Amendments Nos. 2 and 3 are alternatives to amendment No. 1. It is proposed to take amendments Nos. 1, 2 and 3 together. Is that agreed? Agreed.
SECTION 1.
I move amendment No. 1:
In page 3, lines 26 and 27, to delete subsection (3).
First, I have not had the opportunity to read the Minister's reply to the Second Stage debate, because, unfortunately that afternoon I had to leave early for an appointment. I do not know if the Official Report for that day has been published but I have not read it. I understand the Minister was willing to consider favourably what I suggested on Second Stage, that the legislation should come into effect on the passing of the Bill. My amendment which seeks the deletion of subsection (3) would bring the legislation into effect when the Bill is passed. I note the Minister's amendment, which is certainly an improvement, states that the legislation will come into effect two months after the Bill is enacted. I see no reason for the delay as this legislation is urgent.
We read this morning that a young teenage girl was killed in Limerick, and a drugs haul was intercepted. While this Bill is not directly related, the news confirms in all our minds the extent of serious crime and how people are prepared to engage in it because for some it is very lucrative and they can make a handsome living from it. Indeed, I compliment the Garda Síochána and the Naval Service for their detection of the vessel this morning. This capture will prevent many people getting involved in crime because a great deal of crime is drug related.
This legislation is urgent and many of its provisions update an Act that is 150 years old, the Dublin Police Act. We are that much out of date in many respects in relation to public order. Similar legislation has been in operation in the United Kingdom since the mid-sixties. For those reasons, and because of the great concern there is in relation to law and order and the great need to give the gardaí the powers envisaged in this Bill to afford citizens a level of protection, there is no reason to delay the Bill.
It will be some time before the Bill is passed. It will not leave the Dáil, I assume, until after the summer recess and then it has to go to the Seanad. It will be into the autumn before it is enacted. That should give time to the Garda Síochána, the main people affected by its provisions, to familiarise themselves with the new proposals. I do not envisage that the Bill will change very much after leaving the Dáil and the Seanad and, therefore, the Garda Síochána will have ample time to familiarise themselves with its provisions while I appreciate that the Minister has improved the time by one month I ask her to consider further this matter and have the legislation brought into effect on the enactment of the Bill.
My amendment No. 3 proposes that the legislation should come into effect immediately. I agree with Deputy Harney's comments. I am assuming the Minister has in mind some lead-in or familarisation period in proposing initially a period of three months and now a period of two months. The length of time it will inevitably take the Bill to go through both Houses of the Oireachtas should give ample time for some kind of a lead-in and familiarisation by the Garda and those who will be involved in the implementation of the legislation. The updating of the law dealing with the various problems that are addressed by this Bill has been demanded by the public for a long time. One of the problems with the enforcement of the law at present is that the public is losing confidence, not that it is becoming estranged or alienated from the gardaí. There is a great public respect for the gardaí and the various initiatives taken over the years in introducing neighbourhood watch, community watch schemes and systems of community policing.
The public feel the gardaí cannot tackle or are ineffectual in tackling certain problems. In many respects the degree of closeness that has built up between communities and the gardaí as a result of neighbourhood watch and community policing schemes of one form or another has given rise to a situation where the public are becoming more aware of the difficulties the gardaí have in addressing the problems on the street. There is a serious problem of confidence in the gardaí being undermined. When confidence in the gardaí is undermined it gives rise to circumstances where other people and other forces present themselves as the police of the community. We have seen some examples of vigilante type groups beginning or threatening to emerge. It is as much not only to deal with the problems of crime but also to reestablish and reinforce public confidence in the gardaí and in their ability to tackle crime in the street that this legislation should take effect immediately.
Many would argue too much time has been spent in the lead up to the publication and debate on this Bill but there will certainly be enough time for those involved in the implementation of its provisions to become familiar with it.
The public has been calling for the implementation of these measures for some time. I hope they will help curb the terrible spread of drugs in our society. I will not hog the meeting but as a former member of the Naval Service I know how the Naval officers and men feel this morning because of the fantastic job they did last night for this country. I would like to be associated with Deputy Harney in congratulating the officers and men of the Naval Service and the Garda on their excellent work.
I support previous speakers' points about bringing into effect this legislation as quickly as possible. I would be very interested to hear the Minister's response. Deputy Harney's point is well made: given that there will be a summer recess this legislation may be passed towards the end of the year. I received a phone call at 9 o'clock yesterday morning from a lady in Dundalk who was most distraught about what had happened in the Market Square area, the centre of Dundalk the previous night. Her son was set upon and severely beaten by ten to 12 youths who had been congregating there. That lady wrote to me subsequently and one of the very pertinent questions she asked was: why are large groups of youths allowed to congregate in the square at night — this has been happening constantly in Dundalk? There is a number of attractions in that square. It is a fact that the buses carrying people from discotheques stop in the square rather than bringing them home. The gardaí in Dundalk are well aware of the problems. This lady also raised the question of the number of gardaí on duty. She paid tribute to the gardaí who investigated the incident. Her son was very badly beaten as were two others who were with him and ended up in hospital. I told her yesterday that I would speak on this legislation; of which she was not aware, and she was thankful that it had been introduced. I offer this as an encouragement to the Minister, and her officials, to try to bring it forward as quickly as possible.
I would be interested to hear the Minister's reason for the delay of its implementation for two months after the Bill's enactment. I would have thought that in view of the incident I mentioned —we had another tragic incident in Limerick last night—we should very quickly put this legislation on the Statute Book.
I support what previous speakers said and ask the Minister to consider implementing the provisions of the Bill almost immediately because every day people are facing problems that this Bill is designed to address. I compliment the Minister on the format and the general content of the Bill. I wish to refer briefly to a case in Tallaght where the principal of a school had to take on the role of the gardaí because of their inability to deal with the problem. During the summer months when the schools are closed a great vacuum exists and nobody is capable of intervening. Nobody knows the children and how to deal with them. In Tallaght an old woman was continuously harassed by a group of people and the principal of the school eventually solved the problem by driving to the scene, identifying the youths and bringing them back to their parents, challenging them and then dealing with them in the school. The urgency of this Bill is clear to everybody. I ask the Minister to consider it as a priority.
I welcome the views expressed by those who contributed to the debate that the provisions of the Bill should be implemented as quickly as possible. There is a recognition of the great need for this Bill in an effort to protect ordinary citizens going about their business. I know the Minister sees the need for its early introduction, as we all do, but there are certain steps to be taken to ensure that the Bill will be effectively implemented by the Garda Síochána. That takes a certain amount of time although there was a suggestion that the summer recess and the length of time the Bill will take to go through this House and the Seanad and the other House should be availed of. I hope it will, and that the provisions of the Bill will be implemented quickly for good reasons.
I thank the Minister for making her officials available to brief us this morning. It was a worthwhile exercise. One important matter is that while the Bill is welcomed by everybody, its contents are excellent and it will work, the House should ensure that adequate resources will be made available to make it work properly and effectively. For instance, we have praised, and rightly so, the Naval Service who were again involved in preventing a large cargo of drugs getting into the country. We are all aware of the connection between drugs and crime and the breakdown in law and order. Another Government agency is involved in preventing drugs getting into the country, Customs and Excise, which is doing an excellent job. While this is not the direct responsibility of the Minister for Justice, as a member of the Government she should lend her support to expanding that service.
I met some of the Customs and Excise officials during my holidays. I am a seafaring person — of a type — and last summer vacation I met the Customs and Excise officials who work from the mouth of the Shannon down to Haulbowline, and perhaps beyond. They were in a small rubber dinghy using two 45hp outboard motors. This dinghy, which was less than 20 ft. in length, was carrying three Customs and Excise officials in all types of weather. The people on board were doing the best they could.
While we congratulate the security forces on their successes surely we must worry about the number of occasions when they were not perhaps in the right place at the right time.
The contents of the Bill will be warmly welcomed but unless facilities are made available by Government, and not simply through the Minister for Justice, we will be in serious difficulty. I realise I may be stretching the rules of order by mentioning that at this time but I do so in the interests of bringing about a safer society in which to live.
(Carlow-Kilkenny): I had intended to travel through Carlow also in order to describe this position but the former Minister has acknowledged that he was slightly at sea, literally and metaphorically.
I am a seafaring person.
I accept that. I do not wish to delay the meeting but I want to agree also with what has been said by other speakers. Most Acts become effective when signed by the Minister. If we delay this legislation it will send a message that law and order is not important. All Members are aware that it is very important. The Garda will have the difficulty of deciding what situations will lead to disorder. If they are not given the necessary resources this Bill will be useless. That was mentioned by many speakers on Second Stage. If a garda is not present to tell people to move on when a problem arises that will create many difficulties. Unless the Minister has some secret message for us the provisions of this Bill should be enacted immediately.
As Deputies will recall, I undertook on Second Stage to examine the period of three months which the commencement section provided for before the Act would come into force. I shared the concerns which Deputies expressed on Second Stage and which, indeed, they expressed again this morning. At that time I undertook to again consider the matter before Committee Stage. I have done that but the reality has been very well articulated by Deputy Collins, namely that this is a major criminal justice legislation and it will have considerable implications, not just for the Garda Síochána, but also for the courts in the way they carry out their administrative arrangements. For example, new charge sheets must be drawn up to cover the offences which are being created or updated.
We all agree it is important that some time is allowed for the Garda and the courts to become familiar with the contents of this legislation. However, that process of familiarisation — at least the detail of it — cannot be undertaken fully until the provisions of the Bill are determined following its passage through this House and the Seanad. I accept totally the points made by all speakers that this debate, Report Stage in the Dáil and all Stages in the Seanad, will give a considerable amount of time to Garda to familiarise themselves with the legislation. However, if the various sections were given to the Garda in draft form they might, either on Report Stage or, indeed, in the Seanad, be amended in some subtle way. I have no objection to doing that but it might be pre-empting what the Oireachtas might decide.
While I fully sympathise with the thinking behind the Deputies' amendments I am not sure it would be practical for the provisions of the Bill to come into force inmmediately after the Act is passed. I am sure Members will accept that given the delicate balance we are trying to achieve in this Bill it would be unfortunate if the Garda were expected to implement its provisions without first being given an opportunity to become fully acquainted and informed of the effect of those provisions. Therefore, I could not accept Deputy Gilmore's amendment which proposes the word "immediately" and the deletion of the words, "three months after its passing". Similarly, Deputy Harney's amendment would have the same effect as that of Deputy Gilmore.
Having considered the matter between Second Stage and now I formulated an amendment, that the three months would be reduced to a two month period. I advocated strenuously that it be reduced even further and I hope this will be the case. I wish to assure Deputies that I would like to introduce a period of one month and I hope this might be done before Report Stage or, if not, when we come to debate the Bill in the Seanad. One month is a realistic time to allow the Garda, and the courts, familiarise themselves with this legislation having availed of that which has been suggested by both Deputies Harney and Gilmore.
I would like also to acknowledge the congratulations of Deputies to members of the Garda and the Naval Service for their tremendous work in Cork. I would like to acknowledge also the co-operation between the Garda and the Naval Service because the situation could not have been handled by the Garda alone without the backup support of the Naval Service.
I would like also to thank Deputy Collins for his support in relation to adequate resources. I am glad he, as a former Minister for Justice, acknowledges that Ministers for Justice are always told they are not providing adequate resources when in fact it is not just the force they are responsible for that require resources. I know that he and members of the select committee are aware that the Minister for Finance has been formulating a proposal for the European Community which, through Europol and by other means we can seek support on a European wide basis, which would include our Customs and Excise service, to deal adequately with the problems that arise, particularly along the south west coast.
I appreciate and share the concerns of all Deputies. I also want the Bill to be implemented immediately but because of all the administrative arrangements it is not possible to do so. I have reduced the time to two months and I hope to reduce it even further. My target would be a one month period and I hope Deputies accept that as realistic.
The Minister is being realistic. In politics if one can get someone to go half-way on an issue it would be unwise to push it the whole way. The Minister is right to be realistic because, as I said, this legislation is long overdue. It is by no means modern legislation; similar legislation has been in place in the United Kingdom since the sixties and has been demanded by the Garda Síochána for a considerable time. If the Minister had stood her ground regarding the two months I had intended quoting to her from in article in Garda Review which gives a good insight into what was in the legislation even before the Bill was produced. This article might have been partly written by the Garda Síochána. The Garda have been demanding this type of legislation, they are familiar with its contents and will be eager to enforce it.
On many occasions in this House we pass legislation which must then be implemented by way of regulations which literally might not be done for years. Frequently the public question why the legislation is not being enforced and the explanation is that regulations must be introduced to bring it into effect. That brings the Legislature and the laws we make into disrepute. The Minister is being reasonable in this case. I realise enormous changes are involved and many practical and technical issues must be put in order. I would not wish to introduce legislation that would not be effective because of a lack of time in initiating many of the other provisions.
Decreasing the introductory time to one month is reasonable and, therefore, I will not press my amendment. If the Minister is commenting further at this stage, because we are having a general debate on the bringing into effect of the legislation, I will ask her two questions. First, when will we have legislation on the seizure of assets? It is appalling that this country is being used for drug trafficking by both Irish and foreign drug barons. This morning's find of £20 million worth of drugs indicates that big money can be made from these activities and while that is the case people will become involved. I am pleased that the authorities are successful in this regard. The deployment of customs officials to assist the drug squad and the Naval Service in the detection of drugs entering Ireland has been very successful. The number of finds this year must amount to a considerable sum of money. That is fantastic because it will eliminate much crime and it will put an end to people being given drugs free and then, once they are hooked, large sums of money being demanded from them to feed their habit.
On a point of order, on a previous day when an amendment of mine was not reached some Deputies were accused of filibustering. I tabled amendments and if Members are allowed make Second Stage speeches I would like to make mine also. I do not want to argue with anybody but we are discussing a particular provision.
Deputy Harney is in order.
There is no guillotine or time restriction.
Having proposed an amendment to expedite the introduction of the Bill I do not want to be accused now of delaying it but there is a difference between this and the Bill to which the Deputy referred. On that occasion a two hour guillotine was in place, and on this occasion, thankfully, we do not have a time limit.
Will the Minister take the opportunity to clarify whether the new way of dealing with people who have been arrested and are not being charged has been changed? There has been much speculation in the media about this and, to the best of my knowledge, the Minister has not commented on it which was that it will revert to the charge procedure which I would welcome.
To allow Deputy Mitchell comment on his amendments, I will conclude. I do not propose to press my amendment and I accept the Minister's very reasonable decision to bring the legislation into effect, if possible, after a period of one month.
As amendment No. 3 is in my name I too welcome the Minister's move. If we are seeking the quick implementation of this Bill it would be inconsistent to delay the debate having made some progress. Therefore, I will be withdrawing my amendment.
Amendment, by leave, withdrawn.
We now come to amendment No. 2.
In relation to amendment No. 2 I understood the Minister to say that she would reduce it further to one month.
I wish to clarify that. I was not sure whether I should press my amendment now or wait until Report Stage or, if it was not done by then, to do so in the Seanad. Hopefully it will be reduced to my target limit of one month.
Is the Minister withdrawing amendment No. 2?
Deputy Harney raised a question concerning the confiscation of proceeds of crime Bill. This legislation is in the final stages of preparation and will be before the House early in the next session. In relation to the changes brought about by the Garda Commissioner in November last, Deputy Harney will be aware of a recent debate during Question Time on the desirability or otherwise of continuing with that practice. As a result of that debate I conveyed the concerns of Members to the Garda Commissioner who in turn deputised Deputy Commissioner O'Reilly to discuss the matter with chief superintendents and superintendents in the DMA. As a result I understand changes have been made in relation to serious crime which was the concern of Deputy Harney and others in the House and has reverted to the pre-November 1992 position.
For serious offences?
Yes.
Amendments Nos. 2 and 3 not moved.
Section 1 agreed to.
Sections 2 and 3 agreed to.
NEW SECTION.
I move amendment No. 4:
In page 4, before section 4, to insert the following new section:
"4.—In determining the sentence to be imposed on a person for an offence to which this Act applies, a court shall take into account, and may, where necessary, receive evidence or submissions concerning, any effect (whether long term or otherwise) of the offence on the person in respect of whom the offence was committed.".
This amendment deals with the impact of the crime on the victim and it seeks to make it a requirement that when a court is deciding a sentence in relation to any of the offences in this legislation it should have regard to the impact of the crime on the victim. There was much discussion here previously about the need to focus more in our criminal justice system on the victims of crime who frequently are excluded from the whole process once a case goes to court. This morning I received a document from the Irish Council for Civil Liberties in relation to this Bill. I agree with much of its contents but some of it mistakenly continues to put undue emphasis on the rights of the offender as against the rights of the victim of the crime. When a case goes to court statements are made frequently about the character of the offender, references are submitted about the character of the offender and the court often decides that the offender should be sent for some kind of assessment. Unfortunately, little emphasis is placed on he implications of the crime for the victim.
Regarding the various offences which are being amplified in this legislation I can think of a number of examples in the past few days which have come to my attention where it seems that the impact of the crime on the victim should be taken into account. The provisions for dealing with riotous behaviour in this legislation are intended to deal with the problems of gangs congregating, acting in a menacing way and, effectively, intimidating people, very often in their homes. A mother told me that her eight-year-old child has been sent for psychiatric assessment and help as a result of the intimidation that the family suffered in their home. I know also of an 84-year-old woman living alone who had stones hurled at the windows of the home.
Where a person is charged, brought before the courts and convicted of such an offence the impact on the victim should be taken into account. If that were done some of the concerns being expressed about the possible erosion of civil liberties for the offenders arising from this Bill might well be addressed. I can understand the concern that legislation such as this might become an instrument which pits the Garda against civilians which, in turn, can give rise to the Garda abusing their power and in some cases, bringing people into court effectvely on suspicion. If the impact on the victim is recognised in the legislation and is taken account of by judges when sentencing it would help to minimise any possible abuse. This has been sought by organisations such as the victim support organisations and it should be built in to this legislation.
My amendment is a direct lift from the Criminal Justice Act, passed earlier this year, which deals with the appeal of sentences and the impact on victims of sexual offences. This should be included in this legislation.
This is the only section that I will be opposing. The Bill does not go far enough in other ways and I will be seeking to increase the penalties in some cases but this section is going a little too far. I do not say this in an argumentative way and I hope the committee will take into account my views. Section 4 states that it shall be an offence for any person to be present in any public place while intoxicated to such an extent as would give rise to a reasonable apprehension that he might endanger himself or any other person in his vicinity. In section 3 "a public place" is described literally as not being a private place and it goes on to give examples of a public place, namely, a train, a vessel or a vehicle. It seems that this section is going a little too far.
Members have a duty to protect civil liberties. I agree we must take strong action against criminals and I welcome the Bill and congratulate the Minister on introducing it. Its general provisions will have our support and I hope to persuade the House to strengthen some of them. This section is misplaced because the offence is more of a nuisance than a crime. Although this is a public order Bill, it is nonetheless a criminal justice Bill. Who forms the opinion that someone is a danger to himself, herself or another person? Is one a danger to another person if one bumps into them? Should one be breathalysed to decide if one is intoxicated? What about people who take prescribed drugs as medication? In the case of people who suffer from epilepsy, should a garda who sees such a person, who appears to be drunk, say to that person that he or she is a nuisance to himself or herself and a danger to others and, therefore will be charged under the Bill? It is sensible that people who have consumed a large quantity of alcohol should not drive home from the pub; they should walk home or their friends should persuade them to do so.
This section goes further than is necessary. This offence is more a nuisance than a crime. The last thing people want is to have someone who is drunk bumping into them or falling over them. Regarding legislative public order requirements, I get very few complaints about intoxicated people walking along the streets. Some Members may feel obliged to support this section but I think it is too far-reaching. I support strong legislation because strong reaction is necessary to deal with criminals and maintain public order. This is outside the area of crime and the provisions relating to it are misplaced in the Bill. We should adopt a balanced approach in this regard and prevent excessive legislation being passed. The section would interfere with the civil liberties of many citizens and I oppose it.
The Minister should explain her thinking on this section and rethink her approach. In supporting my colleague, Deputy Mitchell, it appears that we can make an ass of the law if we include a provision which to a large degree is non-specific and relates to something which, in many instances, is a nuisance rather than a criminal offence. I wish to focus on certain words in this section. Will the Minister explain how proof of this offence will be given? Subsection (1) states:
It shall be an offence for any person to be present in any publc place while intoxicated to such an extent as would give rise to a reasonable apprehension that he might endanger himself or any other person in his vicinity.
Who will give rise "to a reasonable apprehension"? The answer to that would be the person in question but on the part of whom would there be a reasonable apprehension? What is reasonable in the circumstances? Later in section 4 reference is made to a member of the Garda Síochána suspecting with reasonable cause. Does that mean that a garda who suspects, with reasonable cause, an offence by someone in that situation is one in whom reasonable apprehension has arisen? That provision is too open and too loose and should not be included in this Bill. In certain circumstances the section could be capable of abuse. The Minister should rethink her approach on that matter.
It is necessary for the Garda Síochána to have sufficient powers to deal with incidents of this kind. Such offences are serious and can attract fines of £500. Is it wise to include this type of provision in the Bill? Would the provision be more appropriately included as an offence in road traffic legislation. A comprehensive review of the road traffic law is taking place at present. The Minister for the Environment has made an announcement in relation to the reduction of the alcohol levels and use of the breathalyser under section 49. The intoxication of pedestrians in a public place where a person might be a danger to himself, herself or others might be more appropriately included under that heading. The Minister should take note of the concerns which I, and my colleagues in the Fine Gael Party, have in relation to that section and review it.
I support the inclusion of section 4. The Minister and the Government are of the view it should be included. It is a sensible section. I was impressed by the amendment tabled by Deputy Gilmore and by the common sense on which it is based and I was impressed by what he said in support of it. Unless the Minister has some strong views to the contrary I urge that his views be considered. I fail to see why it must be opposed. If the section is too open or loose, as suggested by Deputy O'Keeffe, maybe some method could be found to tighten them up but I do not know how that could be achieved.
Deputy O'Keeffe raised the point of how it would be determined that anybody intoxicated to such an extent as would give rise "to a reasonable apprehension". It must be accepted that that is a matter in regard to which a responsible garda on duty forms an opinion. The garda decides that such a person is incapable of looking after himself or herself and may cause harm to or problems for others. For example, a person who is intoxicated standing at the bottom of Leeson Street at midnight or 1 a.m. is not just a danger to himself or herself but to everybody else. If the person falls off the footpath a car may hit the person or swerve to avoid him or her and in the process may take the lives of innocent people. That is not an offence, that is a nuisance and Deputy J. Mitchell would agree, it is a very serious matter and it should be provided for. It is right that it be included in the Bill.
The Garda should have authority to take alcoholic drink, for example six packs or whatever, from people in the circumstances I outlined. We have read reports in newspapers of the Garda dealing with groups of young people on sites drinking bottles of cider and not having authority to deal with them. Nobody in this House will be relieved of a six pack because they will always be capable of bringing it home without dropping it. Where somebody is intoxcicated he or she is not just in real danger to himself or herself but to innocent people who may not have consumed alcohol. I support this section.
Deputy Gilmore's amendment is reasonable. For far too long we have been concerned about only one of the parties involved. We have not considered the feelings of the victim and the agonies they endure. On radio and television programmes spokespersons for the association to which Deputy Gilmore referred, the victims support group in which Derek Nally is involved have opened our eyes to the trauma victims of crime endure. Deputy Gilmore's amendment is a common sense one. I support it and I would like to hear the Minister's views on it. I urge the Minister to accept the amendment or modify it so that it would be acceptable.
(Carlow-Kilkenny): I listened to Deputy Collins earlier taking us on a sea trip around Cork and it would be outrageous if after a few glasses of wine one night he came out of one of his favourite places, stood on a pebble, staggered and a person said to a garda he was in danger of falling in front of a car, injuring himself or endangering others. That is why I agree with the wording of this amendment. It is difficult to accept that someone might be intoxicated to such an extent as would give rise to a reasonable apprehension. How will the Garda be so reasonable? They will need the wisdom of Solomon to decide when to intervene. What is reasonable to one person could be grossly unreasonable to another.
A poster depicting Deputy Collins as a great man, could be very popular with some, but could cause a riot among others.
He could provoke Deputy Noonan.
(Carlow-Kilkenny): The question of a reasonable approach is one of the major problems that will be encountered in this Bill.
Would the Deputy not accept that we must depend on the common sense of the Garda to determine what is an unreasonable situation? There is nobody other than the Garda to protect people from themselves or others or from those who cannot look after themselves.
(Carlow-Kilkenny): I can accept that if the legislation provides reasonable guidance. A garda may abhor alcohol and consider anyone who consumes it to be a lout and the garda’s view of a person who staggers having consumed alcohol may be completely different to a garda who might consume a large quantity of alcohol when off duty. The word “reasonable” is impossible to define or implement. A person having consumed two or three alcoholic drinks who may stagger and attract someone’s attention should not be classified in the same category or fined to the same extent, up to a maximum of £500, as a person who is disorderly in a public place, threatens or uses abusive language or insulting behaviour in a public place, is disorderly at a public meeting or people who go out of their way to create a disturbance. Under this Bill a person who staggers while walking on the footpath having consumed two or three pints can be put in the same criminal category as those to whom I referred and that is not right.
Deputy Mitchell gave an example of a responsible citizen who, having had a few alcoholic drinks too many, decides to walk home and not drive. It would be shocking if such a responsible person was fined £500 for walking home from the pub. There may be a way around that section. However, section 4 as it stands allows the Garda to regard people who have consumed alcohol, as a danger to themselves or others. If a person is threatening or fighting there are other sections to deal with such behaviour, but this section provides that someone who is going home, minding his or her business, and, perhaps, quietly singing a song is a danger to the public. Section 4 must be re-examined.
I am not too familiar with Committee Stage debates. In subsection (1) is it right that the word "he" is used on one line and the word "his" is used on the next line. Should the words "she" and "her" not be used also. Ladies as well as gentlemen are capable of becoming intoxicated. Regarding the point Opposition Deputies made in relation to intoxicated people being a nuisance, I agree with the arguments put forward. Where a crowd is gathered and someone is intoxicated and causing a disturbance, the wish of the general public is that such a person be moved to a place where he or she will not cause any disturbance. A person who is guilty of an offence under this section shall be liable on summary conviction to a fine not exceeding £500. From my experience of meeting such people they would not be able to afford such a fine. While I accept the intent of the section — the legislation is being well received, is long overdue and I commend the Minister for it — I wonder if, in practice, this section is the right step.
I support the points made by Deputy Collins in regard to Deputy Gilmore's amendment. From experience certain judges will put victims into the witness box to get their views as to how they have been affected by the incident and they will take those views into account in their decisions. That relates to other offences committed. That practice happens due to the goodwill of the judge. It is preferable to put this on a statutory basis in relation to offences which involve intimidation or, indeed, offences against the person. Perhaps in all our legislation we should put in a statutory obligation on the Judiciary to take into account the trauma suffered by the victim and, if necessary, to take evidence in relation to such incidents from the victims. As Deputies Gilmore and Collins pointed out, we hear much about the rights of the offenders but we do not hear much about the rights of the victims. That should be considered in relation to all criminal legislation on the Statute Book.
On the section, I do not know why the Opposition are agitated about it; we should call a spade a spade. Much public disorder on the streets in every town and city occurs because of the abuse of alcohol. At present the Garda are incredibly constrained in the way they can deal with public disorder. Generally, it is due to the goodwill of the person, albeit intoxicated, that the Garda are able to take him or her to the station or home in the squad car. Such practices occur without a legislative framework and without authority.
Section 4 (3) states: "Where a member of the Garda Síochána suspects . . . may . . . without warrant . . .". I support that provision. In almost every incident the Garda Síochána are obliged to seek a warrant or are constrained because of civil liberties. Under our legislation the Garda Síochána can enter people's property if they suspect there are noxious weeds growing in a field, but they cannot enter a property if they suspect there are arms or guns on the property. These are matters we should consider. The Garda should be empowered to enter people's property and, in this instance, to take bottles or whatever from them so that they will not continue to drink once the garda has left. I encourage the Minister to press this section. It follows on from the offences of breach of the peace or the drunk and disorderly offences in our legislation. It may restate some of the legislation but, perhaps, it goes a little further and empowers the Garda to take the offending so-called weapon from the offender. We hear much bleating in this Chamber that something should be done about public disorder and this section addresses this problem. Public disorder arises due to the abuse of drink, particularly at night time.
On a point of clarification, are we dealing with the amendments first and then the section or the amendments and the section? I am confused.
We are dealing with the amendment.
The comments the Deputies made on section 4 will be responded to when the amendments have been dealt with. Section 5 of the Criminal Justice Act, 1993 provides, as Deputy Gilmore acknowledged, that in determining the sentence to be imposed on a person for specified offences a court shall take into account, and may where necessary receive evidence or submissions concerning any effect of the offence on the person in respect of whom the offence was committed. Among the specified offences where this applies are offences involving violence or the threat of violence to a person. This means that any of the offences dealt with in this Bill which involve violence or the threat of violence to a person will be subject to the provisions of section 5 of the 1993 Act.
There would not seem to be any advantage in extending the obligation to take into account the effect on victims beyond that. It should be borne in mind also that it is the nature of many of the offences which we are providing for that there does not always have to be an identifiable specific victim. For example, in relation to the offence of riot there need be no others present and in any event it is not a crime which tends to be directed at particular individuals. Equally, in terms of the more minor offences such as threatening, abusive or insulting behaviour, there would not necessarily be an identifiable victim. For example, where a group of people were misbehaving in O'Connell Street to the general discomfort of passers-by it would not be practicable and would serve no purpose for the court to be asked to consider, on an individual basis, the effect of that behaviour on each of the passers-by. Therefore, given the general nature of public order offences and the fact that section 5 of the Criminal Justice Act, 1993 deals with cases of violence or threats of violence to a person, I can see no advantage in Deputy Gilmore's amendment.
I would support also the view put forward by Deputies Gilmore, Collins and Ahern that for too long the criminal justice system has had the balance tilted very much in favour of the criminal very often to the detriment of the victim. Shortly after coming into office as Minister for Justice I met with the Irish Association of Victim Support who do excellent work around the country but, most particularly, in Dublin city. They feel strongly that in introducing any new criminal justice legislation we should be mindful of the effect of crime on the victim. That is why the Criminal Justice Act, 1993 was such an important step forward and I am glad that under section 5 of that Act the offences under the public order Bill will take into account the effect of crime on the victim.
I am a little confused as to where we are, at present.
We are dealing with amendment No. 4 to section 4.
I can understand to a certain extent the opposition to this section but, as Deputy Collins said, we must rely on the common sense of the gardaí. We are not only talking about alcohol but also, for example, about glue sniffing and perhaps heroin abuse. Unfortunately, many people have died in the streets of Dublin and in other Irish cities for this type of self abuse. This is an important section and it should be retained. People are doing damage to themselves, and some people have died in the streets of Dublin during very cold spells having fallen asleep following the consumption of alcohol or some other drug.
This section is vital because, unfortunately, some people have to be protected from themselves. It should be retained because certainly in Dublin its effect will be important, hopefully not in too many cases. It is an exaggeration to say that people leaving a pub who slip on a stone and stagger slightly may be arrested on the presumption they are intoxicated. It is much more serious than that. Certainly in Dublin and my constituency these offences have been a problem. When this Bill is passed people will be protected from themselves and also prevented from annoying and, perhaps, assaulting others.
Lest there be any misunderstanding, I think I speak for all Members when I say that we are all concerned about the victims of crime. I am glad to hear some Members accepting a point of view I have been expressing for the past five or six years concerning the shift of emphasis from the criminal to the victim. We have made progress. I do not think the points made by my colleague, Deputy Mitchell, in any way reflect on our commitment to support the victims of crime. We are dealing with legislation which will have to be implemented by the Garda Síochána and, ultimately, adjudicated on by the courts.
I would like to pose some questions in this regard. All of us would appreciate that somebody who is drunk, disorderly and causing a disturbance on the footpath or in the centre of the road or elsewhere should be dealt with by the Garda Síochána whether for their own safety or the safety of others. This section cannot be taken in isolation to section 5 which gives posers to deal with boisterous conduct. If somebody is drunk and disorderly they would also be behaving in a boisterous manner which can be dealt with under section 5.
We are talking about simply whether somebody who is intoxicated should be "lifted" by the gardaí and whether a fine of £500 should be imposed on them.
There are various humane circumstances that one must take into account in this regard. First, the person may be an alcoholic. Will any allowance be made for the fact that the person may have an illness? Will this apply to the homeless, who have not had the advantage of the benefits we have? This is the reality of including in legislation powers to allow the Garda Síochána deal with people who, according to this Bill, if intoxicated and there is reasonable doubt they could be endangering their own lives, can be charged and, ultimately, fined up to £500.
Does the Minister intend to deal with those who are selling alcohol to people? I remember a long debate in this Chamber on the Intoxicating Liquor Act, 1988 when Deputy Collins was then Minister for Justice. There was a great debate on this legislation and amendments were accepted by the Minister, which I appreciated. One of those important amendments concerned the sale of alcohol by supermarkets. As far as I am aware since 1988 the order in relation to the sale of alcohol by supermarkets has never been introduced. Yet teenagers can enter supermarkets, take cans of beer, bottles of wine and cider off the shelves and walk through check-outs which are operated by 15 or 16 year-old boys and girls. We appear to have no problem allowing this alcohol to be sold to youngsters who then go to open spaces or beaches and become intoxicated.
This legislation does not deal with the people who are selling this alcohol, whether to somebody who is perhaps an alcoholic, or who has an illness or to young persons who consume large quantities of alcohol simply for the adventure of it. It is not all one way traffic, it is not only the victims of crime that we are dealing with in this section.
The fears expressed by Deputies in relation to those who are intoxicated and causing a disturbance are dealt with in section 5 under the term "boisterous conduct". When does the Minister intend dealing with the real problem of the sale of alcohol? We imposed strict controls on off-licences and on publicans in relation to the sale of alcohol from those premises but we have shirked dealing with the sale of alcohol from supermarkets. It was specified that alcohol should be sold from a special counter by a person in a senior position, and who is of a certain age, and able to decide whether the alcohol should be sold. One can walk into many supermarkets, take cans of beer off the shelves and pass through the checkouts without being challenged. Therefore, before implying that we are not concerned about the victims of crime, let us address the real problem, namely, that there is very little control.
One merit in section 4 is that gardaí will be empowered to seize alcohol from persons who are intoxicated. There is a justifiable reason to empower the Garda to seize alcohol from somebody who is intoxicated. That provision is also contained in the Intoxicating Liquor Act, 1988 in respect of young persons, but, unfortunately, I do not see it being implemented too often. Rather than dealing with a problem in isolation and pretending that we will clear the streets of Dublin, Cork, Limerick and elsewhere of people who are. drunk, we should examine the problem in more depth and accept that other sections of the Bill can deal with the problems that most Deputies have raised here.
There is a tendency to go beyond what this section is seeking to do. There is a great deal of blackguardism on our streets at present where people are drunk and abusive. Deputy Mitchell and I represent the same constituency and we know that people are fed up with individuals who have consumed alcohol shouting and misbehaving on our streets. The gardaí have enough work on their hands without asking them to arrest a person who is not misbehaving.
This section deals with people who are under the influence of drink. In Dublin last year, three people who were receiving care in different institutions died on our streets. Those people did not wish to spend their nights in those institutions and Deputy Mitchell, when he was Lord Mayor, conducted an inquiry immediately into why they died. If the law had permitted the gardaí could possibly have picked up those people when they were obviously under the influence of drink before they found somewhere to hide. That may have saved their lives.
The point is that they would have been brought before the courts and they may have been fined up to £500. Is that what we want to do in a criminal justice Bill?
Let us talk about the figure of £500. We are assuming that every person who will be brought before the court will receive the maximum fine. The defendent may be given a simple warning not to offend again or to obtain treatment and so on. The point is that we are talking about protecting the public and the greater good must be taken into consideration. No one could disagree with what is stated in the Bill:
It shall be an offence for any person to be present in any public place while intoxicated to such an extent as would give rise to a reasonable apprehension that he might endanger himself or any other person in his vicinity.
The Bill also states:
Where a member of the Garda Síochána suspects, with reasonable cause, that an offence under this section is being committed, the member concerned may seize, obtain or remove, without warrant, any bottle or container together with its contents, which——
Again, Members will agree with that. We are here to protect the public and I welcome this Bill. I have cried out in despair many times in this House for the balance to be on the side of the victim and I am delighted with this Bill. The Minister has the political will to address this problem and we should welcome that. We are on the right track and we should not be discouraged. The Garda Síochána is an exemplary force. There is the odd member who is a rascal but gardaí are always anxious to weed out anyone who might have a prejudice against drink because they are a teetotaller. Their colleagues, and the inspector in the Garda station, would know if they had a hangup about drink. In fact, judges in court who might say: "tell me, guard, do you ever take a drink?" and he might receive the reply, "no, I am totally against it". What about those who sniff glue or abuse heroin? One can be intoxicated with substances other than alcohol and this section covers all cases.
I welcome this section but I regret that the committee is divided on the issue. Members of different parties might agree or disagree about certain issues. There appears to be a Government and Opposition view on this and I regret that. I encourage the Minister not to delete the section or accept the amendment tabled by Deputy Gilmore because where one is required to justify a sentence handed down, victims — we have seen this happen — are intimidated. A person on the phone may say: "I hear you are going to court to give evidence about this attack on you", and may want that person to say they were not hurt. I do not agree with making the victim accountable for his or her injuries. Blackguardism is blackguardism and we must deal with it now. I fully support the Minister in regard to this section.
I appeal to Members to address amendment No. 4. We are not dealing with the section.
It may not have been his intention but Deputy Mitchell breached the procedure by moving on to section 4. I do not accept what the Minister said in relation to Deputy Gilmore's amendment. It is enough to simply take into account the effect on the victim when there is violence. For example, racketeering can have a devastating impact on a victim and there may be no violence involved in that. For example a tourist after saving for years to visit Ireland, who is robbed of everything he or she possesses can suffer a great deal. The case of the County Leitrim woman who had her life's savings stolen while driving through Sheriff Street last week — one could question the wisdom of having one's life's savings in a car while driving — indicates that the crime does not necessarily have to involve violence in order to have a devastating effect on the victim. I welcome the support from all sides in relation to the concept behind Deputy Gilmore's amendment. It is a very good one. It is the case that many criminal suspects are innocent people but the victim is always innocent. It is not enough that the court should have the discretion to hear a statement from the victim, either in person or a statement on their behalf. That begs the question of who draws up the statement.
One concern I have is the tendency of some members of the Judiciary to take the view that if the victim has made a good recovery the judge should be more lenient on the convicted person. In a recent violent rape case in Dublin the judge took the view that because the victim was a strong person and making a good recovery, he would take that into account in handing down the sentence. That is wrong. The crime was a violent and horrible one. Victims' statements can sometimes work the other way. The effect on the victim would depend on when the victim is brought before the court; if only six months had elapsed a victim might be far more distressed that if it was one year, 18 months or two yeers down the road.
I agree with the principle of hearing from the victim where the victim wishes to be heard or where the court decides the victim can be heard. It would be wrong to make it mandatory because it would put victims through an ordeal that is worse than the crime. There would have to be discretion. We need to balance the rights in our criminal justice system more towards the victim than has been the case in recent times.
I would add that the victims of crime can often be subjected to undue pressure from the press. Some victims are literally tortured after a trial. The Irish Association for Victim Support has made a number of comments in relation to the victim being sought out in order to be interviewed about the crime or to have their photograph taken. A very recent case which was highlighted in the provincial press has been taken up by the Irish Association for Victim Support. I do not wish to make the matter worse by referring to the particular case. We all need to be careful to ensure we do not make life worse for a victim. I hope the Minister will reconsider, in advance of Report Stage, her attitude to Deputy Gilmore's amendment. The provisions of the proposed new section 4 should be a feature of all legislation of this kind, not just where violence occurs. A crime may have a devastating effect on somebody.
If we were to dispose of the amendment it would allow us to discuss section 4. I do not wish to combine discussion on the amendment and the section because they are very different matters. It would be better in all our interests if we were to dispose of Deputy Gilmore's amendment or have the Minister rethink it in advance of Report Stage.
This amendment has been tabled in a response, albeit a late response, to problems that have existed in our society for more than a decade. I welcome this Bill, which should have come before the House ten years ago. It imposes a new responsibility on the gardaí to interpret the language of the Bill. Some of the points made may be perverse or pedantic. Sometimes, the gardaí ask us why the language used in a Bill is not precise, in its meaning and more direct. Even the words "public place" will be challenged in the court. The definition of these words will account for a couple of pay days for barristers. I will not get involved in that argument. Let us hope we will have no more such dreadful cases and that the Bill will be fair and interpreted in an intelligent way by the gardaí. The language is important.
I will refer briefly to intimidation around railway stations. I travel to and from Limerick by train. It is shocking to see groups of young men around railway stations intimidating Irish citizens and tourists and also in public places such as parks.
In two large housing estates in Limerick, with a population comparable to that of Ennis, where the unemployment rate is 80 per cent there are large groups of young men who at night usually consume cider and wine, and sniff solvents, drive people from their homes and burn those houses. They have destroyed about £1 million worth of public housing in their area. I hope the Bill will deal with that problem. This type of crime and the behaviour of those young people cannot be treated in isolation from unemployment and deprived backgrounds. Usually those children have very low self esteem and hence the reason they take cider, sniff solvents and so on. In Limerick when they are high on solvents and cider they have a dreadful practice of going down to the local railway track and lying on it as the train approaches. Some young people have been killed by trains running over them because they hallucinate under such conditions.
Unless the gardaí implement the provisions of the Bill in an intelligent way it will be rendered null and void. Why not provide training and refresher courses for the gardaí? It is important that they get a good balance on this. Gardaí sometimes seek more overtime and more members but quality, not quantity, is required in policing. The Garda must understand that resources are very limited and that they should be used efficiently. A new response is required from the Garda, otherwise what we are doing will be a negative exercise and no good will come of it. It is important for the Minister to bring the gardaí with her to ensure the Bill is implemented fully.
I wish the Bill every success. It is important to have it enacted as quickly as possible. Let us hope the young people to whom I have referred can be given a more meaningful stake in society and in taking part in society as a whole. If young people have no stake in society it will be very difficult for them to respond to this Bill.
It is unfortunate that the amendment has got tangled into the general discussion on section 4. It would be helpful if the debate on section 4 was concluded before dealing with subsequent amendments Nos. 5 and 6, otherwise they will suffer the same fate because they deal with the general question of the approach to sentencing rather than to the problem of intoxication in a public place.
The Minister is of the view that offences involving violence or of threat of violence are covered by the Criminal Justice Act which was passed earlier this year and that, therefore, the offences in this Bill where violence or the threat of violence is involved are automatically covered by that previous enactment. That is fair in so far as violence or the threat of violence is concerned, but as Deputy Harney pointed out there are provisions in this Bill where it is not entirely clear if there is violence or the threat of violence but where there most certainly is a victim. The Minister gave the example, if I heard her correctly, that the provision in relation to riot would not necessarily involve a victim in the direct sense of the term. There would not necessarily have to be a victim who was present at the time of the riot. Similarly the provisions in section 5, which deal with disorderly conduct in a public place, presumably would not require to have a victim on the spot who would be subject to violence or the threat of violence, but one cannot conclude that there is not a victim. The Minister claims that there can be victimless crimes, but I am not so sure that there is such a thing. It depends on the way you look at it. The submission made by the Irish Council for Civil Liberties on section 5 states:
Commonsense tells us that to be awakened from sleep by the boisterous singing of youngsters coming from a disco in the early hours may not be as like nightingales, but surely our repose is not a sacred thing. The exuberance of youth should be extolled not quietened. The very heaven of the young should peel and ring with laughter and high jinks. To be alive is to be noisy.
It goes on to say:
The legislation must have been drafted by crabby, middle-aged, middle class spoilsports who wish to gag the frolics and gift of youthful antics.
That is certainly one way of looking at the legislation, but I do not think you would get very far in trying to convince the mother of a sick child, who was awakened by disorderly conduct outside their apartment block or house, that they should suffer this in order to safeguard the freedoms, frolics and high jinks of exuberant youth. I do not think you would get very far in trying to convince somebody who had to get up for work the following day for example, the refuse collector who may have to be up at 5 a.m. to collect the bottles and beer cans — that being deprived of their night's sleep is something they should sacrifice for the greater good and freedom of those having high jinks.
The question of whether there is violence or a threat of violence is not clear-cut. The question of victim impact comes into it. There are offences under this legislation which may not have an obvious victim, but provision should be made in the event that somebody presents in court and says: "Look, I was kept awake six nights running by that gang of hooligans creating a disturbance in my neighbourhood, and I want to tell you the consequences and implications that has had for me". For example, a student about to sit the leaving certificate could be kept awake by behaviour of that kind. Some provision should be made.
The Minister should think again about the victim impact statement. Clearly it would be a matter for the courts and for the individual whether a victim presents in order to give such a statement. It should not be confined purely to those cases where there is violence or a threat of violence.
Since the question of section 4 has come up, I will add my opinion.
We will deal with the section later.
Like other Deputies, I am not happy that this section deals adequately with the question of alcohol.
I would remind the Deputy that we will deal with the section as a whole when we have disposed of the three amendments.
Perhaps if I respond to Deputy Gilmore I would be of assistance to the committee in relation to the amendment.
We will give way to the Minister.
Section 5 of the Criminal Justice Act, 1993, deals with violence or the threat of violence and the effect that has on the victim. I appreciate the point made by Deputy Gilmore and others that there may be a grey area between the incidence of violence or threat of violence and the extreme case I gave where there is no identifiable or obvious victim. If Deputy Gilmore is prepared to withdraw his amendment I, and my officials, who are neither crabby nor middle aged, will look at an appropriate amendment, between now and Report Stage to tighten up what the Deputy is trying to achieve.
I am prepared to withdraw the amendment on the basis of the commitment given by the Minister.
Amendment, by leave, withdrawn.
On a point of order, I think these matters are in the wrong place and we should take section 4 before we move on to what is another very different matter.
We have to dispose of amendments Nos. 5 and 6 before we discuss the section as a whole.
In that case we should not have gone on to the section.
Members were asked to confine themselves to the particular amendment and they did not do so. We are moving on to amendment No. 5.
We are going to end up with the same problem in relation to amendments Nos. 5 and 6. With your permission and that of the Committee, I wish to defer moving amendments Nos. 5 and 6 until after we have completed the discussion on section 4 generally. I will reword that if you wish to have it in order.
That sounds sensible.
Is that agreed?
On a point of order, I would be happier if the Minister could come back to the Committee with any amendments she wishes to make before we complete our deliberations on the Bill. It is essential to the nature of the new committee system that we get a full opportunity to discuss matters. While I appreciate the House has an opportunity to do this on Report Stage it would be more effective and appropriate if the Minister were to come back to the committee first.
The section is now before us for discussion.
Question proposed: "That section 4 stand part of the Bill."
I would like to commence by drawing the attention of the House to the fact that this morning in Cork two tonnes of drugs, with a street value of £20 million, were seized on board a vessel trying to land. While I do not equate alcohol with drugs, we are talking about a drug which has cost the lives of many young and elderly people. Section 4 states:
It shall be an offence for any person to be present in any public place while intoxicated . . .
The question as to how that person became intoxicated will not be asked. During my lifetime I have seen the drink trade change from the ordinary public house, called the local, where people went for their leisure hours to have a drink with friends to the singing lounges. Nowadays organisations and licensees encourage people to come and drink on their premises where there are all sorts of attractions and it is meant to be a place of enjoyment. Of 400 or 500 people attending a function four or five dozen people may step out of line. This section deals with those who may step out of line rather than the 400 or 500 people who go there to enjoy themselves. People may think I am talking about my own town only but I have received similar complaints from locals that groups of young people leave pubs in the early hours of the morning or other places of entertainment stoven or mad drunk, as we would say in Donegal, or "blotto", as they might say in Dublin. Some of these are drivers of motor cars, others are motor cyclists or passengers. Far too often we have heard tragic news that a young boy or girl was killed the previous night in a car accident and while we think it is terrible that people drink too much alcohol we fail to make any reference to the place where they were given it. In many states in America the last premises a drunken driver visited is held equally responsible before the law if an accident occurs or injuries are caused. That would be an extreme step to take but we have to face the reality that alcohol abuse costs lives.
People may say that I am anti-alcohol or that I am a strict teetotaller but I grew up in a public house and I know how alcohol affects people. The public house in which I grew up was considered to be the local, the place people went on a Saturday night or during the week, in smaller numbers, for a drink. I have always found it difficult to come to terms with the nightclub, the disco or the singing lounge. Alcohol is freely available and, as Deputy Barrett said, can be purchased by anyone in a supermarket. People can go to a street corner, school yard or park to drink and I do not have to relate the results to the House.
I would like the Minister, in dealing with section 4, to consider seriously the question of where a publican or licensee stands when it comes to giving drink to people who have had too much to drink. I am aware of the difficulties which may arise in trying to control this, but if the owner of a licensed premises, such as a disco or other place of entertainment, advertise to encourage large numbers to celebrate in their premises and a number of people disturb the peace later in a public place, not only should those who disturb the peace be brought before the law but those who gave them too much alcohol. I include the supermarkets in this. If a fatal accident occurs then the owner of the last licensed premises which the driver of the car visited should be held accountable before the courts.
I am not sure if similar remarks have been made before in this House. I will be accused of trying to take people's livelihoods away but I am prepared to face this. If I am accused of trying to take away the livelihood of the person who sells alcohol to excess I will make no apology because in such circumstances there is a price to be paid: the death of young people. There is a weakness in the Bill and I ask the Minister to consider the points I have made.
(Carlow-Kilkenny): I am sorry there is no Deputy on the opposite side of the House to listen to what I have to say because I was slightly offended when Deputy Dermot Ahern decided that we on this side of the House were bleating. While I may appear to be sheepish I hope I do not bleat and my contributions are constructive. We all do what we think is right and say what we think should be done.
On section 4, if Deputy Gilmore's amendment is accepted, in what way will the individual who is arrested because he may do himself some harm be dealt with? Would he have to do himself an injury and would this be taken into account when the sentence was being handed down in court? If it appears that somebody, making his way home from the local pub, may endanger himself it might be a good idea to place him in a padded cell for an hour or two to recover and then release him.
Deputy Briscoe made the point that nobody said he would be fined £500, the maximum fine. I did not say that he would be fined £500; rather that he would be treated in the same way as the person charged with disorderly conduct or with threatening, abusive or insulting behaviour in a public place or with disorderly conduct at a public meeting. It does not follow that he would be fined £500 in court. He will be treated in the same way as those who deliberately engage in disorderly conduct.
Members on the Government side of the House seem to think that, because we are in Opposition, we are opposed to this proposal but I have no difficulty in recognising that a problem may arise: somebody may decide that there is a reasonable chance that the innocent, harmless individual who has had two or three pints could do himself some harm, that he might fall down or slip down the side of a lamp-post. Despite the fact that one of the Minister's colleagues thinks we are bleating this is a serious point. At what stage can an individual who has had a few pints be taken in and charged with offences specified in sections 5 and 6? It is being argued — I do not accept this — that what we are saying is that people can engage in disorderly conduct on the streets. Like everybody else, I believe that those who engage in disorderly behaviour on the streets should be arrested and fined heavily, if necessary the maximum fine of £500. However in this instance we are talking about the person who could do himself some harm by falling down or walking out in front of traffic. For that reason I do not want this section to be linked with sections 5 or 6, both of which deal with disorderly conduct and threatening, abusive or insulting behaviour. This individual will be a victim and a criminal at the same time. Therefore a strong case could be made for looking at section 4 again. If an individual harms somebody else he can be dealt with under sections 5 and 6.
I was interested to hear so many comments on this section and I have had the opportunity to consider some of the points raised. I always take the strong view that the criminal law should not be used in dealing with social problems and if section 4 was to be used in dealing with alcoholism or drunkenness I would not be in favour of it. While there may be a need to amend the section I will not be opposing it for a number of reasons.
It is my experience in the constituency I represent and that of many of the lobby groups I have met since I took over as spokesperson on justice that it is virtually impossible to enforce the provisions of the existing legislation when it comes to seizing alcohol from under-age persons. In a group of young people five or six may be aged 16 or 17 while two or three could be aged 18 or 19. This makes it impossible for the gardaí, given that identity cards are not issued, to determine if young people are under 18. If ten people were put before us none of us would be able to determine what age they were. The Minister is trying to tackle that enormous problem. Day in, day out, many people are hounded by gangs of young people who drink alcohol that has been purchased for them by older children — in other words, by people over the age — in public parks. The gardaí do not have the power to seize this alcohol because when they inquire who owns it they are told it belongs to John or Jack who is over the age, with the result that the drinking and the intimidation continues. There is no doubt that it is a nightmare in parts of Dublin. I am not saying that we need all the provisions contained in this section to deal with that problem but certainly we need the provisions relating to the seizure of alcohol and not just from under-age persons.
It is already a statutory offence to be drunk and disorderly in a public place. While I take the point that because it is not being enforced the law is being brought into disrepute. Deputy Barret made this point. I take a different view. Recently during Question Time in the Dáil the Minister was asked to make the licensing laws restrictive. I took the reverse attitude. I believe our licensing laws are too restrictive. Because alcohol has to be sold before 11 p.m. or 11.30 p.m. in a public house, towards the end of the evening many people line up three, four or five drinks in front of them. If there was no restriction they would probably have one or two more and then go home. There is the attitude that because something is forbidden or banned one has to get hold of it.
Reference has been made to drunk driving. There are many people who are drunk in the afternoon, after lunches, receptions or in the early evening; it is not just at 11 p.m. or 12 midnight that people get drunk. If we adopted a more liberal attitude to the sale and consumption of alcohol, particularly within the home as they do in France and other countries on the continent, there would not be this fascination with alcohol. When children reach the age of 12 or 13 they have a fascination with cigarettes, alcohol, drugs and whatever else is forbidden. Our attitude to the licensing laws, the sale and consumption of alcohol, leaves much to be desired. If we were to change our habits in that regard we would make an impact on the problem.
It is a fact that somebody can be a danger to themselves; they can put themselves in a position due to drunkenness where they may be robbed or beaten up. It would be good if the Garda used the provisions of this legislation. However, we need to know what powers they are to be given.
We have to read this section in conjunction with section 9. Where somebody is in breach of section 4 and other sections the Garda are being asked to warn them, to ask them to desist from acting in such a manner and to leave immediately. It is only when the person concerned fails to comply with the direction given that they may be arrested and a prosecution taken. However, it is the court and not the Garda that will decide whether or not the person was a danger to themselves or to somebody else. We probably need to change the wording as the court will find it difficult to interpret it.
While it was remiss of me not to table some amendments, I know what I want to achieve. I like to think I am a practical person who knows what is required from a civil liberties point of view. That is important because our criminal justice system, more than anything else reflects the kind of society we live in. It would be a pity, having seen the whole liberal agenda moved on, thanks to the Minister and some of her colleagues in Government, if we were to be draconian in relation to criminal law as that is another feature of a liberal and free society. We are confronted with major problems of vandalism, violence and intimidation as a result of alcohol. The provisions of section 4 are aimed mainly at dealing with those problems.
Many people, young and not so young, on their way home drunk vandalise trees and property. If one talks to officials of the local authorities one will realise the problems that can be caused. The fact is that much crime is alcohol related, and large gangs are a contributory factor. There is no doubt that the steel shutters, which are a feature of urban life for most businesses, are installed because people are aware that vandalism can follow when people are drunk and disorderly.
I would like to hear the Minister's explanation as to why there is a need to change the provisions of the law relating to drunk and disorderly conduct. I am strongly of the view that we need provisions relating to seizure because I have heard garda after garda tell us that the existing law does not work. While we need to amend subsection (1), some of the other subsections are appropriate.
I wish to reiterate a point made by Deputy Power but in a different way. It is not only men or teenage boys who cause trouble when they get drunk, many women also get drunk and engage, presumably, in disorderly conduct. We should strive to introduce legislation that is gender neutral. This will not be an easy task. Indeed, I have tabled amendments which do not fulfil my high expectations. I look forward to the day when the Interpretation Bill is introduced, as recommended by the Commission for the Status of Women, so that sexist or gender terms that are biased in favour of one gender as opposed to another will not be used. It is important that legislation is gender neutral.
On the question of seizure of alcohol, if it is taken from somebody who is over the age and who intends to take it to their private residence, will they be entitled, subsequently, to have it returned? Gardaí have told me that when they seize alcohol from under-age drinkers adults demand it back, claiming that it belongs to them. I therefore ask the Minister to tell us what happens to the alcohol once it is seized.
I have tabled an amendment to section 25 whereby the gardaí would not be entitled to arrest under the provisions of section 5 without a warrant. Perhaps we could amend section 25 to deal with section 4 as well, so that when somebody refused a direction at that stage a warrant would be required before they could be automatically arrested. The submission on which Deputy Barrett and Deputy Mitchell commented from the Irish Council for Civil Liberties certainly comes out very strongly against this section. I do not agree with all they say. However, they make the point that we should not use the criminal law to deal with what is a social problem. I do not think that is the intent of this section. I am interested to hear the Minister's defence of all of the provisions of section 4.
I have listened to this discussion, but I am not convinced that the section should be opposed in its entirety because a problem remains to be addressed. I am convinced, however, that the section should not remain as it stands. It should be addressed by way of amendment either on Committee Stage or on Report Stage.
Quite clearly there is a problem in relation to intoxication that is not dealt with by section 5 where the behaviour of the intoxicated spills over and becomes disorderly or boisterious conduct or whatever term is used to describe it. We know from the various crime statistics and reports of the Garda that a very large proportion of criminal activity, particularly of the type this Bill is seeking to address, is related to alcohol and drug abuse. That must be addressed. I do not think that one can simply say that it only becomes a problem when there is boisterous behaviour. For example, a blind drunk who staggers out in front of a car creates a problem, obviously not only for himself but for the unfortunate driver who may run into him and may have to live with that for the rest of his life. There is a necessity for a provision for the gardaí to intervene in a situation where somebody who is quite clearly blind drunk or high on drugs will cause a problem. Another example is where a group who may not necessarily be disorderly are drinking in a public place and it is clear that things will get out of hand. The problem in relation to this section is twofold: first, defining it as a crime and second applying the penalty of the £500 fine. That is not necessarily the way to deal with it. There should be some provision whereby the gardaí can intervene, as is provided for in the Bill, by way of seizure of the drink or, as Deputy Harney has suggested, requiring somebody to move on or perhaps in certain circumstances taking the person into custody for a few hours until they are driven home or whatever.
The other problem that arises seems to be a legal difficulty. The submission from the Council for Civil Liberties draws attention to a certain imprecision in the Bill which it believes will give rise to legal difficulties in the courts. Deputy Kemmy made the point earlier that the Garda are being given legislation which is not entirely clear. The Council for Civil Liberties highlights the distinction that is made, even in this section, between "reasonably apprehension" and "reasonable cause" and it draws attention to the fact that the reasonable apprehension of a garda that somebody might endanger himself or an aother person is what causes the crime. The Council for Civil Liberties makes the point that that deviates from the libertarian and presumptive tradition of Irish law and involves inherent obtrusiveness because it rests upon an entirely subjective perception and it is pre-emptive in characterising conduct. It goes on to contrast that with the concept of reasonable cause, also contained in this section, which implies an objective actuality and is post-operative rather than pre-emptive. It makes the point that in this section the offence arises where there is reasonable apprehension but that the gardaí cannot seize the goods unless they have reasonable cause, which is — according to the Council for Civil Liberties — a more strict requirement than reasonable apprehension.
In the course of the debate we have rambled on a bit: if somebody coming out of a pub was to stagger about a footpath as we staggered about this section of the Bill he would certainly be guilty of an offence under it. The debate has identified the very clear deficiencies in this section and the Minister should take those points on board and attempt to address them, perhaps by way of amendment. There is a problem in how to deal with intoxication, which has to be dealt with although perhaps not in the way that it is dealt with here.
I agree with the points made by Deputy Harney in relation to the licensing laws. It is utterly crazy to discharge all the drunkards of this city onto the street at a certain time every night. I wonder if we had staggered or liberal closing hours whether we would have that same difficulty.
I accept the general thrust of this section but I have some difficulties with it which Deputy Gilmore has covered very adequately. I think I understand what the Minister is getting at and I accept entirely the thrust of the section in that spirit. The core of the problem lies in the wording "a reasonable apprehension that he might endanger himself'. We are creating a criminal offence which is subject to a fine. The difficulty is that we are trying to intercept the commission of what would be an offence. Should I get blind drunk or blotto, to use Deputy Barrett's words, and go out and thump somebody well obviously I am guilty of the crime of assault; should I do damage to something then I am doing malicious damage which in itself is an offence. What we are trying to do here is to prevent that happening. The primary thrust of the section is pre-emptive. It is cast a little too broadly in that it gives the garda, with a reasonable apprehension that a person might endanger himself or others, an unfettered power of arrest and makes the person who has not, in my view, committed an offence at that stage, liable to a fine of up to £500. Will the Minister consider amending those words, perhaps to substitute "cause" for "apprehension", perhaps to tighten up the use of the word "might".
I wonder whether any of us is qualified to decide whether somebody might endanger himself. There are obviously cases and Deputy Gilmore has outlined one where somebody staggers out in front of a car which will be fairly clear cut, but in other cases this effectively gives the power of arrest to a garda who simply forms the view that somebody is drunk. I do not think that is the intent of the section; if it is, I do not think it should be. What I would like to see is the word "might" changed to something more substantial; for example, the person is "likely" to endanger himself or perhaps for that matter has already endangered himself. I would like to see the words "reasonable apprehension" in some way tightened up as well.
I have a suggestion that could deal with all the problems. Section 9 which deals with most of the problems outlined states:
Where a member of the Garda Síochána finds a person in a public place and suspects, with reasonable cause, that such a person — (a) is or has been in a manner contrary to the provisions in sections 4, 5 or 6, or (b) without lawful authority or reasonable excuse, is acting in a manner which consists of loitering in a public place in circumstances, which may include the company of other persons, that give rise to a reasonable apprehension for the safety of persons or the safety of property or for the maintenance of the public peace,
Everybody expressed concern for the victim of circumstances, for example, when someone who is drunk falls in front of a car but that is covered under section 9. As the Garda have the power to deal with that problem under section 9 there is no need for section 4. The only power missing if one deleted section 4 is the power to seize alcohol from a person who is believed to be intoxicated. There is no reason that one could not under section 9 empower the Garda to confiscate any bottle or container as well as warning a person to move on or to desist from acting in such a manner. Our only fear is that the Act can be interpreted in such a way that in some instances gardaí may be over enthusiastic about dealing with somebody who has five or six pints on him. None of us wants to see people drunk, falling about the place and causing danger to the safety of other persons or property, but all that is covered in section 9. If the person is given a fair warning and if he fails to do what he has been told, the Garda can then arrest him and he will be subject to a fine not exceding £500 or six months' imprisonment. Subsection (3) states: A person who is guilty of an offence under this section shall be liable on summary conviction to a fine not exceeding £500 or to imprisonment for a term not exceeding 6 months or to both. Everything is covered under section 9 apart from the provision catered for under section 4, the confiscation of alcohol. I honestly believe it is worthy to enshrine in legislation power that the Garda can confiscate alcohol from somebody who is intoxicated and perhaps causing or likely to cause a nuisance or a disturbance.
Deputy Gilmore said that the Irish Council for Civil Liberties has reservations about this section. I have not studied this as well as I should have but I would like the Garda to have further powers. As far as I can see drinking in public is not outlawed, being drunk is. Do we want to see people drinking from cans on every corner or in every public place? Is that the image we want of our society? Such people might not be doing much damage to themselves, or to other people but they certainly intimidate them. I would prefer to see a law which says that one drinks at home, in a public house, a cafe, or the surrounds or curtilage of a premises rather than making it an offence to be drunk in public. I do not like to see gangs of children, men or women drinking out of cans, left, right and centre.
It is important to explain the purpose of section 4. First, the offence of intoxication in a public place, for which this particular section provides, is not intended to deal with cases of simple drunkenness in public. For an offence to be committed persons must be intoxicated to the extent that there is a "reasonable apprehension" that they might endanger themselves or other persons in the vicinity. Everybody seems to have hang-ups about the word "apprehension" so I will look at it. Quite a number of Deputies have given examples of what might happen. I can give an example, two weeks ago when travelling through O'Connell Street in the early hours of the morning somebody who was grossly intoxicated wandered out on the road, weaving in and out of traffic. He almost caused an accident that would not have harmed him but would most definitely have caused harm to an innocent bystander. That is an area that we have to look at and deal with because we cannot allow it to continue. Deputies Browne and Gilmore in particular have recognised that. We will try to get a better definition to cope with that situation.
Members have talked about giving too many powers to the Garda Síochána. We forget that the Garda have similar powers to the ones we are giving now in a whole range of areas and we know they use their common sense. I am sure we have all seen situations in our towns and cities where somebody leaves a place of entertainment, as Deputy Harte called it, who is not capable of returning home. In the majority of cases the garda present will attempt to find a taxi for the person, very often pay out of his or her pocket to put the person in a taxi and take him home or, if that is not available, put him in a patrol car and take him home without ever bringing him to the station or charging him with an offence. That is where we have to depend on the common sense of gardaí and the vast majority of the 11,000 men and women in the force will use their common sense. Ultimately, as we know, the decision of any Garda Síochána has to be tested in court.
The section also gives powers to the Garda to seize intoxicating substances from a person. We have spent a lot of time talking about alcohol but people who live in Dublin, in particular, and, indeed, in a number of other cities around the country, know that very often other substances like glue, toxins or narcotics of one kind or another can be equally destructive and cause problems in relation to public order as drunkenness or abuse of alcohol can. We are giving them power to seize those substances from a person suspected of committing an offence under the section. They already have similar powers under the Intoxicating Liquors Act, 1988, but those powers relate only to the case of underage drinkers. Deputy Harney is correct when she says that very often these powers cannot be enforced by the gardaí because in a group of six or seven young people it would be very difficult to identify which is underage. Their appearance can be very deceptive.
The Law Reform Commission's 1985 report on the Dublin Police Acts did not support the creation of a new drunk and disorderly offence. They felt the disorderly element in such behaviour should be dealt with by provisions in relation to disorderly behaviour generally, irrespective of any element of intoxication. They concluded that mere drunkenness in itself should not be an offence but recognised that even with the creation of new public order offences a residual problem in relation to drunkenness would have to be addressed. It was in this context that the Law Reform Commission proposed a threshold in relation to danger to the persons themselves or to others. That is the approach which we are following in this section of the Bill.
Deputies Harte and Barrett said some people who abuse alcohol have either social or personal problems. They felt that this issue needed to be addressed in a much wider context. I accept that the provision of health care or adequate counselling could help some people who commit offences of this nature, nevertheless, the Garda need power to deal with crimes arising at the front line. That is my primary concern in this legislation. Of course, the Garda will retain its existing flexibility in dealing with such cases. Imprisonment is not being imposed for this offence. A court has to have regard to a perosn's means in applying or deciding an appropriate fine. It is important to re-emphasise that the fine of £500 is a maximum penalty. The powers under section 9 of the Bill will allow the Garda to attempt to deal with a situation without having to arrest or charge somebody.
What will a garda do if, similar to the case I witnessed in O'Connell Street two weeks ago, a person is not in a fit condition to move on does not know what a garda means when he or she asks him to move on? We have to give the Garda powers to intervene in such situations for that person's safety and the safety of others who may be in that particular area.
That is covered in section 9.
In relation to the point made by Deputy Barrett regarding the Intoxicating Liquor Act, 1988, and the situation obtaining in regard to supermarkets, I cannot give the Deputy a definitive answer offhand. I understand that the order in relation to supermarkets has not been made. I am not sure why but I assure the Deputy that I will find out.
The supermarkets lobbied hard against it.
I can neither confirm or deny that. I will look at that issue to see if there is something we can do.
Deputy Harney referred to a person's right to have alcohol returned. It would appear from the provisions of the Bill that there is not an immediate right for somebody over 18 years to have alcohol returned. There is a police property Act under which other elements of property can be returned to people. To give people the right to have alcohol returned we would have to make special provision in this Bill rather than in the police property Act.
Deputy Kemmy referred to refresher courses for gardaí. He accepted that the vast majority of gardaí would not abuse the powers being given to them and would use their common sense. In-service training is now very much a part of day-to-day Garda training; their training does not finish when they leave Templemore and the Garda college. In fact, they have very intensive in-service training throughout their careers. That is something I have been encouraging. I know Deputy Kemmy has been and is concerned about that issue.
Like Deputy Harney, I am very pleased that Deputy Power, who has been gender proofed, is anxious to gender proof everything in sight. To do what he is suggesting — Deputy Harney recognised this when she responded to him — would mean that the Attorney General would have to sponsor an amendment to the Interpretation Act. I would be as concerned as Deputy Harney and Deputy Power that we should use the word "one" instead of the words "he" or "she". I am not sure if that would be the proper terminology but I would certainly gender proof the Bill.
Having said all that, I appreciate that Deputies are concerned about certain parts of this section which do not appear to be easily defined by members of the gardaí. We want legislation to be as precise as possible; we do not want to leave a loophole in the section which gives rise to the provisions being interpreted in one way or another. While depending on the common sense of the Garda, I appreciate that Deputies have difficulties with this section. I would not accept the deletion of the section, as proposed by Deputy Mitchell. However, I will give an undertaking to have a genuine look at section 4 between now and Report Stage to see if the section can be tightened up in the way suggested by Deputy McDowell, Deputy Gilmore, Deputy Harney and others. That is as far as I can go. The Garda need the kind of powers we are giving them here. Consideration can be given to whether we should use the word "apprehension" or "cause" or whether we can tighten up the section in some way. This is a much better way of doing things rather than deleting the section in its entirety.
I give you notice, Sir, that I do not intend to be as orderly for the rest of the debate as I have been today. Deputies have been allowed to wander all over the place on this section. I was called to speak on the amendment and I spoke specifically to it. I am disappointed that the Minister did not pay me the courtesy of responding to the points I made. If this is the way we are to do business in the House, that is fine.
There is no provision in this section for the confiscation of liquor. This section makes it an offence for someone to give "a reasonable apprehension" that he might endanger himself or any other person in the vicinity. If the Minister puts down an amendment that anybody over the age of 18 can have his or her intoxicating liquor confiscated then I will support it. Let us not get confused. If the Minister thinks the Garda will have problems identifying whether people are under 18 years then she should deal with it in the Bill. I would be happy to address that question also. I did not wander all over the place; I addressed myself to the provisions of this section. People say the Garda have common sense. As legislators we must have common sense and we should not be required to rubber stamp everything the Department of Justice brings into this House. Our job is to examine legislation, to go through each section word by word on Committee Stage and ascertain the intention behind it. The intention behind this legislation is not to get the man who walks out in front of a car — he is a jaywalker and he can be apprehended under other legislation. I know a little bit about epilepsy. I have studied this disorder, I know people who suffer from it and I have a family association with it. An epileptic person walking home at night who appears intoxicated can be treated as a criminal under this Bill. If people are a nuisance then we should treat them as such — I am sure there is legislation in place to deal with them. This Bill deals with criminal justice and many Deputies have expressed fears about section 4.
Correct.
I find the suggestion that someone may fall asleep on the street and die simply because this provision is not in the Bill extraordinary. People have died on the streets of Dublin and it has had nothing to do with whether this provision was included in legislation. Let us not cod ourselves about this.
We need to tighten up our criminal law. There was a reference to people who vandalise trees and cars on the way home from the pub. That is an act of vandalism which Deputy Harney was allowed to raise on this section which deals with people who endanger themselves or other persons when they are intoxicated.
The Deputy is very touchy.
There are sufficient provisions under the Road Traffic Act and section 9 of this Bill to deal with people who commit acts of vandalism. I give notice that I intend to introduce an amendment on the confiscation of alcohol. This is not provided for under this section. In the interests of civil liberties, I am putting down a marker that I will not agree to nod through any legislation in this House. I want legislation which will deal with criminals. People who come out of a pub with too much drink taken are not the central problem. We should find and lock up the criminals. People who jaywalk should be dealt with under the Road Traffic Act. We should not, willy-nilly, give power to the Garda to decide whether somebody is causing a criminal offence. I oppose this section.
It is now 5 p.m. and it was agreed that the committee would adjourn at this time. The question cannot be put on section 4 without first disposing of amendments Nos. 5 and 6. I propose that we deal with amendments Nos. 5 and 6 at our next meeting and move on from there. Is that agreed? Agreed.
On a point of order, may I suggest to the Minister that she report back to the Committee at its next meeting about her thoughts on today's discussion? That would be very helpful to us.
I would be delighted to do that but, as I am sure Deputy McDowell is well aware, there is only one week between now and the next meeting. I am not sure I can give a commitment that I will be in a position during that time to carry out an indepth analysis within the Department and then go to the parliamentary draftsman to see if it is possible to do as the Deputies have requested. I mentioned Report Stage because Members will agree that that breather will give an opportunity for the kind of discussions that are necessary on whether the section should be made as precise as Deputies have requested.
I am not clear if it is intended to take Report Stage next week or in the autumn?
In the autumn.
Can the Committee meet in September or October at which stage, presumably, the Minister would have had an opportunity to consider this matter?
That depends on the progress we make on the Bill.
We cannot go back on the sections already discussed and agreed on Committee Stage.
I was hoping the Minister could table an amendment for next week but if she cannot do so I ask her to take an amendment on Report Stage. We did not table amendments to deal with this point and sometimes the interpretation in this House is that if one does not table an amendment on Committee Stage one cannot table one on Report Stage. I ask the Chairman to clarify that Members can table amendments to this section on Report Stage?
Yes.
Provided the Deputy consults with Deputy Mitchell beforehand.
Progress reported; Committee to sit again.
The Select Committee adjourned at 5.02 p.m. until 10.30 a.m. on Thursday, 22 July 1993.