We discussed these issues with the Garda Síochána in detail both before and after publishing the Bill. It was always our intention to table an amendment along these lines, particularly because it was raised on Second Stage. There is not much difference between us. The only difference between the Fine Gael amendment and mine is that for a summary offence, which is basically a minor offence, Fine Gael is proposing 12 months as opposed to six months. On indictment for a serious offence, my amendment allows for a prison term of up to five years and a fine of €50,000. My amendment provides for a term of six months for a minor offence, compared to 12 months in the Fine Gael amendment. The reason for that is that my amendment is broadly equivalent in respect of penalties available for the offence of organising prostitution under section 9 of the Criminal Law (Sexual Offences) Act 1993. My amendment is based on the 1993 offence, which involves the issue of directing and organising prostitution.
I have also been guided by advice from the Attorney General on the appropriate levels of sentencing, which for a minor offence would normally - not always, but generally - be up to six months. With respect, I am satisfied that my proposal meets this issue better than the Fine Gael one.
On Second Stage, I indicated that I was examining the question of introducing an amendment to provide for organising and controlling. Several Deputies supported that provision. I did not include such a provision in the Bill as published because I wanted to satisfy myself that we had a proper case and a legal basis for such an offence. We also wanted to liaise further with the Garda Síochána. As the committee knows, ever since the Dillon case there have been virtually no prosecutions for begging. The Dillon case raised the whole issue of the constitutional entitlement of people to freedom of expression and congregation. However, we have come across anecdotal evidence of organised begging, but of itself that is not a sufficient basis for creating a new offence. Having discussed the matter further with the Garda Síochána I now believe we have a good basis to proceed. Although, due to the legal lacuna since the Dillon case, they have not been able to prosecute, they are aware that begging is being organised in certain parts of the country. It is controlled by persons who do not take part in it themselves, but are clearly directing and organising the activity and collect the proceeds.
Given the state of the law on begging generally since the old Act was struck down in the Dillon case and in the absence of an offence specifically addressed at those who organise and control begging, the Garda has, up to now, had no legal basis for formally investigating or prosecuting these activities. Therefore, the case for a new offence cannot be supported by reference to actual prosecutions or convictions. However, the Garda is satisfied from their observations and other information that this is happening. I am therefore happy to proceed with the amendment.
The Oireachtas has already, albeit in limited circumstances, indicated its concern about the exploitative aspects of some begging activity. I refer to section 247 of the Children Act 2001, which created the offence of causing or procuring a child to beg, or allowing a child in a person's custody to beg. That section - as we will see when we come to amendment No. 19, which concerns the Childrens Act - will continue to apply even after this new offence becomes operative. I am satisfied that the types of activity covered by section 247 are very often qualitatively different from those coming within the new offence, and that it should be retained as a separate offence. It meets a particular need. It is part of our child protection measures and the nature of the offending behaviour is often in the realm of, for example, parental neglect. However, the addition of this new offence gives us the means to deal with that more organised and sinister activity of orchestrated begging.
The potential for exploitation of begging activity is also a concern at EU level. The proposal for a directive of the European Parliament and of the Council on preventing and combating trafficking in human beings, and protecting victims, repealing Framework Decision 2002/629JHA, includes forced begging in its definition of exploitation. Article 23 of the proposal for a directive defines exploitation as follows: "Exploitation shall include as a minimum the exploitation of the prostitution or other forms of sexual exploitation, forced labour or services, including begging, slavery and practices similar to slavery, servitude and the exploitation of criminal activities and the removal of organs".
Turning to the content of my amendment, it proposes a new section 5 which makes it an offence to direct or organise betting. As I indicated, the provision is based on section 9 of the Criminal Law (Sexual Offences) 1993. That section criminalises the organisation of prostitution. It is important to note that although begging, like prostitution, is not of itself an offence, the organisation of it can be, as the 1992 Act demonstrates. Therefore it can be criminalised.
Two very different actors are involved in these types of transactions, whether it is prostitution or organised begging. There is the foot-soldier and then there is a dark figure in the background organising, manipulating and in effect exploiting the foot-soldiers. The two players can be easily distinguished by reference to their motivation and the circumstances of the case. Therefore a person found guilty of an offence under this new proposed section 5, is liable on summary conviction to a jail sentence of up to six months and a fine of €3,000, or in the event of a conviction on indictment, to a jail term of up to five years and a fine of €50,000.