Amendment No. 2 is consequential on amendment No. 1. Is it agreed that amendments Nos. 1 and 2 may be discussed together? Agreed.
Criminal Justice (Public Order) Bill 2002: Committee Stage.
SECTION 1.
I move amendment No. 1:
In page 3, subsection (4), line 28, to delete "Act, 1935" and substitute "Acts 1935 and 1997".
We agree with the proposals in the Bill. Its purpose is to tighten up the legislation with regard to excluding people from licensed premises and from other areas in which food is sold and for the closure of such premises. The amendments seek to make some technical adjustments and small improvements in the legislation.
Amendment No. 1 seeks to extend the reference to 1935 Act to include the 1997 Act. The Minister seems to have overlooked the fact that there was a licensing Act in 1997 which would be relevant to what we are doing in this legislation. It is a simple matter of including a reference to that Act. The second amendment extends the provision in the same fashion.
The amendments are not only apt but desirable. I accept them.
Amendment agreed to.
I move amendment No. 2:
In page 3, subsection (4), line 29, to delete "and" and substitute "to".
Amendment agreed to.
Section 1, as amended, agreed to.
SECTION 2.
I move amendment No. 3:
In page 4, subsection (1), line 6, to delete "4” and substitute “5”.
This is purely a drafting amendment. The power to make a closure in respect of a catering premises is given to the District Court by section 5 of the Bill rather than section 4, which merely enables the Garda to apply for such an order, and the amendment to section 2 should be made accordingly.
Amendment agreed to.
Section 2, as amended, agreed to.
SECTION 3.
I move amendment No. 4:
In page 4, subsection (1), line 39, after "Court," to insert "or, on appeal, the Circuit Court".
Where the section refers to the District Court in section 3(1), the amendment seeks to include "or, on appeal, the Circuit Court" in order to cover that eventuality. It would clarify the section to have that reference included.
My advice is that since there is an appeal from the District Court to the Circuit Court, the power to make the order in question would also be vested in that court. Therefore, the amendment is unnecessary.
We are talking about exclusion orders so it is a substantial power we are giving. The appearance given is that it just refers to the exclusion order arising in the District Court, without any reference to action on the part of the licensee in terms of an appeal. It would be beneficial if the full intent of the legislation was expressed clearly in its wording and this is an area in which we could have fresh expression that it applies to the Circuit Court on appeal.
I will look at this between now and Report Stage and, if I agree with the Deputy, I will provide an amendment or accept his. I am told it is not usual to provide that the Circuit Court has the same powers where there is an appeal from the District Court to the Circuit Court but, if there is any doubt, it should be removed. I will check again with the parliamentary draftspersons but I do not like upsetting their style guidelines.
Amendment, by leave, withdrawn.
Section 3 agreed to.
SECTION 4.
Amendment No. 5 not moved.
I move amendment No. 6:
In page 5, subsection (1), line 21, to delete "this section" and substitute "section 5”.
This is purely a drafting amendment. The power to make a closure order in respect of catering premises is given to the District Court by section 5 of the Bill rather than section 4, which merely enables the Garda to apply for such an order. The reference in section 4(1) under which a closure is made should be amended accordingly.
Amendment agreed to.
I move amendment No. 7:
In page 5, subsection (1)(a)(ii), line 30, after “for” to insert “serious”.
This concerns an application for a closure order and the grounds on which it would be granted. The provision in the Bill is "to give reasonable cause for annoyance to persons in that vicinity". This is not strong enough. Annoyance is a subjective thing and the least we can do is say "serious annoyance". If we talk about disturbance, it is stronger, but one person's annoyance may be another person's entertainment depending on whether it is a type of music and so on.
These closure orders are a serious action, so the noise emanating from the premises should be substantial and the annoyance caused as a result should be of a serious nature. I urge the Minister to accept the amendment.
The District Court is a reasonable one composed of people who operate on the basis of common sense. If something was trivial, they would not make an order. If something is serious, the question would be what was meant by the term "serious". There would be argument in court as to what "serious" means. I would prefer to leave it to the common sense of the District Court judiciary that they would not make orders for trifling reasons and that gardaí would not apply for such orders. In those circumstance, since some meaning would have to be attributed to the term "serious", it only adds further room for lawyers' arguments without adding any clarity to the meaning of the Bill.
If we can rely on the common sense of the Garda Síochána and the District and Circuit Courts, the term "serious" is already implicit.
Does "serious annoyance" mean it would be more difficult for the residents in the area to object because they would have to prove it as opposed to mere "annoyance"?
That is also the effect. Sections 4(1)(a)(i) is clear about their being disorder either on the premises or in the vicinity. Section 4(1)(a)(ii) states:
noise emanating from the premises, or emanating from the vicinity of the premises and caused by persons who were on the premises, has been so loud, so continuous, so repeated, of such duration or pitch or occurring at such time as to give reasonable cause for annoyance to persons in that vicinity.
It almost dies with a whimper at the end. There is an imbalance between the thrust of the first part, referring to "disturbance" and "disorder" created, and the final word "annoyance". If the Minister has problems with the word "serious" as an adjective, perhaps he might examine the word "annoyance" and seek a word with a little more weight.
I agree with the Minister. My understanding of legislation which relates to offences which are dealt with in the District Court is that it tends not to have these sorts of adjectives before the offence because, by their very nature, they will be litigated in the courts and will be appealed to the Circuit and High Courts. What constitutes an annoyance will be litigated and teased out in due course. My fear is that to insert the word "serious" would send a message which is contrary to the spirit of the Bill. To say that one can be involved in annoying behaviour which interferes unreasonably with people's quality of life is acceptable, as long as one does not do so seriously, is problematic. The District Court will know what type of anti-social behaviour occurs in an area, the trouble spots and the troublesome licensed premises. Therefore, it is more reasonable to leave it to the good judgment of the District Courts which will be subject to appeals in due course.
Amendment put and declared lost.
Amendments Nos. 8, 9 and 11 are related and may be discussed together with agreement. Is that agreed? Agreed.
I move amendment No. 8:
In page 5, subsection (2)(b), line 39, after “licensee” to insert “in writing”.
These amendments are to tighten up the process under which we operate the closure orders. It seems reasonable that a licensee would get warning from an Garda Síochána in writing in relation to the intention to shut down the premises and "take such reasonable action within the licensees control as is necessary to prevent it." Rather than this being something that could be disputed later, this should be a formal warning in writing because it is a substantial step to take to close down a premises for a period of time.
Amendment No. 11 refers to a licensee who fails to take action reasonably requested of him. It is important there is no personal default in this matter. We are dealing with a person's livelihood and we should insert into that section a provision to the effect that a licensee has failed to take reasonable action to ensure he or she has fulfilled the requirements before going to the District Court.
I see some force in the requirement that a person has to be informed in writing because a casual conversation between two people may result in different interpretations of whether a warning is being given. In fairness, someone should know what is going on and that they are being warned under the provisions of the Act rather than having a conversation about an incident the previous night on which there might be subsequent doubt. I am inclined to accept the term "in writing" in line 39 as an insertion.
I do not see that the second amendment, adding "to take such reasonable action" in line 39, is necessary because District Court judges will ask whether the request was reasonable. We do not have to write in "reasonable" in respect of everything we do. We live under a Constitution and the courts do not allow people to make unreasonable demands of other people. Therefore, I am not inclined to accept the term "reasonable" in that context.
The best thing to do is to put it in writing and allow the District Court to come to a view on the matter. I will accept amendment No. 8 but the others propose verbiage that does not add weight to the section.
One out of three is not bad, Deputy.
Once it is in writing there is a record of whether the request is reasonable or not. There is a formal record of what transpired between the licensee and the Garda so we do not have a situation where it is one person's word against another's in court. It gives considerable weight to the procedure being followed because it is dealing with the important matter of someone's livelihood. I welcome the Minister's response.
My fear about the notification in writing is that there is some clarity to it. Is this to be a special memorandum from the Garda to the licensee or a letter in ordinary pre-paid post or by registered post? My understanding of some of these licensed premises is that when the postman delivers, letters are often left lying around so a potential defence could be that the warning was not received. If we provide for warnings in writing, the format should be specified, be it a registered letter or a formal caution served like a summons. Will that be sufficient? I do not want to make the situation more cumbersome by way of an amendment.
We are grateful for the contribution.
I agree with Deputy O'Donovan that we need to formalise the arrangement. We will be dealing with nightclubs where, during the daytime, junior staff will be present. A specified type of statement should be issued, perhaps in summons form, as otherwise the difficulty referred to by Deputy O'Donovan may arise.
Verbal warnings could be done by way of a conversation on the street, so all the arguments about dealing with a junior member of staff working during the day apply to the present text and I am trying to tighten it up in terms of showing evidence. How one would show something was served or brought to the attention of the manager or licensee is something I would like to consider between now and Report Stage. I still think I should accept Deputy Costello's amendment that it should be in writing. We will have to deal with how it will be presumed to be given, whether it is served by ordinary post or delivered by hand.
Amendment agreed to.
Amendment No. 9 not moved.
I move amendment No. 10;
In page 5, subsection (3), line 44, to delete "owner or operator" and substitute "licensee or manager".
This is a drafting amendment. The terms "licensee" and "manager" which are defined in section 2 should be used throughout the Bill and in this section the terms "owner" and "operator" should be replaced by the other terms in order to ensure consistency with the other provisions of the Bill.
Amendment agreed to.
Section 4, as amended, agreed to.
SECTION 5.
Amendment No. 11 was already discussed with amendment No. 8.
I move amendment no. 11:
In page 6, subsection (1), between lines 2 and 3, to insert the following:
"(a) that a licensee has failed to take action reasonably requested of him or her under section 4(2)(b),”.
I do not believe the Minister responded to this amendment. The thrust of this amendment introduces a caveat so that the District Court would have to see that the person was warned and had failed to take action in relation to it.
That has already been discussed. Did the Minister reply to this earlier?
I tried to but I obviously did not make much of an impression. If the word "reasonable" is not inserted earlier, that word at a later stage is probably surplus. It does not add much to the force of the legislation, so I oppose it.
Amendment put and declared lost.
I move amendment No. 12;
In page 6, lines 41 to 44, to delete subsection (8) and substitute the following:
"(8) The reference in subsection (7) to an employee is a reference to either a full-time employee or a part-time employee within the meaning of the Protection of Employees (Part-Time Work) Act 2001.”.
This is purely a drafting amendment to take account of the fact that the Worker Protection Act 1991 for part-time employees was entirely repealed by section 5 of the Protection of Employees (Part-Time Work) Act 2001, which updates the law in relation to part-time employees.
Amendment agreed to.
Question proposed: "That section 5, as amended, stand part of the Bill."
In relation to closure orders, this section provides that a court may specify certain requirements including the installation of CCTV. This issue has come up repeatedly. I first came across it about four or five months ago when District Judge Atwell stated nightclubs should be made install CCTV cameras inside and outside. It makes eminently good sense to me. The British Home Office recently produced a report on the benefits of CCTV. The wording here is somewhat loose. Does the Minister have any plans to make this tougher particularly on nightclubs and new pubs, but not existing pubs? Many larger towns and cities have applied for CCTV, but the money does not seem to be there. When the scheme was initially introduced, it was intended to be quite extensive, but I accept it is very expensive. At the very least this should be enforced on nightclubs.
I welcome this section, which gives powers to the courts to enforce a regulation, I presume, whereby nightclub owners and others must install CCTV. What would be required to back that up? Will it require regulation or will it be left entirely to the discretion of the court to define how this can be done? There are various standards relating to CCTV. There would be difficulties concerning the extent of the coverage especially outside premises, how long tapes should be kept, who can view them, etc. Are new regulations required or does this entirely cover it? I would like the system to be watertight.
The legislation refers to fast food outlets, but they do not come up for annual licence renewal. Often there are difficulties with people congregating around such outlets. Will the same provision exist? How does the Minister envisage the provision can be enforced on them to provide CCTV coverage in the same way?
Can the Minister comment on taxi ranks?
That is outside the scope of the Bill.
I know it is, but perhaps he might comment on whether taxi ranks might be covered in the future.
In the House we recently dealt with legislation affecting bouncers. One of the reasons for introducing that legislation was because of the CCTV coverage that existed. In one case in Cork there was a dreadful assault on a young man who subsequently died. It has played a part in prompting legislation and it should be considered.
In relation to the amendment——
We are looking at section 5 and Deputy Deasy was discussing paragraph 3.
That is exactly what I am referring to. I accept the point that it should be made watertight. I would prefer to see a positive obligation on all licensed premises to have CCTV because of its proven efficacy. It would be very difficult to define in the legislation the precise nature, type, quality and specification of CCTV to be used at particular premises. There are myriad licensed premises with different systems. It should be a matter within the competence of the District Court judge to define the type of system and to make it a condition that the renewal of the licence is dependent on it. That could be monitored on a year-by-year basis. To add further detail to that could be excessively restrictive.
It could possibly be done by regulations.
I hear what is being said. Generally I am in sympathy with the consensus that CCTV is very useful and there should be a proper statutory underpinning of its use in places where it is likely to be of assistance in maintaining order and in ensuring accountability. In the context of the forthcoming Intoxicating Liquor Commission report, following legislation, I will consider general powers in relation to closed circuit television. It would be possible to write a book on when it should be on, where the cameras should be positioned, what kind of recording should be available, how long the recording should be kept, etc. However, I do not know whether it is necessary to do it in most cases where the premises are the subject of an annual licence or registration.
The provisions of section 5(3) are restricted to premises where there is the possibility of a licence renewal or an annual registration. It does not necessarily cover all the premises covered by the Act. As chip shops do not need an annual licence or registration it does not seem to apply to them. I will examine that before Report Stage; it is a useful point.
Question put and agreed to.
SECTION 6.
I move amendment No. 13:
In page 7, subsection (1), lines 6 and 7, to delete "the Court, within 7 days from the date of the order," and substitute "either the District Court or the Circuit Court".
The amendment provides for flexibility to be given to either the District or Circuit Court to suspend a closure order while an appeal is pending. I believe it is best to give maximum flexibility so that either court would be operational in this respect.
I am opposed to this amendment. The whole intention behind the provision is to close off any opportunity that may be used to frustrate the immediate coming into effect of a closure order. The effect of the amendment would be to break that intention because an indication to appeal the decision of the District Court, given at the time of making the order, could result in the order being suspended pending the result of that appeal. I do not consider that acceptable as, in many cases, it would effectively keep the premises open in a disorderly state for months.
Does Deputy Costello accept the Minister's response?
Perhaps some flexibility should be allowed in relation to suspending a closure order while an appeal is pending. I know the Minister wishes to allow less flexibility in the matter, whereas I am suggesting maximum flexibility in that respect.
In nearly every case, the effect of a District Court order being appealed is to suspend its entire operation. The Bill provides that, if one intends appealing against a closure order, one should go promptly to the Circuit Court to seek suspension of the District Court order. It means that the issue will have to be addressed quickly, rather than simply playing for time by allowing adjournments to work in one's favour. I ask Deputy Costello to agree with my position. If a publican's premises have been closed, that is a serious matter. Serving a notice of appeal should not be enough. If one really wants to re-open one's premises, one should be required to go to a Circuit Court judge to get permission to trade on whatever terms the judge may allow pending the hearing of an appeal.
I accept the merits of the Minister's logic.
Amendment, by leave, withdrawn.
Section 6 agreed to.
SECTION 7.
I move amendment No. 14:
In page 7, subsection (2), line 21, after "period" to insert "not exceeding 30 days".
The section provides for extension of a closure order with any such variation in its terms as the court considers appropriate for a further period. In this case, my amendment is intended to provide for minimum flexibility by prescribing that the period will not exceed 30 days. The Bill would be improved by specifying a period of days, rather than leaving an open ended situation which tends not to be very satisfactory. I ask the Minister to consider specifying such a maximum period.
Superficially, the Deputy's point looks attractive. However, referring back to the definition, a closure order means an order made under section 4 - now section 5 - for the closure of catering premises and includes such an order as affirmed, varied or extended under the Act. Section 5 (2) provides that a closure order shall order the closure of a catering premises for a period not less than seven days and not exceeding seven days. Section 5, and the definition, adequately cover the situation. It is clear that the term "closure order" includes an extension of a closure order.
To preclude the possibility of a further unlimited period, should we not put a cap on that?
I will look at it between now and Report Stage. It is covered by section 5(2), but if there is any doubt in my mind I will do something about it.
Section 5 states that, in the case of a second or subsequent order, the period would be not less than seven and not exceed 30 days. Is the Deputy withdrawing the amendment on the basis that the Minister will look at it before Report Stage?
Yes.
Amendment, by leave, withdrawn.
Section 7 agreed to.
SECTION 8.
I move amendment No. 15:
In page 7, subsection (1), line 22, to delete", without reasonable excuse,".
This is a substantive amendment designed to strengthen the Bill. Section 8(1) creates an offence for a failure to close a catering premises in accordance with the requirements of a closure order. This is one of the key provisions of the Bill and, for reasons of policy underscoring the seriousness with which the breach must be regarded, it is not considered that a defence of reasonable excuse should apply. Accordingly, this amendment removes that defence.
I wish to comment later on the section.
I will call the Deputy at that stage.
It seems that one can ignore a closure order if one has a reasonable excuse. That is rather soft in this day and age.
Amendment agreed to.
Question proposed: "That section 8, as amended, stand part of the Bill".
The figure of €3,000 in section 8 seems very small. Some of the premises concerned are making four or five times that amount in one night. Also, I doubt if many judges will put somebody away on a first offence.
This is the subject of ongoing debate in the Attorney General's office over some years and in the courts. In order to be a summary offence, the penalty has to be one which is consistent with it being a minor offence under the Constitution. When I first joined the Law Library, the figure was £500 and it has slowly crept up to around €3,000. One is always "beating at the edge" - at some stage, somebody will say that is not a minor penalty.
It is a rather low figure.
If it is not a minor penalty, it cannot be imposed by the District Court. That is our problem. There is no provision for a jury trial in this regard. The current practice - the style of the time as it were - is to fix approximately €3,000 as the upper limit of District Court penalties for any particular offence.
Which provision relates to this? Is it subsection (4)?
No, it is subsection (1).
I also raised the point to which Deputy Deasy has referred on a number of occasions. The sum of money specified seems to be out of kilter with the period of imprisonment. A fine of €3,000 is likely to be regarded as a lesser penalty than six months imprisonment. In terms of monetary equivalent, six months imprisonment is a very hefty penalty whereas a fine of €3,000 does not equate to that level. I appreciate the Minister's point that it is a summary, or minor, offence and must be kept within a reasonable sum of money. Will the Minister indicate who is responsible for varying the amount of money specified, and when and how often this occurs? In the old days, it would have been two guineas and a period in prison but how does this happen and is there a set period for doing it? It does not seem to have increased that much in my time here.
I support my two colleagues. Some €3,000 is small fry to a lot of big premises. Is the Minister saying that the District Court is capped at about €3,000 with regard to the maximum fine and that it is not possible to go outside this restriction?
Under the Constitution everybody is entitled to jury trial except in respect of offences that go to special courts or minor offences which can be tried summarily in the District Court. The meaning of "minor offences" is not defined in the Constitution but it has always been held to mean that the sentence of imprisonment cannot exceed one year and that the monetary fine, which has gone up over the years and would have been about £50 in the 1930s and 1940s, is now €3,000. I could take a bold step and say €6,000 with the consent of the committee, but I do not want a situation where someone will then challenge the constitutionality of the Bill and say it is out of kilter with all other legislation. This is an inexact science.
The Law Reform Commission has recently examined the issue of minor penalties. My view is one of sympathy with that expressed by Deputy Costello. Six months in prison is hard to equate with €3,000 in these times. It is an equation of moral seriousness that I have always had difficulty swallowing. If I were on the Supreme Court I might attempt a different equation and it may be that three months is the period Deputies would prefer. However, I do not feel like bursting through conventional barriers because I would have to go back to the Attorney General's office for an assurance that I was on safe ground in doing so.
Is it possible, given that the intention of the section is clearly to enforce some sort of sanction on the errant licensee, to have some provision in the Bill to ensure that the ultimate sanction would be invoked, and that the Garda would in some way be empowered to physically close down a premises? I do not know whether that is within the ambit of the Bill but it would be the ultimate sanction for the licensee.
I agree that might be seen as the ultimate logic of this but it is a matter for the intoxicating liquor code. In a reform of that statute, it may be that we will put wilful or repeated failure to comply with the terms of this Act as one of the grounds on which it is possible to object to a licence or to call for its withdrawal. However, that is for another code.
These are short periods of closure and, in the case of licensed premises, we will rely on the terms of the Intoxicating Liquor Acts to deal with them. I favour increased use of the kind of sanctions used in America where premises are closed down rapidly for a breach of the fire safety laws, selling to minors and that type of offence. In New York, a premises gets sealed up with Sellotape the afternoon the police visit as they go for a tougher approach.
That is a bit cut and dried.
I can see the perspective of the Deputies. Many of these offences will not occur in licensed premises but outside fast food restaurants. In that respect, the sanction in the Intoxicating Liquor Act, which I know will be reformed shortly, would not be available. I agree that there needs to be a short, sharp sanction against what is virtual rioting outside fast food outlets. If there is a weakness in the legislation, it could be with regard to that type of premises.
Why do we not bring in the American way of doing things?
I have signalled repeatedly, in various interviews regarding the forthcoming changes to the intoxicating liquor law, that we intend to get tough. With regard to young people being served, the time is rapidly coming where the law will insist that identity is shown in all cases. As Deputy Deasy will know, no offence is committed under current Irish law if children are brought to a pub and given crisps and Club orange while their parent has a pint. Because that is the law, a 15 year old is entitled to stay in a pub all night drinking Club orange in the company of 18 year olds. The knock-on effect is that if a 17 year old is out with 19 year olds, and one of them goes to the bar and buys three pints and a Club orange, it is very difficult for the publican to work out who is drinking what at the table, especially with the availability of alcopops. It is difficult to work out what is in a glass. When gardaí enter a premises, it is not an offence for the publican to have 16 year olds sitting at a table with alcohol in front of them as there must be proof that they have been allowed to be served or to consume alcohol on the premises. That is extremely difficult as samples of the drinks would have to be taken. If people see gardaí arriving through the front door of a pub, drinks can disappear under a table very rapidly.
The American system, which Deputy Deasy favours, is far tougher. It simply says that if people under a certain age are on licensed premises at certain hours, the premises is committing an offence. We may have to introduce some kind of system - I am only speculating - where after perhaps 8 p.m. nobody under the age for consuming intoxicating liquor can be in a pub under any circumstance whatsoever.
If my memory serves me, the last Government lowered the age limit for young people working in pubs. It is not much of an example and bad policy, in light of what the Minister has just said, to allow 14 year olds to work in pubs.
What should we do with regard to the €3,000 limit, on which we all agree? Can the committee submit something to the Law Reform Commission?
We should read the Law Reform Commission report before submitting anything to it.
The assessment of penalties should be looked at. It is part of the legislation and the general opinion is that there are only two sets of penalties, namely imprisonment and fines. However, community activities could also be imposed and we should look at the options so that judges looking at the legislation would have wider choice than the two narrow options available. A range of penalties other than simple custodial sentences or fines could be considered. The Law Reform Commission could be asked to look at it in a broader sense and to make some recommendations for legislation.
I hope the Law Reform Commission will be able to come before the committee soon to discuss such matters.
Question put and agreed to.
Section 9 agreed to.
SECTION 10.
I move amendment No. 16:
In page 8, to delete line 21 and substitute the following:
"in which-
(i) in the case of a food stall or food vehicle, the stall or vehicle is used for the sale of food or is kept when not being so used, or
(ii) in the case of any other catering premises, the premises are situated, and".
I noticed that this amendment was necessary during the Second Stage debate in the Dáil. The jurisdiction of the court in the case of a mobile food stall or food vehicle was a little vague, so it is now proposed to extend the jurisdiction of the District Court in the case of such a stall or vehicle to the place in which it is used for sale, or is kept when not in use. This amendment will apply in the place where other catering premises are situated. The original drafting of this section could have caused doubt as to which court would deal with a mobile food stalls.
Amendment agreed to.
Section 10, as amended, agreed to.
Title agreed to.
Bill reported, with amendments.