put by Deputy McDowell we are trying to ensure that the Bill is effective. Nevertheless, the step proposed goes beyond the intention of the Bill in terms of dealing with this type of behaviour in a public arena. The definition of a "public place" is very wide. There are no limitations to what is a public place. A public place includes the places referred to in paragraphs (a) to (e) of amendment No. 5. Obviously, these are only some of the public places. If we extend it by adding "any place adjacent to, or in the vicinity of, a public place", we are omitting nothing. I think this is a dangerous amendment. I hope the Minister will not accept it because it gives absolute authority to invade a person's privacy on reasonably flimsy grounds such as boisterous conduct, shouting and singing. It would be very difficult to have a party at home without a little noise, or indeed to have a cocktail party on the south side in Dublin 2, 4 or 6 without a certain degree of boisterous conduct. This amendment would mean that the gardaí could enter that home because it is in the vicinity of a public place — as all homes are — such as a public highway, which is specified in the Bill. We could find ourselves in enormous trouble if we go down this road.
We all agree on the intent of the Bill but if we spread the net of legislation so widely that we do not focus it, we will create more problems instead of resolving the present problems.
I have some reservations about this amendment. As we have just agreed to amend the definition of public place, it is now widely drawn. The Minister is disposed to accept amendment No. 6 which would extend the definition of "public place" as follows:
"and includes for the purposes of sections 5, 6 and 7 any place adjacent to, or in the vicinity of, a public place from which persons in that public place can see or hear the behaviour prohibited by those sections".
Presumably, if one can see or hear from a public place what is going on in the front or back garden of a house — perhaps a row between a husband and wife, two brothers or a father and son — it could constitute a criminal offence under the Criminal Justice (Public Order) Bill. It is not a public order matter but a private matter.
Let us consider sections 5, 6 and 7. Section 5 deals with disorderly conduct in a public place and the amendment to that section is reasonable. Section 6 refers to abusive or insulting behaviour in a public place and section 7 relates to the display of insulting or obscene material. I want to home in on the word "insulting". If a husband and wife are having an argument, it is inevitable that the odd insult will be thrown out, that happens in the best of homes, even in Progressive Democrats homes. I should mention in passing that we have the odd cocktail party in Dublin 8, which Deputy Costello and I represent.
Deputy Costello is a south side Deputy.
He is a north side and south side Deputy, it depends on where he is speaking. If we are to accept the amendment as tabled it would be possible for a person in a public place adjacent to a house to have a prosecution taken against a couple who in the privacy of their own garden were having a row, or indeed, somebody who might want to put up a poster in his garden that is adjacent to Landowne Road which might be insulting to the Spanish football team. This would now become a criminal offence because it could be seen from a public place adjacent to the person's home. When one considers that we are setting out to deal with criminals, vandalism, burglaries, car thefts, muggings, drug pushing, racketeering, riot, I think that is going a little too far.
Deputy McDowell has a point. In my constituency there is an area which nobody takes care of between a youth club, a cul-de-sac, a block of flats and some nearby houses. It could not be called a landscaped site. We have had terrible difficulties with youths congregating there in the middle of the night using intoxicating substances and watching one of their number driving a stolen car up and down the canal and doing handbreak turns. In order to solve this problem, we are going to build four or five houses on that site and on part of the adjacent flat complex, literally to get rid of the vacant site. This is the bane of people's lives. As that plot could not have been described as a place for public recreational purposes, the Minister's amendment does not cover it. Deputy McDowell's amendment goes some of the way to cover it but I have reservations about his amendment as it affects sections 5, 6 and 7. I am seeking to amend sections 6 and 7 by removing the word “insulting” and inserting the word “intimidating”. If that were done, that would cover my reservations on amendment No. 5. I support the thrust of Deputy McDowell's amendment, but I have reservations about the word “insulting”, which is used in the later sections to which the amendment refers.
It is a pity we have come to debate this issue so late in the debate because it could have been usefully teased out on Committee Stage. I understand what Deputy McDowell is seeking to do and I can see the loopholes he is anticipating, although he is probably exaggerating a little when he paints a picture of the type of people for whom this Bill is clearly intended hanging on our every word to see if they can identify the loopholes in the legislation. Perhaps it is more accurate to say that members of Deputy McDowell's profession might be trawling through the debates.
The same difference.
It was Deputy McDowell who said it. Clearly, there is a problem that needs to be addressed. We have all come across cases of the very awkward neighbour who uses the sanctuary of his dwelling and its curtilage to hurl all kinds of insults and display all kinds of obscene signs to neighbours with whom he is having a row. We have all come across cases of repeated noisy partying, which can cause distress in a flats complex or housing estate. Very often, there can be very violent behaviour or behaviour approaching violence in a dwelling and people feel they are helpless to do anything about it. However, there is a question about the extent to which the State can involve itself in what are essentially matters that are private to the individual, to a family or to a household.
It is somewhat ironic that Deputy McDowell who represents a party that wanted to give the State less control over the economy should suggest that the State become involved in the midnight partying of people in a private dwelling house. The purpose of Deputy McDowell's amendment is to extend the provisions of section 5 which deals with shouting, singing and boisterous behaviour between midnight and 7 a.m. If a person holds a party which extends beyond midnight it is possible for a neighbour to call the gardaí and ask them to do something about it. A distinction must be drawn in that regard. How would such a provision be enforced in practice? Would the gardaí be faced with having to take action every time a cantankerous neighbour complaints about a person who he or she believes is having a wild party? The problem lies at the implementation stage. I know what Deputy McDowell wishes to address, but the matter must be teased out.
It is regretable that at the end of the debate on this Bill we are discussing an interesting and important dimension to the legislation. However, I share Deputy Costello's reservations and hope when the Minister put down an amendment that the Seanad will have an opportunity to tease out this matter.
Much of what I intended to say has already been said. We should not forget that we are discussing the creation of criminal offences and we must make a distinction between activity which might be socially inconsiderate and criminal offences. If I choose to play my radio after midnight in such a way that it can be heard next door, which I frequently do, that could be viewed as socially inconsiderate and perhaps I should not do that. However, I should not be liable to a fine or imprisonment for such activity. A distinction must be made in that regard and such distinction should apply most forcefully to activities in the home.
I accept Deputy McDowell's point about derelict building sites and so on. Perhaps "public place" should be defiend in such a way as to include those type of sites, but we must be careful not to include private homes in such definition. All parties held in Ranelagh, or indeed in my constituency, would be made up of people liable to criminal prosecution because parties are nearly always boisterous and cause annoyance to the occupants of houses nearby. While the holding of such parties might be viewed as inconsiderate and most people would accept that the gardaí should be entitled to tell those involved to turn down the volume, clear off or whatever, they should not be liable to prosecution, fine or imprisonment. We must draw that distinction.
I accept a number of the criticisms made in regard to the drafting of my amendment. In principle, the fact that a person is on private property adjoining a public place does not give that person the licence to do something which, if he or she was only one or two feet away from the public place, would be an offence. A person should not be entitled to stand in their front garden and bellow abuse at people passing merely because that person is standing in his or her front garden.
People should be allowed make reasonable use of their own dwellings. If the legislation applies to dwellings, a garda could direct a person to leave his or her dwelling. That would make a joke of the legislation. I would stress to the Minister that she is not providing a safeguard by listing a series of places which she believes fall into the catogery of quasi public places. She has not solved the problem if a person can stand in his or her front garden and shout insults at neighbours, play ghetto blasters and, in general, create mayhem in the area. As it stands, the legislation would give a licence to people to behave unreasonably on their private property and create a defence to behaviour which most people would regard as anti-social. A provision along the lines I suggested should be incorporated in the legislation which would include the words, "reasonable use by people of a dwelling". That is the correct way to deal with the matter.
The Seanad is supposed to have some function and if it cannot come up with a solution to this problem there is no point in sending legislation from this House to the Seanad. I acknowledged that I was unhappy about the formulation of words in my amendment. I accept the arguments put forward today, especially in respect of people's dwellings, and I agree that we cannot adopt a procedure whereby the gardaí could tell people to leave their homes, but some middle ground must be explored in that regard.
The Minister has tabled an amendment to remove the power of arrest for section 5 offences in respect of disorderly conduct in public places and that is welcome. Effectively, she is saying that a person cannot be arrested for disorderly conduct, but if the person ignores an instruction from the gardaí to stop, he or she can be arrested. That is a much more sensible formulation of the law. I am corect to the extent that the Bill will be useless if it does not address the issues I raised and, likewise, the points raised by other Deputies in respect of people's dwellings. In so far as my amendment does not deal with the latter, I will withdraw it.
Does the word "premises" cover the type of no-man'sland site to which I referred earlier?
I am told the word "premises" would not cover such a site but that the word "place" would. I thank Deputy McDowell for withdrawing his amendment. There is general agreement that we should cover the types of situations and places to which he referred and I will be tabling an amendment in that regard in the Seanad.
I wish to raise a concern in regard to amendment No. 15, which relates to the insertion of, "including a public park whether open or closed". The Minister's amendment 5 (b) states:
any outdoor area to which at the material time members of the public have or are permitted to have access, whether as of right or as a trespasser or otherwise, and which is used for public recreational purposes,...
Presumably it covers the point I made in my amendment in relation to a public park closed at night. Does this mean that if I do not press my amendment the amendment already agreed covers the position and that if a criminal offence is committed and the public park is closed the gardaí will have the right to enter it to pursue the criminal?
As I said last night anybody in a public park closed at night is a trespasser and the position is covered under amendment 5 (b). I also said that in relation to a public park which is padlocked or closed by whatever means a local authority has for securing such public parks, it would be a matter for the gardaí, local authority or the caretaker of the park to come to an arrangement in regard to obtaining the key. This position can easily be worked out and arrangements have been made in relation to areas where the gardaí need to gain access, but they would be empowered to enter the park, to charge and remove the person causing the disturbance, which would be a criminal offence.
Amendment, by leave, withdrawn.
I move amendment No. 7:
In page 4, between lines 11 and 12, to insert the following:
"4.—In determining the sentence to be imposed on a person for an offence to which this Act applies, a court shall take into account, and may, where necessary, receive evidence or submissions concerning, any effect (whether long term or otherwise) of the offence on the person in respect of whom the offence was committed.".
I tabled this amendment on Committee Stage and made the case that, as a general principle in criminal legislation, the impact on victims should be taken into account when courts hand down sentences. The Minister advanced two reasons she was not prepared to accept the amendment. She said account was already taken of the victim impact assessment in the Criminal Jusice Act for cases of violence against a victim and that much of the legislation we are putting in place is addressing forms of victimless crime where it is not possible to easily identify an immediate victim and where the crime can be said to be more against society or the public than identifiable victims. The concept of victimless crime needs to be further addressed. If there were no victims of the type of crimes this legislation is attempting to address there would not have been a public demand for the legislation in the first instance. The demand for legislation to deal with these types of public order offences has come from people who have been victims of the type of offences this legislation is seeking to address.
Last night I attended a meeting of a residents' association to discuss the problems faced by residents in an estate located along the route from a local pub and adjacent to a number of bus stops. I heard a litany of complaints about the singing and boisterous behaviour they endure after midnight, the pulling of a nail or some sharp object along the side of a motor vehicle parked on the side of the road, materials thrown into front gardens and various ways in which they have been victims of the type of offences we are discussing here. We must accept they are victims.
One of the criticisms of this legislation from the civil liberties perspective is that the offences created in it are subjective and there is validity in that criticism. Regarding the type of offences being created, the gardaí and the courts will be called on to exercise judgement as to whether an offence has been committed. Presumably in some cases the gardaí will have received a complaint from a member of the public, for example, a person who complains about a group of people standing at the corner of a street creating a racket and disturbing a family's sleep. The gardaí are called and they exercise their judgement as to whether to move those people on. If the case ends up in court the question must be raised as to how the court will assess if an offence was committed in the absence of hearing from the victim and, if it was, the court will have to determine how serious it is before imposing sentence.
Regarding the ways in which offences in this legislation are phrased, it appears that account must be taken of the impact of the crime on the victim and, apart from that information being used to impose a severe sentence where it is warranted, it will also enable the court to form a judgment about the seriousness of the offence. Section 5 refers to singing and boisterous conduct which would give reasonable cause for annoyance, but how can such conduct be assessed unless the people to whom the annoyance was caused are heard? Sections 6 and 7 refer to threatening, abusive, insulting or obscene behaviour. They are subjective terms, how will a judge assess such behaviour without hearing from the victims? Section 8 refers to loitering and the reasonable apprehension for the safety of persons; presumably one would have to hear from the people whose safety was feared for in those circumstances. Section 9 refers to a person wilfully preventing or interrupting the free passage of another person and again one would have to hear from the victim in that case. Section 13 refers to trespass on a dwelling which is likely to cause fear to another person and, unless one hears from the other person, and the extent to which the fear is caused, how can one form a judgment as to whether an offence was committed and, if it was, its seriousness. The Bill continues in those terms.
Apart from the general principle of the desirability of having the impact on victims taken into account when a judge makes a judgment, is particularly important in this legislation where many of the offences are or a subjective nature and to judge if an offence was committed, its seriousness and the appropriate sentence to impose, to hear from the victim to assess the extent of the impact on the victim. A distinction will have to be drawn between cases where people may be singing and behaving boisterously on a street and a garda being over-enthusiastic in enforcing this legislation when nobody on that street was offended by the behaviour and cases where annoyance has been caused and people have been insulted and intimidated. The impact on victims has often been spoken about in cases where people have sought increases in sentences. In more severe cases the impact on victims should be taken into account in handing down sentences. The concept must also be taken into account from another viewpoint. Much concern has been expressed that this legislation may be abused, over-used in that some gardaí may decide to exercise their authority in regard to it. In everyone's interest account of the impact on victims must be built into the legislation.
Deputy Gilmore's amendment is to be commended, although I am not sure that his wording covers my reservations in this area. The amendment has given us an opportunity to debate the principle of what he is proposing.
Under our criminal justice system the victim is no more than a witness in the court. In the event that the gardaí apprehend a criminal, the victim of the crime will receive a summons similar to that received by the accused to appear in court and his status will be no more than that of a witness. Some witnesses feel intimidated by our unsatisfactory court system but they are compelled to be in court at their own expense. The offence is against the victim and also against the State in that it is an offence against the general public. The victim must be brought to centre stage and should be considered as more than a witness.
It is time to reform our penalty system which, for instance, imposes penalties of three months or six months in prison or in default a fine of £500 or £1,000 or both. We should do everything possible to unclog the overcrowded prison system and ensure that there are prison places for those who need to be contained. People should not be committed to prison for non-payment of fines. We should ensure that fines are collected so that the 12 per cent of all committals for non-payment of fines is reduced. When imposing a fine the judge should be empowered to allocate half of it or more as compensation to the victim of the crime, as he judges appropriate. At the moment the victim is ignored. The judge might ask the accused if he has made any attempt at restitution and he may or may not take that into consideration. Notwithstanding any compensation or restitution that might have been made, the judge should be empowered to allocate part or all of the fine to the victim to compensate him for perhaps foregoing a holiday or a day's work to appear in the court.
I once thought that victim support was not central to the issue but I have listened to the case made by the victim support group and I now feel strongly that victim support is central to the remedy for our problems. If somebody knows that he will have to compensate for damage to property and will not simply get away with a sentence which does not reflect the cost of the damage, he may think twice about causing the damage. It is time to start providing for compensation to the victim in our laws. I support the general thrust of this amendment.
I too feel that this amendment has merit and the Minister should look at it closely. The wording may not be satisfactory but the sentiments should be taken on board.
I welcome the Minister's indication that she will pursue the collection of fines on a more relevant basis so that large numbers of people will not go to prison for non-payment. As recently as yesterday a person who owed three small fines amounting to approximately £50 ended up in prison even though the person was willing to pay the fines to the warrant officer on a gradual basis. It would be no harm if a directive was sent out to all the warrant officers so that we could have a more orderly collection of fines and ensure that fewer people go to prison for non-payment of fines.
The importance of this amendment is that it highlights the fact that there is no such thing as a victimless crime. All crimes have some victims either corporate victims or individual victims. In recent years we have not passed any legislation so community-based as this legislation. This Bill deals with the impact of certain types of behaviour on the general public, for instance intoxication, disorderly behaviour, gangs roaming the streets and insulting behaviour. Deputy Gilmore outlined cases where the victim comes into direct contact with the offender. We must ensure that the penalty fits the crime. If we bring the victim to the fore in terms of the effect of certain behaviour on the victim, we will be in a better position to assess the type of penalty we should impose.
I accept the point made by Deputy Mitchell that victims who have suffered have been left in isolation. Victims are the people who are dealt with as a statistic in the whole procedure and they have not been encouraged to believe that the wrong committed against them is being put right. If the victim was allowed to make a submission so that we could assess the effect of the offensive behaviour on him or her we would be going a long way towards satisfying them that their views are taken into consideration in deciding on the appropriate penalty. This would be of benefit not only to the victim but also to the community.
It is one of my old hobby horses that we have only seen fit to specify two penalties in criminal legislation, namely, a fine or prison sentence. This is inadequate in guiding judges on how to decide on the appropriate penalty to be imposed. A wider range of penalties is provided for in this legislation. If the victim was brought into the picture the need to experiment and avail of the wider range of penalties in this legislation would become clearer to the judge. For example, if young people terrorise a neighbourhood by painting graffiti and insulting remarks on walls it would be appropriate to ask them to remove this material. If young people desecrate a public park by damaging trees or flower beds our typical response should be to ask them to put the damage right. Therefore, if a person misbehaves they could be asked to do some community work under the community service order scheme. They could also be asked, where it is considered appropriate and based on a person's ability to pay, to pay a fine which could go towards making good the damage caused. They could further be asked to pay compensation.
There is a need to bring the victim in out of the cold as it were — they are neglected at present — and consider appropriate penalties for the courts to hand down. In this regard — Deputy Gilmore deals with this aspect in the next amendment — we should get away from the notion that people should be sent to prison having regard to the fact that our prisons are over-crowded, an enormous amount of money is being spent on them and the return is poor. We should consider ways of making good the damage caused in a community setting. The Minister should consider the proposal in this amendment on its merits.
I am attracted by what Deputy Gilmore said in support of his amendment. I note that he deals with the question of compensation in a subsequent amendment. I would like to make a number of points on this issue. First, it is easy to talk about the issue of victim support but it is much more difficult to do anything substantial about it. It is not as if judges have not done anything for victims over the years; long before provision was made for compensation orders in the Statute Book many judges postponed sentence until such time as the injured party had been compensated. This has been applied in a variety of cases, including those involving theft, burglary, sexual assault and other assaults. For many years the Judiciary have tried to avoid imposing a term of imprisonment and extract compensation for needy victims of crime. It is not as if they have always said that they have no choice; they have used their powers creatively to suspend sentences and extract moneys from offenders. Anybody who has attended the courts will have seen that usually this was their first instinct in most cases where there was an obvious and identifiable victim of crime. In deciding on the penalty to be imposed they always looked to see what could be done to make up for the crime committed against the victim.
One of the difficulties, where it was considered desirable that compensation should be paid and was offered by the accused person, was that the judge also had to say to himself that the offender should be punished publicly. This could not be done under the suspended sentence mechanism; one could not send a person to jail and at the same time compensate the victim. Frequently, the judge had to make a hard choice, in the absence of the power to order a person to pay compensation in a case involving violence, between an attractive offer made by the accused with a view to avoiding a prison sentence and the interests of the community to ensure that a person could not buy their way out of prison if they maimed another person or destroyed their property.
This is not a new issue and it deserves some reflection on the part of this House. While this amendment has its merits the Minister would be better advised to introduce a comprehensive statute dealing with the powers of the courts in criminal cases, as has been done in Britain. While Britain may not be in every respect the ideal model to follow — they got into terrible trouble recently on the question of sentencing policy when Parliament attempted to interfere and stipulate when sentences should be handed down and what fines should be imposed — nonetheless the time has come for the Minister's Department to bring before the House a modern statute dealing with sentencing policy which would abolish the difference between penal servitude and imprisonment and set out on a statutory basis prison sentences and remission, compensation orders, community service orders, the probation system and a variety of other matters which this House has never addressed sufficiently.
There are many methods of dealing with crime other than by handing down suspended sentences or issuing community service orders. I note that in some American jurisdictions people are forced in certain circumstances to publish at their own expense an apology in a newspaper when they behave in a vandalistic way. Judges in America may say that a person should place an advertisement in a newspaper which should include their photograph apologising to the community. That is one creative way of bringing home to a person that they will not get away with it and escape the public opprobrium that they deserve for the want of an adequate remedy if they mutilate a phone box.
What we need is a Bill in which the powers of the court in criminal cases are outlined. The Minister's Department could put such a Bill together easily because most of the component parts are identifiable and there are precedents internationally. The problem is that if we include these provisions in respect of the offences that are being created in the Bill people will begin to wonder why it is, if a person behaves in an outrageous manner and breaches the provisions of this Bill that compensation will be payable and it is not payable in respect of equally outrageous offences not covered by the provisions of the Bill.
The second point I wish to make on the question of victim support — this is directed at the Minister in particular — is that while the Minister has made an issue out of this matter it should be stated repeatedly in this House that her Department is not paying victims what they are awarded by the Criminal Injuries Compensation Tribunal.
I recently had a case involving a man who was badly assaulted in circumstances that would come under this Act. The Criminal Injuries Compensation Tribunal awarded him £10,000 for loss of earnings and the cost of medical treatment. He was a man of modest means with a modest job and he was told, after a long delay of about two and a half years, that he would be given an award, but at the bottom of the letter telling him that he was being awarded his £10,000 was a statement that there were not sufficient funds to pay him immediately, and that he could wait 30 months at least before he could expect to see the money awarded to him. I appreciate the Minister's gesture in setting aside a room in the Four Courts for victim support. However, a person in those circumstances does not need a room in the Four Courts but needs the State to pay the amount awarded him.
As a society we are completely irrational in the way we compensate people for things that befall them. If I walk across Kildare Street and am knocked down by an uninsured driver, the State has in place a complex system throught the MIB to compensate me, even though there is no policy of insurance, because it is thought that, in those circumstances, I am a deserving case. If, on the other hand, a 75 year old woman loses an eye and has a paralysed arm as a result of an assault but cannot show out of pocket expenses because she is entitled to free hospitalisation, she gets nothing. The criminal injuries compensation scheme does not apply to her, although it will compensate a younger man for being out of work for three or six months and will compensate people who are not entitled to free hospitalisation for the cost of their hospitalisation and medical treatment. It will also compensate people who have to undergo physiotherapy etc. as a result of a relatively minor assault. However, a 75 year old woman who loses an eye and has a paralysed arm gets nothing.
If we are serious about compensating victims of crime perhaps we should, as a Legislature, take another look at the decisions we are making. Why is it that victims of minor car crashes are handed significant sums of money while the woman in the example I gave is entitled to nothing?
It is important not to get carried away by the proposal to take victims into account. A trial should still remain a trial and should not be turned into a kind of Santa Claus operation whereby the judge feels good as a result of compensating all sorts of people rather than conducting a case on the basis of proof beyond reasonable doubt. Knowing some members of the Judiciary, I know there is a danger that if they feel they can do people a favour by compensating them they will feel good themselves, provided the person is deserving. There is a danger that the issue of the guilt of the accused is beyond reasonable doubt may be lost sight of in the rush to compensate a worthy person.
Let us not cod ourselves on another matter. The reason there was a Criminal Injuries Compensation Tribunal which paid pain and suffering compensation is that most of the perpetrators of criminal offences are in no position to compensate anybody. If one orders a young man who is on the dole to pay £200 to somebody for vandalising his car, the cost of getting it from him over a number of weeks would make it not worthwhile. There is no point in trying to get money from a young man standing outside a labour exchange. There is no point in the judge or court officials spending time trying to get blood from a stone.
They could be asked to pay it into court.
Even asking such people to pay the money into court is more easily said than done. If they do not pay, are we to send people to their houses? Are we to involve civil servants in keeping accounts of what they have paid on foot of orders, producing records on some ledger in the District Court Office to say that he did pay it one week but forgot to pay another week and then listen to excuses about extra expenses because it was Christmas etc? These things wear down all these schemes. In compensating people for crimes committed against them, we must remember that the average person who breaks into houses is a drug addict with nothing. The average person who beats up somebody on Dún Laoghaire pier or anywhere else has no assets to compensate anybody. To say that we are going to get the person who inflicted the injuries on the 75 year old woman to compensate her may sound great in theory but it will not happen in practice. If we really want to compensate victims of crime the only way we can surely do it on a fair basis is out of the public purse. Is it fair that the person who suffers more damage at the hands of someone who is penniless ends up with less money than the person who suffers less damage at the hands of a person who can compensate him or her?
I do not like throwing cold water on ideas but if we are serious about compensating victims of crime, looking to the perpetrator is, at the very best, a very inadequate means of doing so.
This amendment certainly needs further consideration and I would ask the Minister to have another look at it before it goes to the Seanad. We must be very careful about putting the onus on the victim to provide evidence of the effect a particular crime has had on him or her. If a person's car is burned out or damaged on the roadway, that could have certain effects on a victim. He may not be able to travel to work, take his children to school etc. How does one estimate the effects of an assault on a victim? I am concerned about putting the onus on the victim to provide such evidence.
Victim support was mentioned. I was pleased to attend a meeting in Cork last week at which ten members of the community received certificates, having completed courses on victim support. I was pleased to hear Mr. Derek Nally, former general secretary of the Garda Association, pay tribute to the Minister, Deputy Máire Geoghegan-Quinn, on the manner in which she is dealing with crime. There is widespread concern in the community at the inconsistency of sentencing. I am not for automatically sending people to prison every time they commit an offence. Other alternatives, such as community service orders, are being tried and these alternatives should be further examined. Uppermost in our minds must be the victim of crime. Many feel that they are not getting the support they deserve.
Debate adjourned.