I have tabled two other amendments to this section. Are we taking all the amendments together or separately?
SECTION 5.
We must take them separately.
I move amendment No. 7:
In page 4, subsection (1), line 34, after "place" to insert ", including a public park whether open or closed,".
I am concerned about certain provisions of this section with which I will deal when we debate it. I am particularly concerned about the provisions in relation to singing in public places when such activity does not cause a nuisance.
We must address the issue of people who engage in bad and abusive behaviour in public parks or open spaces adjacent to residential areas. This is not just a technical problem; it is a very substantial problem which we should consider as part of this Bill. Throughout this city and in urban areas terrible problems arise when groups of between six and 40 youngsters gather in public parks and open spaces adjacent to residential areas to drink cider, vodka, beer or other intoxicating substances. Dublin Corporation has been seeking to amend the relevant by-laws in this area. However, that is a matter for the Minister for the Environment and I understand it is being considered by him.
I want to make it clear that I have strong reservations about certain provisions of this section, which I will address when we debate the section. At present the rights of people are greatly interfered with, particularly the more vulnerable. I am referring to old people, children, people who work late at night and those who live adjacent to parks or open spaces whose lives are made a misery. Groups who engage in threatening behaviour in a public place cause great difficulties for people. These groups can be in breach of the peace when they become raucous late in the evening or early in the morning. Conflict can also arise between local residents and these groups. The Garda should be empowered under this section to pursue groups who congregate in a public park, open or closed, or in an open space which could be regarded as a public park. This would ensure that people live in peace in their homes and would not have to put up with this thuggery. Apart from that, the groups who gather in these places must finance the purchase of the intoxicating substances and very often they watch houses to ensure that the owners have gone out before they break in and burgle them. On other occasions they stand by while stolen cars are driven up and down a street to entertain them. This is a big problem. This legislation proposes to deal with the whole question of public order. One of the biggest problems in this area is groups who have misused open spaces, greens, parks, etc. I ask the Minister to consider taking this amendment on board. I have reservations about certain provisions of the section which should be tidied up. I am referring specifically to singing in public where no complaint is made. I will deal with that issue when we come to the section.
I live in Dublin SouthWest beside one of the largest parks in Dublin. I am fully aware of the incidents to which Deputy Mitchell has referred and the need to specify what is a public park. At times the Garda says it does not have access to parks. Difficulties arise when a park is locked from 9 p.m. onwards. We all know that the type of behaviour the section proposes to address can start long before midnight. In fact it can begin at 9 p.m. Access to parks by the Garda is vitally important if this major problem in Dublin is to be addressed. There should be no doubt whatsoever about the power of the Garda to implement the provisions of this section regardless of whether parks are completely or partly enclosed. In addition we should ensure that people cannot escape the provisions of this section by using a technical mechanism, by-law or loophole. I ask the Minister to consider that point very carefully.
I support Deputy Mitchell's amendment which proposes to include public parks in this section. There is a problem in this area which needs to be specifically addressed. If one looks at the way in which urban areas are planned one can see that there is a requirement in most housing developments to include a public open space. In some cases the public open space is described in the sales brochure as an amenity, the idea being that it is visually attractive and is a feature intended for passive recreation purposes by the people living in that area. However, many of the open spaces which have been designed as amenities have turned out to be nuisances. Members of the committee will have received many requests from people living in housing estates who want the public open space in their area to be divided up among them and incorporated into their private gardens, purely to get rid of a nuisance. Since our last meeting I have come across individual cases where people are selling their homes because they overlook open spaces. These open spaces are visually very attractive—if one saw them in a brochure one would think they were ideal places to live—but these people are selling because they can no longer tolerate the type of behaviour that goes on there.
Public parks that have been developed at public expense have equally become problematic. Since the last meeting a very controversial issue has arisen in my constituency where the local authority proposed in the case of two separate parks to provide pedestrian access from the housing estate in order to enhance the amenities for the people of the area. However the people believed it would only give rise to nuisance and annoyance and asked that the plans be scrapped. Public parks which are intended to be an amenity for people cannot be used to the extent that they should be because they are being hijacked by groups who use them either for drinking purposes or as places to congregate. That problem has to be dealt with.
I should like the Minister to say how the provisions of this section will be enforced. We know it is very difficult for the Garda to deal with the problem of congregating groups of one kind or another. It is difficult enough at present for gardaí to deal with groups who congregate on ordinary streets and it will be much more difficult for them to deal with groups who congregate in public parks. I am sure the Minister has had discussions with the Garda about the implementation of this Bill. There is no point passing legislation which cannot be enforced by the Garda. If this section is enacted, how will the Garda be able to deal with, say, a very boisterous and loud group of 20-30 people on a street or in a public park? Reports from residents living in areas which are very often plagued with this kind of problem indicate if they call the Garda and manage to get a response from them the best that will happen is a Garda car will arrive and drive by the group causing the disturbance. Passing the legislation is one thing but the enforcement of it is another matter. I would like to hear what discussions the Minister has had with the Garda about the implementation and enforcement of the provisions of this section, which has been criticised for being very loose in its drafting and terminology, for example, "giving cause for annoyance" etc. How will these provisions be enforced? It is important that we know about the discussions the Minster has had with the Garda in relation to this issue.
I too would like the Minister to look at this issue. There is much trouble in the public parks and public open space in my constituency, especially the destruction of flowerbeds, children's playgrounds and park furniture. The local authorities in Dublin have had to stop building playgrounds for children in parks because they are continually being destroyed. It is very important that the Minister looks at this problem in Dublin and other cities.
I agree with the points made by Deputy Gilmore. The legislation has to be balanced and practical, otherwise it will be difficult to operate. It is very important to keep in mind how the Garda carry out their duties and how we can make it easier for them to implement the provisions of the Bill.
I do not wish to make life more difficult or complicated for the Minister than it already is but the difficulties are not confined to public parks only. They also relate to graveyards. I go to funerals but I do not like doing so as I find graveyards forbidding and gloomy places. Other people have a different attitude to graveyards and they visit them on Saturday and Sunday afternoons. Some of these people are now reluctant to do so because they are afraid of the young people who congregate there to drink wine and cider. There is crime on Sunday afternoons in cemeteries where people snatch handbags. Therefore, graveyards should also be considered in this context, it is a sad reflection on our modern world that there are such crimes and activities in graveyards.
My office in Limerick is only yards away from the People's Park in Pery Square, the most fashionable part of Limerick. People enjoy walking in the park, which is in a central location, but in recent years it has become very hazardous. It is a lovely amenity approximately 50 yards from the local railway station but in recent years people have congregated in one section of the park drinking cider and wine and often trouble arises where young men intimidate people, especially tourists, by demanding money and frightening them.
Recently I spoke to a local superintendent about this problem and expressed concern that the image of our city was being tarnished by the young men who hang around the railway station and the People's Park and who give a wrong impression to visitors. It is sad that this problem exists in all our cities and towns, it gives people a jaundiced and distorted view of our cities. Sometimes these people do not merely ask for money, they use physical violence against visitors, my city is not free from that. Therefore, while we are almost asking the Minister to do the impossible today in examining this we must be flexible and balanced and protect human rights. At the same time we must stamp out these activities in our cities, not only in public parks as mentioned by Deputy Mitchell but also, sadly, in cemeteries. It is a terrible indictment of society that we are speaking about this today but that is the sad feature of life as it is lived in our cities and towns.
I support the comments made by Deputy Mitchell and others. Shouting or singing does not cause offence in public places or public parks, it is the fear that people have of the violent attacks which have taken place in many of our public parks. Unfortunately, in my constituency a short time ago we had the murder of a young person in a public place and it is, as Deputy Gilmore said, ironic that a facility provided as an amenity, to enhance an area and to provide much needed recreational space for communities in built up areas, should be the source of such annoyance to so many people. I also know of many people in residential areas in Dublin who want to move from these amenities rather than move closer to them. People who live in a semi-detached house feel insecure because it is inadequately protected. Those who live near laneways— or if their house is part of a laneway structure where gangs can get in behind the house and engage in cider drinking and other anti-social activity— suffer great annoyance and disturbance. These activities take place around the country, not just in the Dublin area.
Over the past number of weeks since this committee last met the perception by the public is that law and order is out of hand. Day in and day out, morning, noon and night we read in our newspapers about attacks on people, robberies, threats and blackmail, people being robbed and asked for money to get their goods back. They are forced to do that because they feel that the law cannot be enforced. I agree with Deputy Gilmore that there is no point in bringing in laws if they are unenforceable. In that regard will the Minister clarify a number of matters in relation to this section?
On a point of order, I ask from the beginning that we speak to the amendments. I have not spoken on this section but I want to speak on it at the appropriate time. I do not wish to interrupt Deputy Harney but if we are going down this road then I too will want to speak on the section——
During the last few meetings we did not confine ourselves to the amendments. We are not discussing section 5, we are discussing amendment No. 7 and I would ask the Deputy to speak to the amendment.
I have not indicated yet whether I support this amendment because I want to know its effect. That is why I am asking the Minister to clarify it. Deputy Mitchell seeks to amend the first part of this section so that it would be an offence to sing, shout or engage in boisterous conduct in a public park. Is a public park already included in the definition of the Bill which talks about a public place or does it require to be singled out specifically? Must a number of areas be singled out, as Deputy Kemmy suggested? He said that graveyards should be included. Is the definition in the Bill sufficient or do we need a specific mention of individual places?
What would be the effect of this amendment? As I said earlier, what annoys people about public parks is not somebody singing or shouting or engaging in boisterous conduct, it is the violent attacks, the fear of walking in these parks and being attacked, robbed or threatened. Deputy Mitchell wondered about the section. There is no point amending the law if we are not certain what its effect will be. If one's house is close to a public highway, people going home perhaps having had a few drinks or merely speaking loudly could be considered to be causing an offence and we need to be very clear about what we are doing here.
The Irish Council for Civil Liberties has drawn out attention to many other loopholes in this section regarding the quality of singing or the nature of the songs and we can address that when we deal with the section. However, there is no point in amending a section to include other areas such as parks, graveyards or whatever if its effect is that it cannot be enforced because it is not appropriate or because its wording is so loose that its meaning is unclear and it is at the discretion of the Garda to determine whether somebody is causing annoyance and offence.
(Carlow-Kilkenny): In case the discussions so far give the impression that it is only in the city, public parks are abused by people drinking in them and so on, it is important to point out that many rural towns have very nice parks with slides, swings and other amenities, families should be able to allow their chidren to play in these parks on a late summer evening. In fact, it can be of concern to parents that some of the conduct in public parks is not acceptable. Deputy Harney mentioned the fear that adults have of being attacked in these parks. Parents fear for the safety of their children and the amenities in these parks are often not used as well as they should be because of what is happening there. It is a problem not confined to cities although it is probably more prominent here.
I express my thanks to the Deputies who made points with which all of us as public representatives, whether we represent a rural or an urban constituency or in some cases a mixture of both, can identify. Section 5 deals with persons who engage in shouting and boisterous behaviour in a public place; I am in complete sympathy with what Deputy Gay Mitchell is trying to achieve in this amendment. However, for reasons I will try to explain, I am not in a position to accept it as it now stands but I hope to be in a position before Report Stage to bring forward a suitable amendment which will meet the concerns of Deputy Mitchell and other Deputies who contributed. There is little doubt that the definition of "public place" in section 3 covers public parks while open, the question raised by Deputy Harney. The draftsman agrees, however, that there is some doubt as to whether the definition covers public parks when they are closed inasmuch as they would not appear to be a defined place when closed. I quote from the definition in section 3: "a place to which at the material time the public have, or are permitted to have, access whether as of right or by express or implied permission". We have been considering ways to overcome this potential problem but, unfortunately we are not yet fully satisfied with any of the alternative formulations drafted. The difficulty involved stems from the fact that while we want to include in the definition the type of situation with which Deputy Mitchell and others are concerned, do not want to make the definition so broad as to declare virtually everywhere a public place for the purpose of the Bill. We must be satisfied also in changing the definition that it does not put out of balance later provisions if the Bill where the definition is equally important, particularly in relation to the major public order offences. The draftsman is doubtful that a simple reference to public parks without further definition would be sufficient and in any event we would be left with the difficulties which Deputy Kemmy rightly pointed out in relation to cemeteries which I am sure all of us would want to include. I am sure it will prove possible over a little more time to devise a formulation which will deal with this problem. Deputy Mitchell will see the advantages in dealing with it, as part of the definition in section 3 so that it would cover, for example, the type of behaviour at issue in other sections of the Bill which could also take place in closed public parks.
Since the publication of the Bill my attitude has been one of flexibility because I realise there are concerns that people may have in relation to the extensive range of powers that we are giving to the Garda. I am concerned that when the Bill is passed it can be implemented and that people can support it, particularly those referred to by Deputy Gilmore, Deputy Harney and others who live in housing estates in rural and urban Ireland, who have green areas close to them and who feel particularly threatened, not from 10 o'clock or midnight or the early hours of the morning but also, at this time of the year, from 7 or 7.30 p.m. I met with a group of such people as late as yesterday morning. There is a genuine problem that needs to be addressed and I agree with the sentiments expressed by Deputies.
Since Deputy Mitchell's amendment was tabled we have devised a number of formulations which the parliamentary draftsman was not satisfied were sufficiently tight. However, he is working hard to devise a satisfactory formulation and when that is complete and we are satisfied with it Deputy Mitchell can move it in his own name or I can move it in mine.
I was interested in the debate on this issue and I have been examining the provisions of the Bill from a legal point of view and considering what case one might make if one were defending somebody charged with an offence under section 5. Deputy Mitchell has pinpointed a fatal defect in the Bill which probably goes back to the definition of a public place. The relevant words in that definition are "at the material time".
By way of explanation, one of the joys of my life in Dublin is walking through Merrion Square to Leinster House each morning from where I reside. It is a lovely park and I compliment all those who keep it in such excellent condition. It is like a little bit of home to be able to walk through the greenery in the morning but I cannot walk through the park at night because it is locked. I cannot even imagine a problem arising in that park at 8.30 or 9 o'clock in the morning because those who are that way disposed are not inclined to be out and about at that hour. When I am going back home at 10 or 11 o'clock at night I have to walk by rather than through the park because it is locked. That is the time when one can envisage problems arising. If an incident of the kind mentioned in the Bill occurred there at that time I do not think it would be covered by the section. Problems could arise for people living adjacent to the park or those just walking by it. They would not have access to the park whereas somebody could be inside causing all sorts of problems while being outside the scope of the section. The whole question of a public place needs to be considered again.
The point raised by Deputy Kemmy is relevant also. To what extent is a graveyard a public place? It is normally maintained by the county council. Is it a public place if you put a lock on the gate, for example, in Glasnevin? What is the position then?
There is one further aspect which perhaps the Minister might consider. We are touching on some serious problems here which, if one looks at other countries and the horrific crimes that are committed in, say, Central Park, New York, indicate where we could be heading. The difficulty is that in many cases areas set aside for the benefit of the public have been turned into locations where these horrific crimes can take place or the type of boisterous conduct referred to in this section.
What is the position regarding car parks? I would ask the Minister when she is doing her survey on this point to consider this further. There was a case heard in the High Court, the McHale case, in relation to drunken driving in a car park which touched on the whole question of when and in what circumstances is an area a car park. A car park attached to a pub might in certain circumstances be a public place and boisterous behaviour of the kind envisaged in this Bill is occurring in such places, particularly late at night after closing time. A valid point has been raised by my colleague. I am happy that the Minister will consider the matter further but I am disappointed that her officials have not yet been able to formulate proposals to deal with this problem. I urge her to continue her search for a solution to a valid problem that has been raised.
I am happy to accept the Minister's assurance and to leave this matter for tidying up on Report Stage. If we can incorporate it in that way I will be satisfied.
In relation to graveyards, I do not know what their status is. One of the worst areas in my constituency is Mount Jerome cemetery in Harold's Cross which is a private graveyard locked at night but which is accessible by vandals who climb over low walls. Not only do they vandalise the graves but they also stone people's houses from the graveyard deliberately to entertain themselves and when the graveyard is open they snatch handbags from people. A female garda on duty there some years ago was attacked. There is a problem in graveyards and Mount Jerome in particular. Perhaps the Minister would examine that aspect also. I am happy to accept the Minister's assurance and I hope we can make progress.
Amendment, by leave, withdrawn.
Amendments Nos. 8 and 9 may be taken together as they form a composite proposal.
I move amendment No. 8:
In page 4, subsection (1), lines 36 and 37, to delete paragraph (a).
On reading section 5 (1) (a) I was a little surprised because if we are to address public order and in particular disorderly conduct in public places I question why we should insert the hours of 12 midnight and 7 a.m. Section 5 (1) (b) refers to "any other time" but that the Minister might consider deleting the word "other" and specify simply "any time". I say this recognising that the Minister is trying to strike a correct balance. As to why the hours of 12 midnight to 7 a.m. were chosen, the conventional working hours were from 9 a.m. to 5 p.m. and, 12 midnight to 7 a.m. was regarded as sleeping time. We now live in a world where shift hours are in operation, and people are working at all hours. As a young parent with three children under the age of seven, one of whom is teething, any disorderly conduct in the vicinity of my house at 7 o'clock in the evening causes me great annoyance. I would prefer if the disorderly conduct arose at 7 a.m. because the child is up at that stage anyway. Some of the local gurriers might be aware that the Public Order Bill refers specifically to the hours between 12 a.m. and 7 a.m. and, indeed, the Garda Síochána would have to take into account the fact that these hours are mentioned in the Bill. It would be much easier if we could simply specify "at any time."
I support Deputy Callely. Most of the problems I have experienced in my constituency with this type of behaviour occurs before 12 o'clock — it happens often between 9 p.m. and 10 p.m. It usually tapers off between 12 midnight and 1 a.m. and then ceases. The legislation governing the period between 12 midnight and 7 a.m. will not be used but we should consider other periods. Many constituents have made cases to me that annoyance starts from about 7 p.m. and comes to a peak at 10 p.m. by which time a certain amount of alcohol has been consumed. A great deal of activity starts around that time and if we exclude that time frame we will lose favour with the people who are pinning their hopes on this Bill for a solution to a horrific problem.
Deputy Callely's comments lead me to the conclusion that this section will be virtually inoperable. I have a later amendment which proposes that the local authority can be given power to make prohibition orders in relation to public parks and public places, but if we now make it an offence to sing in a public place at any time of the day, if Deputy Callely's child is teething and is crying outside the house, we will probably be suggesting amending it to include "teething in a public place". That shows how ridiculous are some of the proposals.
When there are problems dealing with crime and a perception of disorder in the community, politicians and the public suggest solutions which have not been thought out and do not make sense for the sake of making them law. This is one such solution. Perhaps some of the people going home to Keadue last night after their great win in the Tidy Towns Competition were singing and surely nobody could take offence. As I asked earlier, are we talking about the quality of the singing or the nature of the songs? What is offensive to one might not be offensive to another. Some ballads would be very offensive to certain sections of the community. The Garda Síochána have enough to do in seeking to interpret whether there was reasonable cause for annoyance on behalf of any members of the public.
Having listened to the debate so far this morning I wonder whether this section is what we need, if we need some other measure, such as I suggest in my later amendment, which is giving local authorities power to make prohibition orders and general regulations about public places and then making it an offence to breach them. There are many public parks in my area, despite what I said earlier, where a lot of community activity, including singing and perhaps shouting occurs at summer parties and various festivities and they are a source of enjoyment to the community. The fact that they might upset or annoy some people in the area is not sufficient to label this a criminal offence. We are amending the criminal law and we want to make sure that we do it in a fair, reasonable and effective way. I wonder whether the Minister should look at this section again because, as I said earlier, it is the threat of violence and the fear of violence, whether during the day or night, that worries the public, not necessarily singing, shouting or boisterous conduct.
I support the point made by Deputy Callely. In my area the problem starts around 6 p.m. and continues until a late hour the next morning. I would favour deleting 12 midnight.
I was interested particularly in what Deputy Harney said. It is easy to be over technical when dealing with this sort of situation. We all know what we are talking about, and a member of the Garda Síochána will not go to a Fleadh Ceoil and arrest somebody for singing in the street. The Bill refers to circumstances likely to give reasonable cause for annoyance to any other person in any place in the vicinity. We have debated whether we are being over-cautious so far as civil liberties, etc., are concerned. I meet people every day whose civil liberites are being taken from them; their cars and houses are being broken into but the civil liberties people do not seem too concerned about those people's rights.
There is need for a balance when it comes to civil liberties. We should not put anybody in jail for minor offences and we should not annoy people; but when people behave unacceptably and that affects the rest of the community, we should have laws to deal with them.
An amendment to include between the hours of 12 midnight and 7 a.m. is the sort of measure that brings law into disrepute. If a constituent complains about boisterous behaviour in the park down the road and rings up the Garda Síochána he will be asked to ring back after 12 midnight because they can only do something about this behaviour after midnight. I know the Bill goes on to say "or any other time having been requested by the Garda Síochána to desist", but the garda has to get into his car, on his bike or walk and ask people to desist from this boisterous behaviour. The gardaí will say they do not have anybody available to go. This annoys the public. They will see the law as an ass. Anybody engaging in boisterous conduct likely to disturb the peace or upset ordinary people, whether at a minute to midnight or half past seven in the morning, is still causing annoyance, so why put into the Bill words that are likely to bring the law into disrepute? Unless the Minister has exceptionally good reasons for this, I support the points made by Deputy Callely.
One of the problems is that the section is 30 years old. This section appeared virtually word for word in the 1967 Criminal Justice Bill introduced by a former Minister for Justice, Deputy Micheál Ó Moráin, which at that time caused a great deal of controversy. The only thing that differs between the section before us and the section presented in Deputy Ó Moráin's Bill is the time of going to bed. In 1967 apparently one went to bed at 10 p.m. Things have changed and in the nineties we stay awake later. That is the only difference between the section in the 1967 Bill and this Bill.
There is another problem which has to be addressed. This section is phrased very loosely. I wonder what will happen if or when it ever gets into the courts. For example, the definition of the offence is:
"any shouting, singing or boisterous conduct....in circumstances likely to give reasonable cause for annoyance to any other person in any place in the vicinity".
What does that mean? Does it mean there are certain types of singing or boisterous conduct that are exempt? My understanding is that both teams in the recent All-Ireland Hurling Final did not arrive home until well after midnight and there was a considerable amount of singing, shouting and boisterous conduct in the vicinity.
It did not give reasonable cause for annoyance in Galway, I cannot speak for Kilkenny.
There is considerable cause for annoyance in Galway. This is one Galwayman who was very annoyed. Let us take the application of the law. Everyone here has spoken about groups of youths drinking alcohol in the corner of a public park, and they have identified that as a problem. Let us take a group of students engaging in rag week high jinks. Does the same law apply to them or are we creating offences which, in practice, will be enforced differently in different circumstances? Is there an understanding that the group of students who tear through a town during rag week will have a certain kind of traditional licence, but youths, who may never get near a university and who drink alcohol in the corner of a public park will have the law applied differently to them?
I want to come back to the question of how this section will be enforced. We all want to deal with the problem. We all have experience of trying to get action where the rights of local communities and citizens are being denied to them, for example, their right to a night's sleep; but how will this be enforced? I asked what discussions the Minister had with the gardaí about the possible enforcement of this section and I would like to hear a reply. Irrespective of what hour we prescribe that people should be in bed, or at least off the streets, and certainly not singing or engaging in boisterous conduct, I would like to know how this will be enforced by the gardaí. Are we simply going through an exercise here writing measures into legislation so that we can say publicly that, legislatively we are dealing with a problem whereas we all know that, in practice, this provision will be very difficult to enforce?
Without offending Deputy Mitchell unduly, it seems that Deputy Callely's proposal is trying to make less nonsensical what is, generally speaking, a very foolish provision in the law. If certain behaviour is criminal between certain hours of the day, it is ludicrous to say that during daytime hours that behaviour is criminal only if a member of the Garda Síochána asks that person to desist from it. It is absurd that somebody has to tolerate something at 11 p.m. with no garda present, which after 12 midnight becomes criminal per se.
Deputy Callely with his amendment has put his finger on a nonsense in this section. It does not point to the need to amend this section, it points to the weakness of the section. He asks why should someone at home be asked to tolerate behaviur at 10 p.m. when he cannot get a member of the Garda Síochána to his house to ask a group of youths to desist from whatever they are doing, but if one can prove that one's next door neighbours and their pals are creating mayhem on the street, one can go to court without any intervention by the police and make a complaint about their behaviour after midnight. If we are bringing in a law to deal with public order it is absurd to distinguish between behaviour at 11.30 p.m. and 12.30 a.m. As Deputy Gilmore said the provenance of this section is a descredited Bill proposed by Deputy Ó Moráin many years ago.
This provision has basic civil liberties implications. Deputy Callely's amendment exposes what is wrong with this provision. How can it be right to ask somebody to tolerate behaviour outside his house at 11.30 p.m. unless he is lucky enough to get a member of the Garda to the house at that time to ask the offenders to stop, in which case the criminal law will come into play, when three-quarters of an hour later he can go down to the Garda station to make an official complaint and a prosecution can be initiated if necessary. How can behaviour, like Cindrella at the storke of midnight, transform one category into another after midnight? It is a nonsense and we should face up to that fact. This section needs considerable rethinking and redrafting.
I take the point made by Deputy Gilmore about students during rag week and how one distinguishes between them and a group of bovver boys from a working class suburb indulging in high jinks on a road. It is a very difficult thing for the gardaí to do. They are supposed to turn a blind eye to behaviour in the aftermath of an All-Ireland victory which would, on any other day, seem unreasonable. Does behaviour cease to be criminal if there is a celebration, or if a sizeable group of people in the town support the celebration? For example, if two soccer clubs have played a game, can it be said that the supporters of one club have created a disruption to the annoyance of the supporters of the other club? This definition of boisterousness does not lend itself to that kind of thing. We are dealing with an amendment that proposes there should be no distinction as to the time of day when particular behaviour is engaged in. That is rational.
Under section 25 (1) of this Bill a member of the Garda Síochána can arrest, without warrant, a person committing an offence under any of the relevant provisions, and the relevant provisions are defined in section 25 (5) as meaning an offence under this section. We have the appalling situation that not only can a garda create an offence by giving a direction to desist before midnight, but also whether, before midnight, people can be arrested without warrant for this offence. That means that gardaí will have to use their judgment in many cases as to whether they make an arrest after midnight. In one circumstance, even without a warning, they can arrest somebody who is being boisterous but before midnight they have to give somebody a warning to desist before they can make the arrest. That is a strange kind of law.
What is wrong with this section and why Deputy Callely's amendment is useful is that it points out the artificiality of the offence being created. It also points to the latitude that will be given to members of the Garda Síochána and the discretion as to how it should be exercised. When I was a student I remember walking home from the city centre in high spirits, singing and probably a little intoxicated. At Earlsfort Terrace a young garda stepped out from the back entrance of the Department of Justice and told us to stop singing. We stood there swaying, looking at him a bit surprised. He asked who we were and where we were going. A more mature garda would have just told us to keep quiet and let us pass. If we had been slightly more drunk or resentful we would have quite happily given him lip.
I just do not believe it.
When one is a law student one's discretion sometimes even survives a few drinks. If an altercation broke out between me and a garda in those circumstances and the garda was provoked, he might decide to arrest me and frogmarch me to Harcourt Terrace Garda Station. If that could happen to a middle class kid such as I was, the working class kids will be harrassed much more under this legislation. When the hour of midnight comes they will be in a much weaker position because, even in the context of giving lip, they will already have committed an offence. The whole business of being warned to stop will come into effect at the midnight hour.
I would ask the Minister to reconsider this provision. It is badly thought out and badly drafted. I am not claiming to be the greatest draftsman but I believe this is a recipe for disaster, for friction between young people and the Garda, particularly young inexperienced gardaí. This amendment by Deputy Callely points to the absurdities and the illogicalities of making time distinctions. The Minister should take on board what Deputy Callely and the other Deputies have said. There is no rational basis for saying that behaviour which is criminal at 12.30 a.m. was not criminal at 11.30 unless a garda was there to say it should stop. It will bring the criminal law into disrepute and will lead to more cases where gardaí exercise their powers of arrest in unfortunate circumstances. District Justices will have to decide whether to uphold the garda's authority or publicly censure him by aquitting the accused on the basis that the behaviour was serious and that the garda ought to have had more sense.
This kind of section does not address the problem. The amendment points to the exact weakness. It is badly drafted and I would ask the Minister to withdraw it and put in place something better. There are better formulations for preserving public order. We should be thinking in terms of threatening and menacing conduct, not boisterous conduct like singing etc. The section could be differently drafted to produce the necessary result. This formulation is as absurd as Deputy Callely has pointed out.
Would it be in order to point out that the Deputy was guilty of behaviour unbecoming a member of Fine Gael?
It was the stress of being a member of Fine Gael that drove me to it.
(Carlow-Kilkenny): He has not recovered yet. This Bill covers boisterous and unbecoming conduct, shouting or even singing; it could cause havoc for a lot of singers who think they are marvellous but are in fact offending a musical ear. Maybe that is what Deputy McDowell was guilty of. Perhaps the garda was a very musical individual and did not like his singing. That conduct should be either wrong or right on the basis of its effect on the public and not on the basis of the time factor.
I am surprised that Deputies Gilmore and McDowell have both more or less defended misconduct during rag week. Students have always carried on in a boisterous way during rag week and they have great fun, but if by chance they offend the public in having their fun, or upset older people and so on, they should be treated in the same way as everybody else. Misconduct cannot be categorised on the basis of either class or creed. Neither should a time factor come into it. The Minister should deal with misconduct at all times of the day and night regardless of who is guilty.
I take a somewhat different view. There is a qualitative difference between hours of darkness and hours of light. In specifying from 12 midnight to 7 a.m. the Minister may be over-confining it. I am surprised to hear Members quibble about the distinction between night time and day time. Singing or shouting during the day will not wake up the population whereas singing and shouting at night may very well do. I was also surprised to hear Deputy McDowell and possibly another Member implicitly distinguish between the exuberance of well heeled thugs in universities and that of poor thugs in parts of the city. It betrays an attitude that the law is for use only against the working classes. That is well borne out by the small number of well heeled people before the courts.
That is the precise point I was making.
The Deputy made his point in a way that suggested that well heeled thugs in university should be exempt from this provision. I take great exception to that.
They will be exempt under this Bill, while working class kids will not.
The Minister might change that part of the section which specifies from 12 midnight to 7 a.m. and insert "hours of darkness". After dark when children may be in bed they can be disturbed by shouting and roaring. There is a qualitative difference and the Minister is right to make the distinction. Deputy Callely's amendment does not take account of that reality. The Minister should seek to distinguish between a persistent problem and an isolated incident. What the Minister is trying to address is boisterous behaviour of a persistent nature which is a continual disturbance to a neighbourhood rather than a passing incident like a celebration after a match or some other such victory. The Minister would do well to amend the section further to make provision for a persistent problem.
I would like to raise one other point before dealing with the question of enforcement. The section refers to a public place which is defined in the definition section. In my own constituency some of the most acute problems arise because of the thoughtlessness of neighbours, frequently within their own homes, which are clearly not covered by the definition of a public place. For instance, is inside the door of a block of flats a public place? In many parts of inner city Dublin where there are blocks of flats with shared lobbies and staircases there is the most acute problem. Young people gather at night to take shelter from the cold or rain and may be sniffing glue or strumming guitars or shouting and roaring. Can the Minister see any prospect of dealing with the issue of persistent upset caused by the behaviour of thoughtless neighbours whether inside or outside their own hall door?
The final point is the question of enforcement. We pass laws in this House yet rarely do we make adequate provision for their enforcement. Will the Minister accept that there is a general problem in enforcing the law and that the provisions for enforcement are wholly inadequate? What provisions will be made to ensure that this section, if enacted, even in the amended form, will be enforced?
I agree that there should be no distinction between the shouting, singing and boisterous behaviour associated with rag week and what goes on in suburban parts of Dublin. Why should there be a distinction? If there is an offence, people should not have to put up with it simply because it is rag week. I will give one simple example. In my time I brought students in Dublin through the city and through Trinity College. On one occasion I brought students from the north side of the city who had never been inside Trinity College and who thought they could never enter it. There they saw two gardaí attacked by students with flour, water and eggs and humiliated publicly on the premises. They were shocked and asked me why the law was not applied there. This is the point being made in the discussion here. An offence is an offence no matter where it is committed and there should be no exceptions.
On the subject of singing, boisterous behaviour and shouting, there are many places where people live next door to neighbours who have parties every night of the week and right into the weekend, they can go on for six or seven hours. These people often have to sell their homes simply because people will not behave properly. Singing and shouting and boisterous behaviour can be very annoying, indeed it can ruin lives. We should think carefully about what we are trying to protect and what we are trying to enforce. There should be no distinctions, an offence is an offence no matter where it is committed.
I support this section because the Minister is trying to strike a balance. Certain conduct is more of an annoyance at night than during the day and the Minister pointed this out. For example, it is illegal to use one's car horn in certain areas at night time for the obvious reason that it will cause annoyance. The outcome of football matches and other events can be celebrated at certain times. The Minister is trying to strike a balance.
Deputy Mitchell made the very good point that it is not so much a problem when somebody is making noise at one time or on one evening; it is a problem when the noise goes on persistently night after night. I certainly do not agree with Deputy McDowell that these points are nonsense, they are not. We are trying to strike a balance. It is unacceptable to make noise, or play ghetto-blasters or intimidate people late at night. It is much worse than during the day because obviously people are sleeping.
The Minister is saying that one can celebrate but that at a certain point it must stop. If the problem is persistent it should be dealt with. A resident may ring the Garda because a gang of youths is causing a problem near or outside his home and by the time the Garda arrive they have moved off so that the Garda do not see the disturbance. Would it be necessary for the resident to go to court? Can the Garda deal with it? Maybe it is dealt with in section 9. It is one thing that worries me because many people who complain are elderly and would be intimidated if they thought they would have to go to court.
I had not intended intervening a second time. However, I want to clarify one thing which arises from the comments by Deputy Browne and referred to by one or two other speakers as well. Deputy Browne seems to think that I was trying to draw a distinction between the behaviour of students during a rag week and the behaviour of other youths at any other time. I certainly was not doing that. What I was drawing attention to — in fairness Deputy McDowell was doing the same — was the distinction between theoretical law and what happens in practice. We have many laws which, in theory, are supposed to apply equally but which we all know are not in practice enforced across the board. What is proposed by the Minister here is legislation outlawing particular types of loud behaviour which, as everybody in this Chamber knows, will not be applied equally to everybody even though in theory it is supposed to be. It will not be applied in the same way to students during a rag week as it will to a group of working class youngsters in particular parts of the city, nor will it be applied to the large gangs that everybody has spoken about here because the Garda will not have the resources to go after them or, in some cases, will not have the will to do so. It is much more likely to be applied to the odd straggling youth who, once in a while, is caught.
I am not making the case that certain types of behaviour or certain categories of people should be treated differently, far from it. I am drawing attention to the fact that in practice people are treated differently under the law. I would like an assurance that that will not happen in future.
Deputy Gilmore is right. The sad fact of the matter is that the law is currently enforced differently between working class and middle class children. To give a similar example, a boisterous crowd celebrating a soccer victory will be treated differently from a boisterous crowd bemoaning a rugby defeat. That is a fact. It points to the essential difficulty I have with the section, that it criminalises a wide range of activity which most of us would not normally think of as criminal. Taking this whole section at face value, most nights of the week and certainly at weekends thousands of people are guilty of a criminal offence. Under the section there need not be annoyance or damage caused, nor is it necessary that somebody should intend to intimidate, threaten or menace somebody else. The activity need only be of a kind which might reasonably lead to annoyance.
My primary concern is not specifically about this section which worries me but about the link with section 25 and the power of arrest without warrant. If that was removed I would be less concerned about this section.
We are discussing the amendment, not the section.
I did not, sadly, get the benefit of my constituency colleague's wisdom because I was a little late arriving here. However, I have had the benefit of reading the reports in the local newspapers on the north side of the city which, frankly, are rather different from the reports I heard here this morning. I understood Deputy Callely to be suggesting an extension rather than a limitation of the section. Having said that, I support what I understand to be the effect of this amendment rather than the intent as published in some newspapers in the north side of Dublin.
Legislation cannot be drafted on the basis that it may not be applied equally. The Legislature is entitled to expect that the law will be applied equally across the broad mass of the population. If one were to proceed on the basis that the law might not be applied equally, then it would not be possible to proceed. That is a different matter and has nothing to do with the section and the amendment.
This section relates to public places. It is fair to say that a person can sing in many places, in the privacy of his own home or, indeed, at a party but that a public place is a place to which the public have access and in which they are entitled to reasonable standards of behaviour, particularly during the hours of darkness. It is fair to say that if one wants to really annoy one's neighbour, then all one has to do is play music very loudly at 1, 2 or 3 o'clock in the morning. The neighbour has recourse to the courts but it is a very expensive method. In general terms the law must be applied equally because that is what we expect and are entitled to expect. It should also be said that boisterous behaviour and singing in the middle of the night can cause great annoyance not just to elderly people but to others as well. People are entitled to expect peace at that hour of the night. I do not believe most reasonable gardaí will interfere with young people, or old people for that matter, who are not giving cause for offence or annoyance. The section is clear; it states that the circumstances must be such that this behaviour is likely to give reasonable cause for annoyance. That is reasonable. In those circumstances I support the section.
I will confine myself to the amendment rather than the section.
The hours of midnight and 7 a.m. were arrived at because a very delicate balance has to be struck in this area. That was been recognised by all. I do not think any of us — certainly I do not — wants to restrain anybody needlessly, whatever their age, from pursuing normal social activities but, we have to protect people from the anti-social behaviour of others which impinges, adversely, on the quality of our lives. What we are attempting to do in this part of the Bill which Deputy Callely wishes to have amended is outlaw certain behaviour at set hours between midnight and 7 a.m., which, by definition, most of us would accept is bound to cause annoyance and is objectionable. It is a reasonable attempt to strike the right balance but, as I said at the outset, I am flexible. I want to ensure that we will have as much time as possible to debate the Bill on Committee Stage and later on Report and Final Stages so that whatever law is passed it will be the best we, as Members of the Oireachtas and as legislators, can do.
I do not have to reply to the questions raised by Deputy Gilmore and others who fear that the law will be applied unequally because my colleague, Deputy O'Donoghue who has experience in the legal field dealt with that matter effectively. We all resent the suggestion that young people from the well heeled upper class areas will be treated differently by members of the Garda Síochána to young people from working class areas. That criticism will be noted because the Garda Síochána, particularly its senior management, are following the debate on this legislation with great interest.
I think Deputy Jim Mitchell's experience as a former Minister for Justice stood by him today because he made two points that should make all of us think. First, he talked about over-confining the terms of provisions in the section and differentiated between a persistent problem and an isolated incident. I would like to have time to consider these points.
Deputy Derek McDowell strongly asserted that there were better formulations available to me as Minister, the Department and the parliamentary draftsman. If there are, I do not know what they are. Perhaps Deputy McDowell, who has the experience of practising law, might, between now and Report Stage, come up with a better formulation. I will be delighted if he does as I do not mind where it comes from. Everybody realises that we are trying to strike the right balance — everybody wants to strike it — but we want to do it in such a way that the formulation can be implemented. If someone can come up with a different definition, no reasonable offer will be refused by me.
Deputy Harney and others asked about the way in which this part of the section will be implemented. There have been ongoing discussions between my officials, the Garda Commissioner and senior management in the Garda since it was published. Members will recall that on Second Stage and earlier when we were discussing other sections that concern was expressed about the proposal to allow a time lag in implementing the Bill. I said the time lag was provided because the Garda would need time to examine the Bill as passed. A number of changes have been made already and I am sure a number of others will be made between now and Final Stage in the Seanad. As I said, the discussions are ongoing. We would all like to think that the law that will be passed will be implemented in a balanced way by the Garda. We have given them many powers over the years and they have been implemented in a balanced way.
While I appreciate individuals have problems, I am not prepared to accept the amendment put forward by Deputy Callely. Deputy Derek McDowell's interpretation of what was in a northside newspaper was correct because Deputy Callely's amendment would extend rather than confine the section, and I am not prepared to go along with that. We all enjoy singing, although perhaps not on a street, and we would not like to see that enjoyment curtailed. On the other hand, we have to ensure that where reasonable cause for annoyance is given by shouting, singing or boisterous conduct, a member of the public can call on a member of the Garda.
I think it was Deputy Ryan who asked if an elderly person in his constituency, had called a member of the Garda because people were shouting outside his house, and the people concerned had moved on before the garda arrived, would the garda be able to take a case. The answer is no, unless they were present or they have evidence that annoyance was caused.
I am not prepared to accept the amendment put forward by Deputy Callely but I am open to any reasonable offers to amend the Bill on Report Stage. My main concern is that when the Bill passes all Stages in both Houses it will deal with a problem, persistent in most cases, which the public and the Members here have been asking us to tackle for a long time. If there are other formulations Deputies should bring them forward.
I thank the Minister for her comments and all who spoke in favour of the amendment. I am pleased the Minister has indicated that she is flexible and wants to pass the best laws we can. That is what we all want. The Minister also indicated that she would like time to consider any reasonable offers.
If we are to address the question of disorderly conduct in a Public Order Bill we should not refer to specific hours in an effort to be seen to strike the right balance. That case has been made by other speakers. Before I tabled this amendment I contacted by telephone gardaí in six Garda stations in my constituency who supported my view that the provision in section 5, which refers to the hours of 12 midnight and 7 a.m., would not meet their requirements. I want to ensure that if anybody behaves in a disorderly manner the Garda will be able to respond regardless of the time of day. Perhaps between now and Report Stage the Minister or Members will come up with a solution.
I listened to what the Minister had to say. This is a matter in which I have a great interest. I have received many representations from constituents living adjacent to public parks, public places and laneways; Deputy Kemmy mentioned cemeteries. Many examples could be given right across the city and in built up urban areas.
While I am mindful of the need to strike the right balance between the rights of people to peace and quiet in their own homes and communities and the rights of people of all ages to engage in a responsible way in social activities. I am also mindful of the fact that residents may dislike certain young members of the community and promote the idea that they have caused disruption and have been boisterous and this may occur at any time of the day.
While I accept what the Minister said in part — that paragraph (a) could be deleted — there is a danger that gardaí could tell members of the community that as these activities took place during the hours of darkness but before midnight, paragraph (b) would have to be invoked. If the Minister is considering introducing an amendment on Report Stage at a minimum she should include the words "during the hours of darkness". I do not think it is fair or just that those who engage in boisterous behaviour should be allowed disrupt normal family life, interfere with parents putting children to bed, etc., and this could happen if the subsection is left as it is.
While I appreciate the reason Deputy Callely tabled this amendment I respectfully suggest that as a consequence a member of the Garda Síochána would have to be called to each incident. If paragraph (a) is deleted the public would not have an opportunity to act as witnesses to an incident and a prosecution could only be taken under this section where the garda requested the people concerned to desist. In effect, the amendment would have the opposite effect to what is envisaged. I therefore suggest to Deputy Callely and to those who support his amendment that the subsection should be left as it is. As Deputy O'Donoghue has rightly pointed out, the Garda and, ultimately, a judge will have discretion to decide whether an incident is likely to give reasonable cause for annoyance. I have a problem with the word "annoyance". Perhaps it could be substituted by "nuisance" which is to be found in legal phraseology.
I support what Deputy Ahern has said about the word "annoyance" which is a subjective term to import into a statute. I am aware it is used in some Victorian statutes but it must be serious and not trivial. The phrase "annoyance" in 20th century parlance covers even the most trivial things.
The second point I would like to make is that I hope Deputy Gilmore's correction of the misimpression some speakers took from what I and he said about the different ways in which the law is enforced has been noted. When drafting a law such as this we should imagine the varying circumstances in which it will be applied and tailor the Bill to meet all of them in a just way. I believe — I support Deputy Derek McDowell in this — that the law is not even-handedly applied at the moment and that this law, when enacted, will not be in an even-handed manner either. I have to think of the more unusual applications rather than the day-to-day sensible applications when trying to guard against the evil of a law which will give rise to friction and disputes between police and ordinary decent children who have made an error of judgment. In that context let me make two points to the Minister.
I have taken on board what she said about the need to formulate something better, if I can. In this regard, Deputy Harney and I will put our respective thinking hats on to see if we can express our views on public order more succinctly. For instance, it occurred to me while listening to the debate this morning — this is a defect in the Bill at the moment — that a trespasser on private property, sitting on the roof of a factory, will be immune from the operation of the section. This is peculiar. One has to be in a public place, as defined in section 3, before one can commit an offence whereas if one is sitting in an abandoned building site which is not a public place he can busily ignore the provisions of this Bill.
Second, in regard to the powers of arrest — the Minister said she will deal with this issue separately — it is imperative that we tailor a section under which arrests will not be made in circumstances that give rise to further violence and charges of assault on police officers. It strikes me as odd that a power of arrest without warrant is given in respect of an offence under section 5 (1) and is also given in respect of somebody who fails to comply with the direction given by a policeman under section 9 (1).
I would remind the Deputy that we are discussing the amendment, not the section. I ask Members to stick to the amendment.
This arises from Deputy Callely's amendment. If we create time centred offences of young people who are not behaving badly arrests are going to be made in the early hours of the morning. The Minister should at least consider withdrawing the power of arrest under section 5 and relying only on the provisions of section 9 to enforce the law.
Amendment, by leave, withdrawn.
Amendment No. 9 not moved.
I move amendment No. 9a:
In page 4, subsection (1), line 41, after "vicinity" to insert "and if complained of by such person".
I propose that in section 5 after the words "in circumstances likely to give reasonable cause for annoyance to any other person in any place in the vicinity" the words "and if complained of by such persons" be added. As I explained at the outset I have reservations about the section with which we will deal later. As we have to take the amendments before dealing with the section, it is my hope that we will be able to improve the Bill.
The Minister has already indicated that she is going to accept some of the amendments. I am very happy she accepted my first amendment and I hope she will consider accepting this one too.
I tabled this amendment because the word "vicinity" is used. The Minister and I are in the same vicinity now, but some people would say the gateman at the entrance to Leinster House and I are in the vicinity of Leinster House. I do not know what being "in the vicinity" really means, perhaps it should be phrased "within the immediate vicinity". I say that in the knowledge that I tabled an amendment later in which the word "vicinity" is used, but at a later stage I thought to myself "immediate vicinity" is the wording I should have chosen.
How near do you have to be to something that is likely to cause annoyance? It is implied in the section, from my reading of it, that a person does not actually have to complain about the annoyance, just that it is likely to be a reasonable cause of annoyance to another person. It does not mean actually that a person has to be there — that is my reading of it. I am concerned about the context of the wording. Surely it should apply to people in the immediate vicinity. For instance, people may live in an estate next to a public park, and those who live at the end furthest from the park may for some reason want to complain about the children of a neighbour and may claim they live within the vicinity of the park, even though they are not being annoyed. Will the Minister consider "immediate vicinity" as I believe it is dangerous simply to enact such a provision in this vague way. I ask that the words "and if complained of by such person" be added so that it would be a person who feels that a nuisance which gives rise to annoyance — the term used in the amendment — is taking place. That would be an additional safeguard. A garda simply could not arrive off his or her own bat and say to a person that in the circumstances he is likely to give reasonable cause for annoyance to others in any place in the vicinity. Yet he might be in the park over there, which is in the vicinity of Leinster House, and in theory he could be an annoyance to somebody in Leinster House. We do not need that in a Criminal Justice (Public Order) Bill. I ask that the words I suggest "and if complained of by such person" should be included so that it requires that a person in real circumstances is caused annoyance by someone in the vicinity.
Initially I had a certain amount of sympathy for Deputy Mitchell's amendment until he went on to develop his case. I am very strongly opposed to what he is saying because of the many examples in my own area that suggest we should not contemplate the introduction of the formula of words he has brought forward, and certainly not "by such person".
May I explain myself in this way? I have numerous examples of public disorder in my constituency for example, I can think of an old lady, 96 years of age, living with her two daughters in a corner house beside a public park. They were being harassed constantly by congregating young thugs. They telephone me constantly because they know me personally, but invariably they appeal to me not to mention their names to the Garda Síochána. They would say: "Please, Liam, do not mention our names to the Garda Síochána, and do not ask that a Garda be sent down to our home. We are afraid of retaliation and of being burned out of our home. We are afraid that our wall will be broken down". I have had many examples too of young children who were intimidated by older people. In many of these cases their parents pleaded with me not to mention their names. I know it is extremely difficult to make provision in legislation for the Garda Síochána to take action in such circumstances.
I believe that what Deputy Mitchell is proposing — obviously he might not agree with me in view of his expressed sentiments earlier today and some weeks back — is a very severe restriction and watering down of the provisions of this Bill. I know the Chairman will not let me develop this point, but I believe this formula of words is a very severe restriction. Will Deputy Mitchell look at that very carefully? If the Minister was to agree to this amendment let me put it to him that we would be saying to the vulnerable categories of people to whom I have referred — the old folk who are afraid to open their mouths to complain or to lift their heads, the parents of the young people who fear further retaliation and attacks —"Sorry, you do not count," we need to bring in a restriction to water down a provision deemed necessary, that ultimately the safeguard will be a watering down of this provision.
I am very strongly opposed to it and I appeal to the Minister not to accept it for the reasons I have outlined. I believe this Bill should give priority to protecting very vulnerable people. I suggest that Deputy Mitchell's amendment constitutes a very serious watering down of the provisions of the section. It is a very severe restriction which I think would be most unfair and unjust. It would put at risk the most vulnerable people in our community, so I ask the Minister not to accept it for those reasons.
I, too, have problems with this amendment. However, I empathise with Deputy Mitchell when he expressed his views on the word "vicinity". At the end of the day it is up to the judge to decide on the facts of each case and I suppose, without being facetious, that a lot depends on the hearing capability of the person who is complaining. Someone who is hard of hearing might not be as affected by boisterous behaviour as someone with excellent hearing.
To dwell on Deputy Mitchell's amendment, I think it would have the effect of restricting the witness gathering capability of the Garda Síochána in order to ground a prosecution under this section. In effect, it would restrict it to anyone who has actually made a formal complaint to the Garda Síochána and he would have to come forward as a witness under what Deputy Mitchell is proposing in his amendment. After the original offence is committed the Garda may have to go round and ask people in the area if it was a nuisance to them. I suggest this amendment would, in effect, restrict the possibility of prosecution under this section.
I support the point made by Deputy Fitzgerald. Many people who contact us in the circumstances we are talking about beg us not to reveal their names or to give any indication that they have been in touch with the Garda because they fear what will result from that. I think doing this would actually be a step backwards and might cause danger.
I sympathise with what Deputy Mitchell is trying to achieve, which is some objective standard of misbehaviour which actually occurs rather than what a garda might or might not imagine is the line over which people cannot stray. But the reality is that if he requires an actual complaint to be made to a member of the Garda Síochána, that would have to be proved in court by evidence. Under the hearsay rule you would have to bring the person who made the complaint to court and in many cases the person who complains would, as other Deputies have mentioned, be the last person who wants to appear in court — their telephone call to the police would have been the last desperate act of somebody deeply intimidated. Whereas what Deputy Mitchell is attempting to achieve is an objective level of misbehaviour which has actually given rise to a nuisance of sorts, to require that that be proven by bringing forward somebody who has made a complaint to the police would probably defeat the purpose of the section.
I can see the point Deputy Mitchell is making, but I believe something either is an offence or it is not. An offence is an offence whether it is complained of or not by a member of the public. While recognising Deputy Mitchell's objectives, I do not believe we can insert a conditions precedent before deciding that an action is an offence or not. In those circumstances I oppose his amendment.
Deputy Mitchell made two points. First, in the course of discussing his amendment he asked that we might consider inserting the word "immediate" before vicinity. I will take that point into account and see if it strengthens the Bill. If I feel that it does so, I will propose an amendment in relation to it on Report Stage. I am opposed, however, to the point of his amendment.
One of the real problems that all of us here are trying to address is the behaviour of gangs of youths who congregate and cause great nuisance, even though their conduct may fall short of the type of threatening behaviour which is covered in section 6. It is unreal, as many Members here have suggested, to suggest that where a member of the Garda Síochána comes across the type of behaviour which is covered by section 5 he or she should have to await a complaint before taking any further action. All of the Deputies have outlined that, unfortunately, we are living in times where some people, for reasons which again have been outlined, are very slow to want to be identified as having made a complaint to the Garda. Therefore it is important that the level of anonymity they want should be respected.
There would also be a technical problem with the amendment — for example, it does not specify to whom a complaint would be made.
In all of the discussions I have had with groups of individuals, residents' associations, community groups and so on — and I have had many discussions before and indeed since the publication of this Bill — the complaint that most residents' associations have consistently made is that while a great deal of nuisance and annoyance is created outside by gangs of young people, particularly at corner houses in estates but not necessarily always at corner houses, the occupants of those houses do not particularly want it to be known that they have made a complaint to the Garda which is then followed up by gardaí. We have to respect their reasons; perhaps they are afraid of retaliation either against themselves, their property or more often than not against their innocent children. For that reason I am opposed to Deputy Mitchell's amendment. But I will look at the possibility of the inclusion of the word "immediate" before "vicinity", which he suggested during his contribution.
We are dealing with an amendment to a section of a Bill, not a requirement for the whole Bill. I ask that we look at what we are doing and what this amendment seeks to do. It seeks to say that a person who engages in any shouting, singing or boisterous conduct in circumstance likely to give reasonable cause for annoyance to any other person in any place in the vicinity will commit a criminal offence. It does not require that there be any other person in the vicinity. Vicinity is not defined. We are now in the vicinity of Archbishop Ryan Park, Merrion Square. A person on his own in that park could claim to be in the vicinity of Leinster House. Certainly, where annoyance is being caused to another person or persons, the wording, if tidied up to deal with the words "annoyance" and "immediate vicinity" would be reasonable. As Deputy O'Donoghue said, an offence is an offence whether people complain about it or not. An offence is what we decide is an offence. Someone must be offended under the law as we lay it down. If there is nobody out there in Archbishop Ryan Park to be offended, then why should we make certain behaviour an offence? This is not a question of racketerring or riot or of offences under sections of the Bill. This section deals with disorderly conduct in a public place. It is not my intention that someone should have to be dragged in as a witness. I accept what Deputy McDowell said about the implications of the rules of hearsay. Subsection (1) (b) of this section is far too wide and at present a person does not have to be present to be annoyed or somebody's rights do not have to be interfered with in any way.
It is very clear that my amendment, if pressed, would not succeed. In the interest of moving on to the next amendment and hopefully dealing with this section before we adjourn, I will not press the amendment.
Amendment, by leave, withdrawn.
Amendment No. 10 not moved.
I move amendment No. 10a:
In page 5, between lines 4 and 5, to insert the following subsection:
"(4) For the purposes of this Act, a public place shall not include places of licensed entertainment.".
Under the Bill we draw the term "public place" very widely. Section 3 of the Bill says:
"private place" means a place that is not a public place;
"public place" includes any highway and any premises or other place to which at the material time the public have or are permitted to have access, whether as of right or by express or implied permission, or whether on payment or otherwise, and includes any train, vessel or vehicle used for the carriage of persons for reward.
Any shouting, singing or boisterous conduct in a place licensed for entertainment I find is generally not complained about by many people in my constituency. It is not unreasonable that people should engage in singing, in particular, and sometimes boisterous conducts goes with it. That boisterous conduct can be of an orderly nature at a place of public entertainment — say a rock concert, a U2 concert or something of that nature. It would tidy up the Bill if we were to amend the section along these lines. This may not cover every circumstance intended, but I believe that if we were to insert it in this section it would help to ensure that this Bill would not apply to people who are singing and perhaps in an orderly way behaving boisterously at, say, a rock concert, where they are not disturbing the peace of others and where everyone there is singing and enjoying themselves.
I hope the Minister will find it possible, if she does not accept this amendment, to accept the general reasoning behind the argument that it is absurd to make it a criminal offence for someone to be singing at a rock concert or to be singing at a place of entertainment or collectively behaving in a boisterous way in these circumstances if there is no criminal intent and they are not interfering with other people. The section deals with disorderly conduct in a public place, but first of all a public place is drawn too widely and then the whole question of shouting and singing in a public place is drafted too widely. An exception should be made of places of licensed entertainment.
I do not believe that this amendment is necessary. A key provision of the section for an offence to take place is that the behaviour must take place in circumstances which are likely to give reasonable cause for annoyance to other persons. The normal activities associated with licensed places of entertainment could hardly be found by a court, particularly given the existence of the licence, to be a reasonable cause for annoyance.
An example could be given of where disorderly conduct might likely give cause for annoyance in such a public premises. For example, if in the middle of a Pavarotti concert in the nearest entertainment facility to the Houses of the Oireachtas, the National Concert Hall, three drunks in the back row decided to sing "Molly Malone", would that constitute disorderly conduct likely to cause annoyance? It certainly would cause annoyance to me if I wanted to listen to Pavarotti. My main objection to the amendment is that it is unnecessary. If I accepted the amendment, the difficulty of defining a place of licensed entertainment would arise and I am not sure we want to get into that quagmire at this time.
I accept the point made by Deputy Mitchell. As the Minister spoke I thought of a few people in my constituency who live in houses close to licensed premises — for example, clubs — and who frequently complain about boisterous behaviour in those clubs during licensed hours. I wonder whether those people would have some recourse under the Bill. Is that intended by the Minister? I did not understand that was intended, but it seems that if there is boisterous behaviour in a soccer club of a GAA club where there is a bar and the local people object, they should be able to invoke this section?
I am sure we all have experiences similar to that mentioned by Deputy McDowell. I read in local papers of the proprietors of licensed premises going before the courts to review, extend, or have a new licence issued or apply for licence extensions. On these occasions residents' associations, individuals or business people living in the vicinity of such a club or licensed premises often go to court and indicate that there has been a persistent problem in these clubs likely to cause annoyance. The courts have taken action in relation to a number of cases and I am aware this has happened in my area recently. That is the road we shoud follow rather than the road proposed by this amendment.
I am concerned that under the Bill we will pass into law many amendments and sections which do not deal with the problems we face in the community — the problem of muggings, burglary, car theft, handbag snatching, betings and drug pushing. The main problem in relation to disorderly conduct in public places occurs in open spaces adjacent to houses and in public parks. However, this section is drawn so widely that it deals with none of those problems. It does not deal with the drug pusher, the mugger, the handbag snatcher, the car thief, the burglar, the intimidator, the people gathering in open spaces adjacent to houses or in public parks, unless the amendments I proposed are included.
Yet we are discussing restricting the rights of people at a public concert to sing. It has been stated that when the Bill is enacted it will be interpreted correctly, by the Garda Síochána or the Judiciary, but we are the people who should interpret the law before it is enacted. We should go through the Bill section by section and decide what we want to include. Is there any demand from Deputies present to ban singing at a concert or in a public place? Is this what the big demand is for in our constituencies? The demand is to deal with the thug and the criminal, but not to stop people singing at a public concert.
The Bill goes some way to propose that the section should not apply to a place of licensed entertainment, and this is right and reasonable. If people behaved in the way the Minister suggested at a Pavarotti concert, they would be dealt with very effectively by those people around them. People are not coming to my clinic or writing to me to complain about the behaviour of people at Pavarotti concerts. That is not the problem. In many sections of the Bill we are interfering with the civil liberties of people who are enjoying themselves and not interfering with the rights of anybody, while we are letting the thug, the drug pusher, the mugger, the thief, the intimidator off scot free because the Bill does not go far enough.
I am pressing this amendment because I want us to hit the criminal and not interfere with the law abiding citizen who has the right to come and go and enjoy himself or herself at a place of public entertainment. I put this down as a marker for other sections of this Bill about which I am concerned. I want the criminal nailed and I do not want us to be introducing criminal laws for people who are not criminals.
By no stretch of the imagination could it be said that this section seeks to restrict public entertainment at concerts. This section seeks to deal with situations which arise outside licensed premises after hours when people spill out on to the streets and cause annoyance. It is not restricting people attending a Pavarotti concert and Deputy Mitchell is exaggerating the position by making political speeches in that regard.
It was the Minister who mentioned Pavarotti and if the Deputy had been present for the debate he would have heard that.
The Deputy twisted what was said.
(Interruptions.)
Order in the Chamber, please. I am not going to tolerate this conduct in the Chamber. There were no interruptions up to now and that is the way the business will be conducted. Please, Deputy Mitchell, refrain from interrupting.
On a point of order, a number of Deputies have shouted across the floor and I will not be the only Deputy cautioned in this House. If we are to get through the business of this committee I would expect the Chairman to behave in an even-handed manner and I put down that marker to you, Sir.
Will Deputy Fitzgerald resume his seat, please?
The Deputy has been laying down the order for you.
There will be no aspersions cast on the Chair. I will conduct the business in a fair and firm way. I have done that and I will continue to do so. I will not take any intimidation from any Member.
I finished the point I wished to make, but I would like to add a further point. Deputy Mitchell accused me of leaving the Chamber. Is he saying I cannot go out for a call of nature?
The Minister mentioned Pavarotti and asked if, a concert is in progress and somebody starts singing or disrupting it by boisterous behaviour, that is to be tolerated, or if the law in relation to disorderly conduct should not operate in such a location. That is a fair point. Deputy Mitchell asked which of us have received complaints about public entertainment places disrupting the peace in their areas. My experience is that ——
That is not what I asked.
In fact, you did.
I did not. I asked if there was any complaint about Pavarotti.
The record will show what the Deputy said. The fact is there are many places of public entertainment where considerable nuisance is caused to residents in the vicinity. I do not see why somebody operating a disco can fling open the windows and blast the neighbourhood at 2 a.m. as has happened. Deputy Ryan and I know of a number of places near to the Houses of the Oireachtas where there have been major rows between neighbours and the owners of licensed entertainment premises.
(Interruptions.)
In my view there is nothing in this section which is obnoxious from the point of view of places of public entertainment. I have concerns about much wider problems associated with this section. I would ask Deputy Mitchell to consider what happens if a dancehall owner or a disco owner flings open the windows and blasts the area with music. Is he to be immune from such behaviour, when a young fellow with a ghettoblaster who behaved in a similar way, would be considered a criminal? They should not be immune and it should be possible for the law to be operated against them as it operates against a freelancer out on the street with a ghettoblaster.
I am not going to repeat what Deputy McDowell said, but he clarified the point I made in relation to the example I gave regarding the concert hall.
I take issue with a point Deputy Mitchell made in his emotional contribution. He said that because of the large majority of the Government we were capable of ramming through any legislation. I made it quite clear since the Second Stage of this Bill that I understand the concerns people have — Members of this House and those outside it — in relation to certain provisions of this Bill and every time we discussed the amendments I stated I wanted to be flexible in relation to the Bill. I do not believe I can be accused of ramming through any legislation and I would not like the comment to go uncorrected.
This definition of a public place gives rise to some small difficulties and perhaps that is the kernel of the problem. For example, many people may live in the vicinity of a dance hall. Dances usually run from 11.30 p.m. until 2 a.m. Annoyance can be caused to residents by people singing in the vicinity at around 1 a.m. The residents complain to the Garda Síochána about such behaviour. The difficulty is that people gathered in such a place of entertainment could be liable to a criminal charge. This problem arises not only in the context of dancehalls, but also in relation to licensed premises with an extension. This section must be considered carefully because it would appear to have a broader effect than might have been envisaged at the commencement of this debate.
The record will show my concern about the position of people who interrupt performances or whatever, which is the example the Minister gave. Deputy M. McDowell also spoke on this point. If a licensed premises causes difficulty for people living adjacent to it, which it can — I have encountered situations like that — residents have an opportunity to object to the renewal of the licence. But we are not dealing with such behaviour here. We are dealing with disorderly conduct in a public place. We are talking about the behaviour of people while attending a place of entertainment, a rock concert or a show of some kind, not their behaviour on leaving the place of public entertainment. If people suffer such a constant nuisance the remedy exists to object to a licence renewal. Deputy McDowell earlier referred to people going to their local Garda station to make a complaint in regard to which a summons may be issued. There are many types of remedies available. This Bill is intended to deal with the people I mentioned — drug pushers, thieves, muggers, burglars, those who are intimidated, and racketeers. I feel it falls short in dealing with those people and interferes too much with the rights of others.
The Minister took exception to my saying that we cannot be allowed to ram through this legislation, but I was not directing my comments necessarily at the Minister. It seems extraordinary that a Government with such a huge majority has so many backbenchers who are afraid to make any critical analysis of legislation on Committee Stage. That is what surprises me. I recall being in and out of Government myself and being a Government backbencher for a number of years. Fine Gael Deputies were not afraid to question legislation or to prod the Minister to amend a Bill. Fianna Fáil Deputies are like sheep.
We are not afraid.
I cannot accept such a comment.
The Deputy should withdraw that remark.
Order, please. The Deputy's contribution has nothing to do with the amendment before the House. The Deputy should speak to the amendment so that we can progress business.
I was responding to the Minister taking exception to something; the Chair allowed her to do this and I was correcting the record. The amendment in this case is reasonable. Some sections of the Bill go too far and interfere with the rights of people not causing any crime or public disorder. There are problems for people living in the vicinity of licensed premises, but the way to deal with such problems is to object to the renewal of the licence. The Bill should deal with people who are causing problems in open spaces adjacent to homes, those who intimidate, mugg and rob people, break into cars, etc. This section goes too far and interferes with the rights of people. I am pressing this amendment.
May I make a comment in relation to that? One would imagine from listening to Deputy Mitchell that there were no laws in this country to deal with drug pushers, muggers or thieves who steal cars and beat people up.
It is a deliberate distortion for the purposes of publicity.
We have a huge body of criminal legislation which deals with all of these areas. Deputy Mitchell is disengenuous in suggesting that a Public Order Bill because it does not deal with these issues is in some way lacking. We have a whole body of legislation and before the end of this Dáil session we will have a whole raft of legislation dealing with confiscation of assets and the proceeds of crime. I ask the Deputy not to mislead this House or the public outside by inferring in some way that because we do not deal with these issues here we do not have a whole raft of legislation to deal with them.
Deputy Mitchell also referred to Government backbenchers sitting like sheep. I want to say on behalf of my colleagues in Fianna Fáil that this matter was discussed at the parliamentary party meeting in which we all participated.
(Interruptions.)
As a Government backbencher I tabled an amendment.
Would Deputy Mitchell refrain from interrupting?
Maybe Deputies sit like sheep—
Is this in order on an amendment to a Bill?
(Interruptions.)
I am now putting the question.
I want to reply to the Minister. It is my amendment and I want to speak briefly again. The Minister says that people would be forgiven for thinking that there is no legislation to deal with drug pushers.
Because of what the Deputy said.
It is because drugs are being openly sold on the streets of Dublin and the Minister is not dealing with the problem that people would be forgiven by thinking the legislation is not in place.
I am now putting the question.
Amendment put and declared lost.
Question proposed: "That section 5 stand part of the Bill."
What this section should deal with— the question of parks and open spaces— is a major problem and I hope the Minister on Report Stage, as she has undertaken, will seek specifically to address the problems of disorder facing people living adjacent to those places. People who live adjacent to an open space or park are literally having their lives made hell. I know a woman who found peace of mind following a move from a fashionable Dublin South constituency area to what might be considered a less fashionable area. She simply could not live in her house. She sold it because she could not put up with people gathering outside it and could not find a remedy to her problem. The gathering of people in those open places is the main problem which people face.
I am concerned at the possible interpretation of the section in respect of people singing in public or of boisterous conduct say, following a World Cup win, an All-Ireland win or whatever, particularly where there is no complaint of such behaviour. I ask the Minister to consider this. There should be a distinction between boisterous behaviour which is complained of and which affects the rights of others and cases where it is not complained of. In particular, the provisions for arrest without warrant under section 25, which refers to a number of sections, including section 5, should be clarified. Notwithstanding the possibility of a direction by the Garda under section 9, we should be careful to direct this legislation specifically at people who are causing problems for others and we should not draft it so widely as to create problems for those who are peacefully enjoying the environment in a proper manner.
Regarding other sections of the Bill, I have concerns that they are drawn so widely that they can interfere with the rights of others. My concerns are not just academic. There are sections of the Bill which, if challenged, may well be unconstitutional; and, if they are challenged or referred by the President, it will further delay enactment of this Bill. We should tidy up the Bill as it goes through the Houses of the Oireachtas and I would be particularly anxious not to interfere with the rights of people celebrating. We are not complaining of people singing and celebrating in a public place. I hope the Minister will take account of that sentiment on Report Stage.
I listened to Deputy Mitchell when he moved his amendment and I wondered what justification he was giving for the deletion of "abusive, insulting"? I did not get a clear, coherent and unequivocal justification on that. Am I on the correct amendment, No. 10b?
Section 5.
Chariman
We are dealing with section 5.
The Deputy should pay attention.
Obviously, the Deputy has not been doing that.
It seems that as the afternoon proceeds there will be grounds for a few prosecutions under section 8 for disorderly conduct at a public meeting.
Considering seriously section 5, which deals with disorderly conduct in a public place, I fully accept the general thrust of what the Minister says, that is, that the law in relation to public order needs to be stated clearly in one place and that it needs to be a modern and effective law. Nobody is not against disorder in public places and nobody who knows how the real world works could be under any misapprehension but that disorder in public places not merely causes misery to those who feel apprehensive as a result of it but that it also gives birth to greater crime later. If the Garda cannot nip in the bud groups of people who break the law and tell them to go home and disperse or whatever, they will find that shop windows are broken or that vandalism will occur and so on. That is the reality. If there is not an effective law which deals with public disorder and gives the Garda effective powers, circumstances are bound to be created from which greater evils flow.
The Progressive Democrats introduced a Public Order Bill in this House some time past and focused on the same general social evil of disorderly and intimidating behaviour in public places. I believe that this section could be radically improved. I will not cover the same territory again but Deputy Harney and I will take the Minister up on the offer to consider a recasting of this section to improve it.
Regarding the phrase "boisterous conduct", it seems that most people do not consider behaving boisterously a crime. To me boisterousness connotes exuberance, carefreeness, celebration, noisiness and behaviour which might cause annoyance to the prim and prudish. But the average person would not consider boisterous conduct pe se to be an offence.
Since the marginal note in the section refers to disorderly conduct, we should deal with it on the basis of what is public order and what amounts to disorder. Public order in society does not result in a society of greyfaced puritans with drips at the end of their noses going to and from their place of work, worship or wherever like church mice. The real world works differently. Younger people have different patterns of behaviour from older people, different passions and standards and we cannot set out to establish by statute law some kind of Swedish calm in Irish public places, and we ought not to attempt to do so. People's perception of what is or is not disorderly conduct varies from person to person. A member of the Garda Síochána who is alone at night in a public place, say, standing outside here watching people coming back from discos, public houses and so on, has to have some kind of objective yardstick by which to judge behaviour before intervening in the interests of preserving public peace. However, this section sets too flexible a standard for intervention. It is not that I am worried particularly about whether gardaí in general exercise sound judgment when dealing with circumstances of public boisterousness, but I am concerned about the potential in this section to cause additional problems, I do not want young children from working class suburbs and particularly the city centre, who will most often come into conflict with the Garda in the context of this Bill, to find themselves in trouble with the law unnecessarily. I want to avoid that.
Sitting suspended at 1.30 p.m. and resumed at 2.30 p.m.
May I raise a point of order? I will not delay the committee, but I want to ask about procedure. Leaving aside the Bill which we are dealing with now, when will we get an opportunity to set a date for the number of issues I have mentioned and which I want to raise? Will we meet privately in the near future?
I suggest you discuss those matters with the Whips. Today we will deal with the Bill.
There does not seem to be any structure in relation to considering items which are the business of the committee. I am raising it here.
This is not the time to raise it.
I am raising it for the record.
There are procedures involved. We can discuss matters with the Whips and arrange meetings to discuss other matters. However, we have one specific item to discuss today.
I have written to the committee about a couple of items and I would like them to be considered by the committee as soon as possible.
Before lunch, I was saying that one thing we must bear in mind is the danger that young people and the Garda will be drawn into controversy with each other as a result of this section and that it will be counterproductive in terms of building respect among young people for Garda authority. I know people will say there is no reason why that should happen. In my view there is a significant danger that a legal code as subjective as this one will give rise to rows between members of the public and the Garda. I was reflecting afterwards on the example I gave this morning. One must remember that what people who have taken a few drinks consider boisterous and what a garda, standing sober on a street corner in the early hours of the morning, and feeling slightly sorry for himself, considers boisterous, will often differ. In those circumsances a row will develop because a garda will attempt to arrest somebody or to use his powers under section 9. An altercation will then begin and it will develop into a physical struggle in an attempt to resist arrest or to cause an obstruction or to assault a garda. This is the type of situation we must avoid at all costs.
We must avoid a law which gives rise to fights and public disorder. A law which is so subjective and incapable of giving an exact meaning, such as section 5, will be counterproductive if it gives rise to incidents in public in which young people, in particular, are drawn into conflict with the forces of the law. The "sus" laws in England among blacks were applied unevenly by the British police and had the effect of alienating young people from working class backgrounds, particularly black teenagers, from the police force. This measure had the potential of alienating certain sections of the community from the Garda rather than suppressing disorderly behaviour.
Without anticipating what alternatives can be put forward on Report Stage, it seems to me that what Deputy Mitchell was talking about earlier was that this measure does not address the issues which people are raising as matters of concern. The Bill cannot address itself to drug dealing, burglaries, car thefts or, indeed, more serious crimes such as sexual offences, murder, manslaughter, wounding or whatever. In my experience people are giving out about those who are entitled to congregate in public in circumstances which do not give rise to annoyance, but in circumstances which give rise to an apprehension for safety and a fear that there will be a breach of the public peace. That is the principle most people are concerned about. They are not as concerned about the people who are playing loud music to annoy others. They are concerned they will not be able to leave their house without being assaulted and that they will not be able to go about their business without being interfered with.
Therefore, I consider that the Bill, as presently drafted, is chasing the wrong problem. It is not that people are behaving in an annoying fashion in public but that people are behaving in an intimidatory fashion and in a way which causes significant interference with the freedom of others. It is not that people are being woken up in their bedrooms at night by boisterous revellers; that is not the problem. The problem is they fear that those boisterous revellers will break a window or smash something. This causes apprehension. Therefore, the section should be recast as a section which is concerned with the public peace in the sense of the absence of crime and the elimination of intimidation and menacing behaviour. Those are the things which are most important.
I know Deputy O'Donoghue said that one cannot cast law on the basis that it will be unevenly implemented. In answer to that, I make the point that one must imagine the circumstances in which the law will be enforced. Section 5, as presently constituted, is most likely to be deployed in relation to alleged disorderly behaviour by young working class children. It will not be deployed in middle class areas. It will be used by the Garda, as one of the earlier contributions made clear. A single garda will not try to arrest one of 40 young people making a nuisance of themselves. He will arrest the straggler who is coming up the road slightly intoxicated and singing out loud. There will be an altercation between the garda and the young man in the early hours of the morning when that young man's judgment will not be at its best. These are the type of incidents which will give rise to alleged assaults on gardaí to use of force to effect arrests and to young fellows being brought into Garda stations who have not done terrible damage.
Deputy Mitchell mentioned that people are more concerned about car thefts, etc. They are. They are not concerned with the elimination of boisterous behaviour as a thing in itself; they are much more concerned with menacing, intimidatory behaviour, or behaviour which is likely to be behaviour leading up to the commission of some other offence. I think that a different intellectual substructure is needed for this public order offence which has been created here. We are collectively, as a group of politicians, telling people, such as people in my constituency who are worried about young people congregating in Sandymount Green, that this is the answer to it. It is not going to be the answer to it. This is going to create problems in the inner city areas of my constituency and it is not going to be the solution to those problems.
What people want most of all is reassurance and what we are offering them is phoney solutions where the police are going to have the right to tell young people to watch themselves and to arrest them where they are behaving in a disruptive fashion. That seems to me to be wrong. The courts at the moment—and the Minister knows this herself in other contexts—are full of offenders. They cannot deal with the case load they have at the moment. The prisons— and I know that this section as currently drafted does not involve the imposition of prison sentences—are sufficiently full of young people at the moment without introducing a new category of criminality. Young people from certain areas have enough difficulties steering clear of the law at the moment. They have enough problems with authority that they do not want to see their friends being dragged to court or arrested because they had been boisterous or drunk or whatever. They have enough grievances with society without adding these ones to them.
Nobody would be happier than I to support tough measures against intimidatory behaviour and lawlessness, but I do not believe that in our pursuit of antisocial behaviour among young people we have to push the borders of criminality so far as to criminalise boisterousness which annoys other people. I do not believe we have to do that. It is going too far and is way over the top. I do not believe that we as a society are facing our problems fairly and squarely and that our agends is correct in terms of priorities if we say that in 1993 we should spend a great amount of legislative time— and I know I am adding to the time that has been allowed— dealing with a measure which criminalises boisterous behaviour which annoys other people in public. We have a great many problems in this country and I do not believe that boisterous behaviour which annoys other people ought to be criminalised.
Section 6 deals with some forms of antisocial behaviour. It should be possible to draft a section, instead of section 5, which criminalises intimidatory behaviour, menacing behaviour and congregating in public areas in a way which gives rise to an apprehension in ordinary people's minds for their safety and welfare and for the public peace. This section, with respect, goes too far. I will live up to the promise which Deputy Harney and myself have made to offer a different and, what we consider, a more aptly drafted section in lieu of this to deal with what is a social evil without at the same time extending the bounds of criminality further than they will stretch without doing damage.
The approach which we have taken in this Bill is to provide for offences against public order which are distinguished on the basis of the seriousness of what is involved; but I believe all of us will be aware that there are other forms of deeply anti-social behaviour which, though they are the cause of great difficulties for many people, fall short of the kind of behaviour we are trying to address in section 6. This issue was recognised by the Law Reform Commission in their report on the Dublin Police Acts. They said that a wide range of disorderly conduct in public places fell outside the scope of existing offences and that at least some manifestations of such conduct should be the subject matter of an offence carrying a less severe penalty than the threats, abuse or insults offence. The Law Reform Commission instanced a group of people behaving in a rowdy and noisy fashion late at night in a residential area, reckless as to whether they are going to cause disturbance to people's sleep. They found it difficult to see why the law should not penalise this behaviour in the same way as it penalises the blowing of car horns in a built up area at night.
The Law Reform Commission considered the possibility of having a general offence of behaving in a disorderly manner in a public place. While this would have the obvious advantage that the concept of disorderly conduct is already known to our law through dealing with drunk and disorderly offences, the Law Reform Commission were concerned that such an offence would be very open ended and would be capable of covering all kinds of non-conforming behaviour in public even where there was no real threat to public order. The Law Reform Commission concluded that an offence with a lesser penalty than for more serious forms of behaviour is necessary to control behaviour in public which, while it might not pose a serious threat to public order, would nevertheless be likely to cause annoyance to others and the Commission went on to propose an offence along the lines of that contained in section 5. I believe that there is behaviour which stops short of threatening and menacing behaviour. We accepted the Law Reform Commission's analysis in this area. We have had to be conscious too— and I know that all the members of this committee are conscious of it— of the real threat which behaviour of the kind which we are trying to address is going to pose and indeed is already posing to the quality of life in our communities.
Having said all of that, I am very keenly aware of the concerns which have been expressed by virtually all members of the committee today in relation to either aspects of the section, individual subsections of it or indeed the section itself. As I said at the beginning, I am flexible in relation to suggestions that members might have or amendments that they would like to put forward when we come to Report Stage. In the meantime I, together with my officials and with the parliamentary draftsman, will also be looking at a number of suggestions I undertook to look at already and I think there is every likelihood that I will be bringing forward a number of amendments to this section when we get to Report Stage.
Question put and agreed to.