I welcome the Minister for Justice, Equality and Law Reform and his officials to the meeting, the purpose of which is to resume consideration of Committee Stage of the Criminal Justice Bill 2004. I propose that the committee adjourn its proceedings at 4.15 p.m. At our previous meeting, we considered amendments Nos. 174 to 188, inclusive. Today, we will consider amendments Nos. 189 to 195, inclusive, which relate to anti-social behaviour orders as they pertain to adults. It has been suggested that the Minister should give a five minute overview of his position, to be followed by a short response from members before the amendments are discussed in detail.
Criminal Justice Bill 2004: Committee Stage (Resumed).
The purpose of the new Part 11 of the Bill is to deal with civil proceedings in respect of anti-social behaviour. I should clarify that this new Part concerns anti-social behaviour by adults only. The Government's proposals regarding anti-social behaviour on the part of children will appear in the proposed Part 13.
Members will recall that amendment No. 3 inserted specific provisions regarding the commencements of Parts 11 and 13. That amendment amended section 1 by providing that Parts 11 and 13 are to be commenced only after consultations with the Garda Commissioner. Those consultations are designed to ensure that the Garda has the systems and personnel in place to operate those two Parts and that any necessary arrangements regarding, for example, training for gardaí in respect of these Parts has been addressed.
I wish to make some general points regarding the new Part and my proposals to address anti-social behaviour at the outset of this debate on this group of amendments. All Deputies will agree that there is growing concern in our communities regarding incidents of anti-social behaviour. In many such incidents, vulnerable people, often the elderly, are subjected to serious nuisance and forms of harassment that cause significant and persistent distress to the persons concerned and interfere fundamentally with their capacity to enjoy quiet and peaceful lives. Such people are often simply too frightened to stand up to their persecutors. Equally, few have the financial resources to engage lawyers to seek private law injunction-type remedies to protect their rights to enjoyment of their property. To remedy this situation, I propose to empower a senior officer of the Garda Síochána to apply to the District Court, by way of civil procedure, for an order that would prohibit any person from behaving in an anti-social manner. In a manner similar to civil injunctions, breaches of which are punishable as a criminal contempt, breach of an order will be a criminal offence.
This type of order is not an entirely new concept. Such an order is simply a mechanism whereby the law seeks to stop someone from behaving in a way that causes significant distress to a community or to a person within a community. The Judiciary believes it has a preventive intervening role to bind people over to keep the peace and be of good behaviour where they are apprehended to be a threat to public peace and order. This power dates back many centuries. It is not a new concept for someone to be brought before a judge and not charged with a criminal offence but bound over by a binding court order to behave in a manner consistent with the preservation of public peace and order.
The principle behind what are known in the United Kingdom as anti-social behaviour orders is similar to the judicial power to bind over, which, as I have said, is very old. In formulating my proposals I examined the UK law closely and found some aspects good and others with which I was not so happy. While the UK approach is considered to have provided welcome relief for many communities, it has been the subject of some criticism, in particular that it has been used in inappropriate cases. I agree with some of the incidences reported in the media. Having regard to these criticisms, my proposal incorporates a range of safeguards to ensure civil orders will only be sought as a last and not as a first resort.
I will highlight the distinctions between my proposals and the current system in the United Kingdom when we go through the individual provisions. I ask members to accept that we looked at the English idea and found parts attractive and others unattractive. We were not slavish in copying what the English had done. On the contrary, in some cases we took a directly opposite tack. Our definition of anti-social behaviour sets a higher threshold. It uses the term "significant and persistent".
Unlike the United Kingdom, we are making separate provisions in our law for adults and children, thus allowing features to be incorporated that are appropriate to children. Our proposals relating to children are incorporated into the Children Act 2001 and apply only to children aged 12 years and upwards, whereas the UK provision applies to everyone aged ten years and upwards. Likewise, our proposals provide that only a senior Garda officer may apply to the courts for an order. The UK law allows local authorities and police constables to apply for orders. Our proposals relating to adults and children provide for a behaviour warning. Clearly, the application to the courts is a last resort. The United Kingdom, with the exception of Northern Ireland, does not provide for this preliminary step. Our proposals provide that an order can last for a maximum of two years. Interestingly, a UK anti-social behaviour order cannot be made unless it has a minimum life of two years. Our proposals provide for a maximum fine of €3,000 or six months imprisonment for adults on summary conviction. The United Kingdom provides for an indictable offence carrying a penalty of five years in prison for breach of an ASBO. Regarding children, the possible penalties on summary conviction for a breach are those set out solely in the Children Act. We do not propose to have new criminal sanctions for children.
While I support the concept of anti-social behaviour orders, I have a major concern with the Government's approach, which is sectional and disjointed. The level of anti-social behaviour has increased greatly in our society in recent years. I do not believe anti-social behaviour orders will solve the problem. While they will have a role, it will be minor in the context of what should be a comprehensive approach to address anti-social behaviour generally. I understand the position of the Minister in that many of the suggestions I have made for a comprehensive approach do not fall within the remit of the Department of Justice, Equality and Law Reform. However, many anti-social behaviour issues come within its remit and I have brought forward a range of proposals in that regard.
The issue of how the Garda addresses such behaviour also comes under the remit of the Department. However, questions relating to matters such as how bad environmental planning contributes to anti-social behaviour are not the Minster's responsibility, even though they are significant factors. For example, anti-social tenants are part of the broad picture but they also do not come under the Minister's remit. While ASBOs will have a role in tackling this behaviour, no matter how effectively they are enforced by the Garda and the courts, that role will be minor.
I have been disappointed by the superficial approach taken by the media to anti-social behaviour. The media has concentrated, almost exclusively, on the orders rather than the behaviour. This means that attention has been diverted away from the need for a much broader approach that will provide alternatives and supports such as hang-out spots — to which I referred in my document on the issue last year — and dealing with many issues that come within the area of responsibility of the Minister for the Environment, Heritage and Local Government.
As long as it is accepted that my support for ASBOs is in that context, I am happy to support the Minister in general regarding the approach he has adopted in the legislation. It is fortunate that he can draw on the UK's experience in this regard. Those who are opposed to ASBOs have quoted a number of extreme examples in respect of their enforcement, some of which were outrageous. However, I am happy that we can learn from that experience. The British legislation permits both local authorities and the police to apply for such orders. In Ireland's case, however, it should be confined to the Garda. I broadly support the introduction of such orders on that basis.
It is remarkable that the outlook and policy platforms of Fine Gael and the Labour Party converge on these matters but we have a commonality of purpose. I agree with Deputy Jim O'Keeffe's analysis that anti-social behaviour is not a token issue. My party has conducted detailed analysis of 23,000 questionnaires, distributed in nine constituencies, which highlighted that such behaviour is a persistent issue. I am sure the qualitative and quantitative analysis of data gathered in the private opinion polls of the Minister's party indicates concern about the erosion of people's quality of life by individuals who have no regard for the well-being, comfort and enjoyment of normal life by their neighbours and we need to respond to it.
I share Deputy Jim O'Keeffe's view that ASBOs have been a useful kite for the Minister to fly as the solution to this problem. However, they are not the solution. A larger kite was flown in this regard in Britain because orders with more teeth were promised. I welcome the separation of the adult and juvenile orders, which is important, and I support the measured way in which they are structured. I do not believe that fair-minded people will fundamentally disagree with the structure relating to the adult orders, which appears fair. In my opinion, it will not have a major impact on the quality of life of the people we want to help.
When I served as Minister for the Environment, I introduced an equivalent of anti-social behaviour orders for dysfunctional tenants of local authority accommodation in order that not only could individuals be thrown out of local authority houses but, more importantly, barring orders could be also imposed against individual members of families. An entire family should not be dislodged because one teenage thug sold drugs from the family home. This provision has been effectively used by some local authorities but under-used by others.
These proposals will only be of minor benefit because a multifaceted approach is needed to address this problem effectively. The Minister is not naive enough to believe that his proposals represent a panacea but he has other resources available to him, such as the expansion of juvenile diversion programmes from the current paltry 64 to 100 at the end of next year. Additional officers should be assigned to liaise with unattached youth and, above all, we need to re-establish a visible community policing programme. The Labour Party has suggested a new rank of community garda in order to send a strong signal on this matter. We need to take our communities back from people who have no regard for their neighbours' welfare or enjoyment of common amenities.
Efforts must also be made in areas outside the Minister's remit, including a more structured approach to juvenile facilities. It is not good enough to provide €3 million to build a centre that may lie unused or unavailable to the people for whom it was built. In an era of close to full employment, the old idea of community employment, which was in part a labour market initiative to massage unemployment figures, could be developed into a social employment initiative. People could be properly paid to do real social good by diverting young people from nefarious or harmful activities. The Labour Party will have opportunities between now and next May to set out the joined-up approach needed on this issue.
I commend the Minister for capturing the media view that he is somehow going to copy the strong-arm tactics of the UK Government in cracking down on anti-social behaviour. However, I do not think the proposals reflect such an attitude. I welcome the more balanced structure of the Bill's ASBO system, as opposed to the UK's model.
In respect of Part 11, I am at a loss as to why the Minister decided that the orders will be termed "civil orders" as opposed to "anti-social behaviour orders", which would be more readily understood. The term "civil order" sounds like a declaration of merit on the UK's civil list. I tabled an amendment on this matter for the sake of clarity.
I agree with colleagues that anti-social behaviour is a significant issue in all constituencies, whether disadvantaged or middle class. In my most recent 500 constituency queries, anti-social behaviour, crime and health were the top three issues raised.
I disagree with some of the solutions put forward by the Minister and some of the other political parties. My concerns are to deal with children and young people but that is a separate debate and we will tackle it later. On dealing with adults, I agree with the Minister and colleagues that we must do something sensible and positive to help people who live in communities, particularly the elderly, to deal with anti-social behaviour. There are two other important sectors I would like the Minister to take on board. A regular complaint I hear is that adults with intellectual disabilities seem to be hammered in some communities. I would like to see the anti-social behaviour of the adults who are involved in this regard being tackled. Patients and people with mental illnesses who live in the community are also vulnerable and are often targeted. We all agree that the needs of these two groups, along with those of the elderly, must be addressed. I support amendment No. 189, which deals with those issues.
When we deal with anti-social behaviour and crime, we must take a broader view on tackling the causes of the latter. Crime prevention is absent from this debate. We must tackle this in a professional, health-oriented way to deal with violent and dysfunctional adults and, if possible, children. That is why I always advocate early intervention programmes for children. Quality, regular community policing must be part of crime prevention. That was our experience when we visited the justice committee in London. We met community police officers in particular stations who spend approximately six hours per eight-hour shift in the community, visiting flats complexes and talking to people in the stairways and working with them.
The reserve force in the UK assists young prostitutes and drug addicts, while full-time police officers deal with major security and policing issues. That approach is positive. In my area, I have seen many cases where good community gardaí have reduced anti-social behaviour on certain streets because they are present on Friday and Saturday nights.
I welcome the debate on anti-social crime. However, it pales into insignificance in light of yesterday's drug-related murder on the north side of Dublin that left children without a father. Once again we have seen slaughter on our streets. I urge the Minister to be proactive in respect of such situations. It is all very well to have a response to crime but I am interested in doing more to prevent crime.
I welcome this section and commend the Minister on the time and effort invested in it. Anti-social behaviour causes deep injury, emotional or otherwise, to people of all ages. Relatively young people often engage in anti-social behaviour. Elderly people in housing estates have been bullied and are afraid to go out at night. The Bill represents a serious attempt to address this problem.
I wish to draw the Minister's attention to the possibility of restorative justice programmes playing a part in dealing with anti-social behaviour. We could make the mistake of addressing this matter solely as it relates to young people. I also speak about adults who engage in anti-social behaviour. If people are not made accountable for their actions and compelled to make reparation either to their victims or to the communities in which they offend, they are likely to reoffend in the future.
The Minister is aware of restorative justice programmes in Nenagh and Tallaght, where the incidence of reoffending is at a minimum. In Nenagh, 84% of those who participated in the programme have not reoffended. If people are accountable, take responsibility and are challenged to change behaviour in the long term, this could be a successful element. I ask the Minister and his staff to give serious recognition to the restorative projects that have been successful while operating at a very low cost to the State.
I wish to inform Deputy Ó Snodaigh that we agreed to make some general comments before addressing the amendments.
I understood that to be the case. My party is opposed to this section and that which deals with children's anti-social behaviour orders, ASBOs. My recommendation is that this section be deleted. I realise, however, that my vote will not be enough to ensure that the latter will be the case.
My amendments propose safeguards in the event of the section being implemented. Most incidents towards which ASBOs are directed involve crimes and should be prosecuted as such by the Garda Síochána. As currently constituted, ASBOs impose a penal sanction through civil proceedings. This section is in breach of the European Convention on Human Rights, Article 6(1) of which states, "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law". These provisions contradict the presumption of innocence in that principle.
Everyone who lives in a community affected by anti-social behaviour wants certain issues to be tackled immediately. Joyriders perform wheel spins twice a week outside my house. That is not anti-social behaviour, it is a crime and should be dealt with as such. Gangs of youths harassing old women, shouting abuse at the elderly and selling drugs in public parks or on street corners are committing crimes and should be dealt with in that context. If the Garda Síochána was properly resourced and its officers properly deployed, perhaps we would not experience such a high level of anti-social behaviour in our communities. The Minister is correct in stating that we must tackle anti-social behaviour but this should be done through the criminal system.
What will become of the orders the Minister plans to introduce? Will they end up like barring orders, which were either never or very rarely imposed by gardaí in any event, so that people simply ignored them and regular breaches occurred? What is the point? Such breaches obviously become criminal offences, whereas the initial order is not accorded the same legal basis. They are civil orders, so the rules of evidence and burden of proof are reduced in comparison with those relating to criminal offences. However, if something may lead to a criminal offence, it should involve the same burden of proof and be decided, as in the rest of the system, not on a balance of probabilities but on the basis of being beyond reasonable doubt.
What is to prevent people being wrongly accused? What defence will they be able to put forward? The burden of proof is on them and in such cases allegations are often vindictive or victimisation occurs. What happens in the case of bad neighbours? I regularly deal with cases where there are two sides to the story. In this case, however, it will depend on who gardaí listen to and which side they take. Gardaí do not always take the right side and there have been many occasions on which they have done the opposite. How will those faced with such orders be able to prove their innocence if the burden of proof is placed on them? They must go to the trouble of doing so, whereas hitherto it has been the responsibility of the State to prove charges.
What is to prevent lazy gardaí from using such orders instead of putting the time and effort into following up on criminal offences and charging people with such and doing the investigative and leg work necessary to produce proper books of evidence? I am opposed to the measure and am of the view that we must reconsider it. I am not alone in that. It is not only Sinn Féin that is opposed to the provision, the Irish Council for Civil Liberties and the Human Rights Commission also raised concerns regarding the lack of consultation in the first instance and the lack of debate on whether our legal system should take this route. Their position was that, rather than proceeding with such substantial changes to the judicial system, they should be laid aside. The Human Rights Commission stated regarding temporary orders in the absence of due process that the entire section needed to be revisited. The recommendation from the Irish Council for Civil Liberties is that Part 11 be deleted in its entirety because due consideration was not given to the manner in which the amendments were produced. There was a failure to consult widely on them to determine whether they were the only way to address the problem, and they leave much to be desired.
Gardaí and the public must do a great deal more to ensure that crimes against the community are prosecuted. Those guilty of such crimes must be brought to justice instead of being dealt with by using the gimmick suggested in Part 11, which is being used as a way of bypassing due process. I am opposed to this and anti-social behaviour orders in general. They have not been proven to work in Britain, even though the proposal of the Minister for Justice, Equality and Law Reform is slightly different. They have not prevented people from reoffending, continued anti-social behaviour or their abuse. They do not deter those who wish to engage in such behaviour. We should use the existing laws properly before we introduce new ones. If the Garda prosecuted offenders properly and this problem persisted, then we could say we had a problem that would have to be addressed. The Garda Síochána is not using its resources properly; it is not prosecuting those against whom these orders will be used when they should be charged with criminal offences.
We will proceed to amendments Nos. 189 to 195, inclusive, and all of the amendments thereto.
How are we doing this?
The Minister for Justice, Equality and Law Reform will go through amendments Nos. 189 to 195, inclusive, and address all of the amendments thereto.
Are we discussing all of them together?
Yes.
Could we discuss them one at a time briefly?
I appreciate the views of the members opposite, all of which have been stated before. I am grateful to members for restating them in short order. However, I do not accept that the European Convention on Human Rights will be breached. I am aware of European convention law. The municipality of Barcelona, or that region of Spain, was found to be in breach of its obligations under the convention for failing to protect people from, for instance, excessive noise from adjoining premises. Neither do I accept the proposition that this will criminalise anybody because it is similar to a barring or safety order in respect of domestic violence. A person is not criminalised by having a barring order made against him or her. He or she is criminalised if one breaches the barring order. When one does so, a criminal trial will take place, at which the breach must be proven beyond reasonable doubt. The impression is being created that gardaí will be wandering around with big notebooks in hand handing out ASBOs like confetti to people on the street who will all be subject to an instant, sudden fine.
That is not allowed under the Litter Pollution Act 1997.
A lazy garda, to use Deputy Ó Snodaigh's suggestion, could not do this. He or she would be compelled to go to his or her superintendent and persuade him or her to go to the District Court to persuade the District Court judge that there had been anti-social behaviour and call in the person in respect of whom the order was to be made. I do not think that is the option a lazy garda will take. It is the same as a barring or safety order. It will not criminalise anybody. However, if, having had an order made against him or her, it is proven beyond reasonable doubt that a person breached the order, then and only then will he or she be liable to a criminal sanction.
Deputy Ó Snodaigh referred to the Irish Council for Civil Liberties. Perhaps the council thinks the Deputy's approach is wrong and that stringent enforcement of criminal law in every area, to procure exactly the same result, will involve the criminalising of many who could be dealt with by another process. Perhaps this will keep them from having a criminal record. Perhaps that will occur to the Human Rights Commission of Ireland and the Irish Council for Civil Liberties. Perhaps they will look at the positive side by saying it is not an infringement of anyone's rights.
The final point I want to make about the human rights community, in the broadest sense——
The Minister might resist following those hares when he has built a consensus, largely, on the issue.
No, I am just making one point.
The Minister will soon be complaining about a shortage of time.
We all have human rights.
Yes.
That only those who find themselves at the wrong end of the attention of a garda have human rights is a radical misconception prevalent in certain quarters in Ireland today. The human rights of individuals to go about their business, live their lives normally and be free from crime count just as much as those of an accused person. That is all I am saying.
I do not have a problem with that.
NEW SECTIONS.
: I move amendment No. 189:
In page 25, before section 24, but in Part 4, to insert the following new section:
"PART 11
CIVIL PROCEEDINGS IN RELATION TO ANTI-SOCIAL BEHAVIOUR
112.—(1) In this Part—
"behaviour warning" has the meaning assigned to it under section 113;
"civil order" means an order described in section 114 (1) ;
"senior member of the Garda Síochána" means a member of the Garda Síochána not below the rank of a superintendent.
(2) For the purposes of this Part, a person behaves in an anti-social manner if the person causes or, in the circumstances, is likely to cause, to one or more persons who are not of the same household as the person—
(a) harassment,
(b) significant or persistent alarm, distress, fear or intimidation, or
(c) significant or persistent impairment of their use or enjoyment of their property.
(3) This Part does not apply—
(a) in respect of behaviour of a person who is under the age of 18 years at the time the behaviour takes place,
(b) to any behaviour of a person that takes place before this section comes into force, or
(c) to any act or omission of a person in respect of which criminal proceedings have been instituted against that person.”.
The proposed new section 112(1) defines a "behaviour warning", a "civil order" and "a senior member of the Garda Síochána". I have introduced the concept of a behaviour warning, the meaning of which is set out in the new section 113, as a preliminary step that must be taken before an application can be made to the courts for an order, to be known as a civil order, to prohibit a person from engaging in anti-social behaviour. Essentially, a behaviour warning is a means of putting people on notice that their behaviour is causing others in the community distress and fear, interfering with their enjoyment of their property and that they should cease such activity. In many cases this first step will be sufficient to effect a change in the person's behaviour for the better. While the British system does not provide for such a preliminary step, a system of preliminary warnings has been used to good effect in Northern Ireland. While the introduction of this preliminary step may be seen by some as excessively bureaucratic and time-consuming, I see it as a useful means of alerting a person to the effect of his or her behaviour and giving him or her an opportunity to amend that offending behaviour without an appearance in court. If this first step is not sufficient, an application can then be made to the courts for a civil order or what in common parlance is called an anti-social behaviour order. Deputy Howlin asked why we are calling it a civil order.
I agree with him.
I would like to emphasise three points. First, it is not a criminal order.
Why has it been inserted?
Second, I wish to make it clear that in this jurisdiction an anti-social behaviour order is not the same as an anti-social behaviour order in our neighbouring jurisdiction. Third, the term "civil" is applicable in its other sense — this relates to civil society and its requirements. I thought, from all these perspectives, that it was better to describe the order as a civil order rather than just taking the term "anti-social behaviour order" from elsewhere. The proposed Part 13 introduces the similar concept of a behaviour order in respect of children. That is more descriptive.
A civil behaviour order would be better than a civil order.
We can consider whether we should provide for the term "civil behaviour order". I do not mind.
The proposed section 112(1) also defines a "senior member of the Garda Síochána". In the United Kingdom local authorities and constables may apply for ASBOs, whereas my proposals empower senior gardaí only to do so in this jurisdiction. For the purposes of this Part, a "senior member of the Garda Síochána" is defined as a member not below the rank of a superintendent. The intention behind this proposal is to ensure applications are not made in inappropriate cases, that they are made by reference to a consistent policy and that they are not used on an "on-the-ground" basis to avoid community policing duties.
The definition of "anti-social behaviour" in the proposed section 112(2) goes to the heart of this Part. I have been careful to ensure it is framed in a manner that ensures this legislation will not be used in inappropriate cases. The proposed section provides:
For the purposes of this Part, a person behaves in an anti-social manner if the person causes or, in the circumstances, is likely to cause, to one or more persons who are not of the same household as the person—
(a) harassment,
(b) significant or persistent alarm, distress, fear or intimidation, or
(c) significant or persistent impairment of their use or enjoyment of their property.
I will outline the important elements of the definition. It defines "anti-social behaviour" by reference to its effect on others, rather than by reference to the behaviour itself. It provides that the legislation cannot be used to settle disagreements between persons living together, as we do not want people who are cohabiting to use it in respect of each other. It ensures the provisions can be used for one-off incidents if they are likely to cause significant alarm, distress, fear or intimidation. I stress that the alarm, distress, fear or intimidation must be significant. Under this definition, the provisions can be used for recurring incidents which cause or are likely to cause in the circumstances persistent alarm, distress, fear or intimidation. The definition is not as broad as the UK equivalent. In particular, the terms "significant"and "persistent" in the amendment will bring a new quality to our provisions.
Section 112(3) provides for important qualifications, namely, that this Part does not apply in respect of someone who is under the age of 18 year; that it does not apply to behaviour that takes place before the commencement of the law; and that it does not apply to any act or omission, in respect of which criminal proceedings have been instituted against a person. The last qualification is designed to deal with the question of double jeopardy.
Deputy O'Keeffe has tabled a number of amendments to amendment No. 189. Amendments Nos. 1 and 2 to the amendment relate to an issue which has already been addressed, that is, the name used for the Garda Síochána.
In amendment No. 3 to the amendment Deputy Ó Snodaigh proposes that any ministerial regulations made under this Part should require a positive vote in both Houses. I have referred previously to the new section 3 inserted by amendment No. 10 in response to similar amendments tabled by the Deputy to other parts of the Bill.
In amendment No. 4 to the amendment Deputy Ó Snodaigh proposes a new subsection that would require the drawing up of guidelines on the operation of the Bill. I do not accept this amendment for several reasons. First, in respect of the definition used in the Bill for anti-social behaviour, it is clear, as I have stated, that the offending behaviour must be viewed from the perspective of the victim and that it must be significant and persistent. This formulation meets the concern expressed in paragraph (c) of the Deputy’s amendment. I have also noted that this Part, as well as Part 13, are not to be commenced until consultation takes place.
When the committee considers the next two amendments to sections 113 and 114, it will become evident that a clearly graduated response is set out. First, a warning will be issued followed by, in the event of a breach, an application to the court for a civil order. I stress that only a garda of senior rank will be able to apply for such an order. Under section 114, an order will be granted only where the court is satisfied that it is reasonable and proportionate. This should be compared to paragraph (b)(iii) of Deputy Ó Snodaigh’s amendment, in which he expressly wishes to limit the discretion of the judge. He must know this would raise constitutional questions and undermine the doctrine of a separation of powers.
There are other difficulties with Deputy Ó Snodaigh's proposal. For example, his reference to consultations with relevant sectoral non-governmental organisations is too vague and unclear. Overall, I am satisfied that there are sufficient safeguards and restrictions built into the proposal I have presented. It strikes a balance between the rights of victims to live in peace and the rights of those who cause problems by ensuring they will not be pursued unreasonably as a result of isolated or minor incidents. Hence, I am not disposed to accept the Deputy's amendment.
In amendment No. 5 to the amendment Deputy Ó Snodaigh proposes the establishment of a body to monitor Garda practice in respect of this Part. I have noted the consultations that will take place before its commencement. In addition, in respect of the new arrangements under the Garda Síochána Act, the Garda Ombudsman Commission will be able to deal with this matter, while the Garda inspectorate will be able to deal with general Garda performance in this area. The Deputy should note that after this Part has been up and running for some time, I intend to ask the National Crime Commission to examine this provision to establish whether it has worked well, could be improved or is being overly used. However, we should try it first. By the time this legislation comes into operation complaints and inspection systems for the Garda Síochána will be in place.
While I had intended to move two technical amendments, I might as well make my comments on the issue on the section.
I have a practical concern with regard to the behaviour warning mentioned in the amendment. The Minister might consider this point, if he has not done so already. Will a garda issue a behaviour warning on foot of a complaint made to the Garda station, or will he or she do so on the basis of anti-social behaviour which he or she has personally witnessed? This issue may not have been dealt with in previous discussions and could be raised subsequently in court proceedings. However, it does not appear to have been covered.
Either situation could arise.
The next amendment deals with the issue.
There is more detail in the next section.
On the civil order, I had intended to raise the point made by my colleague, Deputy Howlin, that it is inappropriately named. As the Minister is aware, there are two main jurisdictions — criminal and civil. It seems excessively defensive to label this process as a civil order, when we are essentially talking about an anti-social behaviour order. I recommend that the Minister reconsider and rephrase the provision. To a degree, the Minister's excessively defensive stance in calling it a civil order could result in the name being entirely misleading, which is what it would happen if the provision is implemented as proposed.
When preparing a 30-point programme on behalf of Fine Gael, I considered that we do not have a definition of anti-social behaviour. The Minister has largely followed the UK definition, namely, "acting in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household". Not only do we lack a definition of anti-social behaviour, we also have no measurement of the extent of anti-social behaviour, which will be important. If we are to eradicate the problem, we must treat not just the symptoms but also the causes. There has been considerable anecdotal evidence from colleagues contributing to the debate regarding occurrences on their own roads and estates. I want to ensure that once the Bill is enacted, arrangements will be put in place to ensure that reliable statistics are gathered. The latter will be a valuable weapon in the fight against anti-social behaviour. A distinct category could possibly be created, through the PULSE system or otherwise, to allow this to be recorded in the annual report of the Garda Síochána. If we adopt this approach, as we should, we must ensure that we keep a full record in order that the statistics can be used to assist in the broader campaign against anti-social behaviour. I will not move my amendments to the amendment and I give my support to the section as introduced by the Minister.
Amendments Nos. 1 and 2 to amendment No. 189 not moved.
I move amendment No. 3 to amendment No. 189:
In section 112, after "superintendent." to insert the following subsection:
"(2) Any Ministerial regulations or guidelines arising from this Part shall require the approval of both Houses of the Oireachtas.".
This is a fairly standard amendment, which I will not press at this stage. We have already argued the point.
Regarding amendment No. 5 to the amendment, I take on board what the Minister said. I will not move the amendment and may resubmit it with reference to the groups the Minister mentioned, the Garda inspectorate or Ombudsman Commission and the national crime commission, giving a specific job of work to each of them that is not allocated at the moment under existing regulations. The reason for doing so is to ensure that this work is done on an annual basis. While it would allow anti-social behaviour orders to be implemented, at least some monitoring will take place to ensure that the abuse of the system in Britain, of which we have anecdotal evidence, does not happen here on the same scale. If abuse takes place as a result of the failure of the Garda, it should be highlighted and tackled either by the Ombudsman Commission or the inspectorate. When this provision is implemented, as I believe it will, I hope the Garda will use it properly as the Minister intends. However, many other laws passed by this House have not been used as intended.
Amendment No. 4 to amendment No. 189 seeks to ensure guidelines would be produced concerning all aspects of the operation. I take on board the Minister's comment about section 112(b)(3) which I will re-examine to ensure it does not affect the separation of the Judiciary and the Executive in our justice system, a principle I value. However, the remainder of the amendment should stand. The Minister stated the reference to relevant sectoral NGOs was too broad but I would broaden it by inviting submissions. Certain groups could be invited to make submissions in various sectors, which would be akin to consultation but the people should have the opportunity to make their views known on ASBOs because of the way in which the legislation was introduced.
I am anxious to make progress on this section. It would be good if we could complete it in the next hour. Subsection (2) refers to a person who causes or in the circumstances is likely to cause discomfiture for one or more persons who are not in the same household as the person concerned. I take it that paragraphs (a) and (b) go together, while paragraph (c) stands alone and that they provide for a combination of harassment or significant or persistent alarm, distress, fear or intimidation or significant or persistent impairment of the use or enjoyment of their property.
They are all in the alternative.
Should there not be another "or" then?
Normally, if X, Y, or Z is stated, they are read disjunctively.
No, legally it is A, B or C. Therefore, it is harassment or significant alarm and so on, or significant impairment.
I will consult the Parliamentary Counsel but they are meant to be read disjunctively.
A simple amendment might be introduced in this regard on Report Stage to ensure clarity.
I refer to civil orders. The reason the Minister chose the word "civil" was he wanted to back away from something he should not back away from. However, these are ASBOs and they are the same animal as the orders used in Britain. We should say what they are because their effectiveness will be diminished otherwise. They will have an effect, from which the Minister will retreat by calling them civil orders. They have teeth because if they are breached, they will have criminal consequences. I ask the Minister to be more robust in stating this. The cleverness of calling them civil orders suggests they does not fall under the criminal regime. I understand the Minister's explanation that they are not a criminal sanction ab initio but they can lead to such a sanction if a court determines a criminal act has been committed. We should be more robust in stating they will be in place to protect people from anti-social behaviour and that there will be serious consequences for those who ignore them. The Minister is being uncharacteristically timid in opting for that title.
I will not fight in the trenches over the title of the orders but because so many have stated they will criminalise children, I want to make it clear that they will not. By definition, a civil order cannot criminalise anybody.
If people refuse to understand the law, that is a different matter.
It was claimed earlier that I was throwing shapes on this issue. I was asked by members of the media whether I propose to introduce measures similar to those in Britain and I replied that I was considering the matter. When asked on a subsequent occasion, I said I was generating proposals. If I had said I was not considering the matter, the resulting stories could be imagined.
Therefore, the media now generates legislation.
The Minister is overly influenced by media considerations.
One would hope Deputies can have the same impact.
I did not throw shapes but merely told the media I was considering the introduction of ASBOs. I did not make a speech when asked the question.
He was acting like his normal self.
It is similar to our previous discussions on electronic tagging. At the end of the day, they are not all they are made out to be.
We all got our fingers rapped on that issue over the weekend.
Amendment to amendment, by leave, withdrawn.
Amendments Nos. 4 and 5 to amendment No. 189 not moved.
Amendment put and declared carried.
I move amendment No. 190:
In page 25, before section 24, but in Part 4, to insert the following new section:
"113. —(1) Subject to subsection (5), a member of the Garda Síochána may issue a behaviour warning to a person who has behaved in an anti-social manner.
(2) The behaviour warning may be issued orally or in writing and, if it is issued orally, it shall be recorded in writing as soon as reasonably practicable and a written record of the behaviour warning shall be served on the person personally or by post.
(3) The behaviour warning or, if it is given orally, the written record of it shall—
(a) include a statement that the person has behaved in an anti-social manner,
(b) demand that the person cease the behaviour or otherwise address the behaviour in the manner specified in the warning, and
(c) include notice that—
(i) failure to comply with a demand under paragraph (b), or
(ii) issuance of a subsequent behaviour warning, may result in an application being made for a civil order.
(4) The member of the Garda Síochána referred to in subsection (1) may require the person to give his or her name and address to the member for purposes of the behaviour warning or the written record of it.
(5) A behaviour warning may not be issued more than one month after the time that—
(a) the behaviour took place, or
(b) in the case of persistent behaviour, the most recent known instance of that behaviour took place.
(6) The person to whom a behaviour warning is issued shall comply with the demands of the warning.
(7) Subject to subsection (8), a behaviour warning remains in force against the person to whom it is issued for 3 months from the date that it is issued.
(8) If an application is made under section 114 in respect of the person, the behaviour warning remains in force against the person until the application is heard or otherwise determined by the District Court.”.
Subsection (1) provides that a member of the Garda Síochána may issue a behaviour warning to a person who is behaving in an anti-social manner. The garda does not necessarily need to observe the behaviour but can act on a complaint from an individual. While I am empowering gardaí to issue behaviour warnings, it is implicit in the provision that they will use their discretion when doing so. Issues in this regard have been raised with me by organisations acting on behalf of people with mental illnesses, who are rightly worried that behaviour which arises from mental ill-health should not be dealt with by means of the arrangements now being introduced.
Subsection (2) provides that behaviour warnings may be issued orally or in writing and, if given orally, shall be recorded in writing as soon as reasonably practicable and served on the person. It will be necessary for a person made subject to a behaviour warning to be given a written record as soon as possible.
Subsection (3) sets out three pieces of information which must be included in a behaviour warning, namely, a statement that the person has behaved in an anti-social manner, a demand that the person cease the behaviour or otherwise address it in a manner specified in the warning and a notice of the potential consequences of failure to comply with the demand.
Subsection (4) provides that gardaí may require the person to give his or her name and address for the purpose of the behaviour warning or its written record. Subsection (5) provides an important safeguard for individuals by setting a time limit of one month for the making of a complaint pertaining to a particular incident. Subsection (6) provides that the person to whom the behaviour warning is issued shall comply with the demands of the warning.
Subsection (7) provides an important safeguard for individuals. A person who is the subject of a behaviour warning is one step closer to a civil order than the general population. This differentiation cannot be open-ended and it is reasonable and just that there should be a limit to the duration of the behaviour order. Accordingly, subsection (7) provides that a behaviour order remains in force for three months from the date on which it is issued. However, a later amendment provides that if a person continues to engage in anti-social behaviour and receives three behaviour warnings in a six month period, a Garda superintendent may apply for a civil order. The timeframe built into these new arrangements represents a reasonable approach and will ensure a knee-jerk reaction will not be made to isolated incidents of bad behaviour.
Subsection (8) provides that in the event an application for a civil order is made to the courts, the behaviour warning remains in force until the court decides on the application. This will ensure gaps can be avoided.
Deputy Jim O'Keeffe suggests an amendment to subsection (7) to the effect that a warning shall not remain in force for more than six months, save where a court decides otherwise. He also proposes to amend subsection (8) by specifying a three-month limit by which time a court must deal with an application for civil order. Subsection (7) is already clear in stating that the warning may not normally last for more than three months, save where an application is made to a court. In such a case the warning remains in place until the application for the order is dealt with by the court. No limit is placed on the court but to do so might be seen as an unwarranted interference. I am satisfied the formulation is correct. It would be unreasonable to insist a warning last for six months. That would run the risk of being struck down as excessive and disproportionate, especially when one considers the warning may have some implications for a person's right of movement, albeit implications that are warranted in the circumstances, and that it has not been issued by a court. In all these situations we must seek a reasonable balance, which the Bill, as framed, achieves. Therefore the amendments would not make any significant improvement.
My efforts were designed to suggest improvements and I will leave them to the Parliamentary Counsel.
I have one question on this section. The behaviour warning must include a statement that the person has behaved in an anti-social manner. Will the statement spell out what that anti-social manner was or will it be merely a printed document stating the person in question has behaved in an anti-social manner and therefore is subject to this warning? This issue could arise in practical terms.
The Deputy is correct. It is implied it should make a stab at what the anti-social behaviour is, and if it is not, we will have to examine it on Report Stage.
In that situation, the section should state "and specify".
The next paragraph sets down that the warning demands that the person cease the behaviour. I suppose it would have to tell what the behaviour is.
Otherwise, in practical terms it would not hang together.
If it simply notes that Mr. McDowell has behaved in an anti-social manner and demands that he stop, without specifying——
Nobody would have any problem with the said defendant but I am talking about a normal person.
I am in favour of what the Deputy suggests. That it states the person must desist from the behaviour does not mean it is clear what that behaviour is.
The Minister might examine that from a practical point of view.
If we insert the term "contain a statement that the person behaved in a specified anti-social behaviour manner"——
Something of that order might be the way to solve it.
Or it could state "in a particularised anti-social behaviour", which means the person would have some idea what it is about.
It will be necessary to specify the behaviour in broad terms. Otherwise I am happy with this section.
It should also specify the time and place to which the order refers because the garda in question need not have witnessed it. One of the problems I have with this is that there is no process of appeal against it, despite the implications of breaching a behaviour warning as vague as this or receiving three warnings. There is no way of challenging an order. One cannot go to the local superintendent and say the allegation was vindictive. It could be one neighbour's word against another. If he or she can prove the allegation is false, when is the behaviour warning withdrawn? There is no facility for a witness to state a garda issued the behaviour warning. In the case of a written warning it can be done through the normal system. Will it be issued orally at the Garda station in front of a Garda witness? If it is to be issued in writing, what will happen in the case of those who are illiterate or semi-literate and do not understand the case? In the past people signed for registered letters, proving literacy. This issue has not been fully considered as the legislation has been rushed. A garda can accept the word of a member of the community who accuses someone of being anti-social. I could list many individuals who deserve to be dealt with in this way. Would my word be acceptable to a garda in accusing someone of being guilty of engaging in anti-social behaviour? Would the garda have to have witnessed an incident or some proof that the charge was true? Some additions must be made to the amendment.
I support the amendment as proposed by the Minister.
I will re-examine whether section 113(6) is necessary or appropriate in the circumstances. To require someone to desist from engaging in certain behaviour could, in certain circumstances, infringe on his or her liberty without providing for a hearing on the matter.
If section 113(6) is not included, the entire section will be pointless. It states: "The person to whom a behaviour warning is issued shall comply with the demands of the warning". Is one not obliged to comply?
Let us suppose a person was perfectly innocent and three people had invented the complaint. Section 113(6) is a statement of civil duty because it is not a criminal offence not to comply.
What is the meaning of the section?
The point is that a person has received a warning. I wish to re-examine the section because it may have stepped over a constitutional line.
Is the Minister accepting there could be common purpose between three people?
The Deputy should appreciate that any worthwhile remedy is capable of being abused.
There is no way by which one can challenge a warning. This has consequences because three people could make a charge three times in a row.
One can be brought to court for ignoring a warning three times. However, being brought to court is not, in itself, a consequence.
One might ignore the warning if one was not engaged in anti-social behaviour. In that case, one would end up in court.
I will re-examine section 113(6) before Report Stage.
Is there a process whereby someone who is aggrieved at being served with a behaviour warning can have it set aside? Perhaps the Minister should examine the possibility that one might feel aggrieved and could prove that one has been framed.
Will the system be in place for years?
That is why I wish to examine the matter. It would lapse after a period of time.
It would lapse after three months but there would be a record of it.
That is a good point.
The behaviour warning may not be issued more than one month after the most recent incident. A month is a long time in such matters. I suggest that it be one week. This would allow someone served with such an order the opportunity to appeal against it or go to court to seek an injunction while it was still fresh in his or her mind.
There are one or two amendments. Potentially, we are looking at amendments to subsections (3) and (6). Is that correct?
Yes.
Amendments Nos. 1 to 4, inclusive, to amendment No. 190 not moved.
Amendment put and declared carried.
I move amendment No. 191:
In page 25, before section 24, but in Part 4, to insert the following new section:
"114.—(1) On application made in accordance with this section, the District Court may make an order (a "civil order") prohibiting the respondent from doing anything specified in the order if the court is satisfied that—
(a) the respondent has behaved in an anti-social manner,
(b) the order is necessary to prevent the respondent from continuing to behave in that manner, and
(c) having regard to the effect or likely effect of that behaviour on other persons, the order is reasonable and proportionate in the circumstances.
(2) The court may impose terms or conditions in the civil order that the court considers appropriate.
(3) An application for a civil order may only be made by a senior member of the Garda Síochána and shall be made—
(a) on notice to the respondent, and
(b) in the district court district in which the respondent resides at the time.
(4) Before making the application, the senior member of the Garda Síochána must be satisfied that either or both of the following conditions have been met:
(a) the respondent has been issued a behaviour warning and has not complied with one or more of the demands of that warning;
(b) the respondent has been issued 3 or more behaviour warnings in less than 6 consecutive months.
(5) The respondent in an application under subsection (1) may not at any time be charged with, prosecuted or punished for an offence if the act or omission that constitutes the offence is the same behaviour that is the subject of the application and is to be determined by the court under subsection (1)(a).
(6) Unless discharged under subsection (7), a civil order remains in force for no more than the lesser of the following:
(a) two years from the date the order is made;
(b) the period specified in the order.
(7) The court may vary or discharge a civil order on the application of the person subject to that order or a senior member of the Garda Síochána.
(8) An applicant under subsection (7) shall give notice of the application—
(a) if the applicant is the person subject to the civil order, to a senior member of the Garda Síochána in the Garda Síochána district in which the applicant resides, or
(b) if the applicant is a senior member of the Garda Síochána, to the person who is the subject of the civil order.
(9) The standard of proof in proceedings under this section is that applicable to civil proceedings.
(10) The jurisdiction conferred on the District Court by this section may be exercised as follows:
(a) in respect of subsections (1) and (2), by a judge of the District Court for the time being assigned to the district court district in which the respondent resides at the time the application is made;
(b) in respect of subsection (7), by a judge of the District Court for the time being assigned to the district court district in which the person subject to the civil order resides at the time the application is made.”.
This amendment inserts a new section 114 into the Bill to provide that a District Court may issue a civil order prohibiting the respondent from doing anything in the order. The court may issue the order only where it is satisfied that the respondent has behaved anti-socially, that the order is necessary to prevent the respondent from continuing to behave in that manner and that, having regard to the effect or likely effect of that behaviour on other persons, the order is reasonable and proportionate in the circumstances. It will be clear from these requirements that an application will not be granted automatically. A court will not assume anything but will look closely at the application and surrounding circumstances. The third element is especially important; the court must be satisfied that it is reasonable and proportionate when viewed from the victim's perspective.
Subsection (2) provides that the court may impose such terms or conditions in the civil order as it considers necessary. This may relate to restrictions on being in a certain place at particular times or desisting from specific activities in a certain place. For instance, one might say a person may not loiter around a given shop or neighbour's house at certain times.
Subsection (3) limits the persons eligible to make an application for a civil order to a senior garda, as I have described. The application must be made in the District Court district in which the respondent resides at the time. Subsection (4) provides that a senior garda may make an application only where a behaviour order has been issued and the person who is the subject of the warning has not complied with one or more of its demands or the respondent has been issued three or more warnings, as I explained.
Subsection (5) provides the essential safeguard that the respondent may not be charged with or prosecuted for an offence if the act or omission that constitutes the offence is the same behaviour that is the subject of a pending application and is to be determined by the court. The subsection can be contrasted with section 112(3)(c) which ensures that, where an application for a civil order is made as the result of a particular act by the respondent, no criminal proceedings can be taken arising from the same act. The earlier provision deals with the opposite scenario, that is, no application for a civil order may be made in respect of an activity also subject to criminal proceedings. In effect, the authorities are being asked to decide which course to take. They may not simultaneously ride two horses in the race by taking both civil and criminal proceedings in respect of the same activity. Where the action is of sufficient gravity, criminal proceedings are probably appropriate. At a low level, where the activity is insignificant but persistent, civil orders may be the appropriate remedy.
Subsection (6) provides that, unless discharged under subsection (7), the order shall remain in force for no longer than two years. This contrasts with the UK approach which states it must be in place for a minimum of two years. Subsection (7) provides for the varying or discharge of orders on the application of either side, allowing account to be taken of changed circumstances regarding schooling, college attendance, employment, residence and other factors that might arise during the period when an order is in place.
Subsection (8) provides that an application for a variation order must be given on notice to the other party. Subsection (9) provides that the standard of proof is that applicable to civil proceedings — the balance of probability. Subsection (10) clarifies the jurisdiction of the District Court which can vary an order.
Deputy O'Keeffe proposes a number of textual amendments. In amendment No. 2 to the amendment the Labour Party proposes an anti-social behaviour rather than a civil order. We discussed that matter already and I will re-examine it. I had reasons to go down the civil order route.
Deputy Jim O'Keeffe, in amendment No. 5 to the amendment, proposes to delete the new subsection (4)(b), which sets out one of the grounds on which a senior garda may make an application to a court for an order, that is, if three or more warnings have issued in a period of six months. As I said when dealing with the subsection, I want to ensure that the system can deal with cases where people may be engaged in several anti-social activities at various times, perhaps in different places. We want to retain that option.
Deputy Ó Snodaigh, in amendment No. 9 to the amendment, proposes a new subsection. However, I think the section as drafted already covers the relevant issues. Therefore, his subsection appears to be redundant.
In amendment No. 10 to the amendment, Deputy Ó Snodaigh is proposing to change the standard of proof from civil to criminal, but there is no point in doing so. That does not apply in respect of civil injunctions, safety orders, protection orders or barring orders or in binding people over to keep the peace and be of good behaviour. If I did have proof beyond reasonable doubt, it would mean that an order could not be made. I want to stress that one cannot be convicted of the offence of breaching an order unless it can be proven beyond reasonable doubt that one did, in fact, breach said order. Proof beyond reasonable doubt before an order can be made would impose far too high a standard and would mean that the ASBO system simply would not work.
My amendments to the amendment are, in general, technical in nature, with the exception of amendment No. 5, which deals with section 114(4), namely, the requirement that senior members of the Garda Síochána must be satisfied with certain conditions. Is there an opportunity for mischief in the way section 114 is framed, particularly if a number of incidents of anti-social behaviour occur, possibly in different places, at different times and involving different people? Is the court only empowered to make a specific order that Mr. X shall not be near the premises of some widow but, at the same time, he might attend at a playground and cause disruption there? Is it intended that one anti-social behaviour order or civil order should cover many incidents or types of behaviour? If so, is the section as framed sufficient to cover this? That is my main concern with the section.
The Minister had concerns relating to the previous section, particularly subsection (6). He thought it might overstep the constitutional rights of an individual to require him to comply with the demands of a behaviour warning. How does he see this issue now in view of the new subsection (4)(a), that before making an application the senior member of the Garda Síochána must be satisfied that the respondent has been issued a behaviour warning and has complied with the demands of that warning?
I am happy with that and have no concerns about it.
The Minister seems to suggest that once a behaviour warning is issued, he is not happy that there must be an obligation imposed on an individual to comply with it. However, that very non-compliance is a justification for a senior garda to make an application to a court. The garda will make the formulation; this is not a court making a determination, this is an application to the court to do the very thing that the Minister thinks is not acceptable to require an individual to do.
There are two issues. First, a warning is a demand that someone should not to do X or Y.
It could be, for example, a demand that Mrs. Bloggs be left alone. However, the Minister is saying that the respondent does not have to comply with that.
There is no sanction for breaching subsection (6). The significance of breaching the warning is——
It triggers the next step.
——that it is a condition precedent for the superintendent to go to court. What worries me in regard to subsection (6) in the previous section is that it seems to impose a positive duty. Even though one has never been consulted on the matter, something has been posted or handed to one demanding that one do something. It is a duty imposed unilaterally, without a hearing of any kind. That is what concerns me.
I accept the logic, which is valid, of the connection with this new subsection (4)(a) because consequent on the obligation that is now arbitrarily imposed on an individual by the behaviour warning——
It depends on the nature of the warning. In the case of a planning matter——
The Minister should be careful about planning matters.
If one builds a structure with planning permission and the local authority says that it is not in conformity with the terms of that permission, a warning notice will be served and one will be brought to court. If it were provided that a person must comply with the warning notice, he or she might counter that the structure was in conformity with planning permission and that the warning is misconceived. If we confer an assumption of correctness on the warning——
It is not an absolute analogy because in the new section 113(3), not only is the anti-social behaviour set out — in the Minister's example it would be that a person has not complied with planning permission — but there is a demand that one desist from the behaviour.
A demand that somebody should cease doing something as a condition precedent to going to court does not interfere with his or her rights if he or she claims that a warning about, for example, harassing his or her neighbour is misconceived and that the Garda superintendent has got the wrong end of the stick or has been given false information because he or she never harassed his or her neighbour.
I am simply trying to clarify the position. To take the Minister's planning analogy, if one is building something and going beyond the template of the planning permission and an order to stop is issued, then one must do so.
It is called a warning notice.
One must stop, pending the determination of the matter.
If one had obtained planning permission and was of the opinion that the inspector from the planning authority could not count, that the distance was 4 m——
The Minister is getting too specific.
——one could inform the planning authority inspector to cop on, that one was within the planning permission and that he or she is wrong.
Not everybody can afford to go the High Court in respect of these matters.
Not everybody could afford — I include myself in this regard — not to go to the High Court.
The ratepayers of Roscommon could not afford it.
That was their problem. They had plenty of options.
The Minister should not keep changing constituencies.
I have a number of problems with this provision. I read the amendment three or four times and I cannot see where it covers what is intended. The amendment is based on one of the heads of the Bill circulated at the end of last year by the Minister. When the amendments were produced, this part had disappeared. Its purpose was to attempt to guarantee certain fundamental procedural rights to the respondent. There is no guarantee here that the respondent would be informed of a court case against him or her.
Subsection (3) refers to notice. The respondent must be notified. It is not as obvious as it may have been in the heads of the Bill but it is there.
The Minister's other point relates to my amendment to the amendment in respect of the burden of proof being similar to that in a criminal trial. If a respondent breaches a civil order, that is a criminal offence. A civil order may not necessarily relate only to the anti-social behaviour in respect of which a respondent was brought to court in the first instance. It might involve restricting a person to a certain area. If the person did something else unrelated to the initial anti-social behaviour but related to the order, that would be a criminal offence. However, the burden of proof is not as strong. Barring orders usually involve restraining people from going within a certain distance of those whom they have been found guilty of assaulting. Most of these orders are not enforced by the Garda Síochána. I do not see how it will be any different in this case. I still have a difficulty with the fact that the burden of proof in this instance is so slight, particularly when one considers that a breach constitutes a criminal offence. If the order demands that a person should not repeat the anti-social behaviour about which he or she has been warned three times, that would be quite specific but, as the amendment is formulated, the order can go beyond that.
If my next-door neighbours were to dump their lawn clippings over my back wall every time they cut the grass and if I eventually became so annoyed that I sought the services of a solicitor and obtained an injunction to stop this behaviour, the facts would be determined on the civil standard of proof and an injunction would be granted against them not to dump their clippings over the wall in the future. If it continued and brought a motion to commit, the case would be determined on the balance of probabilities. However, before a court could mete out punishment, there would have to be a high standard of probability but not proof beyond reasonable doubt. If I said that every time I heard the motor mower I subsequently saw a pile of clippings in my garden, I do not believe a court would take the view that I did not see who put them there and that a total stranger might have done it. That would be the criminal standard of proof. Nobody operates on that basis. We could not possibly have any form of civil procedure if proof beyond reasonable doubt were required in every case. Gardaí would simply conclude that they might as well forget the procedure and prosecute people for any colourable offence because they will be asked for proofs, witnesses, etc., to prove a matter beyond reasonable doubt. This could be the worst of all worlds in that the Garda Síochána, instead of having an anti-social behaviour regime, could use criminal sanctions to achieve what could otherwise be achieved by lesser procedures.
One could use mediation.
Yes. I presume it could be used in some circumstances. However, to use the phrase used by the Deputy, the "lazy garda" might be tempted to suggest a case be mediated. In the end, some cases will not be mediated, while others will not be arbitrated upon and people will continue to harass their neighbours. I was fascinated by an account of an apparently intelligent middle class lady in England who had scarified a whole village by her anti-social behaviour. Some people are incorrigible. The notion that one could not make an anti-social behaviour order unless one proved everything beyond all reasonable doubt would render the order worthless.
Amendments Nos. 1 to 10, inclusive, to amendment No. 191 not moved.
Amendment agreed to.
I move amendment No. 192:
In page 25, before section 24, but in Part 4, to insert the following new section:
"115.—(1) A person against whom a civil order has been made may, within 21 days from the date that the order is made, appeal the making of the order to the Circuit Court.
(2) An appellant under subsection (1) shall give notice of the appeal to a senior member of the Garda Síochána in the Garda Síochána district in which the appellant resides.
(3) Notwithstanding the appeal, the civil order shall remain in force unless the court that made the order or the appeal court places a stay on it.
(4) An appeal under this section shall be in the nature of a rehearing of the application under section 114 and, for this purpose, subsections (1), (2) and (5) of that section apply in respect of the matter.
(5) If on appeal under this section, the appeal court makes a civil order, the provisions of section 114(6) to (8) apply in respect of the matter.
(6) Notwithstanding the appeal period described in subsection (1), the Circuit Court may, on application by the person subject to the civil order, extend the appeal period if satisfied that exceptional circumstances exist which warrant the extension.
(7) The standard of proof in proceedings under this section is that applicable to civil proceedings.
(8) The jurisdiction conferred on the Circuit Court by this section may be exercised as follows:
(a) in respect of section 114(1) and (2) as those provisions apply to the Circuit Court under subsection (4) of this section, by a judge of the Circuit Court for the time being assigned to the circuit in which the appellant under this section resides at the time the appeal is commenced;
(b) in respect of section 114(7) as it applies to the Circuit Court under subsection (5) of this section, by a judge of the Circuit Court for the time being assigned to the circuit in which the person subject to the civil order resides at the time the application is made;
(c) in respect of subsection (6) of this section, by a judge of the Circuit Court for the time being assigned to the circuit in which the person subject to the civil order resides at the time the application is made.”.
The new section 115 provides that a person against whom an anti-social behaviour or civil order has been made can appeal the making of the order to the Circuit Court within 21 days. This is qualified by section 115(6) which provides that the Circuit Court may extend the time on the application of the person who is the subject of the civil order if it is satisfied that there are exceptional circumstances to warrant such an extension.
Subsection (2) provides that the notice of appeal must be given to a senior member of the Garda Síochána in the district in which the appellant resides. Subsection (3) provides that the civil order remains in force, unless the court which made it, or the appeal court, puts a stay on it.
Subsection (4) provides that an appeal is in the nature of a rehearing. Subsection (5) provides that if the appeal court makes a civil order, the provisions of section 114(6) to (8) apply. This provision concerns the duration of the order, the power to discharge or vary it and so on.
Subsection (7) provides that, as in the case of the initial District Court proceedings, the standard of proof is that applicable to civil proceedings, while subsection (8) provides for the jurisdiction of the Circuit Court. It is the court in the area wherein the person resides which has jurisdiction.
Amendments Nos. 1 to 6, inclusive, to amendment No. 192 not moved.
Amendment agreed to.
As we must finish by 4 p.m. sharp, is it agreed that amendments Nos. 193 to 195, inclusive, will be discussed together? Agreed.
I move amendment No. 193:
In page 25, before section 24, but in Part 4, to insert the following new section:
"116.—(1) A person commits an offence who—
(a) fails to give a name and address when required to do so under section 113(4) or gives a name or address that is false or misleading in response to that requirement, or
(b) without reasonable excuse, does not comply with a civil order to which the person is subject.
(2) A member of the Garda Síochána may arrest a person without warrant if the member has reasonable grounds to believe that the person has committed an offence under subsection (1)(b).
(3) A person who commits an offence under subsection (1) is liable, on summary conviction, to the following:
(a) for an offence under subsection (1)(a), a fine not exceeding €500;
(b) for an offence under subsection (1)(b), a fine not exceeding €3,000 or imprisonment for a term not exceeding 6 months or both.”.
This amendment creates two solemn offences, namely, failure to give one's name and address or giving a false or misleading name and address when requested in the context of section 113, and, without reasonable excuse, failing to comply with a civil order. A reasonable excuse could be going down a laneway to rescue one's granny's cat having been told not to go there.
The new section 116(2) provides that members of the Garda Síochána can arrest without warrant a person where they have reasonable grounds to believe he or she has committed an offence. Subsection (3) sets out the applicable penalties, including a maximum fine of €500 for an offence committed under subsection (1)(a) and a fine of €3,000 or imprisonment for a term not exceeding six months, or both, for an offence committed under subsection (1)(b). This is a much less severe penalty than is provided for in the United Kingdom which allows for a five year penalty which I consider, in this context, to be excessive.
The new section 117 provides for a system of civil legal aid. Its provisions are modelled on similar provisions in the Criminal Justice (Legal Aid) Act 1962. A certificate will be granted to a person of inadequate means in order to defend himself or herself against such a procedure. This makes the process fairer. The giving of a false statement in order to obtain legal aid is punishable under subsection (6). Also, the court can order reimbursement of the Exchequer where such aid has been fraudulently obtained.
The new section 118 allows the Minister to make regulations for the bringing into effect of section 117. These provide for the certificates, rates of scale of payments and the manner in which solicitors and counsel are to be assigned under the certificates. The permission of Minister for Finance must be sought in this regard. Pending the making of regulations, the analogous regulations of the Criminal Justice (Legal Aid) Act 1962 will have effect, with necessary modifications, as if they were certificates for free legal aid granted under that system.
While I am happy with that, I have one question. The Minister stated section 117 mirrors the current application procedure for free legal aid. Is that also true of subsections (6) and (7) in regard to the making of false declarations?
Yes.
The Minister is simply replicating the current regime?
Yes. It is a cog from the current system.
I have no problem with this part of the Bill. Obviously, if it is to take effect, the budget for the free legal aid system will need to be increased. I ask the Minister take this point on board.
Amendment No. 1 to amendment No. 193 not moved.
Amendment agreed to.
I move amendment No. 194:
In page 25, before section 24, but in Part 4, to insert the following new section:
"117.—(1) Subject to subsection (2), a person who is the subject of an application for a civil order may be granted a certificate for free legal aid (in this Part referred to as a “legal aid (civil order) certificate”) in preparation for and representation at the hearing of—
(a) the application,
(b) an application by the person to vary or discharge a civil order,
(c) any appeal by the person against the making of the civil order, and
(d) any proceedings in the High Court or Supreme Court arising out of the making of the application, the appeal or any subsequent proceedings.
(2) A legal aid (civil order) certificate may not be granted under subsection (1) unless it appears to the court hearing the application for the certificate that—
(a) the means of the person concerned are insufficient to enable that person to obtain legal aid, and
(b) by reason of the gravity of the behaviour alleged to be anti-social or of exceptional circumstances, it is essential in the interests of justice that the person should have legal aid in preparation for and representation at the hearing concerned.
(3) A person who is granted a legal aid (civil order) certificate is entitled—
(a) to free legal aid in preparation for and representation at the hearing of the application for a civil order and any proceedings referred to in subsection (1)(b), (c) and (d), and
(b) to have, in such manner as may be prescribed,
(i) a solicitor assigned to the person in relation to the application for the civil order or any application to vary or discharge it,
(ii) a solicitor assigned to the person in relation to any other such proceedings, and
(iii) if the court granting the certificate considers it appropriate, a counsel assigned to the person in relation to proceedings referred to in subparagraph (ii).
(4) If a legal aid (civil order) certificate is granted, any fees, costs or other expenses properly incurred in preparation for and representation at the proceedings concerned shall, subject to regulations under section 118, be paid out of moneys provided by the Oireachtas.
(5) A person applying for a legal aid (civil order) certificate may be required by the court granting the certificate to furnish a written statement of the person's means.
(6) A person who, for the purpose of obtaining free legal aid under this section, whether for himself or herself or for some other person, knowingly makes a false or misleading statement or representation either orally or in writing, or knowingly conceals any material fact, commits an offence and is liable on summary conviction to a fine not exceeding €2,500 or imprisonment for a term not exceeding 6 months or both.
(7) On conviction of a person for an offence under this section, the court by which the person is convicted may, if in the circumstances of the case it thinks fit, order the person to pay to the Minister the whole or part of any sum paid under subsection (4) in respect of the free legal aid in relation to which the offence was committed, and any sum so paid to the Minister shall be paid into and disposed of for the benefit of the Exchequer in accordance with the directions of the Minister for Finance.”.
Amendment agreed to.
I move amendment No. 195:
In page 25, before section 24, but in Part 4, to insert the following new section:
"118.—(1) The Minister may make regulations for carrying section 117* into effect.
(2) The regulations may, in particular, prescribe any of the following:
(a) the form of certificates granted under that section;
(b) the rates or scales of payment of any fees, costs or other expenses payable out of moneys provided by the Oireachtas under those certificates;
(c) the manner in which solicitors and counsel are to be assigned under those certificates.
(3) Regulations under subsection (2)(b) shall not be made without the consent of the Minister for Finance.
(4) Pending the making of regulations under this section, the regulations under section 10 of the Criminal Justice (Legal Aid) Act 1962 apply and have effect, with the necessary modifications, in relation to certificates for free legal aid granted under section 117 of this Act as if they were certificates for free legal aid granted under the Criminal Justice (Legal Aid) Act 1962.”.
Amendment agreed to.
The select committee will continue its consideration of the Bill at 9.30 a.m. on Thursday, 1 June. There is also a possibility that it will meet on 6 June, in addition to its meeting on 7 June. I thank the Minister and his officials for attending.
Progress reported; Committee to sit again.
The select committee adjourned at 4 p.m. until 9.30 a.m. on Thursday, 1 June 2006.