Amendments Nos. 10b and 11b are related and may be discussed together.
SECTION 6.
I move amendment No. 10b:
In page 5, subsection (1), line 6, to delete ",abusive or insulting" and substitute "and intimidating".
Amendment No. 10b seeks to substitute "intimidating" for the words "abusive or insulting" in section 6. Amendment 11b seeks to delete "abusive, insulting" in section 7 and substitute the word "intimidating". Section 6 reads:
It shall be an offence for any person in a public place to use or engage in any threatening, abusive or insulting words or behaviour with intent to provoke a breach of the peace or whereby a breach of the peace may be occasioned.
In a later amendment I seek to replace the term "breach of the peace" with another term which according to my legal advice is less vague and is more to the point in identifying what is a criminal offence. That is the position in section 6 (1).
Section 7 (1) says:
It shall be an offence for any person in a public place to distribute or display any writing, sign or visible representation which is threatening, abusive, insulting or obscene with intent to provoke a breach of the peace.
I have difficulty with those words, "insulting" in particular. The replacement of the words "abusive" and "insulting" with the word "intimidating" would bring it more into line with criminal law so I suggest deleting the words "abusive" and "insulting" in both sections and substituting the word "intimidating".
I do not know why it should be necessary to make insulting behaviour a crime. The section goes on to say "with intent to provoke a breach of the peace". A breach of the peace is a very vague term which is why I will seek to amend it later. If, for example, one stands outside Leinster House and holds up a poster which says "Your legislation stinks" or "All TDs are. . .." whatever, why should that be a criminal offence? Somebody may decide that one is doing that with intent to cause a breach of the peace because, perhaps, the Fine Gael spokesman on Justice might not like it or the Progressive Democrat Deputy for Dublin South-East might be insulted and might be inclined to take offence. The inclusion of such words are beyond the necessary parameters of this Bill.
Certainly if the words used are intimidating or if the poster is intimidating it would be wrong. Nobody has the right to intimidate anybody else. That is why I suggest substituting the word "intimidating". In a democracy in many circumstances people have the right to carry an insulting poster should they so wish. I do not see anything wrong with that although I, or somebody else, may consider that it provokes me to some sort of reaction. However, if a Garda considers that it is behaviour with intent to provoke something as vague as the term "a breach of the peace" then that is to be a criminal offence. I do not know where the demand for this arises but it is an unnecessary inclusion of the words "abusive" or "insulting". Both words are covered by the word "intimidating".
Section 7 is more dangerous. It says that to "display any writing, sign or visible representation which is threatening, abusive, insulting or obscene". The words "threatening", "intimidating" or "obscene" are fine but there is no point in this committee criminalising somebody for carrying an insulting poster. That is going too far. It is a section which, if referred to the Supreme Court, would probably be found to be unconstitutional. I do not see a demand for it. I hope the Minister will accept the alternative words I suggest because in circumstances where somebody is intimidating — either verbally or by carryig some message — then I can see that a criminal offence might apply but why it should be a criminal offence for somebody to carry an insulting poster is beyond me. It also goes beyond what is right and proper in a democracy and strays into an area where we, as defenders of the rights of the people, should not allow it to stray. I ask the Minister to consider accepting my proposed wording.
While I could empathise with much of the analysis outlined by Deputy Mitchell, I would be concerned that he has not addressed a couple of relevant questions. Has he, in putting down this amendment, addressed the question of old people or sensitive people who are subjected to abusive and insulting language when they walk in the streets minding their own business? Is he implying — and the liberal side of his analysis would suggest it — that it is quite OK to use abusive or insulting language if it was not or would not be deemed to be intimidatory?
There are many people in society who could find themselves abused and insulted without necessarily being intimidated and I have great sympathy for what the Minister is trying to achieve. I am not a legal person so I am not sure that the formula of words she has used is perfect. If it is confined, as Deputy Mitchell suggests to forms of behaviour that could definitely be deemed to be intimidatory or threatening alone it would fail to address aspects of behaviour which I came across in Donaghmede or in my parish or Edenmore, Coolock or other public places adjacent to housing estates where people engage in abusive and insulting behaviour to members of the public as they pass by, minding their own business.
Those forms of abusive and insulting behaviour, whether it is through language or gestures, must be addressed. I am not sure what formula of words can achieve that. If it is confined to the terms "intimidatory" or "threatenting" as proposed by Deputy Mitchell I believe there will be limits on the scope of this section. By inserting such limits we would not address the genuinely serious problems caused by behaviour that ordinary, law abiding people in a public place consider to be offensive and which should not be tolerated. Certainly, I would not agree fully with what Deputy Mitchell says even though there are certain aspects that I would empathise with.
Deputy Mitchell has drawn attention to the fact that much of the wording in these two sections is subjective. As we saw before lunch, we have a different perspective on them and, at one stage, I thought the debate on the Criminal Justice (Public Order) Bill was going to break down in disorder because some of us might have a shorter fuse than others.
The words "intimidating" and "threatening" are probably similar in meaning but the word "intimidating" is better for the purpose we are trying to achieve. One of my concerns about the wording in these two sections is the intention of the person who carries out the threat or uses the abusive or insulting words. What is abusive or offensive or insulting to one person may not necessarily be so to another. These two sections are dependent on the intention of those who use the words in question or display the writing or signs.
Many people have been offended by advertisements which are considered quite inoffensive by others. Not so long ago a travel agent had to withdraw an advertisement which many people considered to be offensive. I would not like a person who tries to promote his or her business and ends up offending people would also end up being criminalised. We should not use the heavy hand of the criminal law to deal with what are different sorts of issues relating to advertising standards and so on. That is why — I do not want to provide Deputy Mitchell to stand up and interrupt me again — I think my amendments later on, which refer to the intention to provoke a breach of the peace rather than a breach of the peace occurring, is appropriate.
For example, if somebody goes to an area where a particular ethnic group live and displays an article or an advertisement or passes out documents, papers or handouts which are obviously intended to provoke that group, whether it is an ethnic or religious group, people from a different background or a group of unmarried mothers, and that are offensive to that particular category of individual then obviously that is different from a campaign that is organised for a particular purpose and happens to cause offence although that was not the intention. That is why we need to be very careful in relation to these two sections. It is necessary to have sections of this kind in the legislation but the words are very important. All words can be subject to different interpretations by different individuals but when it comes to making law we must be as clear as possible. That is why I would prefer — and I would like to hear the Minister's response to what Deputy Mitchell said — the phraseology of Deputy Mitchell, using the word "intimidating" instead of threatening. I am not sure the two together are required. They are more or less synonymous but intimidating is a much stronger and clearer concept of what we are discussing. Abusive or insulting words should only stay in if the intention was to provoke a breach of the peace, which I will deal with later, but not otherwise because it is far too strong.
I am sure many of us publicly engage in political campaigns that are insulting and abusive to certain sections of the community and vice versa. We have seen many campaigns in this country that have been quite abusive but the intention was not to abuse necessarily and certainly not to provoke a breach of the peace. If that occurred because people felt abused and insulted and were, therefore provoked into a breach of the peace, that is different. We need to make it very clear that we want legislation that is operable and deals with the problems, as Deputy McDowell said, that we now have in society and the problems we can perceive for the immediate future. I am not saying the law must deal only with today's problems; they obviously have to anticipate too and not simply always react. We need to be very careful in trying to provide appropriate criminal law in the public order area that we do not go too far and get ourselves confused with what in any decent, democratic, liberal society should be reasonable behaviour on the part of minorities or whatever.
There are many campaigns in this country that are perfectly reasonable. Deputy Gilmore referred on the last occasion to hare coursing. Would it be insulting and abusive to stand outside a hare coursing meeting and say hare coursing is cruel? To many people that are involved in the hare coursing business it probably would be. Do we want to criminalise people who get involved in campaigns like that? The intention is all important but Deputy Mitchell has opened up the question of the words and their meaning. I will be very interested to hear, at a later stage, what the Minister's thinking is in relation to that and I compliment her on the flexible approach she is adopting to this legislation. She has shown an unusual degree of flexibility in the manner in which she has dealt with this legislation and I compliment her for that. The legislation will be all the better for that and her willingness to take on board suggestions from the Opposition is a very healthy sign.
I agree with my colleague, Deputy Fitzgerald, even though I see the point Deputy Harney is trying to make. As she said, there are campaigns such as hare coursing, for example, where it is offensive to some people if one stands outside with a picket saying hare coursing is cruel. There were other campaigns — for example the referendum on abortion— where the homes of Members of this House were picketed. If I remember correctly, at the time, they and their families felt very insulted and felt that many of the pickets and what was said to them was abusive. People should not be allowed do that sort of thing. I see the point that Deputy Harney is trying to make but the words should stay in because sometimes on an issue, such as abortion which has people of extremes on both sides, what they say to people can be very insulting especially if they are standing or walking up and down outside people's homes.
(Carlow-Kilkenny): The more this goes on the more we are debating the difficulty of implementing any laws we introduce because of interpretation. When I see “with intent to provoke a breach of the peace”, the person using any of the words that are threatening, abusive, insulting or obscene may have absolutely no intention whatsoever of abusing or insulting anybody. They might be making what they think is a statement of fact. They may even do it in good humour. Today we did not have a placard but if one saw a placard stating that all Government backbenchers are sheep, immediately there would be cause for a riot almost, even in the Chamber——
They were nearly wolfed by sheep.
Unless the sheep could read.
(Carlow-Kilkenny): A person can have a statement of fact written out, “Government health cuts are indefensible”, something like that. From their point of view they regard it as a factual statement but somebody might take it as an insult. Secondly, “a breach of the peace may be occasioned by any of these”. How does one balance the hothead who cannot see a poster for what it is? Deputy Mitchell would have a great sense of humour and would never be offended by a thing such as that in reverse.
We are saying something is insulting.
An insult is like beauty, it is either in the eye or the ear of the beholder. What insults one person may not be an insult to another, or what is even abusive. It depends on how thick our skin is and how much we can put up with. Some are very easily offended. If some person tells one that one does not have a brain in one's head it can be a serious insult if he thinks he is correct and is making a statement of fact.
Sections 6 and 7 will be at the mercy of a garda's interpretation or perhaps of some person who is listening. If it will be that subjective, it will be difficult to implement. It will cause many problems by having that kind of interpretation put on something that might be quite harmless in the long run.
From the experiences of constituents of mine in south Dublin I can see the need for a section in this legislation for tightening up our law that seeks to stop groups of people posing a threat within housing estates or shopping centres to passers-by, be they young or elderly. We are having a very fair discussion on the section because none of us in this House on this section and, indeed, on other sections of this Bill can or should be absolutist in our views.
There is a very delicate balancing act to be done between protecting people's general civil liberties and rights in the context of people being free to do and say what they wish, whilst also protecting other people's civil liberties and rights to go about their business in peace and harmony without feeling threatened and without feeling that if they walk along the street where they live or at the local shipping centre they are going to have a bad experience. Frankly, in my view, there is not a perfect way of phrasing this section. The success and failure of this and other sections in the Bill will not only depend on the wording contained within them but also the manner in which the sections are administered by the Garda who are called on to administer them. It is similar to the old constitution of the Union of Soviet Socialist Republics which set out a wonderful plethora of constitutional rights and protections that people in theory had, but the way it was administered made it quite clear that everything anyone did in that state was subservient to the will of theKGB.
The problem with this type of legislation is not only what is in it but the atmosphere relating to its administration. It is open to abuse but it is also there to provide a badly needed protection for the community. My colleague, Deputy Gay Mitchell, is proposing that the words "abusive or insulting" be deleted and replaced by the word "intimidating". If the Minister does not accept the amendment Deputy Mitchell is proposing, at least the section should ultimately be amended to refer to threatening, intimidating, abusive or insulting language if the Minister is not prepared to delete the words "abusive or insulting". We can have a lengthy semantic debate as to whether there is a difference between "threatening" and "intimidating". There is certainly a difference between "abusive" and "intimidating". There is a deal of merit in what my colleague has said.
There are questions the Minister should answer in the context of this section. Sections 6 and 7 and the amendments proposed by Deputy Gay Mitchell and the issues he has raised and section 8 which gives rise to similar problems, mean we should address some other aspects of this. For example, under sections 6 or 7, as currently drafted, what is the position of the heckler at a political meeting during a general election or at any other time? If, for, example, during the course of a heated general election campaign I am outside the church in Rathfarnham on a Sunday and standing there on a soap box is Minister of State, Deputy Séamus Brennan, telling my constituents of all he and his party's amazing achievements during their term of Government, if I get up on my soap box — when Deputy Brennan finally stops the rhetoric to suck in some oxygen— to interrupt and point out that all the things he promised to the electorate in October or November 1992 were reversed by January 1993, would that be regarded as abusive or insulting?
If I use some colourful language, for example, during the course of the election campaign to illustrate how Deputy Brennan or some other member of Government— and I do not want particularly to pick on Deputy Brennan when he is not here to defend himself in his position as Minister of State — such as three of the representatives of Dublin South constituency, who all happen to be junior Ministers, had, for example, betrayed the constituency and not delivered on their promises, that the new schools they promised were not built, that the jobs they promised they would bring to the constituency had not materialised and that they were not to be trusted, would that be regarded as abusive or insulting? If I went on to use a word which none of us should ever use in this Chamber in the context of a debate, and at election time I accused them of lying to their constituents would that be regarded as abusive or insulting words whereby a breach of the peace may be occasioned? It would seem that under this section I would possibly be open to arrest.
The gardaí listening to this heated exchange would have to decide whether I was intending to provoke a breach of the peace. It might be that I really did not have that intention and that I expected my political protagonists would sit back and listen calmly to what I had to say and no doubt would ultimately respond in kind to me in so far as they were able. Let us assume some of their more ardent supporters — because I know neither Deputies Brennan, Kitt nor Fitzgerald would be occasioned to behave in this way — thought that what I was saying was particularly provocative and started waving fists or, let us assume, one of them took a whack at me — hopefully they would miss, I know there are some people in this Chamber who would get great pleasure if they were successful——
We would get the Deputy a good lawyer.
Not on this side of the House.
If one of them took a swing at me who would be arrested? Would I be arrested for behaving in a threatening or insulting way whereby what I was saying might occasion a breach of the peace or would the person who threw the first at me by arrested for attempted assault? It is a difficult problem.
Generally, all of us in this House agree that there is a need to address this area within our legislation but it does create problems. I do not want to see at the next general election a bevy of hopeful candidates finding themselves being arrested by members of the Garda for using colourful language about the performance of the present Government. I would imagine that some of my Fine Gael colleagues who aspire to be either elected or re-elected to this House might use very colourful language about the present Government in two, three or four years time when they go back to the country. I do not want to see some of them put in jail or carted off to the local District Court and only being released on bail. I would not want to see members of other parties in such a position either. Could the Minister clarify how a judgment will be made in these circumstances on what is abusive or insulting? To what degree do they have to upset people? It is very subjective.
In the context of the difference between the words "intimidating" and "abusive or insulting" the dividing line becomes even more confused. If we take it that under the Constitution there is a right of free assembly and a right to freedom of speech, there are occasions when people may be justified — and not necessarily during the heat of a general election campaign but on other occasions — in resorting to somewhat intemperate language to make their point. For example, a rather unpleasant gentleman, a Mr. David Irving, is apparently scheduled to address meetings in Trinity College and UCC during October. The Philosophical Society in Trinity have thought better of it and he is no longer invited but the Philosophical Society in UCC have not thought any better of it and according to quotes in The Cork Examiner the other day from one of their members they feel the need to have this person participate in their debates. They are going to have a closed meeting; the general public will be excluded from that meeting.
Why do I raise this poor unfortunate gentleman in the context of this debate? Primarily because he is neither poor nor unfortunate. He is a gentleman who is getting a great deal of personal publicity worldwide and has made something of a career out of speaking at universities in particular or to impressionable young people. He has done this in Germany among other countries where he addresses audiences to explain that the holocaust which resulted in the death of six million Jews during the Second World War is a figment of Jewish imagination and propaganda and that it never actually happened. Mr. Irving is a well known international fascist who seeks to propagate views which I do not believe would gain the support of a single Member on any side of this House. He makes a career of this. He writes books which seek to portray Adolf Hitler as a rather pleasant gentleman and that it is unfortunate for the rest of the world that he was not successful in his endeavours. He makes speeches which seek to deny the realities of what took place in the Second World War.
Why do I raise this? I think it would be legitimate for people in Cork, students and other people, to protest outside the university or hall in which this gentleman is going to address a private meeting. They may feel the need to resort to somewhat intemperate language in protesting against the views which this person expounds, views which are illegal and a criminal offence in some other countries but not in this country. I suggest to the Minister, in the context of this Bill, that this is perhaps another issue that could be addressed in this Bill in a way that it has been addressed in legislation currently in force in some other EC countries. In particular, I would urge the Minister to look at existing German legislation in this area. It is not an offence for him to make these sort of speeches. Could it be an offence, however, if in a public place a crowd of people gather who use insulting words within the meaning of this legislation about the type of views this man is going to propound? Could it be an offence if they use such insulting words outside UCC or Trinity College and protest saying that he should not be allowed into the college to propound views which are a travesty of reality and which are simply designed to promote prejudice, and in his case, antisemitism?
I know there are strong views in Cork among quite a number of students about this event. I do not want to see students in Cork being arrested in circumstances where legislation such as this was in force if they are protesting in a non-violent but responsible way and perhaps using intemperate language to get across in a dramatic way their view of this type of presentation. I do not want to see students or others in Dublin prevented by this sort of legislation from engaging in justifiable protest and from using free speech that the Constitution recognises we are entitled to. I have raised this because in general I blelieve there is a need for legislation such as this. Government and Opposition can argue about the individual meanings of different words but there is always the danger that we will unwittingly prevent people from legitimately protesting or expressing views, or engaging in the type of banter and exchanges that are part and parcel of election campaigns or other public meetings which should be tolerated.
I am asking the Minister to consider the illustrations I have raised and to treat them seriously. This is not meant in any party political sense, it is a constructive way of addressing the legislation. It is my hope that the meetings I talked about in UCC and Trinity will not take place and will be banned, and that this gentleman will be told he is not welcome in Ireland. That may happen. It does not mean he or someone like him will not appear in this country at some future date when this legislation is in force. It will not be in force by the date this gentleman arrives. We must be careful in the way we deal with all of this.
I am anxious that my views on this are not misrepresented in any way. I am equally anxious that people have freedom within their communities to go about their business, that the young and elderly are not held up to ridicule or abuse and that the Garda have powers to intervene where necessary. In the middle of all this there is a thin dividing line across which we must be careful not to stroll.
During the lunch break I got a telephone call from a constituent which I think illustrates the need for legislation to tackle the type of problems we have been talking about. It was from a constituent who is being harrassed by some neighbours, and so badly harrassed that she and her family moved house. Unfortunately, the people who were harrassing her found out where she had moved to and continued to pursue her. When she walks down the street somebody often walks behind her hurling insults. Last weekend somebody painted the windows of her house with black paint. She has reported this to the Garda who tell her they cannot do anything about it unless they actually catch somebody in the act even though they have been supplied with the names of the people that the person concerned suspects is actually doing all this. Clearly that citizen and her family need the protection of the law and measures which will enable the Garda to deal effectively with the situation.
The problem, however, with this legislation — and specifically sections 6 and 7, the amendments to which we are now discussing — is that it is not designed to address that problem. As I mentioned in relation to some earlier aspects of this Bill, these sections are lifted word for word from the 1967 Act. The particular sections of the 1967 Act from which these sections are lifted were designed not to deal with the kind of crime, intimidation and harrassment that people are experiencing in the 1990s; they were designed specifically to address what was then anticipated by the framers of the 1967 legislation as some kind of a growth in political protest.
I do not recall a great deal about the 1960s myself but listening to Deputy Mitchell reminiscing in the earlier stages of the debate it is quite clear that the level of crime then was much less than it is now. There was, however, a fear and almost a paranoia on the part of the people who promoted the 1967 Act that the country was about to be populated by Trinity-educated "lefties" who were about to deny anyone who wanted to pull down a Georgian building the right to do so. The framers of the 1967 Act were motivated by addressing political protest.
The particular sections before us have more to do with addressing political protest and were designed in that way. For example, the way in which section 6 (1) states: "It shall be an offence for any person in a public place . . ." What about the paint on the woman's window? The woman's window, as I read the definition of "public place", is not covered at all by section 6 of this Bill. This legislation was designed to deal with different problems than those we have today, and is not addressing them.
My home was picketed about this time last year by people who had a view different from mine on the question of the referendum which we were then heading into. I did not like it; I regarded it as a gross infringement on my privacy and that of my family and neighbours. My neighbours did not like it. The Garda came, handled the situation with a great deal of tact and the picketers eventually went away.
The question that is being raised in this Bill is, do we want to make the picketing of my home or the home of any other Member a criminal offence? I do not think we do. The day we do that we give rise to a much greater problem. The various statements made on placards on controversial issues, whether it is in relation to abortion or hare coursing, may be regarded by people as insulting but I do not think it is grounds for criminalising it. I do not think it is the problem that the public want to have addressed. The public are not concerned about the forms of political protest that the 1967 Act was designed to address. The public have concerns about being allowed to go about their normal business and the type of legislation we need to have is legislation that is designed to address that.
Take, for example, the question of abuse of the amendment that Deputy Mitchell has tabled; whether the terminology that should be used is "abusive or insulting words", or whether it should be replaced by the term "intimidating". Let us take an industrial dispute where there is a group of picketers outside a factory. People go in to work and break the strike, and people on the picket line — as picketers have always done and in my opinion are quite entitled to do — shout the word "scab" at them. That clearly would be regarded as an abusive and insulting term by the people going in to break the strike. It is clearly intended to be an abusive and insulting term by the people who are outside picketing, but should it be made a criminal offence? If it is made a criminal offence, as this legislation proposes to make it, where is that going to lead us with regard to the prosecution of industrial disputes or any other type of protest or picket. Doing this will give rise to circumstances which will cause greater public disorder rather than address the problem of public order.
The Minister in responding to an earlier amendment referred to — consideration which has been given by the Law Reform Commission to this area. It is extraordinary, given the consideration this area has already received and the level of public discussion and comment about the need for legislation to deal with the ordinary day to day problems faced by citizens, that we are now discussing legislation which, in my opinion, is drafted in a very sloppy and lazy way and which relies on old Bills which were dusted down and reproduced rather than approaching today's problems in a more imaginative way. Sections 6 and 7 will certainly have to be redrafted. Deputy Mitchell's amendment is a considerable improvement on what is in the Bill and I will be supporting that.
A number of things occurred to me while listening to the debate on this section. I agree with much of what has been said. It is worth making the point — with reference to what Deputy Shatter said about David Irving and his presence in universities — that it is equally the case that a Jewish family walking to the synagogue on a Saturday morning or Friday evening should not be subjected to abuse by a bystander regardless of whether anybody would think they were going to retaliate.
There is a right to be protected from abuse in certain circumstances. Somebody — it does not have to be a member of the Jewish faith — who stands out in the community, perhaps to bigots, as a target for abuse should be allowed go about his or her lawful business without being abused. Black people and people going to the mosque in Dublin should not be abused or shouted at from across the road by people who think it is their right to vent abuse on them in public. I am conscious of the civil liberties aspect of this, but there is a right to be protected from abuse.
Another instance occurred to me while listening to the debate. I am aware of a case where a family was wrongly accused of sexually abusing one of their children. They were effectively boycotted and destroyed in their own community. The wife was abused on the road while going to the shop. Eventually, they had to leave the community under a police escort as it had escalated into intimidation. There is a difference between abuse and intimidation but it is not right that people think without any sanctions whatsoever they can go out on to the road and abuse people, shout at them or, in a civilised tone of voice, say hateful things to them.
I strongly feel that freedom of speech should be protected, but it does not entitle anyone in a public place to abuse other people. The average punter, whether he or she is of a religious minority or of a particular viewpoint, who is abused in public regularly when he or she goes out about their ordinary business has his or her liberty substantially diminished. If a person knows that when going to the post office or their place of worship they are likely to be abused, their liberty is restricted and their right to go about unmolested in public is infringed. The idea that there is some right to abuse people per se is not well founded and certainly does not represent the existing law. If we are changing the law, we should not scrap the protection of ordinary decent people from abuse.
Sections 6, 7 and 8 which, as Deputy Gilmore said, are a new departure in some respects, have to be carefully scrutinised. It is my view — I do not want to be disorderly here — that section 8 should be covered by the equivalent of section 6. There is no need for a special law to cover meetings and if we get section 6 right we will not need section 8.
In relation to section 8, the Language Freedom Movement had a meeting in the Mansion House in the late sixties. Their proposal was that Irish should not be compulsory and that their viewpoint should be given more weight. One of their meetings was disrupted by zealots of the Irish language movement. It is a fact — and there is no point in pretending otherwise — that it was done in utmost good faith. One man's legitimate protest — Deputy Shatter and I might think it perfectly predictable behaviour that a student rush up and grab a microphone in the middle of a David Irving meeting — is another person's fascist disruptive behaviour. The late Cardinal Ó Fiach was a professor of the Irish language in Maynooth at the time and was one of the people who took the microphone at the Language Freedom Movement meeting and disrupted it. He certainly was not doing it with the intention of committing a criminal offence. He was only doing it, I am sure, to loudly protest his viewpoint about our national language. What people do in good faith therefore is something which ought to be protected.
However, we should ask what is the purpose of disorderly conduct in public.
I wish to refer to the phrase "intention to provoke a breach of the peace". The amendment before the House misses the point slightly. If anybody makes a remark in public or behaves in public with the intention to cause a breach of the peace, it should be criminal. If one's intention is to create a row, a fight or disorder on the streets by shouting or roaring or by displaying placards, it should be criminal. The line must be drawn as it is in Deputy Harney's amendment with which we will be dealing later.
The phrase "or whereby a breach of the peace may be occasioned" is dubious. It is difficult to prove someone's intention, although where somebody does intend to cause a breach of the peace they should be stopped. However, what one person thinks is behaviour likely to give rise to a breach of the peace may well be thought by another person to be a bona fide protest of some kind. The Language Freedom Movement example would underline that point. It worries me greatly that the people involved in that protest or a student who gets into one of the meetings Deputy Shatter was talking about in Trinity College, UCD or UCC and protests vigorously, interrupts Irving's speech, grabs the microphone and says there was a holocaust can be accused of a criminal offence. That is why I have so many misgivings about section 8.
If we phrase section 6 correctly we can deal with all of these issues and section 7 and section 8 will not be necessary. I ask the Minister to maintain the right of people not to be abused in circumstances where it is intended to cause a breach of the peace by the abuse but to tighten up the phrase "or whereby a breach of the peace may be occasioned".
A long time ago a former member of the District Court bench was hearing a case and a garda protested that he had been abused in soldier's language and told to "* * * * off" by the accused in the court. The judge, in question, who knew this did not amount to conduct likely to cause a breach of the peace asked the garda why he did not. The difference is that there must be some intention or likely consequence that the public peace will be broken or that a crime will be committed.
I am sympathetic to later amendment which states that the concept of a breach of the peace should be put into a comprehensive statutory form, that is, that some criminal offence will be occasioned by it. Deputy Harney's amendment has merit which Deputy Gay Mitchell's, unfortunately, does not have in that she deals with this issue of unintentional behaviour which could give rise to a breach of the peace. I suggest that not merely should the words "or whereby a breach of the peace may be occasioned", be deleted, but a new concept such as recklessness should be introduced, instead of merely intending to cause a breach of the peace.
It seems that this Bill is designated to replace some provisions of the Dublin Police Act as far as Dublin is concerned. I do not remember the exact wording of that Act, but it also provided for the remedy of binding over. Does the Minister propose to allow people to be bound over to keep the peace and to be on good behaviour when they are brought in on offences of this kind? Is it intended to restate in a modern statutory form a right to bind over offenders?
It has been interesting to listen to the debate so far. However, financiers and lawyers could interpret the meaning of the words "insulting behaviour and insults". In this section we want to stamp out perjury and blackguardism. We are dealing with someone who intimidates an individual or a community and behaves in an insulting way towards them in order to frighten, intimidate or insult them. The language or behaviour of a person depends on the intention. The context and the intent are important because an insult is a subjective response, a personal response to a situation. As Deputy M. McDowell said in different phraseology, "one man's meat is another man's poison". This is something which is subjective and to which one would react. Sometimes an insult and poor taste are different things; they are not necessarily the same.
Politicians sometimes behave in a robust way; one cannot inhibit democracy. I approve of freedom of speech and freedom of expression. We live in a healthy and frank society now, particularly in the last decade or 15 years, in comparison to the first 30 years of self-Government in Ireland. We are too defensive and restrictive. Therefore, I approve of the changes, although sometimes one must listen to things one does not like and sometimes it is only a licence to people, including young people, to try to abuse individuals in a public place or on radio or television. We have all been lampooned, abused and insulted by people like that. Sometimes it is done in the wrong. These people have no facts or background information and inaccurate details are often written about an individual. However, that is the price one must pay for public life.
One area which has not been mentioned, Chairman, is the development of satire and comedy in our society which we have all suffered from. One must allow a licence in this area also, although sometimes it results in bad taste and insulting behaviour. I could mention one magazine and some programmes as well in this context. In fact, the Fine Gael Ard-Fheis on one occasion showed bad taste and I do not know if it was insulting behaviour. There was also a radio programme before the last Presidential election in which Deputy Michael McDowell took part, and I do not know if the remarks made were insulting or in bad taste. Certainly, he remonstrated with the person concerned and he felt it was wrong that certain things were said. These are arbitrary matters involving individual taste and response. One would not want to go too far in this area, as it is restricted. We must have a certain amount of respect for people's integrity, for the right to respond, to criticise, if necessary and to make facetious remarks about an individual. That is the price politicians pay. Therefore, we should not be too thin skinned.
I had a different example in mind when Deputy McDowell mentioned the language freedom movement and the disruption of that meeting in the Mansion House. That was a famous incident, but there was a more recent one which could be categorised as insulting behaviour also. It was when a group of farmers drove a flock of sheep to Government Buildings in Dublin. That was insulting behaviour to the sheep and to the staff concerned.
(Carlow-Kilkenny): The Government backbenchers.
The Government backbenchers and the Government were missing on that occasion. They were well away from the firing line. I use the word "firing" in the operative sense because the poor sheep were frightened and the place was dirty afterwards. That should not have taken place at all. It was wrong for those farmers to abuse the animals in that way. We hope it is the last time we see this insulting behaviour by those people.
I do not want to become involved in the area of restriction, as that would be dangerous for us. What is important is the intention behind the insulting behaviour or language used. One could face difficulties outside this context. We are talking about individuals who are intimidated or frightened in their own homes by people using slogans which are threatening, racist or sexist. If we discuss this in greater detail we could suddenly face legalistic terms which could become a charter for lawyers to exploit in time to come. I do not want this to happen. I want a robust, commonsense approach which will prevent intimidation and frightening behaviour by people in the community who are thugs and blackguards.
The debate has been extremely interesting. I am still unclear as to what the Minister is stressing in this section. The general consensus is that people are concerned about intimidating and insulting behaviour and about situations where people are threatened and frightened by undesirable elements in the community. There is a need to address this issue. This problem has been highlighted when discussing local authority issues, particularly in relation to housing estates throughout the city. People are afraid in their own home in case they may be insulted by gangs of youths or hooligans in various areas or treated in an intimidating fashion by people drinking cider or other alcoholic beverages.
I know of one school in my constituency where half a dozen cider drinkers stand every morning as the students are going to school and they are there when the students are leaving the school. It is an intimidating and insulting situation in a public place where people are congregating on a regular basis. Nobody would object to ensuring that such a situation is dealt with.
We must determine the extent of the intention of the matter we are seeking to deal with. It is important that we deal specifically with this issue. There is no doubt that sections 7 and 8 stray beyond this issue. They are straying from the area of the community into the area of political life, political meetings, industrial disputes and areas which are not directly concerned with the specific intention in section 6. I would like to see the matter addressed and know whether the Minister wishes to cover all areas. To my mind, three areas are covered. These are public order in the community, the political arena and industrial disputes. They are all separate issues and should be addressed separately.
In relation to the 1967 Bill from which these sections are derived, I have no doubt that there was a very definite political intent in the drawing up and compiling of that legislation. The number of prisoners is a gauge of the extent of crime in our society. If the Minister looks back to the prison situation of the mid-1960s she will find that there was then no problem whatsoever with prison accommodation and there was no"revolving door" situation. There were 400 to 500 daily occupants of our prison system.
Quite clearly there was no wild epidemic of crime in the community at the time. The 1967 Bill was discarded on the grounds that there was a public furore at the extent of the provisions included in that Bill because of the concern for civil liberties and because of the degree to which they were expected to impinge on the political arena and the industrial dispute area. Those are the matters I would like the Minister to address.
I have no problem in supporting the Minister fully in dealing with situations where the public are threatened, insulted and abused but I think this part of the Bill could also be improved. I appreciate points that were made, particularly by Deputy McDowell, that perhaps the last phrase of section 6(1) "whereby a breach of the peace may be occasioned", should not be part and parcel of the wording of this subsection because what we are concerned about, as Deputy Kemmy said, is the context and the intent of words or behaviour and if the product of these is unthought of or unintended, while it may be undesirable, it should not be criminalised. I am also concerned with the wording "engage in any threatening, abusive or insulting words". I do not like the use of a word as broad, as vague and as general as "any". It should be quite sufficient to say "threatening, abusive or insulting words or behaviour".
Deputy Shatter referred to the subjectivity of language. Deputy Kemmy referred to the satirical nature of much of the language we use. We have an international reputation for the type of nuances that we use. Some people may be quite insulted by some of the language we use. Somebody from another country, who would not be used to the type of banter we use, might find it quite insulting. Again it has to do with the context and it can be a very subjective matter.
How does the Minister intend to deal with the offences? An old chestnut of mine relates to the fact that we always seem to have fines and prison sentences to deal with any criminal offence. The suggestion that a person might be bound over to keep the peace is relevant in this area. Also, non-custodial sentences in terms of community service orders could be considered. I firmly believe that we should indicate to the judges concerned with these matters the type of sentences we consider appropriate for particular types of criminal behaviour. It is not good enough that all our legisation should provide for only two sanctions, fines and imprisonment. We should be willing to list the type of sanctions we consider appropriate for particular types of criminal behaviour. If we consider that being bound over to keep the peace is an appropriate sanction for this type of behaviour, that should certainly be stated. If we consider that the option of community service should be available as a sanction, that should be stated too as a direction and as an indication to the judges.
At this stage everyone is agreed that if a person engages in threatening, abusive or insulting words and he does so with intent to provoke a breach of the peace, that should be an offence. Everybody accepts that and the problem appears to relate to the situation whereby a breach of the peace may be occasioned. Clearly, it is true to say that a person may cause a breach of the peace accidentally by using insulting words. Such situations can, unfortunately, be envisaged and the question which then arises is whether or not the person who causes a breach of the peace by using insulting words, for example, should be deemed to be guilty of committing an offence. I suppose that any time you exclude the state of mind of an accused person from the criteria as to whether or not an offence has been committed, then you nearly always run into deep water. Nonetheless it also has to be said that intent is something that can be very difficult to prove. Therfore, I can well understand the Minister's desire to broaden the section in order to cover situations where the intent could not be proven.
To strike a fair balance the correct way to proceed would possibly be to insert the provision whereby if a person were to reasonably foresee that a breach of the peace could be occasioned, in those circumstances it should be a criminal offence and it should not be a criminal offence if it occurs by accident. If we exclude the words "whereby a breach of the peace may be occasioned" altogether then one is left in a situation where one would have to prove intent and, as I said, in many situations that could be extremely difficult although it would be clear that there was some intent on the part of the person to cause a breach of the peace. A reasonable compromise has to be struck and I suggest that this may well be a reasonable compromise which would ensure people's right to walk the streets in freedom and, on the other hand, ensure the expression of civil liberty.
I fully accept the need to be careful in devising public order proposals. All of us have said, one way or another, on several occasions today and also on the last day we discussed this, that we should ensure that a proper balance is drawn in terms of people's rights. I cannot accept that the use of insulting or abusive behaviour or the distribution or display of offensive material, where it takes place with the intent to provoke a breach of the peace, should not be regarded as a criminal offence. As a number of other Deputies have said, there are forms of behaviour which fall short of threatening behaviour but which, nevertheless, can be a cause of considerable distress to people and can interfere seriously with their basic right to peaceful enjoyment of their lives.
It would be wrong that a gang of youths should be free to shout abusive or insulting words at passers-by in a way that may very well fall short of presenting a threat but nevertheless can cause great distress. While not wanting to make a sexist comment, may I state that as woman who walks frequently, both in the morning and in the evening, I find that very often women are targets of such insulting and abusive words. Women who walk with young children, to or from a supermarket, may very often be insulted, threatened and abused by gangs of youths such as those Deputy Costello and Deputy Shatter spoke about. We must have legislation to deal with that type of situation. It is important, however, to realise that we and every member of the public can instance specific exceptions where we do not want the law to interfere and where there is no intention on my part of, indeed, on the part of the Garda to interfere with people's legitimate rights. We have those exceptions but we need enforceable legislation which deals with the problems we see developing around us.
Deputy McDowell is right; this section of the legislation is an updating of the Dublin Police Acts, 1842. The Law Reform Commission strongly recommended that the wording used in section 14 (13) of that Act which includes the words threatening, abusive or insulting had stood the test of time and should be retained. For that reason, it was decided, both in my Department and by the parliamentary draftsman, to retain that wording. The Act of 1842, which was only relevant to the Dublin area, made it an offence to use threatening, abusive or insulting words or behaviour with intent to provoke a breach of the peace, or whereby a breach of the peace may be occasioned. I accept that a number of Deputies have a problem with the latter part of that. Deputy Harney and another Deputy tabled an amendment to deal with it in the next section. We can discuss that part and maybe we could tighten the wording to ensure that we achieve our aims.
The Law Reform Commission proposed that the offence in the 1842 Act be updated and that is what we are doing here. We are not trying to introduce a new concept in the law. We are trying to introduce a law which reflects the modern realities that we face and which apportions and imposes appropriate penalties in cases of such misbehaviour.
A number of points were made by Deputies. Deputy McDowell and Deputy Costello referred to the provision in the 1842 Act whereby a person is bound over. I will see whether we have existing law which enables that to be done or if we need a specific provision in this Act. I will do that before Report Stage.
Deputy Shatter made the point that while I might not be able to accept Deputy Mitchell's proposal perhaps I could consider adding the word "intimidating". I propose to look at that very seriously and, if it is possible, propose an amendment on Report Stage.
We should look at various examples of threatening and abusive behaviour that do not amount to intimidation in certain circumstances but which must be tackled. On 17 July last i read an article in The Irish Times— I am not sure if any of the Dublin Deputies here today represent Ballybough — about a very serious case in which a young woman had been threatened and abused by teenage gangs in her Dublin Corporation flat. They daubed slogans on her walls, they called her names and held her up to ridicule. On a number of occasions she had requested Dublin Corporation to facilitate her with a transfer to another flat. Dublin Corporation could not re-house her. In order to get away from these teenagers who were being threatening and abusive she set fire to her flat. For anyone, particularly a young woman, to resort to that kind of solution and for us as legislators to say that because that was only threatening and abusive and, therefore we cannot deal with it in law, would be wrong. We must deal with such threatening and abusive behaviour.
I know politicians are supposed to be thick-skinned and able to put up with more abuse and threats then other people. However, when it extends to our families we have a right to protest. All of us have, at one stage or another in our political careers, been the target of abusive and threatening behaviour and the law should be able to deal with such behaviour. There is a right to protection from abusive and insulting behaviour and that should be available in certain circumstances.
A number of speakers, in particular Deputy Gay Mitchell, raised the difficulty about slogans or written material and wondered about the type of material to which this refers. I suppose material posted up outside Leinster House or outside a politician's clinic stating that the politician or the politician's party is involved in A, B or C is one form of intimidation. An even more serious situation and one we would like to deal with in this legislation, arises in the case of, for example, a feud in a housing estate where posters go up alleging all sorts of things against an individual or family living in that estate. That is very likely to cause a breach of the peace eventually. We must have some protection in the law for the individual or the family. That is important.
It has happened that houses, not just in housing estates, and buildings, offices or other premises have had slogans daubed or painted on them and that can lead to a breach of the peace. We must have protection in those circumstances as well. We are not trying to deal with the exceptional cases which were outlined whereby Deputy Shatter engages in a vigorous altercation outside a church gate in Dublin South — although I thought that they did not speak outside church gates in Dublin. We are trying to deal with genuine abusive and insulting behaviour. I think I have the support of the Members here in trying to deal with that.
Deputy Gilmore raised the issue of an industrial picket. He asked if this section of the Bill could be used to deal with somebody who calls a person who passes a picket a scab. First, I have already made the point that we are not creating a new offence. Secondly, it is a matter for the courts to decide whether a particular form of behaviour or words is threatening, abusive or insulting and, thirdly, the behaviour must be with intent to provoke a breach of the peace.
In relation to a breach of the peace, the Law Reform Commission — while acknowledging that historically the concept has lacked an authoritative definition — referred to a case in the Court of Criminal Appeal where it was said that in order to constitute a breach of the peace an act must be such as to cause reasonable alarm and apprehension to members of the pubic. As I said earlier, the view of the Law Reform Commisison was that the form of wording in the 1842 Act has stood the test of time and should be retained. It is not my purpose or, the Department's purpose, in this Bill to discourage what might be regarded as legitimate, albeit vigorous, dissent.
Under the present wording of section 6 difficulties are unlikely to arise in practice. For 150 years we have lived with or, as somebody suggested, we have been at the mercy of this wording and it seems to have worked well. While I would not be prepared to accept what Deputy Mitchell proposes I am inclined to agree with the suggestion made by Deputy Shatter. I would like to consider the inclusion of the word "intimidating" between now and Report Stage and if possible propose an amendment.
Is it the Minister's intention to add the words "or intimidating" or "and intimidating"? Is it to be threatening, abusive, insulting and intimidating or is it to be just one more alternative?
That is something I and my officials would have to consider in conjunction with the parliamentary draftsman and whatever is the most appropriate would be brought forward in an amendment.
I am thankful to Deputy Shatter for making the suggestion but my problem is that I do not believe that carrying a poster which is insulting should per se be a criminal offence. If it is insulting and intimidating, I can go along with that but insulting on its own is my difficulty. If the Minister is simply considering adding, any threatening, abusive or insulting or intimidating words that does not cover my concern but if the Minister is considering adding, threatening, abusive or insulting and intimidating words that would cover my concern. I am not being semantic, I am being very careful about the point. I am concerned that people should be able to carry insulting posters without being criminalised. That is their democratic right although we all may not like it and it may visit us all from time to time but if that poster is also intimidating then the person carrying it has stepped over the line and, in my view, has infringed on the rights of others. I am very anxious that the Minister would approach this in that way. If the Minister was prepared to consider the matter along those lines I would be happy to leave it to Report Stage.
A number of Deputies made the point that behaviour can be abusive or insulting without going as far as intimidating. My worry would be that if we now said that intimidating could only be added in the form of "and intimidating" we might well be leaving a loophole whereas the kind of behaviour which many Deputies have outlined, which is abusive and insulting, would then be taken out of the scope of the Bill by putting in "and intimidating" also. Behaviour can very often be abusive and insulting without going as far as being intimidating.
This is the difficulty I have, particularly in relation to section 7 which refers to the display in a public place of material rather than the spoken word. A poster can be abusive or insulting, it does not have to be both. Let us take the word insulting. If somebody carries a poster which is insulting it may well throw us into a rage and upset us, and it may well be very improper thing to do in the minds of the majority of people or in fact of any reasonable person, but the constitutional right of someone to do that should not be criminalised if carrying that insulting poster is not likely to intimidate. The other phrase, to lead to a breach of the peace, is very vague. I would be content to leave this matter as it is if the Minister undertakes to at least look at it. That is my concern. I am not trying to tie her hands but asking her to look at that before Report Stage because I am concerned and it is a genuine concern.
Nobody can condone abusive or insulting behaviour in a public place. None of us seek to do that, particularly for our wives or chidren or for people who might be frail or women who happen to be in charge of children and are in a position where somebody can take advantage of them or indeed a man in a position where a group or one individual can take advantage. Nobody wants to see that. I am not arguing in favour of or in support of that but it would be wrong not to question the issue of the written word and criminalising insulting posters and so on. That oversteps the mark and I would be happy if the Minister would look at that before Report Stage.
As I said I have a problem about what I detect as perhaps a slight but certainly an ambiguity in what Deputy Mitchell is saying. On the one hand Deputy Mitchell is asserting that nobody wants to see people insulted or abused by words, language, gestures or whatever. I am very sympathetic to that because I do not want to see them insulted or abused. On the other hand he is insisting that he wants the word intimidation included not as an "or" but as an "and". One cannot have the two and that is my view. If I am wrong the Deputy will tell me so. I am broad shouldered enough to be able to accept that I am wrong.
I cited a case earlier and I did not delay the committee proceedings by concluding the story. In that case a 96 year-old woman, and her two daughters, ended up, not through intimidation or threat but through simple abuse and offence, selling their house and moving out. They were never under storm from stones, missiles or anything else but simply from people congregating, offending and abusing them, calling them offensive names. They were very simple people but because people were calling them offensive names and abusing them with language and gestures they sold their house and moved out. I do not think that is good enough. We have a duty as legislators to introduce legislation to protect such people.
I accept the point made by Deputy Mitchell that if a poster states that Deputy Mitchell, and the Fine Gael Party, are a bunch of idiots he should not take great offence or it should not be taken as a form of intimidation of him. I am sure his shoulders are broad enough to be able to take that.
(Carlow-Kilkenny): It should be a criminal offence.
Any group that is targeted like that should not be facilitated by the law too readily and be able to take a person carrying an offensive poster against that group to court. I accept that point but there are exceptions.
The problems we come across in our constituencies relate to individuals who in the main are vulnerable, sensitive— not necessarily over sensitive—and who want to go about their lives in a peaceful, quiet and law-abiding manner, who want to go in and out of their homes without feeling that they are going to be embarrassed, insulted or offended. I do not believe necessarily that the Minister's form of words is right because I am not an expert on formulae of words, but I appeal to the Minister from my perspective, and from my experience with my constituents, to take into account the need to have legislation to cover those categories of persons without the necessity to have intimidation included.
If anybody carried a poster outside saying that Deputy Gay Mitchell and the Fine Gael Party were idiots it would be libellous since it would be in writing and inaccurate.
In relation to what Deputy Fitzgerald said, this section has consequences for trade union pickets, pickets at political meetings, postering, freedom to express a point of view and it does not, in so far as it goes, do anything to strike fear into the hearts of criminals. All Members should look at my argument. It is the duty of us all to look at the wording and its consequence. It goes beyond what is necessary to deal with a problem and I hope the Minister by Report Stage will have taken that view into account.
I am very happy that Deputy Mitchell does not want to nail down specific things today because we will all have a breathing space between now and Report Stage to look at the various points expressed today. Certainly I will take the opportunity between now and Report Stage to consider the various concerns expressed. There is more unease in relation to section 7 than there is in relation to section 6 because, if I have been listening properly to Members, and I hope I have, almost everybody who spoke felt that there were cases of threats, insults and abuse which did not go quite as far as intimidation and people were uneasy in relation to what might or might not be covered by section 7. I would also welcome the views of Members on this and if they forward them to me between now and Report Stage I will consider them.
I suggest to the Minister that the definition of public place in section 5, 6 and 7 should be amended to include, conduct in a place which is private property beside a public place. I do not see why somebody should stand in their front garden and bellow this and that at people and I do not see why they should display things like that in their front garden. As I said I do not see why youths should congregate on top of abandoned property or on factory roofs and break the public peace. Some definition change or a provision that conduct is deemed to take place in a public place where it is visible or audible in a public place, although it is on private property, should be inserted.
Amendment, by leave, withdrawn.
Amendments Nos. 10c, 11, 11c and 12 are related and may be discussed together by agreement. Agreed.
I move amendment No. 10c:
In page 5, subsection (1), lines 7 and 8, to delete "a breach of the peace or whereby a breach of the peace may be occasioned" and substitute "the commission of a criminal offence".
This amended seeks to delete "a breach of the peace of whereby a breach of the peace may be occasioned" and substitute the words "the commission of a criminal offence". The reason I suggest these alternative words is to make the Bill more definite. Much legislation, including the Vagrancy Act, which dealt with loitering, was in the past struck down because of its vagueness, and breach of the peace is a very vague term.
Under this legislation we are setting out a number of items which we say whould be a criminal offence and there is other legislation which specifies what a criminal offence is so that a garda who is prosecuting somebody should be able to say that it was the intent of a person to damage property, cause a riot or some other provision of the Bill or some other criminal law. I consider that the words used are very vague. Under section 25 the Garda Síochána will have the power to arrest without warrant any person behaving in the way which is considered here to be offensive. We may think it is of no concern, but it is of concern because of the attitude the courts will take to the words of a particular law.
I do not see why it should not be possible for this law to be specific. People may say that it does not really matter, that the courts will be vague about it, but that we can always rely on the courts to look at things differently. It is not just the courts who depend on legislation; so do the Garda Síochána. Everything we pass through this House is used by the Garda Síochána. I am concerned at the number of people who are arrested under the Offences Against the State Act. That Act was not intended by this House to be used for all sorts of general purposes by the Garda but it is. I am alarmed when I turn on the radio day after day and hear such and such a person was arrested under the Offences Against the State Act.
We have to be more specific in the legislation we are passing, because if people are arrested under the Offences Against the State Act for everything and if we pass laws here which in my view are not specific enough, the Judiciary will fill the vacuum left by the Legislature and protect the rights of individual citizens who are not criminals. Substituting the words "the commission of a criminal offence" in sections 6 and 7 would mean that a garda would have to be specific. He could not say that he formed the opinion that a breach of the peace was intended. He would have to say that it was intended to commit a criminal offence by way of damaging somebody's property or one of the other stated criminal offences we are creating. That is a wiser way for us to approach this legislation.
We may say that this sort of legislation has stood the test of time. If legislation had stood the test of time we would not have to be legislating day in, day out and, whether or not it has stood the test of time, we are now legislating for a century ahead. We are making law now which people will rely on in the future as a precedent when they say the words have stood the test of time. There is no reason we should not seek to be more specific. We are writing this law now and I would ask the committee and the Minister to consider the words I propose here instead of the words which are in the legislation.
It seems to me that not every breach of the peace is a criminal offence in the sense that, for instance, if people stood around you and you had to push them aside to go on your lawful way or if you had to start pulling people from the path of your car, that use of force would be lawful use of force and would be considered a breach of the peace without being a crime. Therefore, if somebody were to be surrounded by a sit-down demonstration in circumstances where that person would eventually be tempted to remove the demonstrators from in front of his car, he would be legally entitled to do so; but the force used in order to get rid of somebody might be regarded in law as a breach of the peace.
The problem with Deputy Gay Mitchell's amendment is that it would require a crime to be the result of the behaviour and that crime would involve criminal intent on the part of whoever was supposed to commit the act in question. It might be that a breach of the peace can take place where there is no criminal intent on the part of a person using force.
Did we take amendment No. 11a there as well?
No, amendment No. 11c is related to amendment No. 10c. We have not come to amendment No. 11a yet.
First, I would like to deal with amendments No. 10c and 11c, which are closely related. The present wording of sections 6 and 7 of the Bill is based on the wording of section 14 (13) of the Dublin Police Act, 1842, which the Law Reform Commission considered had stood the test of time well. I would see no advantage in departing from that formula in the absence of compelling grounds for so doing. I am prepared to consider further between now and Report Stage what the Deputy said in relation to substituting the concept of the commission of a criminal offence instead.
I have reservations about excluding from the offence behaviour where an intent to provoke the commission of a criminal offence or a breach of the peace may not be present but the behaviour is such that the commission of an offence my be provoked. If, for example, a person is reckless about the likely effect of his or her actions, particularly in the context of actions which already involve abusive, insulting or threatening behaviour, I am not sure that it would be appropriate to grant that person immunity from any criminal sanctions.
With regard to amendments Nos. 11 and 12, Deputies may be aware that it is the case that section 14 (13) of the Dublin Police Act, 1842, which provides for a similar offence to section 6 of the Bill, provides that the behaviour must be with intent to provoke a breach of the peace or whereby a breach of the peace may be occasioned. The Law Reform Commission in their report on that Act considered the effect of various English cases as to the mental element required for the offence to take place. While accepting that mens rea was the subject of some uncertainty in English law, nevertheless, in a subsequent section of the report the commission concluded that the wording of the 1842 Act had stood the test of time well and should be retained.
It is not at issue in amendments 11 and 12 that where the actual intent to provoke a breach of the peace is there, the offence should be regarded as having taken place. I would not be convinced, as these amendments would seem to involve, that if a person, while not having a specific intent to cause a breach of the peace, is reckless as to whether the behaviour may occasion such a breach, that no culpability should attach to that person. If I was satisfied that recklessness would be covered even with the deletion of the words proposed through general legal rules applying to the necessary mental element then I could see some merit in the amendments.
Obviously, this is a type of matter on which I would wish to have extensive consultations with the draftsman in the light of the points which have been made by Deputy Mitchell. In the absence of fairly compelling arguments to the contrary I would be inclined to go along with the views and recommendations of the Law Reform Commission in this matter. Like the previous discussion we had here, the concerns that have been raised by Deputy Mitchell and Deputy McDowell are points on which I would like to have consultations with the draftsman between now and Report Stage. Because there will be a gap between the two it will allow us that opportunity.
I was anxious to hear the Minister's response before I move the amendments in my name that have been taken with the amendments in the name of Deputy Mitchell. The Minister makes a very reasonable case that even though a person may not have intended to provoke a breach of the peace, their behaviour was so reckless that a breach of the peace was inevitable. Certainly, if the word "reckless" was included or a provision was made for reckless behaviour, I would be quite happy. I am, however, anxious that an ordinary honest-to-God bona fide protest or the expression of opinion is not going to be criminalised. I believe it is far too subjective and difficult to police and will become a law that is inoperafible. On certain occasions when the Garda may choose it will be used in a very discriminatory fashion against certain groups or individuals.
Much debate has been given to this issue this afternoon and we are all of one mind, more or less, in relation to what we want to achieve. We do not want the criminal law to be such that ordinary honest-to-God protest is criminalised. Such protest is important and healthy in a democracy and should be encouraged so people can give the alternate point of view, particularly given the huge size of the Government's majority and the fact that minorities may be totally oppressed if this type of majority were to continue—
Never.
—in future. I would be worried about the smaller parties in opposition in this House being able to freely express points of view that might differ from the Government's from time to time.
In her earlier response the Minister referred to the fact that women are often the object of certain insulting behaviour. That is certainly the case, but it is a very subjective thing. Some women regard certain forms of advertisements and the use of women in bikinis and so on, as very insulting to women in general, while other women do not necessarily take that point of view. I have often wondered why more robust women are not chosen for many of these advertisements, but that might be something else that is offensive to a different group of women.
This legislation came from the 1967 Michéal Ó Moráin Bill that did not go through. I took an opportunity to read that Bill a couple of weeks ago before we had our last meeting and many of these provisions are almost word for word. I do not know what the intention then was, because unlike some other Deputies I was still at school in 1967 and I was not too concerned about the criminal law or legislative proposals at the time. If however, it was, as Deputy Gilmore seems to think, to stop "lefties" from Trinity who might be against destroying Georgian Dublin, some people who might not be of the left persuasion who came out of Trinity College might have been against the destruction of Georgian Dublin as well. Whatever the reason for it, obviously it is legislation that we now realise is totally unnecessary and our society has evolved in such a way that there is a healthy respect in this community, I can see it growing all the time, for people who have a different point of view. That is what is often lacking in many other jurisdictions, indeed, in a jurisdiction very close to us in Northern Ireland where there is not a healthy respect for somebody of a different opinion.
We want to make sure that we do not make the criminal law so draconian that it covers ordinary, honest-to-God protest which, while well motivated, could cause a breach of the peace because people can get provoked very easily. Different examples were given earlier, but if a group of party members were coming out of their annual confernce or Ard-Fheis, buoyed up after their leader's speech, and a group of people stood outside saying that they were all crooks, that could certainly cause a breach of the peace and the intention would probably be for it to cause a breach of the peace. The intention is very important because if we do not make provision for the intention, given what happens in everyday life somebody could very well be the subject of the heavy hand of this kind of law.
I referred earlier to advertising and an advertisement that had to be withdrawn because the person subsequently felt it might have been in bad taste. They did not have to withdraw it, but I would hate to think that somebody who uses what they regard as reasonable advertising methods could suddenly be classified as some kind of criminal when no such intention was ever contemplated and their behaviour was not reckless. It may have been in bad taste but that is a different thing.
The Minister has adopted a reasonable attitude and I look forward to seeing what amendments she comes forward with on Report Stage to cover both the intention to cause a breach of the peace, and behaviour which was so irresponsible and reckless that, although the intention was not to cause a breach of the peace, that was the result. I would find that reasonable as well.
There is merit in these two amendments and I am glad the Minister is to have a look at both. Even though there are four amendments they relate to two substantial issues. At first sight, Deputy Mitchell's amendment would seem to be wandering into another area because we are creating a criminal offence through the use of threatening, abusive or insulting words or behaviour. Deputy Mitchell suggests that that would give rise to or provoke the commission of a criminal offence, so it seemed to be somewhat confusing in the manner in which it is directed. Effectively, what we are getting at here is that a breach of the peace is something which over the years is quite subjective in the perception of people who may be charged with breach of the peace compared to the garda who is actually performing the arrest. Very often there would be a perception that there are high spirits, or a row is created, and you can bait or be abusive to a degree and create a scene that can be interpreted as a breach of the peace. The question is: what should be the extent of provocation, and how serious should the insulting or abusive language be, or how regular should it be before a breach is committed? A breach of the peace is in many ways subjective and can be quite vague, but if it is going to provoke the commission of an offence, either by retaliation or by the scene that is created, then we are moving into another arena. It is important to look into the substance of Deputy Mitchell's amendment because we have to be careful about what we criminalise in a democracy.
Deputy Harney's remarks in relation to the previous amendment concerned the question of intent, and that unless there is an intent on the part of the person who is saying the words, then it is very difficult to say that a crime has been committed. Whether the occasion will arise is another matter. The concept of recklessness goes half way down the road towards it. I would prefer a clear requirement that there be some evidence of an intent to provoke the person to breach the peace or commit a criminal offence rather than leaving it to a subjective assessment of whether or not there was reckless behaviour. The introduction of the word "reckless" in this area adds too many conditions. I suggest to the Minister that the straightforward amendment from Deputy Harney might be the best avenue to pursue.
With the permission of the committee, I might withdraw amendment No. 11 (a) since that section was dealt with. The Minister is going to look at the section and I do not want to engage in repetition.
If I could understand what "breach of the peace" means, I might not press this amendment. It is a very vague term and one which is relied on in very general circumstances. It should be possible for us, as a committee of the Dáil, to require that a specific criminal offence be mentioned. We create criminal offences, some in this Bill and more in other Bills; in this Bill we are making trespass, violent disorder, riot, affray, blackmail, assault and obstruction criminal offences.
Under this section it should be possible, having arrested somebody and escorting them to the station, to specifically charge them with having had, for example, intent to damage property or cause a riot. I do not see why it should not be specific. It should be specific in the interest of protecting the public and also in the interest of protecting the legislation. The more vague terms one has in legislation, the greater likelihood that it will be overturned if challenged or referred to the Supreme Court before it is signed into law.
I am grateful to the Minister for saying that she will look at this matter. I again note that she is not giving me any commitment as she did on other sections where she said that she would bring forward an amendment. Perhaps the Minister could explain to the House, while we are debating this amendment, what the term "breach of the peace" means and why is it not possible to specify what the particular criminal offence is? Once we have defined a criminal offence, it should be possible for a garda to charge somebody with a criminal offence. The term "breach of the peace" is very general and far too vague. It could result in this legislation being set aside as the legislation in relation to loitering was set aside due to a similar broad interpretion and doubtful constitutionality.
I am not a lawyer and neither is Deputy Mitchell. There are a number of lawyers — and there is certainly one here — who can explain this much better than I can. Historically the concept of a breach of the peace has lacked an authorative definition. The Law Reform Commission referred to a case in the Court of Criminal Appeal which I talked about earlier where it was said that in order to constitute a breach of the peace "an act must be such as to cause reasonable alarm and apprehension to members of the public."
My understanding is that breach of the peace is a well established concept in law and it has been tried and tested for many years. Breach of the peace seems particularly appropriate to a public order Bill because what we are trying to prevent here are breaches of the public peace. I cannot explain further what a breach of the peace is other than what the Law Reform Commission have said with reference to the Court of Criminal Appeal. I am not sure that between now and Report Stage I could do any better or explain it in any greater detail than that. Deputy McDowell, by virtue of his knowledge of the law and his practice of the law for many years, might be able to help me in relation to that, or indeed Deputy Ryan.
Deputy Ryan's practice of criminal law is well known. A breach of the peace is as far as I know — and I certainly would not attempt a definition—a very old idea. It originated in the concept of the king's peace which is a medieval notion that public order was the king's peace and peace officers, who preceded police officers, were people who were empowered to act to prevent ruptures of public order. It is a somewhat circular definition; I do not think there is any authoritative definition. The Minister might take a look, between now and Report Stage, at countries such as Australia, New Zealand and America. These are jurisdictions where they have attempted to reduce "breach of the peace" to some kind of concise formula that ordinary people can understand.
It is unsatisfactory that we should continue to rely on a very vague concept. I sympathise with what Deputy Mitchell is saying about continuing to rely on a concept which is basically a common law concept and where, reading between the lines and from what the Minister said earlier, there is a difference between English law and Irish law. Conduct likely to cause a breach of the peace in England can take place without any mal fides intention, whereas in Ireland it requires some degree of criminal intent.
It is desirable that we should attempt in this Bill to break away from vague common law principles and attempt to introduce something modern and concise if it is available. If it is not available, I would agree with the Minister's view that we might as well proceed with the looser concept that operates at present. If there is some clear, understandable definition that will serve, I would agree with Deputy Mitchell that we should put it into the Act so that everybody who picks up the Act, having been accused of an offence under it, would know either through commonsense or ordinary language whether he or she has committed a breach of the law.
Amendment, by leave, withdrawn.
Amendments No. 11 and 11a not moved.
Question proposed: "That section 6 stand part of the Bill".
I will not speak at any great length. We have already covered much ground and, rather than get involved in rhetoric, we should try to make some progress and improve the Bill as best we can. I am concerned about the words used, particularly the word "insulting". My concern is more in relation to section 7, but I still have some concern in relation to section 6.
A breach of the peace is an old concept. What a garda might consider a row of words is very vague and cannot be defined. Under section 25 of this Bill the Garda will have the power to arrest, without warrant, any person behaving in this way. I believe the other words to "provoke the commission of a criminal offence" would be better.
We have discussed the amendments to the Bill and there are other sections of the Bill about which I have grievous concerns. However, I hope the Minister will try between now and Report Stage to take into account the various points she said she would look at so that we can agree on this on Report Stage.
I want to raise one point which I have been making in public for some time. It is the question of imposing a prison sentence here. My view is that we must use prison space efficiently and effectively. I will not discuss the problems and difficulties at the moment, but suffice it to say that we should not lightly impose prison sentences in cases where the person is neither a danger to themselves nor to the community. Fines can often be more effective, provided the fines are fully paid and there is attachment of earnings, etc., which the Minister is considering.
I have not put down an amendment to this. I am raising it because it is too easy for somebody to go to jail for one, two or five days and that is the end of the matter. It would be more effective, when dealing with the matters in sections 6 and 7, to adhere to the imposition of a fine, particularly if that fine had to be paid by way of attachment of earnings, if necessary, and if it was effectively enforced, which is not the case at the moment, rather than sending somebody to prison a cost of approximately £100 per day. We cannot afford such accommodation. It will cost approximately £125,000 to provide one new prison cell or space for one prisoner. Therefore, we need to be careful. It is too easy to state "a fine or time in prison". As our law stands, the failure to pay a fine automatically results in a prison term which is equated to the fine, that is, so many days for a certain amount of money. We are clogging up our prison system, our courts and our criminal justice system with unnecessary bureaucracy. We are not dealing effectively with this matter.
I have already said to the Minister that I have dealt with parts of my constituency where it is a status symbol for individuals to spend a month in the "Joy". The revolving door philosophy which now exists is a farce. Therefore we need to carefully examine any new law we introduce, to see if it is necessary or not. It is either "and/or" to a fine or imprisonment or both and, perhaps in most cases district justices would take the view that it should only be a fine. However, if the fine is not paid the person will go into detention for a certain length of time. That is a waste of scarce and expensive prison accommodation. I did not table an amendment, but I would be interested to hear the Minister's response.
I did not think we would refer to this issue but I am glad Deputy Harney raised it. I strongly agree with her in relation to prison sentences, particularly because of the nature of the offence deemed to have been committed. While I agree with her proposal that the imposition of a prison sentence should be deleted, I would not agree that it should simply be a matter of a fine. There should be an alternative. I do not know if we are allowed to use a formula of words here but it should be, say £500 or a community service order, or both. While I agree with Deputy Harney and the sentiments she expressed in relation to the need for deletion of a prison sentence in this category of offence, there is a need to consider the substitution of a community service order, or some such order when the Minister is reviewing this issue.
Like my colleague, Deputy Gay Mitchell, I have always been of the opinion that prisons should be places for those who commit serious crime to serve their full sentence, and not a place for offenders who could be dealt with more adequately in a different fashion. We do not insert sufficient legislation dealing with community service orders and we should specify that, rather than the usual six months in prison. As we all know, there are cases where the fine will be relative to the income or the circumstances of the individual, depending on what the court may decide. However, the use of the community service order, which means that somebody who is engaging in anti-social behaviour must put something back into society, is a better way, in my opinion, of dealing with some of these instances where the only alternative open to the court is imprisonment.
Am I correct in saying that under this section it is a £500 fine and/or six months imprisonment? However, in section 9 the Minister is giving powers to the Garda to instruct a person who is found in a public place and is suspected of acting in a manner contrary to the provisions of sections 4, 5 and 6, to desist from acting in such a manner and to leave the vicinity immediately. This is something we all agree with in so far as, depending on the seriousness of the incident, the garda on the spot will decide if this person is intent on breaching the peace or if it is one of those situations where he or she will say "move on", or "stop doing that", or "stop using that language". If the person fails to stop, under section 9 the penalty is also £500 and/or six months imprisonment. Therefore, if gardaí tell a person to move on and that person fails to do so, will a 12 months sentence and a maximum of £1,000 fine be imposed? That is not what is intended here.
The use of section 9 is important considering the debate we have had both this morning and this afternoon about the occasions when the sections of this Act would be used. In many cases I hope it would be sufficient to give the Garda power to order the person to desist from acting in a certain manner or to leave the vicinity immediately. That may solve the problem as it is a power which is not there at present. All of us who go to public meetings listen to the public asking us why gardaí cannot move people from a particular place, why they cannot move them on. Gardaí do not have the power. Under this Bill they are getting the power which, in many cases, will be sufficient. However, I would hate to think that a person could get 12 months in prison under sections 6 and 9 if a garda asked him to move on and he refused. Community service orders would certainly be more effective in many cases. However, the idea of 12 months and a £1,000 fine is not reasonable. Therefore, I ask the Minister, when replying, to refer to the points I have made and tell me whether they are valid or not.
I have one brief point on the section in relation to the points made by my colleague, Deputy Barrett, and others. In reply to a question from me the Minister said, if I recall correctly, that approximately 1 per cent of the prison population at any given time were people who had not paid fines, but that approximately 14 per cent of committals to prisons were people from that category. The Whitaker report had a higher estimation. Therefore, I can only assume it has come down since 1985, presumably as a result of Whitaker. However, the cost of a prison place is approximately £35,000 per year and the capital cost of the cell is approximately £200,000 per year. We do not have enough places for those violent criminals who are out on the street, yet there are people—approximately 200 per year — committed to prison for non-payment of fines. The prison population at any one stage over the year would be approximately 1 per cent, which would equate to approximately 200 people. The whole rigmarole that has to be gone through in committing people for non-payment of fines, which may include taking them to a Garda station or to prison before the fine is paid, puts a huge burden on the criminal justice system and brings it into disrepute. Since we are approving penalties in this and other sections of the Bill, I ask the Minister to consider, where fines are applied but are not paid, having alternatives available like attachment of earnings, attachment of social welfare, seizure of assets or community service orders.
Let us take the example of persons who do not pay their television licences. They are taken to court, the judge listens to all the arguments and imposes certain fines. Perhaps they petition the Minister, the Minister finds grounds to mitigate them and gives them more time etc. If they do not pay the fine the last place they should be sent is prison because that would impose a further penalty on the rest of us as it would cost a huge amount of money. Also, it may mean that a place cannot be found, when the urgency arises, for somebody who is, perhaps, violent. What should happen in that case? Should the television or some other asset be confiscated? No person is without income, whether it is social welfare income or whether it is a wage or a salary. No person is without some form of asset. I am not from the "hang' em and flog ‘em" brigade and I have no time for that sort of philosophy but we have to use the resources available to us wisely and they should be managed.
At present we are using the machine gun rather than the marksman's rifle and we are missing our target by a broad shot rather than a long shot. The way we have to go is to say to people the fines are imposed, they must pay those fines one way or another and we are not going to incur further expense on the taxpayer by providing additional prison places simply to accommodate their intransigence and disrespect for the system. Far from penalising those people we are actually penalising the taxpayer.
My suggestion perhaps is not an easy concept to implement in law but it is one which should be considered. It may well be that enabling legislation would allow us to apply those provisions generally to the criminal law where fines are applied rather than having to include it in all legislation. It may be possible to introduce an enabling Bill which would cover all legislation and this is what we have to do.
In relation to all these matters, where the District Court is empowered to impose sentences — I hope the Minister does not take a defensive view on this — it has been my experience over a long time, although I do not go to that court much now, that a number of District Court judges, as they are now called, are tempted to give offenders heavier penalties than they think really appropriate in order to give the offenders a shock while keeping in the back of their minds that the offender can appeal those penalties to the Circuit Court and probably have them reduced. This results in injustice in two ways. First, some people do not appeal the decision for whatever reason because they are frightened that it might be increased even further and they are shocked enough by the penalty they get. Second, it clogs up the system with people making appeals to the Circuit Court.
As to how that problem should be remedied I do not know but three months imprisonment, whether it is three months actually served or even if remission is granted, for a public order offence is a huge amount of time for words or whatever spoken in public. We are inclined in this day and age to think that unless a sentence runs into six months or a year it is not a sentence. To put somebody behind bars for one week, one month, two months or whatever is a very substantial sentence and I deprecate the constant use of six months as the norm for these summary offences. Six months is a very long time to serve in jail for what is after all a minor offence by constitutional yardsticks. We should have a review on some other occasion of sentences being handed down.
The Minister should consider bringing in a Powers of Court in Criminal Offences Bill to lay down a direction to the District Court bench that first time offenders should not go to jail unless the court certifies that there is no other way of dealing with them instead of leaving it to the discretion of the district judge. To send a first time offender on a minor offence to jail is a terrible thing to do. There would have to be extreme circumstances justifying the imposition of a prison sentence on a first time offender on a minor offence. In England, there is the Powers of Court in Criminal Offences Act and I note their experience has not been entirely happy from laying down prison sentence policy in statutory form.
The time has come for our Legislature to look very carefully at the maximum sentences we propose. Three months is probably enough for any of the summary offences created in this Bill and if people did serve three months — at present we are led to believe it is very rare that they serve the sentence imposed on them — justice would be done for public order offences.
Somebody made the point that in the 1960s when the former Minister for Justice Michael Ó Móráin, was drafting the Bill on which large parts of this Bill are based, there was an ambient prison population of 500 or 600 and that there are now 2,000 people in jail. We are now in a position that if somebody is remanded in custody pending trial, a convicted person has to be released. There is a great deal of hypocrisy spoken in this society about the bail system. People want to make it more difficult to get bail but the reality is that people who are refused bail are brought to Mountjoy and the result is that a person who has been convicted of an offence is released early. That is the result of refusing people bail while there is an inadequate number of prison spaces. We are codding ourselves if we think we can firm up our laws on bail by making it more difficult to get, if at the same time the consequence is that the people who have been convicted, as opposed to those who are merely accused, are put out on the streets earlier.
We should set sentences here which we think are appropriate. I cannot imagine circumstances where it would be appropriate for offences involving words or insulting behaviour to imprison a person for more than three months. We should be sparing in the maxima that we set and on this occasion we should content ourselves with say, three months imprisonment for the lesser offences created by this statute. I am not talking about the riot and the indictable offences. We should also encourage the Minister to bring in a general law, the gist of which would be that first time offenders on minor offences should never go to prison unless the judge certifies that by reason of the crime or the nature of the offender there is no other reasonable way to deal with them. As Deputy Mitchell said, we have a limited prison structure which is obviously under massive pressure. The Taoiseach, and the Minister, have more or less acknowledged that by talking about the necessity to build extra prison space and about the review of prison space that is in hand.
We have to look carefully at occasions when District Court judges are imposing sentences of six months on people who appear before them and ask whether six months is necessary. Would the same result, whatever it is, not be accomplished by a three month sentence? Is there some huge difference between three and six months and is that the right way to respond to the crime in question? I also believe that combinations of prison and fines should be used and that the method of recovering fines, as Deputy Mitchell pointed out, should be reviewed. It would be more to the point, instead of giving somebody a three month sentence, to impose a sentence, if one was absolutely required, to, say, one month in addition to a £500 fine and to make sure that the fine was paid rather than sending the person to jail for a further few weeks as a sanction for not paying the fine, for example, the deduction of payments either from wages or from social welfare payments.
We have a crisis in our prisons at present. There is no point in codding ourselves that we do not have a crisis. The Minister is doing her best to manage that crisis, but the public is aware that the prison system is not adequate to deal with the sentences that the courts are handing down. I do not want to be misrepresented as somebody who is soft on offenders, but I believe that many distict judges are imposing excessive sentences on first-time offenders. Many of them do not use the system creatively to inflict an appropriate punishment which would be less taxing on the resources of our prison system.
If it is true, as was stated earlier, that 500 or 600 people was the average prison population in the 1960s — which surprises me — and that we were living well within our means as far as occupancy of prison cells is concerned, it is a frightening fact that now the situation has changed dramatically. The present pattern of sentencing is clearly failing and it is about time that this House defined an effective policy on prison sentences. I agree with the point made by Deputy Mitchell and Deputy Barrett that to sentence somebody for two connected offences under this Act to 12 months in jail is nonsense. I find it worrisome that in sections 6, 7 and 8 we are fixing prison sentences and I note in section 8 there is a three month sentence with the same fine. I do not know why sections 6 and 7 were considered to create less serious offences. I know it is not an exact science, but I do not see any philosophy or coherent policy in the sentences which were recently outlined for different offences. I would like the Minister to indicate whether it would have been possible in sections 6 and 7 to reduce the maximum sentences to three months.
I can certainly look at the Deputy's proposal regarding the reduction of the prison sentence. When discussing the Department of Justice Estimates we have had lengthy debates in this House, in the other House and in this committee, about general prison policy. Deputies are aware of the prison review, which is almost complete and which will look at more than just accommodation within the prison system. Deputies are also aware that the Law Reform Commission has a discussion document about sentencing policy and that it will soon present a final report on this issue, and I look forward to receiving that.
If there is a necessity to introduce composite legislation to enforce the recommendations of the Law Reform Commission on sentencing policy I will be delighted to do that very quickly. I realise that there are concerns about the uniformity or non uniformity of sentences being handed down by members of the Judiciary. I am precluded from being critical of those — although I am often tempted to be — and therefore the road the Law Reform Commission will recommend in its final report is the road we must travel. I will be delighted to do that and I know that I will have support from this committee in doing it.
I accept that there should be greater flexibility in sentencing policy and that there are many offences for which the punishment of a custodial sentence is not suitable, where it is often more difficult for somebody to perform a community service order than it is to go, as Deputy Harney suggested, for a month to prison. The point made by Deputy Mitchell and others about imposing an attachment of earnings order is important and worthwhile and it is being looked at carefully. I am not sure whether the recommendations will include confiscation of an asset to the value of the fine, as Deputy Mitchell suggested.
It is relevant to point our that the Bill only suggests what the maximum sentence should be. It would be a matter for the district judge or the judge concerned to vary that from as low as a month to the proposed maximum. I am concerned about the suggestion made by Deputy McDowell. I was not aware that certain district judges feel the necessity to impose a very high prison sentence on the basis that it is a shock to the system and is thus a deterrent. Those matters will be taken into account by the Law Reform Commission in its sentencing policy document.
It is true, as Deputy Mitchell said, that about 1 per cent of the prison population — which would be about 22 people — would on any given day be serving a custodial sentence for non-payment of fines. They would be in open prisons where there is minimum security. I accept that there are difficulties in our prison service. We are trying to manage it in the best possible way and we will make changes and improvements to the system which I hope people will find acceptable. It cannot happen quickly, but I am committed to making such changes.
I am conscious of the point made by Deputy Barrett in relation to section 6. He inquired if an offence which was committed under section 6, which would lead to a fine not exceeding £500 or to a prison sentence not exceeding six months or both, could then be added to where somebody committing that crime had refused to move on when asked by a member of the Garda Síochána. It is conceivable that the two could be combined and that you could in effect be fined £500 for the offence under section 6 and a further £500 for the offence of not moving on when asked to do so by the garda. In practice one fine or one term of imprisonment would be imposed and not both. That is the practice that has developed in law over the years. I cannot give a guarantee that what the Deputy suggested might not happen.
Question put and agreed to.