I move amendment No. 25:
In page 8, subsection (1), line 20, to delete "shall commit the offence of affray" and substitute "shall be guilty of the offence of affray".
SECTION 17.
Amendment agreed to.
Amendment No. 25a not moved.
Section 17, as amended, agreed to.
NEW SECTION.
I move amendment No. 26.
In page 8, before section 18, to insert the following new section:
"18.—(1) Any person who dishonestly and without claim of right made in good faith and with the intention of securing for himself or some other person any advantage or gain, direct or indirect, threatens any person to cause damage, a disruption to the property, business, trade or profession of that person or any other person, or to interfere unlawfully with the person or property of any employee or customer of such person or threatens to commit any offence against any person or their property, shall be guilty of racketeering.
(2) Any person who dishonestly, directly or indirectly communicates or makes known to another person a demand for protection money or who collects, handles, or receives protection money or who dishonestly offers or provides a protection service shall be guilty of racketeering.
(3) Where in any proceedings under this section it is shown that a person engaged in behaviour giving rise to a reasonable inference that its object was to create apprehension in the mind of another person, it shall not be necessary to prove that any explicit demand or threat was made by such person if the Court is otherwise satisfied that the behaviour was intended for the purpose of racketeering.
(4) In this section ‘protection money' includes money and money's worth or other valuable consideration sought by one person from another in circumstances where payment or delivery is not warranted by a bona fide commercial consideration.
(5) A person convicted on indictment of an offence under this section shall be liable to imprisonment for a term not exceeding 20 years or to a fine or both.
(6) A member of an Garda Síochána may arrest without warrant any person whom he reasonably suspects is committing the offence of racketeering.".
I raised this issue with the Minister on a number of occasions, it relates to the whole problem of racketeering which is a major problem, particularly in this city. In many parts of this city — and perhaps in other cities — the demand for the payment of protection money is very extensive. Many business people cannot afford to operate in certain parts of the city because of racketeering, protection money and blackmail racket operated by some individuals. It is not an offence to pay protection money. The Minister has gone some way by making a provision in this legislation in relation to blackmail, extortion and demanding money with menaces but the section 18 as proposed in the Bill is very weak.
Its main weakness is that it does not go as far as the amendment in my name but, more importantly, it does not make it an offence to pay protection money. Only last week I was told by a newspaper journalist that much comment was made, while I was abroad, that certain individuals have to pay money or their equipment on building sites will be stolen and so on. They have to pay large sums of money not because something will necessarily be damaged but the threat of damage is used as a blackmail threat with the intention of getting money rather than the equipment from the people involved. In many parts of the city one cannot get insurance, and insurance costs have escalated. In a society with so much unemployment we need to help and encourage those who are enterprising enough to establish business, make it easy for them rather than making it impossible in certain places. Their businesses are damaged, their stock interfered with and their families threatened; they have even been kidnapped. In one case that I referred to before in this House a young business man in Dublin, was threatened on a number of occasions that if he did not cease business in a particular area or pay protection money to a certain individual his premises would be burned down. The threat was carried out and just as he was about to reopen, having refurbished his premises, he was shot and spent many weeks in hospital. Indeed he has not yet gone back into business and that happened in February of this year. It is a serious problem and one we must take seriously. I know the Garda Síochána established an opertion some years ago called "operation Jolly" to deal with racketeering which was extremely successful in certain counties. the IRA'S financial contacts abroad, particularly with Libya seem to have dried up it has used protection and racketeering money as a way of funding its operation. It is a serious matter and is putting money into the hands of very serious criminals, it is much more serious than other offences for which we have very large penalties. I am particularly keen to have not just a more comprehensive provision in this Bill than is in the Minister's Bill but also to ensure that the payment of protection money is also regarded as an offence. That would have two effects. It would be a deterrent to help those from whom protection money is sought that if they paid the money they would be committing an offence. It would afford them a useful legal redress that they do not have at present. The person demanding the money knows that the payment of money is not an offence, so the person who pays cannot be prosecuted as I understand it.
I believe also that this would indicate that we take a serious view in society of demands for protection money and the payment of such moneys and that we are sending out a clear message to those involved in the payment of protection money that it is not acceptable to be assisting criminals and paying money to persons engaged in illegal activities. At the end of the day the customer, the insurance companies and all of us in society, consumers of products and of services, tend to pay the price for such activities. Through our insurance premiums or in the prices we pay for goods and services it is we who will fund the activities of these individuals.
I do not know if the Garda ever had an operation subsequent to "Operation Jolly", which I read about in Garda Review. That operation took place over two years ago and was in relation to video piracy and the making of illegal videos. The Garda came up with substantial moneys during that operation. They estimated that they had seized illegal videos valued at approximately £3 million. Substantial moneys are involved. It does enormous damage to legitimate business and makes it more difficult for people to survive. We know the consequences of this type of activity in Northern Ireland. Only recently has it begun to extend into the Republic and become, unfortunately, all too apparent in certain parts of this city and county.
Business people are often reluctant to talk about this problem for fear that will encourage further demands, but certainly those who are not in a position to either pay or who are too strong for the criminal involved will probably have their premises destroyed. I am not so sure that the law alone can deal with the problem, but the law must play its part. We have made strong provisions in this and in other legislation recently to deal with many of the problems apparent in our society from a criminal point of view. We have sent out clear signals, both to the Judiciary and to those involved in crime, that these kinds of activities are not acceptable. I do not have great wisdom in regard to this area. However, having spoken about this to the young man who was shot and having spoken to the Garda and some business people in the insurance area, they tell me that this problem is far more widespread in our city — and, I assume, in other areas of the country — than many of us realise. I feel quite frightened about that.
It is not acceptable that illegal organisations and those involved in illegal activities should find it so easy to continue their practices. Because the law is inadequate in this whole area they are able to get moneys through blackmail, extortion and the demanding of money with menaces. Of course, this crime does not only involve money. That is why my amendment refers to "money's worth." It does not necessarily have to involve cash. We need to ensure that not just money in cash but money's worth is included in the Bill.
I am happy to see this section of the Bill. As regards the amendment, if it would strengthen the Bill I would be happy to support it, but I would like to hear what the Minister has to say about the proposal. I do not see much difference between inserting 20 years and 14 years, as the Bill proposes. Fourteen years is a fairly stiff penalty and anybody who thought they were going to prison for half or three-quarters of that time would think twice before becoming involved in extortion and blackmail.
There seems to be reasonable grounds to suspect that there is in existence an extortion and blackmail racket involving demanding money with menaces. Apart from demanding money with menaces, the latest activity is to steal a car or some other vehicle and only return it to the owner on payment of a sum of money. This is a racket and a form of blackmail which I would not like to see gaining currency.
Because of the nature of the crime I do not know the extent of this problem of blackmail, extortion and demanding money with menaces. If a person has agreed to pay extortion money or to pay money on demand with menaces, he or she is unlikely to reveal that they are doing so. They will either refuse to pay the money and then go to the Garda, or they will keep quiet about it. Therefore, because of the nature of the crime it is not one which is easy to measure, but I am concerned at the vibes one receives from the community. There seems to be in existence — however widespread it is I do not know — a blackmail and extortion racket to some extent. I can date this back to around 1986 because we had a crime, lawlessness and vandalism committee at that time. I recall being interviewed for an RTE programme. I was asked by the interviewer if I was aware that such activities were taking place in this city and replied that I was not aware of specific examples. Some examples were put to me, one of which was quite tenuous. However, since then one hears people saying that these activities are taking place, but I have never been able to come up with a substantial case. If there is the suspicion that it is happening, and is likely to gain currency, then we are on a slippery slope. I believe it is more than a suspicion and that it is actually happening, but I do not know the extent of it.
Providing a section which says "on conviction on indictment to a fine or to imprisonment for a term not exceeding 14 years or to both" is the right way to address this problem. Deputy Harney's amendment is quite detailed and gives us an opportunity to tease out the various aspects of blackmail including, as the amendment says, protection money. If this type of activity is taking place it must be stamped out as a priority. Where would it all end if it were to gain currency? It is not a crime which is immediately obvious. If somebody beats up a person there is evidence that that person has been beaten up. If somebody steals a car there is evidence that it has been stolen, because it has disappeared. But if somebody is extorting money from a person the outward appearances might not indicate that it has been done.
It is a very sinister crime. It might involve initially only one or two businesses but very soon it becomes the order of the day. It will be regarded as a handy way to obtain money from people. All one has to do is offer a couple of fellows who will mind the door. I do not know whether that happens or not. I believe that many criminals get ideas from some of the more novel films they see dealing with happenings abroad based on fact. In Northern Ireland there is very strong evidence to show that this crime is happening there and I suspect strongly in this city also. If it is happening in Dublin it is likely that it is happening in other places around the country.
I welcome the section. If this amendment would strengthen the section I would be disposed to supporting it. However, I would first like to hear the Minister's comments on the amendment. Of all the sections in the Bill this is perhaps the section which we must approach with the greatest concern and provide with the heaviest of penalties because of the nature of the crime. To wilfully plan to threaten somebody, to extort, to demand protection and to carry out the wilful destruction of somebody's property for the non-payment of protection moneys is a very sinister crime. It involves our shops and business premises today but it may involve our homes, perhaps our cars or other property tomorrow. We must take a strong stand on this, I am happy with this section in the Bill and if the amendment would strengthen it I would be happy to give it support.
Listening to the speaker and the suspicions he may have in relation to the racketeering in Dublin city I am sure, unfortunately, that there is a certain amount of racketeering in the city. I tabled a parliamentary question and also questioned the City Manager in relation to racketering. Unfortunately, I do not have the replies with me but I recall they said there was no evidence of such racketeering in the city. At the end of the day the production of evidence that there is racketeering is essential. I do not know how this can be achieved but perhaps the Minister is aware of the fact that there are schemes — for want of a better description — operating in the city of Dublin and perhaps in other areas. They are escalating and the Garda Síochána are probably aware of these activities. Indeed, I am aware of violent behaviour which has led to deaths which has been partly reported in the newspapers, all related to racketeering, but the biggest problem is in the production of evidence to apprehend the people involved.
I am sure the Minister would like to address the problem of racketeering but I am not sure whether this section is the right way to go about it. However, the problem exists and is causing serious problems in certain areas of the city at present for small businesses. I do not know whether it will escalate further.
I share the concern expressed about what is happening in this city. There is no doubt that there are certain well known areas where the payment of protection money is, unfortunately, all too common. I have been trying to work out the exact difference between the section presented in the Bill and the amendment presented by Deputy Harney. It seems that Deputy Harney's amendment elaborates somewhat on the circumstances where one could reasonably infer that protection money is being demanded or paid and, to that extent, it can be helpful. The major problem with the crime of threatening and using menaces, as the Bill states, is that it is often difficult to pin it down because the most subtle means can be used to clearly demonstrate to somebody that if they do not pay the money they will suffer loss. In elaborating somewhat Deputy Harney's amendment is of some assistance in this regard. I understood from what Deputy Harney said, and she will excuse me if I have overlooked it in her amendment, that the amendment sought to prohibit the payment of protection money. Is that in the amendment?
Subsection (2), "dishonestly offers or provides."
Perhaps I am missing something but I do not see how that prohibits the payment of protection money.
That was the intention.
I might have some difficulty with it if it did have that purpose. Perhaps our advisers can tell us whether that is the effect of the words as used in the amendment.
On reading it I admit it is not clear. It should read: "dishonestly offers to provide the service as well as to pay the money". I accept that my amendment is not clear in relation to that and that subsection (2) needs to specifically mention the payment as opposed to just the provision of the service.
In terms of the amendment as it appears, its thrust is acceptable and I ask the Minister to consider elements of it, at least.
The last speaker had difficulty in understanding the amendment. I have far more difficulty in understanding section 18 where it says "It shall be an offence for any person who, with a view to gain for himself or another or with intent to cause loss to another, makes any unwarranted"——
I remind the Deputy we are talking to the amendment, we are not talking to the section.
To understand the amendment I have to understand the section.
We will be taking the section when we dispose of the amendment. Can we deal with the amendment and discuss the section afterwards?
How can I decide on Deputy Harney's amendment if I believe the section is encouraging a demand with menaces?
It is up to the Deputy to make his contribution on the amendment. He can speak to the section at a later date. I am endeavouring to be helpful to the Members by keeping to the agenda before us.
I support Deputy Harney's amendment because I understand it. I cannot understand the section but I will return to it later.
I have known Deputy Harney for a long time and I know her intentions. However, it is important to achieve clarity of language in this amendment. I support her intention in the amendment.
One of the most disturbing aspects of life in America today and indeed for the past 50 years has been the problem of organised crime conducted by the Mafia. The same problem exists in Italy, especially in Sicily. As somebody who admires many aspects of life in America and the outstanding achievements of that country, I could never understand how such achievements could have been reached alongside the power and influence of organised crime.
Extortion, blackmail, racketeering and demanding protection money are abhorrent to me. I could never understand that activity but as one gets older one has a clearer understanding of it. The fact that it prevails in Dublin and in many sections of city life upsets me greatly as a parliamentarian and as someone who lives in a democracy.
It is a great cancer in our society that people can extort money from their fellow citizens carrying on legitimate businesses, by merely adopting menacing tactics and sometimes intimidating them. That upsets me greatly and that is why I have always spoken out against violence in our society, not only by the paramilitaries but also by gangsters. If this activity becomes prevalent in Dublin it will spread throughout the country to Cork, Limerick, Galway and other smaller towns. It is a crime that is abhorrent to me and I agree with Deputy Harney in regard to the approach of the Garda to this activity. It is a more careful, planned and subtle approach by the gardaí. It is a two pronged approach. Not only is it being sanctioned here in the Bill — indeed the Bill would be flawed if it did not contain this section — action is being taken by the provision of stiffer jail sentences which show no mercy for people who engage in this nefarious activity. Also, as Deputy Harney suggested, the Garda have taken a different attitude by creating a special unit and adopting a lower profile with a more concentrated attempt to stamp out this problem because in dealing with real crime and criminals a person who goes to the Garda can experience great fears which is often realised if a stance is taken against them.
I am reading a book at present about the strength of tribe gangs in Britain. There is one reference to Ireland concerning bloodshed in Dublin more than a decade ago when rival gangs fought with knives, cleavers, bars and other implements in the streets. If the tribe gangs are so strong and properly organised in Britain I am sure they are organised here also. While the Bill does not contain a reference to this nevertheless apart from dealing with our citizens it is important also to deal with people who come here from abroad to earn their living and set up business. I would like the Minister to examine the problem of tribe gang operations, not only in Britain but also in this country. There has been a large growth in the number of Chinese people coming to Ireland, I have no objection to this because they are hard working people, to the best of my knowledge. They have given a great boost to our restaurant and fast food industry. We cannot ignore the implications of what has happened in Britain and throughout the world in relation to Triad gangs. The Bill does not deal with that directly but it is something the Minister should pay special attention to. I welcome this section.
As Deputy Harney said this amendment formed part of the Progressive Democrats' Private Members' Bill earlier this year. Having reflected on the matter after the debate which we had in the Dáil on that Bill I was anxious, if at all possible, to include in the proposed public order legislation some provision in relation to racketeering, if this could be done without unduly delaying the bringing forward of the general public order measures which were at an advanced stage of preparation at that time. In the circumstances we were in a position to develop an approach based on a recommendation by the Law Reform Commission report No. 43/92 which they published last year on the law relating to dishonesty. This involved isolating that recommendation from the general consideration of the report which is underway at present but which, given the very far-reaching nature of the report, will inevitably take some time. Further proposals which may be relevant to racketeering may well emerge from the consideration of the Law Reform Commission's No. 43/92 report.
From the consideration which we have been in a position to give to that Law Reform Commission recommendation, we are satisfied that it would represent a workable and valuable legislative provision in this area. That is not to say, of course, that more could not be done in this area. However, in the absence of further detailed consideration we would have difficulty in going further at present. I could not be confident that the amount of detailed consideration which would be necessary could be undertaken without unduly delaying the passage of this legislation.
However, I intend that that further consideration will take fully into account whether there are possible advantages with the alternative proposal which has been put forward in the amendment, taking into account in particular what was said by Deputy Harney in proposing the amendment itself. Some preliminary issues arise, particularly in relation to subsection (2) of the proposed replacement section. The concepts of protection money and protection service would have to be more closely defined in the law to target specifically the types of activity at issue. I am aware of the types of activity Deputy Harney would like to have addressed.
Subsection (4) goes some way towards offering a definition, but I am not sure that it goes far enough in defining protection money, nor does it offer any definition of a protection service. In subsection (1) it is not immediately apparent that the definition of racketeering would contain practical advantages over the formula in the existing section.
In the circumstances I am not in a position, unfortunately, to accept the amendment. I will have these matters taken into account at a later stage. After detailed consideration and consultation we may conclude that there would be advantages in taking on board some aspects of it.
I might mention to the Committee that I am considering a suggestion which has been made to me about a change in approach to an aspect of our bringing forward legislation in the whole criminal justice area. We have already brought forward a considerable amount of criminal justice legislation this year and further Bills will be considered in this session. For example, in July we published a criminal law Bill dealing with miscarriages of justice. I hope to be in a position shortly to publish a Bill dealing with confiscation of assets. That will be particularly relevant to the confiscation of assets of racketeers. I hope also to bring in a Bill which I mentioned earlier — the Criminal Justice (Miscellaneous Provisions) Bill. One of the purposes of such a Bill is to provide a vehicle for bringing forward useful changes in our criminal law which would not fit in easily in other criminal justice Bills geared at very specific areas of law.
I am concerned that where difficulties emerge from time to time in the operation of specific aspects of the criminal justice system or ideas emerge in debates on the criminal law in the Houses of the Oireachtas which require legislative changes, these changes can often be in a sort of legislative limbo because of the absence of a suitable vehicle for bringing them forward. For this reason I see considerable attractions in the idea of making miscellaneous provisions Bills a much more regular feature of our approach to criminal law reform. This would mean, for example, that where ideas were put forward, which could not be accepted without further consideration or development, there would always be this legislative vehicle that we could use in the relatively short term to deal with any final proposals that might emerge as a result of discussions of the nature we are having on this Bill.
While I accept the good intentions of Deputy Harney and her party in putting forward this amendment, I have genuine difficulties in relation to it. I would ask Deputy Harney to accept that they are real, not imaginary. If we can convince ourselves that what is being proposed in the amendment would be of great benefit and would improve this Bill or tighten it up in some way, then perhaps it will be possible to do something about it in the miscellaneous provisions Bill which will now come forward in this session.
Let me say to Deputy Mitchell that the reason I specified 20 years is that I believe this to be a much more serious offence than burglary, for which sentences of up to 14 years are provided. I wanted to show the seriousness of the problem.
Deputy McDowell is right in saying that my amendment is not clear. It should have included the person who offers or pays the money as well as whoever provides the service. That is not clear. I am keen that the payment of the money should also be an offence. The fact that it is not an offence at present sends out the wrong signals. People paying it do not believe they are doing anything wrong. It gives a protection to those from whom protection money is demanded to be able to say that they are not going to break the law. I do not know to what extent that will be successful.
I agree with Deputies that it is an area that is going to be very hard to deal with. There are many areas of the law where it is very difficult to get sufficient evidence to sustain a prosecution and get a conviction. That is not to say that we should not have adequate law to cover that. The law is very inadequate and sends out the wrong signals. We have legislation covering something called besetting and watching and demanding money with menaces. That is the law that covers this area at the moment. I do not know if anybody has ever been prosecuted under that law but I have never heard of a successful prosecution. It is an area that needs to be updated. Modern society is such that there are organised criminals who see intimidation and blackmail as a very easy way of getting their hands on large sums of money and people in business often feel that they have no alternative but to pay up because their safety and that of their family and security of their business is at stake.
I accept what the Minister says, and I am not against giving her more time. However, it is important to put in that it does not necessarily have to be an explicit demand. In other words, somebody does not have to ask for money. Where there could be a reasonable inference that the activity was such that one could not conclude anything else, it should be up to the court to decide if the person was right to infer from what was done or said that racketeering was involved and that protection money was being demanded. That should be sufficient. Many of these people do not walk in and ask for £100,000 or whatever. They have much more subtle ways of doing it. Under the provisions of the Bill there must be an explicit demand before one is guilty of an offence. Will the Minister have a look at that before Report Stage?
I would also like to hear the Minister's views on whether she believes that payment of the money should also be an offence. That would help to give protection to individuals who can now be rightly told that it is not an offence and are coerced into doing it. Deputy Barrett has very strong views on this and he mentioned them in this House last March. He has much expertise and experience in regard to insurance and this is a cause of worry for many insurance companies. Many of them are now afraid to cover business premises in certain parts of the city and that is appalling. The consequences for enterprise and business and for our society of not having adequate laws are serious, and I accept the difficulty of enforcing them. One begins by introducing legislation. The next step is to equip the enforcement agency with the wherewithal to be more successful in this regard. I am told that in Great Britain the enforcement of such laws is more successful than it is here. Why is that the case. I do not know of the experience of other countries. People do not realise just how extensive the problem is. I did not realise it until some months ago when I learned that in Dublin, where there is a huge problem, a very young, enterprising person who was carrying on a legitimate business and refused to pay money to a criminal could end up with his business burned down and being shot. That kind of activity must be condemned in every way and dealt with by the law. I do not intend pressing this matter to a vote because the Minister has been reasonable in relation to this Bill generally. If other than an explicit demand were included or a promise to look at that issue between now and Report Stage and the question of payment of money, I would be happy.
I agree with Deputy Harney that it would be useful if we could include everything. The Bill, as drafted, seems to deal only with the person who makes specific threats. It would be reasonable to add a subsection to cover situations where it can reasonably be inferred that somebody is making a threat. This would get around the problem of the implicit demand. The Minister might consider before Report Stage the question of ensuring that everybody who is involved in a protection racket is caught. The Bill seems to catch only the person who makes the demand with menaces. It is possible that one person would do the threatening and another would collect the money. It would be useful to ensure that we catch everybody involved.
Two points have been made by Deputy McDowell, one on explicit versus implicit demand and the other catching everybody involved in this process where, for example, one person might do the threatening and somebody else would collect the money, are both very fair points. The first point was also raised by Deputy Harney. I am prepared to look at both points before Report Stage.
The second part of Deputy Harney's intervention creates a real difficulty. I know that pursuing the person who actually pays up — which point Deputy Harney made very strongly — is very desirable. From a legal point of view it would be difficult to do that. The amount of time between now and Report Stage would not be enough, to first, have it looked at in the Department, and then by the Attorney General's office look at in the light of the Constitution to see if a formula of words can be put together as an amendment to section 18. I think Deputy Harney recognises that. I could not guarantee that all of that will be done between now and Report Stage. Therefore, I would not hold out any hope of it being included here. As I said in my first comment on the amendment, it is certainly something that we will like to look at between now and Report Stage. I am very much in favour of tightening up section 18 to ensure that both of those are included in it.
Amendment, by leave, withdrawn.
Question proposed: "That section 18 stand part of the Bill."
This section states that it shall be an offence for any person who, with a view to gain for himself or another or with intent to cause loss to another, makes any unwarranted demand with menaces. Let us suppose somebody does not use menance. Let us suppose a thug walks into an elderly shopkeeper and says he thinks that shopkeeper needs a fellow like him around here to protect the premises, that he will be around most weekends and will see that nothing happens to the shopkeeper and that he is sure the shopkeeper would not think anything of giving him £50 for doing that. Such a person may be most positive in his attitude and very helpful. That would be blackmail of the worst type. Would the fact that he did not use menaces mean that he is completely innocent? The section goes on to state that for the purposes of this section — (a) a demand with menances shall be unwarranted unless the person making it does so in the belief — (i) that he has reasonable grounds for making the demand. To give a hypothetical example, if my colleage, Deputy Mitchell, owed me £100 and there were several witnesses to that fact, am I entitled to say to him that his car tyres will be slashed tomorrow night if he does not pay me? There may be a simple answer but I find this section strange. If I am owed £100, I think I would have reasonable grounds for insisting that I get it back. What can I threaten? Can I threaten to have Deputy Mitchell kneecapped? Is it right to do that because he owes me money? The section further provides that the use of menaces must be a proper means of reinforcing the demand. Suppose I take the attitude that going to court is a waste of time because it will take 12 months, that I will not get my money and that this is the only way I can do so. Is section 18 actually encouraging all kinds of threats of violence to get money that is owed? I am not raising this for any frivolous reason.
Section 18 seems to encourage crime and I want to condemn it. There are many elderly people who are afraid to give evidence thus creating a difficulty in getting proof and criminals and thugs get away with this kind of crime. However, I would not like to see anything in a Bill that encourages violence and more crime.
Is the Minister in a position to give the House a view on the extent of this problem? There is much innuendo. Certainly there is reasonable suspicion — I am not sure how strong the evidence is — that this sort of thing takes place in some parts of this city. What seems to be taking place for sure is the hire of guns for all sorts of purposes. It is also possible to hire a person with a gun for certain activities. That gives rise to a suspicion that organised crime is trying to take root. If that is the position to what extent is it so? How far along this road are we, and is the Minister happy that this section goes far enough in empowering the Garda and the Judiciary to deal with the problem?
There are some very unsavoury suggestions about crimes which have been committed in recent times; suggestions that guns and gunmen can be hired, that one can get people to torch premises or intimidate people. If that is happening, that is terrorism of the worst kind and it must be dealt with very strongly. I do not know how much the Minister is at liberty to say. Is she in a position to respond to that question?
I think it can be reasonably assumed that if a young fellow comes into a shop to an elderly lady, the scenario put forward by Deputy Browne, and is particularly polite or nice to her and, even though he is nice, says that she needs somebody like him around to protect her and so on, it would be reasonable to assume that he was threatening her. Therefore, someone like that would be covered.
In relation to Deputy Mitchell owing Deputy Browne £100 and Deputy Browne going to get it, he could threaten Deputy Mitchell with legal action or threaten to sue him and Deputy Browne would not be a criminal under the public order legislation.
Deputy Mitchell's question is a very good one and very difficult to answer. That is the extent of the problem because the nature of the crime is such that it is not reported. Although there is innuendo and many statements in the newspapers and there is hearsay evidence about what is going on, the very nature of the crime means that people have not been prepared to come forward to give evidence except in very limited circumstances. The Garda have been very active in this whole area. They have been pressing for a long time now for the creation of a tailor made racketeering offence in the criminal justice system. Their advice and recommendations and what the Law Reform Commission put forward in its report No. 43 on dishonesty has resulted in section 18. In this section for the first time we will have an adequate picture of the extent of the problem. I would like to see the Garda pursuing, as I know they want to, people who are involved in this kind of activity which none of us can condone. I hope we will see successful prosecutions under section 18 of this Act.
The Minister did not answer anything I asked her. The question refers to the phrase "makes any unwarranted demand with menaces". Why is "with menaces" required if they are unwarranted demands? Should that not cover any fellow walking into any business or any shop in town and saying he wants £1,000 a week? Surely that is unwarranted. As to the other examples the Minister gave of the old lady being approached by this fellow with a nice smile on his face, his defence could easily be that she agreed to it, that she did not object and thought it a good idea. The fact that she was frightened out of her mind is a different aspect. The Minister's answer would not justify what is there. If he did not threaten her he could not be accused of threatening her. He could say she had the right to refuse but that she accepted readily what he said. The inclusion of "with menaces" there is tying it up in knots. To use an example of taking legal action as the Minister has is not right. The Minister said I could threaten Deputy Mitchell with taking him to court. Surely that is the law of the land the way procedure should go on. That surely could not be regarded as threatening him with menaces.
The Deputy said what I said, I am sorry if I did not make it clear. I said that if Deputy Browne threatened to sue Deputy Mitchell, he could be not prosecuted under this Bill because what he was doing was legitimate.
I accept that but it does not answer my question. Am I entitled to threaten to kneecap him or to damage his car?
Or take his Dáil seat?
Is that not what the wording says? It says that the use of the menaces must be a proper means of re-enforcing the demand. I gave the example that I am so vexed at this stage it could take me 12 months to get my money if I had to go to court and I need £100 so badly that I say I will have Deputy Mitchell's head split open tonight if he does not pay me the money. This is threatening with menaces. Section 18 allows a person to threaten anything. Any solicitor or lawyer would back up what I am saying and I am giving the advice free gratis and for nothing here in the Dáil. Instead of protecting, that is open to abuse.
Given the poor expenses given to a Dublin Deputy, even to ask for £100 is threatening with menaces.
In relation to the first part of the case put forward by Deputy Browne, certainly as a layperson — and I would have to consult my legal advisers in relation to it — I would not see anything wrong with leaving out the two words "with menaces" in section 18 (1). That is something I will consider and about which I will consult the parliamentary draftsman between now and Report Stage if that can be done, it should be.
In relation to the second part, I go back to what I said originally which was that if somebody owes you money, then you are quite legitmately entitled to threaten to sue them if they do not pay up. We are not trying to catch that individual in this legislation. It is legal and legitimate for somebody, if they are owed something, to go and collect it or threaten to sue to collect it.
Except it would cost them more to sue than is owed.
I understand that Deputy Browne finds the wording convoluted to say the least. Let me give him a commitment that between now and Report Stage we will see if we can simplify the language. There may be a particular legal reason for putting in that term which Deputy Browne will have to accept if that is the situation.
I accept that. It can also be said that there is no need to put into a Bill the right of a person to sue. That has been the law of the land for donkeys' years.
I am not suggesting that we should.
If the only explanation is that I can do it, there is something awfully wrong with that section. I will leave it with the Minister and I am quite sure she will deal with it.
Question put and agreed to.
Section 19 agreed to.
NEW SECTION.
I move amendment No. 27.
In page 9, before section 20, to insert the following new section:
"20.—(1) Where any public place is the subject of a prohibition order made under this section, any person who contravenes such order shall be guilty of a summary offence.
(2) It shall be lawful for any County Council, County Borough Council or Urban District Council established by law to promulgate or order (in this section referred to as a prohibition order) prohibiting any or all of the matters referred to in subsection (3) of this section in respect of any public place in the functional area of such Council.
(3) A prohibition order may prohibit persons—
(a) from loitering in a place either generally or during certain hours of days,
(b) from engaging in any activities which, in the opinion of the members of such Council, are prejudicial to the maintenance of the public peace in such public place.
(4) (a) A prohibition order made under this section may by its terms apply generally or to young persons or children only.
(b) In this section 'young persons' means persons under the age of 18 years, and ‘children' means persons under the age of 14 years.
(5) Where a person is convicted of any offence under this section he shall be liable to be imprisoned for a term not exceeding 2 months or to a fine of £400 or both.
(6) (a) A prohibition order under subsection (2) shall not be made unless the resolution for the making of such order has been advertised in one newspaper circulating in the locality not less than 21 days before the passing of the said resolution.
(b) A prohibition order under subsection (2) shall not take effect unless the terms of such order, after the resolution for the making of the order has been passed, have been seen and approved by the Minister for Justice.
(c) Where a prohibition order has been made under this section, the Council making such order shall cause it to be published in Iris Oifigiúilalong with the approval thereof by the Minister for Justice.
(7) It shall be lawful for any Council which has made a prohibition order under this section to erect and maintain on any convenient building or wall or other place in or adjacent to such public place a notice or plate notifying the public of the general terms of the order.
(8) A member of An Garda Síochána shall have power in his discretion—
(a) to direct any person in such public place to comply with the terms of such order,
(b) to arrest any person who fails forthwith to comply with a direction given, or a demand under this subsection, and
(c) to demand of any such person his full name and address.".
It was in my Bill earlier this year and it received a lot of support from Members on both sides of the House. It was to give local authorities generally the power to make orders to prohibit persons either of a particular age or generally from being in a particular area at certain times. I am motivated to put in an amendment of this kind by my experience in my Dublin constituency where much of the public order difficulties caused to residents tend to be in relation to public parks; we had this debate earlier.
The modern planner/architect designed housing estate may be good from a recreational point of view but it has certainly caused many difficulties from the point of view of crime. Many residents live in estates with laneways, pathways or pedestrian accesses between houses to bus stops and so on which are all perfectly sensible but these tend to be the source of many of the difficulties, not just during the hours of darkness but very often in the summer months. Invariably residents who live close to these areas have to put up with crime. When they or their children are sleeping they are constantly harassed by young people generally hanging around these areas. Not so long ago Deputy Walsh and I attended a meeting where a lady who lived in a corner house adjoining a laneway of this kind literally broke down. She had been there for a number of years and for the past year or so her life has been a total misery.
The meeting in general was very moved because she got so upset she had to leave. Because of her experience of youths constantly hanging around outside her house close to this laneway, she felt she could not even go out at night; she certainly could not leave the children alone at night and babysitters were even afraid to stay in the house. The best people to make decisions in relation to areas are those who live there. The provisions of this Bill deal with loitering or singing and all these things. However, what is perfectly legitimate in one place can cause difficulties in another. Some of the difficulties have to do precisely with location, the time of the activities and so on. Local authority members are in a unique position to know about black spot areas of this kind in their community and to be able to make orders to prohibit certain activities at certain times of the day. I have a proviso in the amendment that notice of 21 days be given in advance so that the community has the chance to respond. I have also the proviso that the Minister for Justice would have to approve.
I do not want to give anyone work but we are not talking about local authorities going mad and bringing in prohibition orders for the sake of covering themselves. There would have to be an approval mechanism and there would have to be an official notice in Iris Oifigiúiland so on. I certainly believe it is a power that would be very useful to local authorities, particularly authorities in urban areas. It would also give them the flexibility to make different orders for different times of the year in relation to public places.
The Minister told me on another occasion, in relation to legislation that distinguishes between persons of different ages, that generally what one finds is that it is very young people between the age of ten and 18 congregating at bus stops, laneways close to public parks and in places like this where the provisions in relation to loitering in this Bill might not apply and it might not be necessary to apply all the loitering provisions if local authorities had the power to make prohibition orders which clearly indicated that in this particular area it was not acceptable to be in the laneway after 10 o'clock at night or perhaps an earlier time, depending on what the view of the members of the authority were at a given time. That would give protection to the community. It would also make it very clear when somebody was or was not in breach of the law. It would strengthen the earlier provisions we were discussing last week when Deputy Mitchell put down an amendment about public parks, whether they are opened or closed. It gives the power to the local authority to allow them to make rules, albeit different rules in different areas, which would allow the comprehensive approach that we all want to see in this legislation.
The Minister said and I agree with her, that it is impossible to cover every area. Graveyards were mentioned by Deputy Kemmy. Public parks offer a whole host of possibilities and bus stops can be a great source of annoyance. A girl who works in a hairdressing salon told me last year that on Thursday and Friday nights in winter, when she worked late, she took a taxi home at great expense because she was subjected to intimidation from gangs of youths at 9 p.m. at the bus stops. In my amendment I proposed to give the local authority, subject to approval by the Minister for Justice, the kind of power that I believe is desirable to cover areas that we cannot specify in the Bill, because the problems may arise in one set of laneways but may not necessarily occur in another more established area.
I am a bit worried, I must confess, about this amendment. Frankly, I do not claim to be a constitutional lawyer or to have any expertise at all in that area, but I wonder whether we can effectively allow county councils and corporations to vary the criminal law, which, effectively, is what this amendment proposes to do. It allows the county councils in one area to make it an offence to loiter at a bus stop, the example given, whereas down the road in another county council area it would not be an offence. I am not too sure that we can do that. I am not entirely sure that it would be healthy to do it anyway.
I understand the reason Deputy Harney has brought forward this amendment because she states very clearly the difficulties arising from the behaviour of people in public places which previously would not have been imagined. I will give a brief example of the type of problems that we on the local authorities face. At the roads and traffic meetings of Dublin County Council for the south Dublin area, of which I am a member, constantly we discuss measures to try to prevent people congregating at certain places, in order to try to protect other people from behaviour that has nothing to do with normal activity. The valuable time of officials is taken up trying to deal with that when some legal instrument is needed by the councils to deal with this urgent problem in cooperation with the Garda. The same goes for the parks department. For the duration of my chairmanship of the south Dublin area, every community and parks meeting was completely occupied with cases of anti-social behaviour in our public parks. This impacted on every aspect of the work of the department. The Garda are constantly being asked to come to council meetings to discuss measures to deal with these offences and difficulties. I can understand the reasoning behind Deputy Harney's list, which is quite comprehensive.
If the amendment is not acceptable to the Minister and she cannot see all of its provisions being implemented, I would welcome the introduction of some part of Deputy Harney's amendment in a format most appropriate to assist local authorities, which are now desperately trying to deal with situations that could not possibly have been perceived a couple of years ago. In order to alleviate the problems of local authorities in some way or another and to give them some discretion in those areas, I would welcome the Minister's views on those points.
It is clear from the lengthy discussion we had on earlier sections why I would not be in a position to accept the proposed amendment. That debate made clear that there are considerable difficulties in defining the scope of the general behaviour in public places which should be within the scope of the general offences included in the Bill.
I know there has been some disagreement among us about the scope of some of the offences provided for in the Bill. What in reality is being proposed in the amendment would allow local authorities, in effect, to decide on the scope of public order offences within their areas. While I appreciate the role which bylaws play in relation to property owned by public authorities, I would have grave doubts, as Deputy McDowell has already indicated, about the constitutional validity of the approach taken in the amendment in terms of purporting to seek to delegate to local authorities such wide-ranging powers.
For example, the amendment would purport to enable local authorities, with my consent, in relation to any public place in their areas and not just their own property, in effect to outlaw lesser forms of bad behaviour than we have seen fit to include in the legislation with a consequent penalty of up to two months imprisonment. On policy grounds, and particularly given the nature of the debate which has taken place on Committee Stage, I do not believe that such an approach would be appropriate. In practice it would be likely to create enormous and probably in some cases insuperable enforcement difficulties. I believe it is far preferable to create general offences along the lines provided for in the Bill. I indicated, as the Chairman will remember, that I was prepared to consider that aspect between now and Report Stage.
As Deputy McDowell has outlined, it would be very difficult to justify a situation where the local authority in my city would outlaw certain types of behaviour in certain areas if the local authority in the capital city or in another part of the country was not prepared to do the same in certain areas. It would bring the law into disrepute, because the general public would be confused about the situation. Let us say a young non-Galway person comes to Galway for a long weekend or a festival and behaves at a bus stop in a way that is perfectly appropriate in Dublin but on being arrested for an offence — an offence which is not an offence in Dublin — discovers that it is an offence in Galway. Rather than creating clarity in the legislation we would, in fact, be creating an amount of confusion. I am very anxious to avoid that because we are all trying to have as much certainty as possible so that there can be no allegations later of vagueness. While I understand and appreciate what Deputies Harney and Walsh talk about — and all of us have experience of various forms of behaviour in various areas where they might be outlawed, at the same time I would be most anxious that we would leave the section as it is.
I understand the sentiment behind Deputy Harney's amendment. It is the same sentiment which was behind my amendment to section 5 to extend the provision to parks and open spaces, because there is a terrible public order problem in regard to these areas. The hearts of people living beside these parks are broken. We have to do something about that and I hope the amendment which I have put forward, and which the Minister indicated that she would accept, will deal with the problem.
As well as the concerns expressed about this amendment, I have further concerns. We now have, or will very shortly have, four local authorities in Dublin. Furthermore, within Dublin city we quite often delegate to committees within the local authority. Take Crumlin, for instance. The local authority for which I am the alderman, is made up of four councillors. It is called Crumlin, but it includes a much wider area — Crumlin, Kimmage, Walkinstown, Drimnagh and that general area. The population of that area is 40,000 plus and, like every other part of the city, there is the occasional corner or park where there are problems. The reality is that the city council would accept our word as four local councillors if we were all to agree and put down a motion that we should extend the provision to this kind of place. This would be on the basis that if somebody from the Northside brought a motion, we would agree that they know their area better than we do. However there would be prohibitions all over the place and people would be looking for prohibitions on the basis that one had been got in another area. That would not be good law. It is an amendment which would create great difficulty at law.
There are two things about it which I like. One is that it raises the question which needs to be raised, and which I sought to raise, of disorder on open spaces and in parks adjacent to residential areas. We will be considering this further on Report Stage. Second, it raises a very valid question about devolving power to locally elected bodies. If we were to follow in practice what we talk about in theory, I mean subsidiarity, then one would have to ask if local communities and their councils should be able to make decisions of this kind. In theory it is a very sound idea. However, in practice in the application of the criminal law I am inclined towards the Minister's argument that the best way to do it is to have a general rule of law. I hope for that reason that the Minister will strongly support in her own wording the wording which I sought to include in an earlier section of the Bill on parks and open spaces, because the problem which Deputy Harney mentioned is a very real one.
I am very disappointed with the response. On the argument in regard to Galway and Dublin, the authority would be required to have a notice specifying the provisions of the order and the order would not apply in all of the local authority area. We have a very real problem and the Minister must be aware of this. What was the architect's dream of the modern housing estate, convenience for the resident, has become the resident's nightmare.
For example, public parks in the city are railed off and have gates that are closed at different times, depending on the park. They are closed for very good reasons, to prevent people from going into them at night. Many such public places cannot be closed off, even places that are under the control of the local authority, because they are not railed off and are not built like that. The idea is that they are open and that people can be there. I would envisage that a local authority could make an order, subject to approval by the Minister, to say that after the hours of 7 o'clock or 9 o'clock it would be an offence to loiter in that area, depending on the views of the local authority and the approval subsequently of the Minister. The reason for doing that would be because of the difficulties being caused to residents.
I see no other way of dealing with this problem unless we have very draconian legislation, which I do not support. I see no other way of giving protection to the kind of residents I have to deal with who have very legitimate reasons for saying the laneway is a good thing but that after 7 o'clock it is a bad thing and that it should be made an offence to be loitering in that laneway after 7 o'clock. I want the Minister to know that the alternative is that very poor people in my constituency are having these laneways closed. They have to pay for that themselves. When they have them sealed off they have no back entrances to their houses. If they want delivery of certain products these have to be brought right through the house because access to their back gardens has been closed off. Effectively, it makes it very inconvenient for them, but the reason they do it is the difficulty experienced at certain times of the evening in those areas. I certainly think it would be a very good thing to make it clear that if one is on the laneway after a particular time one is committing an offence and that the Garda will have the power to enforce the order. If we do not have that kind of power vested in local authorities we certainly cannot make that law nationally, or else we would have to have extremely draconian and restrictive legislation, which I do not favour.
The only way to confine those who are engaged in activity that is against public order and to have legislation that is effective and realistic and yet not draconian is to vest in local authorities special powers to make prohibition orders. Local authorities have the power at the moment to make bylaws. Bylaws differ and can differ from one local authority area to another. However, I never heard that used as justification for not giving them powers of this kind. That is what local democracy is all about. Where people wish to have a laneway closed off and have to apply for planning permission and so on, if one person objects they will not be successful in securing planning permission and it makes it extremely difficult.
Deputy Walsh may recall such an incident in an area of Killinarden in Dublin in my constituency about two years ago. There were 20 or 25 houses and everybody except the residents of one house wanted a particular pathway closed off because of the difficulties being caused to residents there. But one person was able to successfully prevent the closing of that laneway.
We will have more difficulties of that kind. I am not necessarily pinning all my colours to the amendment worded by me, but certainly the purpose of the amendment — to give the power to local authorities to make prohibition orders — is the only effective way to deal with public places that cannot be closed off in the way parks can. Many of these open spaces cannot be sealed off and they are the source of a lot of criminal behaviour, whether it is the illegal consumption of alcohol, the taking of drugs and so on, the harassing of residents or causing noise and disturbance.
The remaining provisions of the Bill will not adequately cover what we are trying to do here. The Minister could be a bit more forthcoming in relation to the need to allow local authorities some discretion. Many in this country believe that we should have a localised police force. I have never taken that view, because we are too small a country and it would be too expensive. However different problems exist in different areas, and if the law is to be effective and respected it must protect citizens. People deserve the protection of the law. Certain things required in an urban situation may not be at all necessary in other places.
The law should be as flexible as is possible. I accept we cannot be unconstitutional, but we need a certain amount of flexibility in regard to what is legal or illegal in certain places. Singing or boistrous behaviour, for example, could be perfectly normal in certain places and cause no disturbance at all; yet in another situation they can. I could give many more examples. In Dublin city and county, where 50 per cent of crime is now committed, community groups, the Garda and others would tell one that much of the crime is by young people in public places of the kind I suggest. Without very draconian legislation I do not think we will be able to give the Garda the kind of clout to enforce the provisions of this Bill or any other unless we can also give local authorities the power to make orders along the lines I suggest.
It is interesting that when my Bill was before the House in March — I was just looking at the debate there when the Deputies were speaking — Deputies of all parties felt that this was a good provision in the Bill. Even though they had reservations about much of the rest of the Bill, they did think that this was a good provision. If it could be introduced it would be of great assistance certainly in suburban Dublin and perhaps in the city as well. Many of the provisions of this Bill will lead to confusion on the part of citizens. We could end that confusion by erecting a very clear notice specifying whether or not one could be in a particular place after a certain hour. That would make the legislation clearer and would be of invaluable assistance to residents.
I will be brief as I am conscious of the time. I have very little to add to what I said earlier. I cannot accept the amendment put forward. We would be treading on very dangerous constitutional ground if we were to provide in this Bill for the delegation of the defining of the criminal law to local authorities. Finally, of course the whole area of bylaw legislation is a matter for environmental legislation. Perhaps there is something that can be done on that side of things, but I regret that I am not prepared to accept the amendment.
Is the amendment being pressed?
No, because the time for concluding the meeting is past and I do not like to break the rules.
Amendment, by leave, withdrawn.
The Select Committee adjourned at 5.35 p.m. until 10.30 a.m. on Wednesday, 29 September, 1993.