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 threefold. First, it updates the law in relation to public order offences; second, it provides for an offence specifically aimed at racketeering; and third, 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 comprehensive modernisation 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 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 They are not geared to modern realities and they provide for outdated and inadequate penalties.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 and 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 important in devising proposals in this 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 said when introducing this Bill in the other House that the proposals in it were not, of course, written on tablets of stone. I undertook to listen with an open mind to any views expressed to me about this matter. If there were problems in the area of public disorder which it was felt were not being adequately addressed I would have these fully examined. By the same token, if there were fears that what we were proposing in any way went further than what was reasonably necessary I would consider those points. That remains my position.
I believe, however, particularly in the light of the significant number of amendments which I brought forward to the Bill in the other House and the number of Opposition amendments which I accepted, that we managed to achieve a fairly broad consensus that the measures now contained in the Bill represent the right balance in this complex area. I look forward to taking into account the views expressed by Members of this House during the course of this debate.
I am aware of some views which continue to be expressed publicly that the Bill in some way represents a threat to our fundamental civil liberties. This is obviously an issue which we have to be very careful about and I believe that the Bill shows a proper concern in this area. I have to say that some of the public criticisms which have been made seem to be based on a misunderstanding or misrepresentation of what the Bill actually proposes. Nor do more recent comments appear to take into account changes which have already been made to the Bill. Moreover, I am sure that the House would accept that we must protect as best we can the basic civil liberty of people to be free to go about their business without interference from the antisocial activities of those who show no regard for the rights of others.
I shall now deal in some detail with the main provisions of the Bill. The measured approach which I have referred to is reflected in sections 4 to 7 of the Bill 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 of the Bill is to address comprehensively and fairly the types of disorderly behaviour which have given rise to so much public concern. Members of this House through their contact with community interests 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.
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 the person 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 £100.
Section 4 also gives the gardaí 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 gardaí already have in relation to under age drinkers. It also extends the power of confiscation where it is suspected that an offence under section 5 or section 6 is being committed and that the intoxicating substances are relevant to the offence. This will mean, for example, that where a group are gathered together in a public place drinking and giving rise to behaviour in a disorderly manner under section 5 then, irrespective of their ages, the gardaí will have the power to confiscate their alcohol.
Section 5 makes it an offence for any person in a public place to engage in offensive conduct 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. Offensive conduct is defined as any unreasonable behaviour which, having regard to all the circumstances, is likely to cause serious offence or annoyance to any person who is, or might reasonably be expected to be, aware of such behaviour. This is a substantially different formulation of words to that originally contained in the Bill but it is aimed at the same type of behaviour: disorderly behaviour which, while falling short of the more serious forms of behaviour covered in section 6 and other later sections of the Bill, nevertheless gives rise to considerable difficulties for people and against which there is a need for criminal sanctions. I should emphasise that in creating this type of offence we are not setting about penalising anyone's normal social activities; what we are trying to ensure is that other people's rights to peaceful enjoyment of their lives is not upset.
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 being reckless as to whether 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 6 months or both. This section will replace section 14(13) of the Dublin Police Act, 1842, which set a maximum fine of £2 for this type of offence. Section 7 contains a similar offence in relation to the distribution of threatening material. Both of these sections are along the lines of offences recommended by the Law Reform Commission. It is important to stress that for the behaviour to constitute an offence it must be linked in the manner I have outlined with the possibility of the commission of a breach of the peace.
In dealing with the provisions of sections 4, 5, 6 and 7 I should also mention section 8 because that section gives the Garda power to direct a person indulging in the type of behaviour referred to in the earlier sections to desist from the behaviour in question or 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 the present 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 propose now, while not making loitering of itself an offence, will give the power to the Garda to move on people loitering in the circumstances 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, 6 and 7 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 should be brought to the specific attention of the House at this stage. Section 11 provides for an offence of entering a building or its surroundings as a trespasser with intent to commit an offence. Section 13 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 anothere person. Section 12 provides for a related amendment of section 4 of the Vagrancy Act, 1824.
Sections 9 and 10 provide essentially 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 9 of the Bill before the House 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 10 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 18 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 19, from two years to five years. A "peace officer" is defined in subsection 5 as meaning a member of the Garda Síochána, a prison officer or a member of the Defence Forces. 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 19 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 opportunity has also been taken in Part II of the Bill in the provisions in relation to 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 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 14 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 be present or be likely to be present. A person guilty of the offence of riot will be liable on indictment to an unlimated fine or imprisonment for up to ten years or to both.
Section 15 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 people's 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 or not the three or more persons use or threaten to use unlawful violence simultaneously; no person of reasonable firmness need 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 or her conduct may be violent or threaten violence. A person guilty of violent disorder will be liable on conviction on indictment to an unlimited fine or to imprisonment for up to ten years or to 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 own or other people's 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 Bill to which I should draw the House's attention is section 17 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. Justice 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. 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 recipe for disaster. Part III of the Bill is designed to give the gardaí a comprehensive and clear statutory basis with which they can deal with crowd control rather than rely, as at present, on common law powers.
Section 21 of the Bill 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 22 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 believe 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 24. That section allows a member of the Garda Síochána to arrest, without warrant, a person committing many of the offences dealt with in the Bill. I believe it follows inevitably that if we are going to provide for such offences then we must give the gardaí a power of arrest without warrant where those offences are taking place.
The opportunity has also been taken to include a provision relating to the prohibition of advertising of brothels and prostitution. This arises from a suggestion which was made during the progress through the Oireachtas of the Criminal Law (Sexual Offences) Act earlier this year but which it did not prove possible to include in that legislation.
Before concluding, it might be appropriate to mention that in dealing with this Bill in the final stages in the Dáil, I indicated that there were a couple of matter I would look at again during the course of the progress of the Bill through the Seanad. The first of these relates to the definition is section 3 of a public place. While the definition is quite broad, it was represented to me that it may not be sufficient to cover areas which could give rise to difficulties in terms of public order at present. In particular, disused private lands or buildings were mentioned as well as the possibility of extending the definition to cover other areas adjacent to public areas.
Secondly, it was suggested that offences of wilful obstruction under section 9, might be brought within the offences covered by section 8 where gardaí would have power to direct people to move on or desist from the behaviour in question. These matters are being carefully examined at present and, if it is considered the Bill would be further improved by taking these on board, then appropriate amendments could be brought forward on Committee Stage.
I think 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 will be more than happy to take into account suggestions made during the course of the debate, I believe it is fair to say that the kinds of proposals now included in the Bill represent a considered and balanced response to the real and difficult problems which we are trying to address.
I therefore commend the Bill to the House.