Dáil Éireann díospóireacht -
Wednesday, 20 Oct 1993

Vol. 434 No. 9

Criminal Justice (Public Order) Bill, 1993: Report Stage (Resumed).

Debate resumed on amendment No. 7:

In page 4, between lines 11 and 12, to insert the following:

"4.—In determining the sentence to be imposed on a person for an offence to which this Act applies, a court shall take into account, and may, where necessary, receive evidence or submissions concerning, any effect (whether long term or otherwise) of the offence on the person in respect of whom the offence was committed.".

—(Deputy Gilmore.)

Mr. D. Wallace

As I said before the lunch break, I suppose it would be difficult to measure the effects, whether they be financial, social or the psychological implications, on the victims of crime. Between now and the Bill going to the Seanad I would ask the Minister to re-examine this area. My interpretation of the position as it stood was that, as of now, the courts had discretion to vary their decisions in relation to crime. I should have thought that the Judiciary when deciding on sentences to be imposed, whether it be a custodial sentence or a fine, would already have taken into account the provision included in this amendment of Deputy Gilmore.

What should emerge clearly from discussion of this Bill is that we here are determined to take action, where necessary, in order to correct the imbalance clearly perceived by the public that it would appear to be offenders who come out better than the victims of crime. I am not for a moment suggesting that Deputy Gilmore is asking that we go down that road. Nonetheless we must be very clear about the implications of the provisions of this section. For example, a person's car can be stolen or burned, which will have certain implications on the victim in that he or she may be unable to travel to work, take the children to school and so on. On the other hand, in the case of somebody attacked in the street, with visible signs of that attack, that victim may well suffer psychological effects that will not necessarily be shown. In that case who is to decide? Are we putting the onus on a victim to produce the necessary evidence for the courts to take this decision? The amendment, as drafted, does not make the position very clear to me.

The important message that must emanate from this House is that the provisions of this Bill, which have been awaited for a long time to close many loopholes the Garda encounter out on the streets, must be seen to be effective once enacted. We must also remember that the Garda must interpret the legislation and that we must not place too many complications in their way in their implementation of the law.

I might refer to the issue of victim support referred to earlier this morning. The Association for Victim Support paid tribute last week to the Minister on her overall approach to the matter of crime. I would appeal to the Minister to recognise the tremendous work they are doing within the community. They visit people who have been the victims of crime, engage in tremendous work and are in need of financial support. Having met them in Cork last week and having attended a function at which certificates were awarded to ten people within a particular community, I heard their national chairman pay tribute to the work the Minister is undertaking. They said they were looking forward to working with the Minister and to the enactment of legislation that will adequately reflect the needs of the community at large who look to us as legislators and to the Garda to give them the support they deserve and indeed to reverse the imbalance in this area clearly perceived by the community at large.

I urge the Minister to examine the amendment in greater detail before the Bill goes to the Seanad for consideration.

Mr. L. Fitzgerald

I rise to endorse what has been said by Deputies Wallace, Gilmore and Gay Mitchell. I, too, believe this amendment should be given further consideration. The Minister may not be entirely happy with its wording. In addition, difficulties may arise in regard to issues which have already arisen and which have been voiced here today. For example, some people asked how does one make an offender compensate his or her victim. There may be difficulties encountered in endeavouring to do that.

I would not go along entirely with what Deputy McDowell said, that if a person in receipt of social welfare commits an offence his or her victim cannot be compensated because of the difficulty of collecting such compensation. Surely there can be devised an attachment of earnings facility. I am not a legal expert and would defer to those who are, but, if there is an attachment of earnings facility in the courts surely that attachment could apply equally to recipients of social welfare? In addition, Deputy McDowell seemed to have a difficulty about how such compensation might be scaled. For example, how does one distinguish between a person who may be well off and becomes an offender and another who may be in receipt of social welfare and becomes an offender? It should be possible to devise a formula for the judge to distinguish between two such people — one person who is in a position to pay a substantial amount of compensation and another who is not.

In general I am very supportive of the idea of compensating victims; I believe victims should be compensated. As already mentioned, there is a State scheme in existence, but it is difficult to provide funding for every contingency. I am also aware, as are other Members of the House, of delays that can occur in the granting of an award through the Criminal Injuries Tribunal and its actual payment. I am open to correction on this, but in the case of the last few inquiries I made I was told there was a time lag of approximately two to two and a half years. I should like to see that time lag shortened. I believe we need to tilt the balance more strongly in favour of the victim, to focus more on the victim and the victim's rights rather than those of the offender. I have always held the view that when a person becomes an offender he or she forfeits a substantial number of rights he or she held prior to the commiting of that offence.

I would urge the Minister to re-examine that. While it may not be possible for her today to endorse the formula of words contained in the amendment as tabled, nonetheless it does have merits and should be re-examined before the Bill goes to the Seanad for consideration.

Minister for Justice (Mrs. Geoghegan-Quinn)

We have had a very good, informative debate on this amendment. I undertook on Committee Stage to re-examine Deputy Gilmore's amendment, then tabled, in order to ascertain whether there was any possibility of incorporating it or something similar to it, in the Bill when we reached Report Stage. Unfortunately, that re-examination of the amendment has not yielded a positive response to the amendment now before us, due mainly to the reasons so eloquently outlined by Deputy Gilmore himself. First of all, in section 5 of the Criminal Justice Bill, 1993, there is already provision. Therefore, what is proposed here, according to the advice available to me, would, in effect, be superfluous.

Another point made by Deputy Gilmore was that in many of the public order offences being created under the provisions of this Bill we are not talking about one, two or three identifiable victims. Rather, we are talking about a group of residents, or large groups of people. I will take another look at the amendment between now and the Bill going to the Seanad. I appreciate the thinking behind the tabling of this amendment, what Deputy Gilmore and others want to have included in order to ensure there is support and back-up for the victims of crime.

What concerns me about the wording of the amendment, as drafted, is that it says "a court shall take into account,". It does not say that a court may take into account. Therefore, I would be concerned that in a case where the Garda bring somebody to trial in relation to a crime which would be subjected to the provisions of this Bill, they might then have to locate victims. The House will recall that one of the difficulties we discussed on Second and Committee Stages was that in the case of many such offences residents in an area are not prepared to come forward because they are afraid of what might happen if they are identified. They want to telephone the Garda, they want to say that a public order offence has been committed, but very often are not prepared and for good reasons — to come forward and be identified. I would not like to impose a duty on the courts, who in turn would impose it on the Garda, to find these victims and bring them forward.

All Deputies who have spoken have referred to sentencing policy generally, how it relates to victims and how victims view it. There is much concern in the public domain in relation to what people consider as lack of uniformity in sentencing. Indeed, Deputy Gilmore and Deputy Gay Mitchell have been vociferous in regard to changes in sentencing policy. I have said consistently here that I am awaiting a report from the Law Reform Commission on sentencing policy. In their interim report they have put forward a number of interesting suggestions, such as the extension of community service orders, attachment of earnings and so on. Deputies have called for the seizure of assets to the value of the crime committed and compensation. We should not attempt to do any of this in a piecemeal fashion. I would prefer to have a modern sentencing statute, which is what I intend to have immediately when I get the report from the Law Reform Commission. That is probably a better way to set about it.

In relation to the criminal injuries compensation fund, I accept that there is much frustration out there. The case has been raised here on a number of occasions of somebody who was awarded £10,000 compensation and informed at the end of the letter that they would have to take their place in the queue. One of the difficulties with that is that the Exchequer cake is not big enough to go around and the Department of Justice receives only a certain amount. When I speak with my colleague, the Minister for Finance, I will be seeking everything required to satisfy the needs of the Department of Justice, in so far as that is possible. I realise the Minister for Finance has a difficult job to do and that in certain cases he will say that I cannot get everything I am requesting. I appreciate the support I get from Members of the House to strengthen the case I need to make to the Department of Finance. The criminal injuries compensation fund, for which a specific sum is allocated by the Department of Finance, has to be shared out. The fairest way to operate it is by having people on a list or in a queue. It would be very dangerous — I know nobody here is suggesting it — were it to be in the hand of any Minister, whoever that Minister might be, to pick out people from the waiting list. The present system is the best way of operating it.

I want to facilitate in whatever way I can victims of crime. All the legislation introduced since last January has been victim orientated. I feel strongly — and I know Deputies feel equally strongly — that criminal law has reflected support for the criminal and the back-up facilities available, and that is very important, but it has virtually ignored the rights of victims of crime and we have to redress that issue. I know that all of us present today support the Irish Association for Victim Support. Deputy Michael McDowell said that not alone should I provide a room for them in the courts but that I should also do far more on a financial basis. I accept that and I hope to provide for that in my Estimate next year. As well as providing the financial resources it is also important where the Department of Justice is involved in courthouse refurbishment throughout the country that we should, for the first time ever, put in a physical structure in which victim support organisation can operate.

Mr. Gilmore

I thank all Members who have supported this amendment and who have encouraged the Minister to respond positively to it. I acknowledge the fact that the Minister will look at it again before the Bill is debated in the Seanad. As the Minister is aware, my party is very well represented in the Seanad. I will be alerting my colleague, Senator Sherlock, to the commitment the Minister has given. Virtually every speaker has made the point that the victim dimension needs to be taken into account.

As Deputy Michael McDowell said, it is one thing to say it but it is quite another matter to put into practice. While I accept that for crimes involving violence and direct offences against the person the Criminal Justice Act, 1993, provides for a victim impact assessment at the sentencing stage, it does not do so in the case of many of the offences contained in this legislation. I do not accept that there is a victimless crime. It may be difficult to identify the victim immediately but there is one somewhere. For many of the offences contained in this legislation it would be very difficult for a prosecution to be successful without a victim to give evidence that they were offended, intimidated or discommoded in some way by the activity of the accused. I will withdraw the amendment in view of the Minister's commitment that it will be examined before the Bill goes to the Seanad.

Amendment, by leave, withdrawn.

Mr. Gilmore

I move amendment No. 8:

In page 4, between lines 11 and 12, to insert the following:

"5.—(1) Subject to the provisions of this section, on conviction of any person of an offence, the court instead of or in addition to dealing with him in any other way, may, unless it sees reason to the contrary, make (on application or otherwise) an order (in this Act referred to as a `compensation order') requiring him to pay compensation in respect of any personal injury or loss resulting from that offence (or any other offence that is taken into consideration by the court in determining sentence) to any person (in this Act referred to as the `injured party') who has suffered such injury or loss.

(2) The compensation payable under a compensation order (including a compensation order made against a parent or guardian of the convicted person and notwithstanding, in such a case, any other statutory limitation as to amount) shall be of such amount (not exceeding, in the case of such an order made by the District Court, such amount as may stand prescribed for the time being by law as the limit of that Court's jurisdiction in tort) as the court considers appropriate, having regard to any evidence and to any representations that are made by or on behalf of the convicted person or the prosecutor, and shall not exceed the amount of the damages that, in the opinion of the court, the injured party concerned would be entitled to recover in a civil action against the convicted person in respect of the injury or loss concerned.

(3) Where the commission of the offence by the convicted person involved the taking of property out of the possession of the injured party and the property has been recovered, any loss occurring to the injured party by reason of the property being damaged while out of his possession shall be treated for the purposes of subsection (1) as having resulted from the offence, irrespective of how the damage was caused or who caused it.

(4) A compensation order may provide for the payment of money as compensation or for the carrying out of works in lieu of payment or for both.".

I think we have had a debate on this amendment because it deals with compensation. However, I did not refer to it when I proposed amendment No. 7. I am probably the only Member who has not referred to the question of compensation. Therefore, I beg your indulgence, Sir, to say a few words on it.

Most Members who contributed were in favour of the principle of compensation. It is generally accepted that prison, as a sentence and a punishment, should be a recourse of last resort or should be used only in cases of serious crime. It is a question of trying to make the punishment fit the crime. I appreciate that Deputy Michael McDowell said that some members of the Judiciary have used their discretion, even before the advent of community service orders and so on, to impose more imaginative sentences than are specifically laid down. Apart from the system of fines and prisons and, more recently, community service orders, there needs to be a more imaginative approach to sentencing. In the case of public order offences and those which arise from nuisance, in which a local community is disturbed by the activities of a group of people misbehaving in any way or another, the imposition of custodial sentences or very heavy fines would be tantamount to cracking a nut with a sledge hammer.

While some members of the Judiciary have used their discretion, it is also true that when such cases go to court, particularly those involving crimes in low income communities and disadvantaged areas, virtually everybody in the court has little or no understanding of what happened and what is the appropriate remedy. You could end up with gardaí — who, though well trained, sometimes lack a degree of empathy for the problems in urban communities — and legal teams who belong to a different class and who very often do not understand the problems that arise in poorer communities.

If the victims were asked to suggest an appropriate punishment they would not recommend custodial sentences but something much more practical. Let us take an example, if a group of boisterous youths congregating in a public place are asked by the gardaí to move but refuse to do so and the gardaí decide to enforce the law, it is going too far to say they must be locked away for two months. They could usefully remove graffitti from local walls. Another example that came to my notice was where a community service order was made that young people should clear up a plot of waste ground as reparation to the community as a whole.

Judges, when sentencing people for offences against the community, could impose a penalty which benefits the community. It is poor compensation to an individual or to a community offended against that the offender is put in prison or fined a sum he cannot pay and eventually ends up in prison. The black and white approach to offences discourages people from going forward as witnesses and giving evidence in cases of this type. I do not agree that the rich mugger should pay compensation and that the poor mugger should go to prison, as Deputy McDowell argued — but forms of compensation — not necessarily of a monetary nature — can be imposed, which would be much more effective in controlling this type of behaviour. Given that our prisons are overcrowded and that some prisoners suffer serious health problems, it is nonsense for our sentencing policy to impose a prison sentence on youngsters which places them in an environment where they learn about crime. We have the argument of recidivism, the revolving door syndrome. There is no point in sending somebody to prison where he can learn about crime in a criminal culture because the chances are that soon after he gets out he will be back in again. It would be much better if the sentencing policy fitted the penalty to the offence. We are dealing in some cases with offences against the individual and where compensation can be matched to the offence as well as offences against the community, where it should be possible to impose penalties such as compensatory community service orders which seeks to compensate the community for some of the damage caused. That would be fair and acceptable to the public.

Mr. G. Mitchell

I made most of the points I wished to make when we discussed section 7. However, I have a few comments. Deputy McDowell asked how we could ensure that judges would effectively adjudicate in favour of the victim for which I argued. There are a great many ways of doing that. Some judges are much more imaginative than others. The Minister referred to public concern about inconsistency — there is concern although there will always be inconsistencies because no two cases are the same. When someone is found guilty, some judges put the person in the care of the probationary and welfare service for three months before recalling him three months later to see how he is getting on, and then might suspend half the sentence if the person has behaved himself. The offender has this hanging over him constantly and it encourages him to behave properly. Some judges do this effectively but others do not. Some judges use the curfew — a word we seem to be afraid of — which means the person must be at home at the times decided by the probation and welfare officer. That allows the probation and welfare officer to vary the times the youngster must be at home, for example, a juvenile may be allowed to go to a disco provided he is home by 11 p.m. but every other night he must be home by 9 p.m. That allows a certain latitude.

Some judges are very good at using their discretion. It may be possible for a judge to decide that part of the fine will be paid to the victim in compensation for the suffering caused, it may be suggested that the offender puts forward his proposals on compensating the victim and the court may consider suspending the sentence in three months' time. It is not beyond the imagination of judges to do this. It is necessary for us as public representatives to put on record our request to the judges to put the victim centre stage. The Legislature has the role of legislating but the Judiciary has the role of interpreting the law.

Part of the difficulty of sentencing is that we have made provision down through the years for a fine, imprisonment or both. We need to take a new approach to sentencing and we also need judicial training. Judges need to know the range of sentences available to them, the type of sentences other judges are applying and what is most effective. In order that judges know that, we need to evaluate the effectiveness of sentences. This was commented on in both the Whitaker report of 1985 and the Law Reform Commission report on sentencing. The Legislature and the Judiciary should be informed on the most effective sentences. If we had statistical information on sentencing, including an analysis of its cost effectiveness we would probably find it not cost effective to send people to prison for all types of offences because as well as the capital cost of £200,000 per cell there is the annual running cost of £30,000. I think it was either Deputy McDowell or Deputy Gilmore who said that people are often more hardened coming out of prison than when they went in. There is evidence to suggest that some juveniles pick up the drugs habit in prison. The effectiveness of sentencing needs to be measured and reported on annually. I will not bore the House by repeating my proposal for a national bureau of crime statistics — that is outside this amendment — but we need to inform the Legislature and the Judiciary in advance so that we are not only going through the format of enacting legislation but trying to incorporate in legislation sentences which are effective, efficient and economic and not a penalty on the taxpayer. I would like to see the introduction of judicial training so that judges can see for themselves the range of options open to them. I support the general thrust of amendments Nos. 7 and 8.

Mr. L. Fitzgerald

In regard to a point made by Deputy Mitchell, to consider the effectiveness of a sentence one must examine if it deters an offender from committing further offences. The establishment of a national bureau for crime statistics was raised many times at the Committee on Crime, Lawlessness and Vandalism at which we endeavoured to find the most effective type of sentencing. We tried to obtain statistics in respect of the level of recidivism in persons who received custodial sentences and served part or all of those sentences. We discovered that statistical data in that respect was very limited, but from the information we obtained it is obvious that persons who are not hardened criminals and receive custodial sentences almost invariably return to the community as more hardened criminals. There is a need for proper statistics in that area to enable judges to make a more balanced and informed judgment when imposing sentences.

I welcome the Minister's commitment to introduce legislation in respect of sentencing and I urge her to continue to lobby the Law Reform Commission to submit its final report at the earliest possible date. I agree with many of the sentiments expressed here. I do not wish to be disrespectful to our courts or judges, but in some cases where minor offences are committed against the person, the community or property, invariably, a custodial sentence is imposed on the offender without any regard to the offender involved, the minor nature of the offence or the greater potential for effectiveness in terms of rehabilitation of serving a community or compensation order on the offender. When dealing with young people and, indeed those not so young, what will have the strongest and most immediate impact on their pattern of behaviour is the knowledge that they will have to pay. I urge the Minister to consider the meritorious elements of amendment No. 8 before the Bill goes to the Seanad.

Mr. M. McDowell

I disagree with the implication that the Judiciary is drawn from a specific class or lacking experience of the real world. That is a common misconception among politicians and it amuses me. I have been fortunate enough to spend a considerable part of my career as a barrister both prosecuting and defending offenders and I have a great deal more experience in the area of crime than many Members who believe that the class of people from which the Judiciary is drawn do not have such experience. Members of the Judiciary know the criminal mind very well. They know precisely what makes criminals tick and holds them in fear, much better than politicians, and that is obvious from what has been said here.

It is essential that we have an information base from which the Judiciary can draw information to assist them in imposing sentences. Sentencing policy requires more of a State input and in that regard I hope the Law Reform Commission publishes its report soon. We should hold sentencing conferences to impart information to members of the Judiciary who, because of their independence, are isolated in many respects from trends in other parts of the country. The Judiciary should know what is effective in the line of sentencing.

A policy which would go a long way down that road would be for every member of the Judiciary who imposes a sentence on an individual to be notified when that person is released. The Department of Justice would do a worthwhile service by informing a District Court judge that a person whom he or she imposed a six month sentence on was back on the streets after one day in prison. The District Court judge might then have some realisation of the effectiveness of the sentences he or she imposes on criminals. Early releases should be made known to the public, not on an individual basis but, say, once a month they should be informed of the numbers released early and the number released temporarily. In that way the people could judge who is to blame for the inadequacies in the criminal justice system.

I am not a spokesperson for the Judiciary, I would probably be the last person they would appoint as their spokesperson. I regard them as a mixed bag, some are good and some are bad, but the majority are good. Nevertheless, in regard to sentencing, people tend to believe members of the Judiciary are cut off from reality and do not understand what is taking place in their district, city or county whereas, in fact, the opposite is the case. Members of the Judiciary are more conscious than most of the inadequacies of some prison sentences.

It is easy for a judge to devise some clever sentencing strategem but he will not have to implement it. It is easy for a judge to order a young delinquent to clear up a patch of open space to make redress to the community, but who will supervise the delinquent while carrying out such work? Do we have a probation service to carry out such supervision? Who will report to the judge on the matter and who will put in place the resources for such a service? I support imaginative treatment of offenders, but a judge cannot be expected to make decisions in isolation about what should happen, as if he or she disbursed justice from under a palm tree on a desert island and that whatever he orders will be done. Regrettably, delinquents break the rules and if they break the law in statute form they are unlikely to comply with judicial orders in regard to their behaviour unless there is an enforcement mechanism in place. The resources to ensure compliance with non-custodial sentences do not exist.

Mr. G. Mitchell

That is the point, there should be a probation service.

Mr. M. McDowell

A probation service does not exist in sufficient strength to give effect to non-custodial sentences.

Deputies Mitchell and Gilmore referred to the adequacy or inadequacy of prison sentences as a response to crime. They are inadequate and expensive, but when a judge decides to send an individual to prison he incurs a cost of £30,000 on the State for every year that person is in prison. Most of those costs are fixed costs and most of the expenditure on jails would be incurred whether the jails were empty or full or whether individual cells were occupied or vacant. Therefore, it is not true to say that by sending an offender to jail a judge is expending £30,000 of resources annually, or whatever the appropriate figure is for a particular institution. Life is not like that.

It is strange how the political pendulum swings. In the latter part of 1993 — and to some extent the Minister must claim the credit for this — we are now in a slightly more mature frame of mind about sentencing than we were six months ago when sentences were being doubled for many crimes, when there was a call for more people to be punished for criminal offences, that the Judiciary were not handing down sufficiently heavy sentences. Happily, people are now beginning to realise that the pendulum has swung the other way and that to sentence a young boy of 16 to 18 years of age to one to three months in prison is a serious step to take and that it should not be taken if it could be avoided.

I reiterate that it is necessary to set out in statutory form a policy in this regard. Members of the Judiciary in England are in law prohibited from sending a young person to prison unless they certify that no other course is open to them and state the reason that is the case. A judge is not allowed make a judgment on the basis that he may take a dislike to a young offender before him or her and say——

Mr. Browne

(Carlow-Kilkenny): The Deputy is learning.

Mrs. Geoghegan-Quinn

Gender proofing.

Mr. M. McDowell

My political correctness is growing. Judges cannot impose sentences of three to six months on young first time offenders without careful consideration as to whether such a sentence will do any good. In such cases a report on the offender's background should be presented by, for example, a probation officer. Such a report should not take the form of five minutes' evidence from a policeman when the accused is convicted or pleads guilty followed by a quick decision by a judge. These are serious decisions. Going to prison rarely does anybody any good.

Prison is not simply about reforming or rehabilitating; to some extent it is about punishment. The recent controversy in the United Kingdom between the Home Secretary and members of the Judiciary shows that some judges are more alive than some politicians to the realities of the situations they are dealing with, and I hope some Members here will take that point on board. The point that the British Home Secretary got wrong was saying that prisons are an answer to crime in the sense that they prevent it. Of course, they do not prevent it and in one sense it is arguable that they do not have any serious effect on the level of crime in society.

However, prisons are important from another viewpoint — the sense of confidence they instill in a community that punishment is available is important. The problem with a revolving door system of prisons, which appears to be in existence in this jurisdiction, is that most people lose confidence in the judicial system. That is an important point. It is not how many people are in prison, but that society has an effective capacity to punish. Most victims do not want what would be described in biblical terms as retribution, but in many cases they want punishment. Psychologically they feel unhealed as long as the wrongdoer effectively goes scot free. Punishment is important. I know it sounds somewhat Victorian when put in these terms, but punishment is part of the process of healing society and assisting the individual who has been harmed by the wrongdoer to come to terms with his or her injury.

We must not lose sight of the fact that we are not running Mountjoy Prison to rehabilitate offenders, to ensure that they do not commit further offences or to protect the public from its occupants. We are running a penal system, as the name suggests, to punish people who have caused harm to others. A society that loses sight of the punitive nature of some sanctions imposed by the courts is a society which is desperately in danger of falling victim to a huge sense of wrong within that society which will explode in vigilantism, knee cappings, punishment squads and so on. The State must have regard to that public duty. I hope that does not sound too reactionary, but it is something I strongly believe in. We cannot have a system of penal institutions without remembering that the term "penal" means punishment.

Mr. D. Wallace

I do not have the experience, knowledge or wisdom of Deputy McDowell in relation to the courts. I accept the Deputy's point that he is not the official spokesperson for the Judiciary but he is the closest person to that spokesperson here today.

There are offenders in society with repeated offences and the more time they spend out of circulation the better is the position for society. That may be a strong statement; but, unfortunately, it is a sad reality that there are offenders in our society that are past redemption. When such offenders are in prison certain communities enjoy peace and quiet and when those offenders are released all hell breaks loose. The Deputies present and I know that to be the position. The Garda may for example, be aware that some local offender is due to be released in December and the community will be at the mercy of that offender during the Christmas period. That is a sad reflection, but it is a reality. We must strike a balance. Deputy McDowell made a good defence of the Judiciary, but we could all quote cases where the law was brought into disrepute not by any Member of this House but by a decision of the Judiciary, and such decisions cause major problems. "Inconsistency" is the word that is being used repeatedly, although I know that no two cases are the same.

However, there is a major problem about technicalities. A serious crime was committed in my city where a person was murdered. However, because of a technicality the offenders were arrested under the wrong Act and are now walking around Cork city. People may blame the lack of expertise of the lawyer for this error, but the community must live with such mistakes. We have too much law and not enough justice. The public want justice.

Deputy McDowell's final comments in relation to anarchy and other matters may be fine, but the finger must be pointed in the right direction. We all have a role to play in this area. It is not just the responsibility of the legislators, the Judiciary or the Garda. We all have a responsibility. If we do not get the balance right we will all suffer.

I was pleased to hear the Minister say that she will introduce legislation in regard to consistency in sentencing. I accept the Judiciary have a difficult job, but there is no doubt there are glaring cases which result in the public losing confidence in the criminal judicial system. We read of cases that look straightforward and where one could say that there are external or hidden circumstances of which the public were not aware. However, that is not good enough. We must deal with this problem. The points Deputy McDowell made may be true but we must address the whole judicial area.

I do not support sentencing all offenders to jail; all offenders should be given an opportunity to prove themselves. The Deputy referred to the probation service. That service is doing an excellent job. Many offenders who got early release have got back on the right track. Therefore, we must consider this matter carefully. The politicians are blamed for all problems. If parents do not face up to their responsibilities the politicians are blamed for the problems that arise. The Garda have to deal with the problems at the end of the day. I hope the Minister, when she receives the report of the Law Reform Commission, will introduce some consistency in sentencing and that the public will be aware that the legislators are sincere in tackling the problem.

Mrs. Geoghegan-Quinn

We have had a very useful exchange of views both now and when we were discussing amendment No. 7 earlier in relation to sentencing. The debate bears out the point I have been making consistently that there is concern about sentencing policy and about what are perceived as disparities in that area. I am precluded from making personal comments or comments as Minister on the Judiciary because of their independence, but that does not preclude us from gently nudging them in a particular direction. I have been very impressed with the attitude of the President of the District Court who has initiated training for newly appointed members of that court. That is a welcome development, something the President of the District Court did on his own initiative. It is a beacon of hope, and we would like to encourage other members of the Judiciary to do something similar. I support any initiative in the area of training and education for the Judiciary. That is the way forward.

I agree with Deputies who said that some judges have used imagination in dealing with criminals. A well known district justice operating in the north county Dublin area places a curfew at weekends on young offenders. On each night of the weekend at a specific time during which they would usually be expected to be engaging in other activities, they are required to check into the local Garda Station. Should they fail to do so they are immediately brought before the district justice. That district justice has used his imagination and is keeping people out of jail. The policy he is following seems to be working.

In my area another district justice imposes a different type of curfew in that he asks that members of the Garda to call to an offender's home from time to time and unannounced on weekend nights to ascertain if the offender is at home. If he is not, he is brought later before that district justice. As Deputy McDowell says, there is a penalty hanging over the offender and he must live up to a responsibility placed on him by the district justice.

Mr. G. Mitchell

I claim responsibility for making that point.

Mrs. Geoghegan-Quinn

So many people have made contributions that I have not taken note of what everybody said although I have taken note of all the points. It is not enough to ask the Judiciary to rely on their imagination. We need a new sentencing statute. The consolidation paper produced by the Law Reform Commission in relation to sentencing policy amounts to over 400 pages. The commission held a seminar to discuss this area and to seek submissions. It is now in the process of putting the material together and formalising its final report which will be sent to the Attorney General. I am looking forward to that as the outcome would form the basis of one of the priority Bills to be prepared in my Department.

Apart from the question of overcrowding in our prisons more than 3,000 people on whom non-custodial sentences have been imposed, are being supervised by the probation and welfare service. Imposing some type of community work such as that suggested by Deputies Mitchell and Gilmore, whether it is cleaning up a field, removing graffitti or making improvements to a local football pitch, is often more of a punishment for a young offender than going to prison. Deputy Harney made the point on Committee Stage that it is often a feather in the cap of a young offender in Dublin, in particular, to have spent a month in "the Joy". A greater punishment would be to ask such people to do some form of community work and it might teach them an important lesson. Rather than introducing piecemeal remedies for sentencing policy we should deal with this in a comprehensive way by producing a new sentencing statute which I am confident would have the support of all sides of the House.

Mr. Gilmore

We have had a lengthy discussion on two amendments dealing with sentencing policy and with enforcement of penalties. The time spent has been worthwhile because it is not enough for us to say that because we have legislated for a problem, that resolves it. Legislation without addressing implementation is not very effective.

There has been some discussion on the Judiciary, on the extent to which the public have confidence in the Judiciary and the extent to which the Judiciary are taking steps to effect reform in the way in which they operate the courts and carry out sentencing policy. While I respect the independence of the Judiciary in dealing with cases, although the Minister may be somewhat circumscribed in this respect, it is appropriate that the House reflect on the growing unease about the Judiciary and growing lack of confidence in them. A survey published in The Irish Independent dealt in a comprehensive way with crime and showed that when it came to asking the public who was to blame for rising crime the response, by a significant margin, was that to the greatest extent, judges were responsible and, to a lesser extent, politicians. If one can manage to enjoy less public confidence than politicians these days, one has certainly hit rock bottom. There is a lesson there for the Judiciary.

Deputy McDowell took me up on the question of whether judges are drawn from one class and to what extent they may be out of touch with what is going on. I accept that judges living in the community know what is going on in that community, or at least some of them do. In fairness, that is reflected in some cases, in sentencing and in initiatives which judges have taken.

The position is that the members of the Judiciary are drawn from the legal profession, in other words practising lawyers. In turn, members of the legal profession are, by and large, drawn from those who have the money to study law and to establish a practice or who have family and other connections to establish themselves as practising lawyers. The two wings of the legal profession seem to be operating the worst kind of closed shop when it comes to gaining access to it and their restictive practices would be widely condemned if they were operated by any other profession. A small number of lawyers are earning enormous sums of money in fees while others cannot make a living. Meanwhile members of the public who do not have money may have to wait for up to a year to get an opportunity to see a solicitor under the civil legal aid scheme.

There is a necessity to reform in a fundamental and radical way the legal profession and to address the question of access to the law, the courts and, indeed, the legal profession. Because judges are drawn from the legal profession they tend to be drawn from a small circle of people in a small country with a small population.

The Minister said she is considering the question of compensation in the overall review of sentencing policy. Since she has stated that it is her intention to introduce a Bill dealing with sentencing policy it would be appropriate to withdraw the amendment and defer consideration of this question until that Bill is introduced. To make the Chair's job a little easier, as amendment No. 9 also deals with the question of sentencing policy and we have spent some time discussing the matter I will be happy to withdraw until the Bill dealing with sentencing policy is published.

Deputy Costello rose.

Acting Chairman (Miss Coughlan)

The Deputy is not entitled to make a contribution as Deputy Gilmore has concluded the debate on the amendment.

Mr. Costello

I would like to make a number of brief points.

Acting Chairman

I am sure we could give the Deputy some latitude.

Mr. Costello

The Minister mentioned that she is carrying out a review of sentencing policy which is welcome. In this regard I would like to make two points about the Judiciary which have not been made to date. First, one of the qualifications required before a person can be considered for appointment as a member of the Judiciary is experience either as a solicitor or barrister in either the District Court or the High Court. So far as I am aware a barrister need not have practised in the criminal courts. Therefore, on appointment new members of the Judiciary should receive some induction training. I am sure they would welcome an opportunity to undergo such training. There should be some formal structure whereby on appointment they would be briefed by more senior members of the Judiciary.

Deputy Gilmore, and others, mentioned that there is a lack of public confidence in the Judiciary. It goes almost without saying that there is a lack of public confidence in virtually all State and non-State officials beginning with politicians right through to the legal profession.

The second point I wish to make relates to the workload of members of the Judiciary. On the question of criminal cases the workload of a judge in a District Court is not structured and they may have to deal with a large number of cases within a specific period. There is a need, therefore, to issue guidelines. Perhaps this matter could be dealt with in the new Bill dealing with the powers of the court in criminal cases. Judges should not be expected to carry a heavy workload on any particular day. In many instances they are over burdened and cases are not dealt with in a proper fashion.

I agree with the other points made about sentencing policy, in particular the point raised about the need to come up with alternatives to prison sentences.

Amendment, by leave, withdrawn.

Acting Chairman

As Deputy Gilmore has indicated that he does not intend to move amendment No. 9 we will proceed to amendment No. 10.

Mrs. Geoghegan-Quinn

In relation to amendment No. 9, I am not sure if Deputy Gilmore is aware that amendment No. 50a in the name of Deputy Mitchell was due to be taken with it. That will now be discussed on its own.

Mr. G. Mitchell

It deals with the question of indexation.

Acting Chairman

Amendment No. 50a, as the Minister has indicated, is related to amendment No. 9. It is proposed, therefore, with the agreement of the House, that we discuss amendments Nos. 9 and 50a together. Is that agreed? Agreed.

Mr. Gilmore

I move amendment No. 9:

In page 4, between lines 11 and 12, to insert the following:

"6.—Section 17 of the Criminal Justice Act, 1984 is hereby amended by the insertion after `£1,000' of `to be increased on the 1st day of January of each year by the amount of the increase in the Consumer Price Index over the previous year'.".

I thank the Minister for ensuring that I was not upstaged by Deputy Mitchell.

Mr. G. Mitchell

I can assure the Deputy that that was not my intention.

Mr. Gilmore

The purpose of this amendment is to establish the principle of indexation in regard to fines. In many instances the penalty proposed in this Bill is a fine. The discussion document published by the Law Reform Commission on sentencing policy recommends strongly that fines should be indexed. Repeatedly we come across cases where the fine is outdated. For example, many fines outlined in the existing legislation in this area date back to the last century. In one instance the fine to be imposed was £2. I am trying to establish the principle of indexation, as recommended by the Law Reform Commission.

I mentioned earlier that it may be more appropriate to consider this matter in the Bill dealing with sentencing policy but as the Law Reform Commission has made such a clear recommendation and it would seem to be a straightforward matter to provide for th indexation of fines perhaps the Minister could proceed with this matter in advance of the introduction of wider legislation dealing with sentencing policy.

Mr. G. Mitchell

Amendment No. 50a is similiar to the amendment I tabled on Committee Stage. It proposes that the maximum fines imposed under the provisions of this Bill should be increased automatically each year in line with increases in the consumer price index. I made the point on Committee Stage that when we pass laws such as this they tend to remain on the Statute Book for a century. We still rely on Acts which are more than 100 years old. In many cases the fines are absurd when we take the rate of inflation in the intervening period into account. Some of the fines are as low as £2. Even though the fines proposed today appear to be substantial, ten years from now they will not be and in 50 years time they will be considered meagre.

We must look at the question of indexing of fines. The purpose of putting down this amendment was to draw attention to this and implant in the Minister's mind the idea that penalties can be whittled away over the years, making judges more inclined in future to impose a custodial sentence which, because of the average life span of human beings would have much the same effect in ten years' time as today. If the fine had increased annually in line with the consumer price index the judge would be able to impose a substantial fine instead of a custodial sentence. I do not know if it is possible but I imagine it would be necessary to introduce separate legislation to provide for indexation of all fines. However, my purpose at the moment is to allow for further discussion and underline the need to address the matter.

Mr. L. Fitzgerald

I agree with the views expressed by Deputies Gilmore and Mitchell. Regardless of the objective, whether it is to punish, rehabilitate or deter, a fine may be ineffective because it is out of date. If fines are to continue to play a significant role in sentencing policy the Minister should look seriously at the proposals in these amendments and take them on board to the maximum possible extent.

Mr. M. McDowell

I agree with the principle of indexation. It is not only in the area of what is generally spoken of as criminal law that fines have become inadequate. There is a massive number of Statutes, for example, the Pawnbrokers Act, which provide for silly fines of, say, £5 where it would cost more to send out the summons than could ever be recovered in the penalty. Our criminal law is distorted by the failure to keep fines up to date. When a judge is confronted with an offender he must, to give any real punishment, resort to imposing a custodial sentence. If the statutory maximum fine is somewhere between £20 and £50 it makes a mockery of the whole proceeding.

I note the Minister's next amendment relates to the reduction of a proposed fine in the Statute. We will talk about that when we come to it. However, in all these matters we must bear in mind that a court hearing costs a lot of money in terms of involving a garda, a judge and sometimes providing legal aid — although with fines of £100 that is not reasonable. The time of the court, the lawyers involved, the probation service, the District Court clerk, the judge — and the Garda in particular — in detecting and prosecuting an offence is valuable. The resources involved in a criminal prosecution are substantial. Therefore, what we have now spread across all sorts of obscure Statutes is a ragbag of outdated financial penalties. I strongly support the idea of indexing penalties. I do not know if it would make sense to do it every year rather than every three or five years. I do not think that would make much difference to the average judge.

When reform of the criminal law at present in train is completed, it would be desirable that all the criminal Statutes be put together in one document, a criminal code, which has been done in virtually every other common law jurisdiction, so that one does not have to stipulate figures in each offence but need only say that a person convicted on summary conviction shall be liable to three months' imprisonment or a fine or both with, at the end of the Statute, an indication of what a fine means in a particular context. When we have a rational criminal code, these difficulties will be eliminated. Again I make the point that indexing fines in the context of this Statute would not make sense if it did not also extend to areas like the Pawnbrokers Act, the Moneylenders Act and a large number of other Statutes where the same problem exists. When the Minister has time to reflect on what she has achieved — and on what she proposes achieving — she should set up a committee which will outline in a report, the prospects for codifying the criminal law, in one document about the size of the Social Welfare Consolidation Bill that this House dealt with the other day. When that day comes we will have seen a legal revolution.

Mrs. Geoghegan-Quinn

I appreciate what Deputies Mitchell and Gilmore are trying to achieve in their amendments; the general issues raised by both are the same.

The Law Reform Commission recently issued a report on indexation of fines which looks at the matter in great detail. The report draws attention to the fact that the implementation of any system of indexation of fines raises constitutional issues which must be addressed, particularly with regard to Article 15.2º of the Constitution. The Commission recommended the introduction of a particular system of indexation of fines and its recommendations are at present being studied by officials in my Department. I will be bringing forward proposals in response to the Commission's recommendations.

However, I am sure that Members will appreciate that might take some time in the light of constitutional issues raised and particularly as the Commission recommended that the necessary legislation should contain long schedules specifying individually every offence, which is to be linked. Although no final decision has been made by the Government on the form which indexation might take, I am certainly in favour of the principle of indexation of fines.

The amendments put down by Deputies Mitchell and Gilmore would cause problems, and, in fairness to both Deputies, they appreciate that. The system proposed by the Deputies is not compatible with that proposed by the Law Reform Commission, which referred to the type of system proposed by the Deputies as needlessly and mystifyingly exact. It would cause considerable practical problems in its operation and lead to uncertainty in regard to the maximum penalty faced by the accused. It has been suggested to me that it would be a sight to behold the lawyers, the judge of a District Court and so on, armed with their calculators, arguing about the correct level of fines after adjusting for several years of inflation and maybe arguing whether 0.4999 should be rounded up or down. That would not be a particularly appealing sight.

The need for an annual automatic increase has to be questioned. If we look at the period May 1992 to May 1993, when the inflation rate was 0.9 per cent, in those circumstances it may not be worth adjusting a fine of £1,000 to £1,009. What would that achieve at the end of the day? In addition to my reservations about the system of indexation proposed by the Deputies, there could be a number of technical and drafting flaws in their amendments. I do not wish to go into great detail on this matter but I will give a few examples of what I mean.

Deputy Gilmore's amendment relates to the Criminal Justice Act, 1984. It is not clear from the amendment if calculations for indexation are to be based on figures starting from 1984 or from the passing of this Bill. Neither of the amendments provides an adequate definition of the term "consumer price index" nor do they specify whether the increases in fines are to apply retrospectively or only to offences committed after the fine has been increased. I appreciate what the Deputies are trying to achieve. I support the proposal for indexation of fines. There is a Law Reform Commission paper on this matter. Having regard to the constitutional issues raised and the difficulties they may cause, I assure Deputies that their concern has been taken into account. The points they have made will be considered in the preparation of future legislation.

Mr. Gilmore

To have one's amendment described by the Law Reform Commission as needlessly and mystifyingly exact must be more devastating than to be described by the Sunday Independent as politically correct.

Mr. G. Mitchell

Does it not give the Deputy a great feeling to mystify the Law Reform Commission?

Mr. Gilmore

What I am attempting to achieve relates to the principle of indexation. I do not propose to take issue with the Minister on the technicality of the amendment. I am trying to provide for a system of indexation. I hope that when a sentencing Bill is brought forward the Minister will establish the principle of indexation. I am not hung up on the question of whether there should be an annual indexation or whether it should take place every five years or whatever, although at the rate we are getting economic bad news from this Government one cannot be too sure about the prognosis for inflation and I wonder whether it might be prudent to make provision for an annual indexation of fines.

Mr. G. Mitchell

When negotiating with the European Community it might be very wise to ask for indexation in terms of Structural Funds. Like Deputy Gilmore, I have no hang-up about the period in which indexation would take place. On the grounds that the Minister will consider this matter, I am happy to withdraw the amendment.

Amendment, by leave, withdrawn.

Mrs. Geoghegan-Quinn

I move amendment No. 10:

In page 4, line 17, to delete "£500" and substitute "£100".

I undertook during discussion on Committee Stage that I would reconsider the offence of intoxication in a public place as referred to under section 4 of the Bill. In dealing with this type of behaviour the Garda need ultimately in certain cases to have recourse to the criminal law. I have not been able to improve on the threshold for this offence which was proposed by the Law Reform Commission, that is, intoxication to such an extent as would give rise to a reasonable apprehension that persons might endanger themselves or other persons in the vicinity. However, given the relatively less serious nature of the offence, the original maximum penalty of £500 was on the high side and the purpose of this amendment is to reduce it to £100.

Mr. M. McDowell

I agree that a fine of £100 is probably a sufficient penalty for being drunk in public. Most people do not deliberately set out to become drunk in public. By the time people are prosecuted for the offence the shame and public obloquy of being brought before the courts is probably a greater deterrent than any fine.

In terms of the shrinking Structural Funds, one of my party colleagues said today that, considering the rate at which the European money is shrinking, we had better sign a deal now before we end up paying Europe money to stay in the EC.

Amendment agreed to.

Acting Chairman

We now come to amendment No. 11. Amendments Nos. 13 and 14 are related and amendment No. 12 is consequential on amendment No. 13. It is proposed therefore that amendments Nos. 11, 12, 13 and 14 be discussed together.

Mrs. Geoghegan-Quinn

I move amendment No. 11:

In page 4, line 19, after "this section" to insert "or under section 5 or 6".

I explained on Committee Stage why I was unable to accept Deputy Mitchell's amendment No. 14. In particular I thought that the point at issue was not the manner in which intoxicating liquor was being consumed but the attendant behaviour to which this gave rise. I considered the matter further, as I had undertaken to do, and I am bringing forward amendments Nos. 11, 12 and 13 which allow for the seizure of intoxicating substances where it is suspected that an offence has been or is being committed under section 5, which deals with disorderly behaviour, and section 6, which deals with threatening behaviour, and that the consumption of intoxicating substances is linked to those offences.

Deputy Mitchell's amendment is too wide and there would be difficulties in imposing a total ban on the drinking of alcohol in public places. However, I think the point is met by allowing for the seizure of intoxicating substances linked to the commission of certain offences, as proposed in amendments Nos. 11, 12 and 13 in my name. The advice available to me suggests that to provide a power of seizure not linked in the way I propose with specified offences could give rise to difficulty regarding private property rights guaranteed under the Constitution.

Mr. G. Mitchell

I submitted this amendment in the exact form used on Committee Stage. Notwithstanding the Minister's advice about the manner of seizure, the wording "that a person is consuming intoxicating substance(s)" may give rise to an understanding to which I did not intend it to give rise. Nonetheless, I resubmitted this amendment so that we could again discuss the matter on Report Stage.

The Minister's amendment No. 11 deals with this matter in that it extends the provision to sections 5 and 6, relating it to the commission of a particular offence. I wish to express a reservation in this regard. Under section 6 I wish to replace the word "insulting" with the word "intimidating". However, we will deal with that matter when we come to the amendment concerned. It would be more appropriate to relate this offence to various sections rather than let it stand on its own. I take the Minister's point about the wording of my amendment and, with the permission of the House, I will withdraw it.

I would ask the Minister to confirm whether under sections 4, 5 and 6, which relate to disorderly conduct, threatening behaviour and distribution of threatening material and related matters, an intoxicating substance would be seized from a person regardless of whether the person is under or over 18 years. I understand that at present this provision relates only to persons under 18 years, and the Garda have great difficulty in knowing whether a person is under 18 years.

This tidying-up amendment goes some way towards meeting the reservations expressed by me on Committee Stage. However, I still have very strong reservations about sections 5 and 6, to which this amendment refers. I do not think the word "insulting" should be included in section 6. The use of insulting words, engaging in insulting behaviour and the carrying of posters with insulting slogans are not central to the problems of crime or public disorder. The word "intimidating" would be much better in this context. I agree to this amendment and I will not be moving my amendment.

Amendment agreed to.

Mrs. Geoghegan-Quinn

I move amendment No. 12:

In page 4, line 26, to delete "substance." and substitute "substance:".

Amendment agreed to.

Mrs. Geoghegan-Quinn

I move amendment No. 13:

In page 4, between lines 26 and 27, to insert the following:

"Provided that, in the application of this subsection to section 5 or 6, any such bottle or container, together with its contents, may only be so seized, obtained or removed where the member of the Garda Síochána suspects, with reasonable cause, that the bottle or container or its contents, is relevant to the offence under section 5 or 6 which the member suspects is being committed.".

Amendment agreed to.

Amendments Nos. 14 and 15 not moved.

Acting Chairman

Amendments Nos. 16, 17 and 19 form a composite proposal and amendments Nos. 18 and 20 form an alternative composite proposal. It is agreed to take amendments Nos. 16 to 20, inclusive, together? Agreed.

Mr. O'Malley

I move amendment No. 16:

In page 4, line 35, to delete "any shouting, singing or boisterous" and substitute "offensive".

The Progressive Democrats' Party believes that the type of conduct which it is sought to make a criminal offence under section 5 is not sufficient to warrant being made a criminal offence. Section 5 (1) states that:

It shall be an offence for any person in a public place to engage in any shouting, singing or boisterous conduct.

There are very few people who have not been guilty of one, two or three of those activities from time to time.

Mrs. Geoghegan-Quinn

Not the Deputy.

Mr. Browne

(Carlow-Kilkenny): Did the Deputy never sing?

Mr. O'Malley

Not in tune anyway.

Mr. Browne

(Carlow-Kilkenny): That is an even bigger crime.

Mr. O'Malley

I can well accept that there are circumstances in which this type of conduct, if it is prolonged and deliberate for the purpose of a specifically offending and deliberately annoying over a period a person or persons, particularly an elderly person at home, should amount to a criminal offence. However, the crime, as stated in the section, is not sufficient to amount to an offence and we propose to substitute the words "any shouting, singing or boisterous conduct" with the words "offensive conduct", which are defined in amendment No. 19.

Amendment No. 17 proposes to delete the words, "in circumstances likely to give reasonable cause for annoyance to any other person in any place in the vicinity". That provision is too wide. For example, at times I am alleged in the papers to have been annoyed unreasonably. However, the fact that someone annoyed me on occasion should not make criminals of those people. One would need to do more than that to be a criminal. We propose the deletion of that wording which is too wide.

The Minister intends meeting to some small degree the point we are trying to make by inserting the words "substantial" before the word "annoyance" in section 5 (1). While this meets our point to some limited degree, her proposed wording is still too wide. Because this section is so broadly drafted, it may happen that — this is more likely to happen in rural than in urban areas — a garda will take it upon himself to decide that some slightly immoderate conduct at night amounts to an offence under this section; he will do this subjectively. No garda should be given the power to do something like that subjectively. That is the reason for these amendments. A garda may make this decision for personal or local reasons and the law should be more objective than this rather broad provision.

The Minister obviously takes our point to some degree, but I ask her to go further and acknowledge that this provision is too broad and accept the three amendments in my name and the names of Deputies Harney, O'Donnell and McDowell. Apart from subjective actions by a garda, there is also a danger that the conviction of people who engage in this slightly anti-social behaviour will bring the law into disrepute. Law abiding people have complained about being prosecuted for activities which are not criminal. Yet criminals who commit very serious offences are let off. This provision will be used as another example of how people who engage in very serious criminal activity do not seem to be prosecuted or convicted while those who engage in boisterous conduct may be convicted and fined a few hundred pounds. Young people of their nature are liable to engage in boisterous conduct, singing and shouting and as long as they do not deliberately engage in such activity over a long period it should not be a criminal offence. I suggest to the Minister that the proposals in our amendments represent a more reasonable way of dealing with this issue.

Mr. G. Mitchell

I have reservations about the section. While the Minister's amendment goes some of the way to meeting my reservations, this provision is still very wide. I do not know if the amendment moved by Deputy O'Malley would deal with all of my concerns, but it would go a long way towards dealing with some of them. The Minister should consider accepting the amendments tabled by the Progressive Democrats.

Section 5 (1) refers to shouting, singing or boisterous conduct "between the hours of 12 o'clock midnight and 7 o'clock in the morning next following, or (b) at any other time, after having been requested by a member of the Garda Síochána to desist". It is possible that carol singers at Christmas time may be told by a narky garda — he would be an exception in the Garda Síochána, which now has a greater involvement in the community — to move on. This type of activity should not be covered by a Bill which deals with public order. Similarly, if the Republic beat Northern Ireland in the soccer match at Windsor Park next month people will probably be singing for weeks. At various events, for example, All-Ireland finals and Ard Fheiseanna, people manifest their natural exuberance by singing. It can happen at examination time although not all students get blind drunk during this time. Some of them simply have an occasional drink or two, they congregate and sing.

We are leaving in the Bill the summary conviction, a fine not exceeding £500, and, therefore, the Minister's amendment goes some way towards reducing this. However, the amendment moved by Deputy O'Malley goes a little further and I would support it if the Minister could find a way of ensuring that law abiding citizens will not have the right to behave in a civilised manner taken away from them. It is civilised to sing and natural for children to be boisterous and shout. We are not only talking about the period between 12 midnight and 7 a.m., we are referring to other times. These activities should not be criminalised without good cause and the section should be watered down further.

Mr. Gilmore

I am a little curious as to the signatories of the Progressive Democrats' amendment, I would like to know at what point in the race for leadership these amendments were drafted because when I see four and not seven I wonder if this is a giveaway.

Mr. G. Mitchell

The Deputy would need to be a detective.

Mr. Gilmore

The issue we are debating here is one of the areas in this Bill that has been singled out for a certain amount of public comment and rightly so. There was a considerable debate on Committee Stage about this section and the desirability of including it in the Bill. We now have two formulae for resolving the problem, or at least amending it, and of the two, the formula proposed by Deputy O'Malley is preferable. Because there is a danger of the law being called into disrepute, it would be unwise for the Oireachtas to make singing a crime, albeit singing between midnight and 7 a.m.

We discussed at considerable length the kind of problems this legislation is intended to address, namely, people being disturbed by rowdy behaviour in their neighbourhood. The formula proposed by Deputy O'Malley addresses this problem. It is essentially a section where the Garda will be required to exercise a great deal of judgment and where the message given to them in implementing it is that they must use a good deal of judgment and common sense. We certainly do not want to give a licence or an excuse to a garda to overextend his powers and to use the legislation in a very crude way.

We must also protect against the type of situation we discussed on Committee Stage where the law is enforced in different ways for different people. The example given was, say, a group of students during rag week during which the Garda would turn a blind eye, irrespective of the hour, to their frolics. However, if a group of youths of the same age who, because of their circumstances, may never get near university, engaged in precisely the same behaviour, they would have the full force of the law brought against them.

As I mentioned previously, this section is one of the hangovers from the Criminal Justice Bill 1967, the only place where this section differs from that Bill is that in 1967 one was expected to be home by 10 p.m. rather than midnight. Either way, the formula proposed by Deputy O'Malley is preferable because it deals with the problem without having legislation on the Statute Book that makes boisterous conduct and singing a criminal offence.

Mr. D. Wallace

This is an important section of the Bill and while we may refer to the individual going home at night singing a song, the real problem is that there are certain vantage points in communities where youths congregate. We are not talking about somebody simply passing a house and making noise being confronted by the Garda or arrested. We are talking about the continuous problem of youths congregating at all hours of the night for no good reason who cause total disruption to local people by singing or playing loud music. There is a real problem in relation to youths disturbing people late at night and we must address it in the Bill either through the Minister's amendment or through some other amendment. I am sure most Members of this House received similar complaints in regard to people who spend the day in bed and then congregate late at night and disturb the community. This is unfair to children who have to get up the next morning for school and to adults who have to go to work. We now have an opportunity to address this problem in the Bill and we must make it easy for the Garda to clearly interpret its provisions. We do not want them to arrest people in the community who are coming home from a party, a debs' ball or whatever. That is not what we are trying to achieve in the Bill but we must address the continuous problems in certain areas and, in that regard, this is an important section.

Mrs. Geoghegan-Quinn

Whatever Deputy Gilmore might think about the names on the Progressive Democrats' moton, I am sure he will agree that at least the gender proportion is correct.

Mr. Gilmore

And in the right order.

Mrs. Geoghegan-Quinn

I am sure Deputy Mitchell accepts that there is no such things as a narky garda in the same way as there is no such thing as a narky Deputy.

Mr. G. Mitchell

In the very same way.

Mrs. Geoghegan-Quinn

When Deputy O'Malley talked about annoyance and what might cause annoyance, I was tempted to share with the House what used to cause him annoyance when he was Minister for Industry and Commerce. However, I will not go down that road and I can assure the Deputy it was not his then Minister of State.

I am aware that this section has been the cause of much public comment, and, indeed, the subject of considerable disagreement during the debate on Committee Stage. I remain convinced of the need for a provision to deal with the types of disorderly behaviour which, while falling short of threatening behaviour covered in section 6, can nevertheless adversely affect the quality of people's lives.

In an effort to meet some of the concerns expressed I propose to bring forward amendments which would include the word "substantial" before "annoyance". However, I am impressed by the Progressive Democrats' amendments to this section and I believe they would meet the types of behaviour which we are trying to target. I was anxious to hear what the other Opposition Deputies had to say, I do not believe any of them have reservations about it, and in those circumstances I would be prepared to withdraw my amendments Nos. 18 and 20 and accept amendments Nos. 16, 17 and 19. There is a slight technical problem, however, in that if those amendments were to be accepted in line 39 there would be a comma at the end rather than a full stop. In those circumstacnes if amendments Nos. 16, 17 and 19 are accepted would it be in order for me to move an amendment on the floor of the House reading "in page 4, line 3, to delete the comma and substitute a full stop."?

An Leas-Cheann Comhairle

Is that agreed? Agreed.

Mr. O'Malley

I thank the Minister very sincerely. Indeed, I think I should come here more often and move amendments——

Mr. G. Mitchell

Now that Deputy O'Malley has the time.

Mr. O'Malley

——if they were all as successful as this. There was some comment on the signatories. I must say I was as surprised as Deputy Gilmore at the signatories, but somebody had the idea of putting the four names there anyway. I thank the Minister. She has met the point very fairly; she could not have done so more fairly.

I was interested to hear that this section had its genesis in the 1967 Bill on which I cut some of my teeth. I succeeded Deputy Ó Moráin, dropped the Bill in 1970 and did not proceed with it. That is why there are these sections still floating around the Department of Justice ready to be popped into any suitable Bill that they can find. I am very glad to say, to the credit of the present Minister, that the amendments she has now accepted will render this section much more acceptable, workable and useful and will overcome some of the reservations and indeed opposition I myself voiced on the 1967 Bill when that was going the rounds. I hope that what the Minister has just done will perhaps be a portent of things to come, on amendments to come, but I am very grateful to her.

An Leas-Cheann Comhairle

I take it that amendment No. 16 is agreed to?

Amendment No. 16 agreed to.

Mr. O'Malley

I move amendment No. 16a:

In page 4, line 39, after the word "desist", to delete the comma and substitute a full stop.

Amendment agreed to.

Mr. O'Malley

I move amendment No. 17:

In page 4, to delete lines 40 and 41.

Amendment agreed to.

Amendment No. 18 not moved.

Mr. O'Malley

I move amendment No. 19:

In page 5, to delete lines 1 to 4 and substitute the following:

"(3) In this section "offensive conduct" means any unreasonable behaviour which, having regard to all the circumstances, is likely to cause serious offence or annoyance to any person who is, or might reasonably be expected to be, aware of such behaviour.".

Amendment agreed to.

Amendment No. 20 not moved.

An Leas-Cheann Comhairle

We come then to amendment No. 21 in the name of Deputy Gay Mitchell. I observe that amendment No. 26 is related. The suggestion is that we take amendments Nos. 21 and 26 together.

Mr. G. Mitchell

I move amendment No. 21:

In page 5, line 6, to delete, ", abusive or insulting" and substitute "and intimidating".

These two amendments seek first to delete the words "abusive or insulting" and then "abusive, insulting" and substitute the word "intimidating" in sections 6 and 7 of the Bill. I expressed many reservations on Committee Stage and earlier in the course of the Report Stage about the words obtaining in sections 6 and 7. It seems to me it is going too far to make it a criminal offence to use insulting words. For example, section 6 (1) says:

It shall be an offence for any person in a public place to use or engage in any threatening, abusive or insulting words...

I am suggesting that we have the section read:

It shall be an offence for any person in a public place to use or engage in any threatening and intimidating words or behaviour...

Similarly, in relation to section 7, which relates to the distribution or display in a public place of material which is threatening, abusive, insulting or obscene, I am very concerned about the inclusion of the word "insulting". I propose therefore deleting the words "abusive, insulting" and substituting the word "intimidating". For instance, one could come across somebody in a public place — say outside an Ard Fhéis, the Dáil, or any event — carrying a placard which would have written on it insulting words. For example, those words might contain what they thought of the Government of the day, or the Progressive Democrats, Fine Gael, or anybody else. I contend people have a certain constitutional right to carry placards of that kind, that it is fundamental to freedom to express a point of view. It should be possible to do that without becoming a criminal.

Secondly, I do not think it takes in any way from the intent of the sections to substitute the word "intimidating" for the words "abusive or insulting". For instance, there are many religious leaflets which might be considered to be offensive or insulting to some, and what may be insulting to some people may be a perfectly correct thing to say in the case of others. I do not see that the whole issue of insulting words or material arises from any crying need to address our essential crime problems. It is loose and undesirable that we should allow these sections be passed as drafted.

I asked the Minister to consider these amendments between Committee and Report Stages. I hope the Minister will find it possible to accept this amendment because I really am concerned that allowing the word "insulting" to remain in sections 6 and 7 is going too far and oversteps the mark. I contend that the word "intimidating" would fill the bill just as well as meet the general intent of the sections, because in my view anybody who seeks to intimidate, should be considered guilty of an offence. Whether it be unbecoming behaviour or not, one does have the right in a democracy to insult without becoming a criminal, particularly if that offence involves the carrying of a placard or the distribution of a leaflet which otherwise would not be criminal. I hope the Minister will find it possible to accept both of my amendments, Nos. 21 and 26.

Mr. Gilmore

I support Deputy Gay Mitchell's amendment. We had quite a lengthy debate on Committee Stage on both sections 6 and 7. I have an amendment tabled to section 7 (1). The two sections are pretty close. I am sure Deputy O'Malley will recognise their origins in the 1967 Bill.

I think Deputy Gay Mitchell is quite right in identifying the terms "abusive or insulting" and how they are to be interpreted. Take the example of an industrial dispute where there is a picket. Somebody is going to work to break the strike and somebody shouts "scab" at the person going into work. It is an insulting, abusive term — probably it is intended to be so — but should it be a criminal offence? I do not think it should be. People regularly assemble at the bottom of Molesworth Street and shout terms which are not complimentary to Members of the House generally, to individual Members. Should those who engage in that behaviour be guilty of a criminal offence? They may be abusive and insulting, but that hardly renders them criminal. Indeed, I recall in the course of the last two weeks that 70 ambulances drivers engaged in an industrial dispute — a dispute which, I regret to say, has still not been resolved — certainly had a number of things to say about the Ministers for Health and Finance because of their failure to resolve that dispute but what was said hardly constituted a criminal offence.

If somebody calls another person a liar, should that be regarded as a criminal offence? This morning the President of the EC Commission said that the agreement reached with him was for £7.3 billion and that anybody who said otherwise was a liar. When the Tánaiste says the agreement was for £7.8 billion, does that make him a liar in the view of the EC Commissioner? If the EC Commissioner was a citizen of this State and made that statement on the street, rather than in front of Tommy Gorman's microphone in Brussels, would he be guilty of a criminal offence?

Deputy Mitchell's amendment, which seeks to delete the words ", abusive or insulting" and substitute "and intimidating" is good and I urge the Minister to accept it because there is much concern about how the section will be used in practice. We have to bear in mind — this is a point I made previously — that these sections were lifted directly from the 1967 Bill. Those sections of that Bill were intended to address a certain amount of political unrest that was perceived to be developing. This was introduced at a time when farmers camped outside the office of the Minister for Agriculture, when students occupied Georgian buildings to prevent their destruction by friends of the Government, when the civil rights movement was beginning in Northern Ireland and when there was much talk about civil rights — in this part of the State — housing agitation and so on. An attempt was made in that Bill to use criminal legislation to deal with a situation of political discomfort for the Government. It would be regrettable if that type of approach were to find its way back into legislation in the 1990s when we are dealing with a fundamentally different problem. Deputy Mitchell's amendment would address the problem. It would then leave us with a situation where the verbal terms, for which somebody could be prosecuted, would be either threatening or intimidating but would draw the line at those which are abusive or insulting.

Mr. O'Malley

I am in agreement with amendment No. 21 in the name of Deputy Mitchell. It is a reasonable and sensible amendment. The words "abusive or insulting", for the reasons mentioned by the two previous speakers are too wide and will include circumstances where a criminal offence should not be envisaged. For example, protests often degenerate into abusive or insulting words. Those of us who are sometimes the subject of protests should not be so precious about them as to demand that abuse or insults should amount, of themselves, to a criminal offence. A reasonable case has been made for this amendment.

Deputy Gilmore is right in saying that at the time of publication of the Bill in 1967 there were particular fears about certain things which at that time were regarded as very serious. They were regarded as very serious by the then presiding permanent Secretary of the Department of Justice at 72-76 St. Stephen's Green who had his own view on many of these matters. I found it very hard to enthuse about many aspects of the 1967 Bill and I said that in 1968 and 1969. It got bogged down in this House on Committee Stage and it was still there in 1970 when I became Minister for Justice but I decided not to proceed with it. I think some sections or adaptations of some sections were enacted afterwards but not the Bill in its entirety, or anything remotely like it. It was a long and detailed Bill.

The element of intimidation rather than the elements of abuse or insult should underlie the creation of an offence. Words of abuse or words of insult may be regrettable but they are hardly sufficient to warrant a criminal conviction. I would ask the Minister, therefore, to substitute the word "intimidating" to go with the word "threatening" because that would be a reasonable way of meeting the problem which we all seek to control but not to control what might be regarded as anti-social or impolite. In my view abuse and insults are not sufficient to warrant criminal convictions.

Mrs. Geoghegan-Quinn

We discussed this matter at length on Committee Stage. At that time I undertook to look at the wording of both sections 6 and 7. While I appreciate the concerns expressed by Deputy Gay Mitchell on Committee Stage and which he, Deputy Gilmore and Deputy O'Malley have expressed here this evening, my position remains unchanged in that I believe the words "abusive or insulting" should remain in both sections. Equally, I do not accept that the word "intimidating" would add anything to the word "threatening" already included in the sections.

On a general point, I cannot accept that people have a right to go around abusing and insulting others. If a basic right is involved it surely is that one has to be free to go about one's business without being abused or insulted. In any event the context of this discussion changes substantially if amendments Nos. 23 and 29, in my name, are accepted. Under those amendments it is only behaviour with intent to provoke a breach of the peace or reckless as to whether a breach of the peace may be occasioned which will come within the scope of the offence. I would hope that by raising the threshold in this way I will have gone some way towards meeting the Deputies' concerns in this matter. I feel I have arrived at a fair compromise in response to the concerns expressed by Deputy Mitchell, on Committee Stage, and by the three Deputies today.

Mr. G. Mitchell

I am very disappointed with the Minister's response. I cannot let this section pass without putting it to a vote. The Minister is correct in saying that nobody should have an absolute right to insult another person. It is not right to make it a criminal offence for anybody to be abusive or insulting. Deputy Gilmore gave some very good examples of where this can arise. In relation to the distribution or display in public places of material which is insulting including, presumably, billboards, placards, leaflets and so on. In certain circumstances, citizens of this State and others, including visitors, would have the right to free speech and to express their views.

The words "abusive and insulting" are subjective in their interpretation. We may be peeved at times and be ready to take insult at the way people put their case. It may not even be what they say but the aggressive way in which they say it. For instance, someone may lean forward, a personal mannerism, but you may be inclined to think they are being abusive or insulting.

We on the Opposition side have gone out of way to make progress today, indeed, let me point out that the Minister has been reasonable in accepting many of the amendments but I do not understand why she is digging in her heels and not accepting these amendments. It is absurd to retain the words "abusive or insulting" in sections 6 and 7 and make them a criminal offence. Never in my 13½ years as a public representative has anybody come along to my clinics, written to me or raised at a public meeting, concern about insulting words but they were certainly concerned about threatening or intimidating language. The sections as drafted are far too wide. My amendments are reasonable and fair and I cannot understand why after a cross-section of Members on this side of the House have supported these amendments both on Committee and Report Stages and a number of people outside the House expressed concern about the wording of the section that the Minister cannot accept this perfectly reasonable amendment. I intend to press the amendment.

Question put: "That the words proposed to be deleted stand".

The Dáil divided: Tá, 69; Níl, 44.

Tá

• Ahern, Bertie.
• Ahern, Dermot.
• Ahern, Michael.
• Ahern, Noel.
• Aylward, Liam.
• Bhamjee, Moosajee.
• Bree, Declan.
• Brennan, Matt.
• Brennan, Séamus.
• Briscoe, Ben.
• Browne, John (Wexford).
• Burke, Raphael P.
• Byrne, Hugh.
• Callely, Ivor.
• Collins, Gerard.
• Connolly, Ger.
• Costello, Joe.
• Coughlan, Mary.
• Cowen, Brian.
• Dempsey, Noel.
• de Valera, Síle.
• Doherty, Seán.
• Ferris, Michael.
• Fitzgerald, Brian.
• Fitzgerald, Liam.
• Flood, Chris.
• Gallagher, Pat the Cope.
• Gallagher, Pat.
• Geoghegan-Quinn, Máire.
• Haughey, Seán.
• Higgins, Michael D.
• Hughes, Séamus.
• Hyland, Liam.
• Jacob, Joe.
• Kavanagh, Liam.
• Kenneally, Brendan.
• Kenny, Seán.
• Killeen, Tony.
• Kirk, Séamus.
• Kitt, Michael P.
• Kitt, Tom.
• Lenihan, Brian.
• Leonard, Jimmy.
• McDaid, James.
• McDowell, Derek.
• Moffatt, Tom.
• Morley, P. J.
• Moynihan, Donal.
• Moynihan-Cronin, Breeda.
• Mulvihill, John.
• Nolan, M.J.
• Ó Cuív, Éamon.
• O'Dea, Willie.
• O'Hanlon, Rory.
• O'Keeffe, Batt.
• O'Leary, John.
• O'Rourke, Mary.
• O'Shea, Brian.
• O'Sullivan, Gerry.
• O'Sullivan, Toddy.
• Penrose, William.
• Power, Seán.
• Ryan, Seán.
• Smith, Brendan.
• Smith, Michael.
• Treacy, Noel.
• Wallace, Dan.
• Walsh, Joe.
• Woods, Michael.

Níl

• Allen, Bernard.
• Barrett, Seán.
• Boylan, Andrew.
• Bradford, Paul.
• Browne, John (Carlow-Kilkenny).
• Carey, Donal.
• Clohessy, Peadar.
• Connaughton, Paul.
• Connor, John.
• Cox, Pat.
• Crawford, Seymour.
• Creed, Michael.
• Cullen, Martin.
• Currie, Austin.
• Deasy, Austin.
• Deenihan, Jimmy.
• De Rossa, Proinsias.
• Doyle, Avril.
• Finucane, Michael.
• Fitzgerald, Frances.
• Flaherty, Mary.
• Flanagan, Charles.
• Gilmore, Eamon.
• Harney, Mary.
• Higgins, Jim.
• Hogan, Philip.
• Kenny, Enda.
• Keogh, Helen.
• McCormack, Pádraic.
• McDowell, Michael.
• McGinley, Dinny.
• McGrath, Paul.
• McManus, Liz.
• Mitchell, Gay.
• Mitchell, Jim.
• Molloy, Robert.
• Nealon, Ted.
• O'Keeffe, Jim.
• O'Malley, Desmond J.
• Owen, Nora.
• Quill, Máirín.
• Rabbitte, Pat.
• Sheehan, P.J.
• Yates, Ivan.

Tellers: Tá, Deputies Dempsey and Ferris; Níl, Deputies E. Kenny and Boylan.

Question declared carried.

Amendment declared lost.

An Ceann Comhairle

We will now proceed to amendment No. 22. Amendment No. 25 is related, amendment No. 23 is an alternative to No. 22 and amendments Nos. 27 to 29, inclusive, are alternatives to amendment No. 25. Therefore, amendments Nos. 22, 23, 25 and 27 to 29, inclusive, may be discussed together. Is that agreed? Agreed.

Mr. G. Mitchell

I move amendment No. 22:

In page 5, 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".

I do not propose to delay the House on this amendment. From advice I received I believe that the term "a breach of the peace or whereby a breach of the peace may be occasioned" is very loose. If the words "the commission of a criminal offence" were substituted the wording of the Bill would be much tighter. I propose a similar substitution in amendment No. 27. In amendment No. 28 I propose deleting the words, "or whereby a breach of the peace may be occasioned" as they are unnecessary in that section.

I have reservations about insulting or obscene words giving rise to a criminal offence, not only where there is intent to provoke a breach of the peace but whereby a breach of the peace may be occasioned. That wording is much too loose. I have had representations from a Deputy in my party who, in turn, received representations from a minister of one of the minority religions here expressing concerns in regard to this section of the Bill. That person was concerned about this section in that some religious pamphlets or posters which might not conform with the majority view could be interpreted in a way which might give rise to concern. That view was put to me by a Member of the House following representations made by a Church of Ireland minister. That may be an example of an extreme concern, but I would envisage circumstances where political protests or trade union pickets may involve the displaying of words on placards which may be considered insulting or obscene but do not provoke a breach of the peace but whereby a breach of the peace may be occasioned. I believe the words in section 7 proposed to be deleted in my amendments are too loose and that they should be deleted.

I raised my reservations about the inclusion of those words in section 7 on Committee Stage. I do not want to concentrate on the wording of amendment No. 22, those words were proposed by a lawyer, but I would draw the Deputy's attention to my other amendments, particularly amendment No. 28. We are seeking to pass legislation that will help the Legislature, the Judiciary and the various arms of the law to deal with an increasingly serious crime problem. I ask the House to consider whether it is reasonable that it should be a criminal offence for an individual to protest outside Leinster House, an Ard-Fheis, a public meeting, a Church function or take part in a trade union picket, a political protest or whatever. Will the wording of that section assist us in addressing the real problem of crime? If this legislation is passed a person carrying a placard displaying insulting words will be committing a criminal offence if that person intends to provoke a breach of the peace or whereby a breach of the peace may be occasioned. I believe the wording of that section is too widely drawn and I do not see how it equips us to deal with the real problems we face. I do not know where the demand for those words to be included in section 7 came from or why they were included in the Bill. Section 7 deals with the distribution or display in a public place of material which is threatening, abusive, insulting or obscene — abusive or insulting material, be it a pamphlet or a poster with the intent to provoke a breach of the peace or whereby a breach of the peace may be occasioned. I consider the words "or whereby a breach of the peace may be occasioned" should be deleted and I hope Deputies will support my amendments. I am at a loss to understand how section 7, as worded, is included in the Bill. If the Minister had accepted the previous amendments in respect of the word "intimidating" instead of the words "insulting or obscene" I would have been satisfied. If a person intimidates with intent to provoke a breach of the peace or whereby a breach of the peace may be occasioned that is acceptable, but if a person insults and a breach of the peace is occasioned, that person may not be the person who either intended, provoked or caused that insult to happen and I do not consider that such behaviour should be a criminal offence.

There is much concern in regard to the wording of section 7. There is no criminal shaking in his boots because this wording is included and it will not intimidate any criminal. The people who will be imposed on and whom we are curtailing by including those words in section 7 are the law abiding citizens. At whose request are those words being included? I have not been asked to include such words in the legislation and I strongly object to the inclusion of those words in the Criminal Justice Bill. Those words should be deleted and the words in my earlier amendments should have been accepted. The section, as worded, is too strong and it will not equip us to take on the criminal faternity who pose a great nuisance to law abiding citizens who are not catered for under this legislation.

Mr. M. McDowell

It is my understanding that the wording of this section reflects existing law and is not a dramatic departure from it. I do not wish to sound like an old law professor, but at common law the maintenance of the public peace was part of what was considered to be the public good and peace officers are referred to later in the text of the Bill. In days of monarchy, the monarch and the public had an interest in the maintenance of peace.

We must be practical in respect of threatening, insulting or abusive words or behaviour. Words used with the intent to provoke a breach of the peace are obviously dangerous to public order and should be stopped. However, there are also circumstances where the person who is engaging in threatening, abusive or insulting words or behaviour will claim that he or she had no intent to provoke a breach of the peace, but objectively anybody observing the situation would say that if such behaviour continues it would lead to a fight. For example, if neo-Nazis were to picket a synagogue they might say they were trying to deliver some message. However, in the last analysis if they use threatening, insulting or abusive words or behaviour outside a synagogue it may well be that they will provoke other people to breach the peace even though they claim they do not intend to do so. I do not believe there is a right on the part of people who use threatening, abusive or insulting words or behaviour in public to do so on the pretext that they have no intention to provoke a breach of the peace if objectively a third party observing the position believes a breach of the peace may be occasioned. The text in the Bill is more or less reflective of existing law.

There are occasions when people should be penalised for engaging in threatening, abusive and insulting words or behaviour in a public place, even though they do not intend to evoke a violent response. In a free society one must look at both sides of the coin. It is not just a civil liberty relating to free speech that is involved here. Threatening, abusive, insulting words or behaviour are not guaranteed as part of the right to free speech. One cannot threaten or defame somebody and say one is exercising the right to free speech. One can insult a person but if the insulting behaviour, whatever one's intention, is likely to evoke a response from others, one is prohibited from engaging in that activity. What might in one circumstance be merely an insult might, in another, be a dangerous activity.

In the last referendum campaign a group of people who termed themselves pro-choice gathered on the pavement where a pro-life march was taking place and from all the reports I heard, started a very abusive chanting. They might have merely wanted to express their point of view but it ended in fisticuffs. The behaviour in question was at such a pitch and in such circumstances that it led to violence on the streets. If I participate in a New Consensus group peaceful picket of the Sinn Féin Ard-Fheis at the Mansion House, at what stage do I cross the line? If I use threatening, abusive or insulting words to all the Sinn Féin people coming out, in circumstances likely to lead to a breach of the peace, at what stage am I causing a problem for the community? Sorting out who hurled which insult at whom and who was morally to blame is not much help to the community when cars are overturned and violence erupts. The Minister's wording would not be improved if it was reduced to an offence where the intention was to cause a breach of the peace. The wording has to extend to situations where, whatever the intention, the objective effect is highly dangerous.

I am conscious of the civil liberties argument put forward by Deputy Mitchell but there are circumstances in which decent law abiding people can be provoked into doing things by those who will claim afterwards that they had no intention of provoking them to such violence.

In the past, the community relied on the existing law that one is not merely prohibited from engaging in threatening, abusive and insulting behaviour with intent to provoke a breach of the peace but from engaging in that kind of behaviour when it carries a major danger of that kind. I hope Deputy Mitchell does not think it disloyal of me to say that on this issue I tend to side with the Minister, that is, presuming that the Minister does not withdraw her words.

Mr. Gilmore

Amendment No. 25 proposes to delete the section because the Bill would be better without it for reasons associated with civil liberties and practicality. This section is seeking to make it an offence to distribute any written material which may be regarded as threatening, abusive, insulting or obscene or to display any such material, so it would cover pickets, placards, posters and so on. This section does not address the kind of criminal behaviour it was my understanding this Bill was intended to address, it addresses political or politically motivated behaviour. Certainly all the examples given by Deputy McDowell were political and I will refer to his arguments later.

A couple of years ago during an All-Ireland hurling match when a group of Galway supporters displayed in Croke Park a banner which read "Scaoil amach an Bobailín", the GAA authorities there, many of whom probably did not know what it meant, thought the worst and decided to intervene because it was obscene and made the supporters remove the banner. As it turned out the Bobailín became very fashionable and ultimately was the name of a television programme. This is the sort of thing that can happen under legislation like this. Just as some GAA authorities considered that display obscene, some gardaí may decide that something is obscene although it may not be regarded as obscene by somebody else. The difficulty is that we are proposing to make this a criminal offence.

We dealt earlier with history and I was very interested to hear Deputy O'Malley's comments because he confirmed what a number of us said during the course of the debate on this Bill, that some of its sections, including this one, came from the 1967 Bill about which he had reservations and which he says he dropped when he became Minister for Justice in 1970. I was also interested to hear him confirm that one of the considerations which motivated that legislation was the paranoia which then seemed to be rife in the Department of Justice about political activity which was considered to be so threatening as to merit being criminalised.

Many of the types of placards, pickets, leaflets and so on that would be the subject of this section would be offensive to me, for example, displays by campaigners against abortion—as happened outside my home — of obscene photographs, pictures and written material calling Members of this House murderers, and so on. One could describe that as abusive, obscene and threatening behaviour. Deputy McDowell referred to a group of Mr. David Irving's friends who assembled outside a synagogue and displayed certain material. Similarly, that could be considered threatening and abusive behaviour. Furthermore, it may happen in the course of a picket, for example, the picket that Deputy McDowell and I participated in in the past where material stating that "members of Sinn Féin support murder" was displayed.

Mr. M. McDowell

We were comrades on the picket lines.

Mr. Gilmore

We walked the picket line together.

Mr. G. Mitchell

That should be an offence under the legislation.

Mr. Gilmore

I am sure many would like to make it an offence but we did not walk arm in arm which needless to say is no longer an offence either. Displaying the type of material I have been referring to could be considered abusive behaviour but the real question is whether the response of the rest of society to the display or distribution of that kind of material should be to criminalise it and what would happen if it was to be criminalised. I take the view that the appropriate response to unacceptable political tactics which go beyond the bounds of normal democratic practice and may be considered threatening, abusive or insulting behaviour should be regarded as political because if one seeks to criminalise it what would happen?

In Britain, for example, during the miners' strike the then Prime Minister and her Government thought the appropriate thing to do was to send out hordes of policemen on horseback to break up the picket lines. This led to incredible violence and great bitterness. In addition, confidence in the police force was undermined and this led in turn to other problems, including rioting in various cities. Therefore, if one was to attempt to criminalise what is essentially unacceptable political behaviour one would cede the initiative to those who engage in this type of behaviour. It is one thing to criminalise it in legislation but one would have to consider what would happen when one asks the Garda Síochána to enforce it.

Let us suppose, for example, that a large demonstration takes place on the question of abortion. People feel very strongly about this issue. While I may not agree with some of the opinions held and may feel bad about some of the comments made or written on posters or leaflets about me or any other Member of the House or the public, is the solution to ask the Garda Síochána to seize the material and try to arrest people? This would probably lead to greater public disorder.

I am aware of the case to which Deputy McDowell referred where we ended up with two different groups who held strong views on the question of abortion and on the issues arising from the "X" case. Can one imagine the cocktail we would have if, in addition to the two competing groups of protesters, we included in the equation a team of gardaí to seize the placards, posters and other material? If the Minister is saying that this will not happen in practice what is the point in introducing legislation which would empower us to do that?

On the question of enforcement, we would be far better off without this section as it will lead to far more trouble than it will resolve. Our response to those who use unacceptable methods in the pursuit of their point of view should be political. If we attempt to use the criminal law we will find ourselves in trouble. It would be dangerous to insert in legislation which has been designed to deal with instances of public disorder to which we have referred during the course of the debate a section which is designed to address political conflict. As it happens, in the history of this State — there have been many occasions on which there has been political trouble — there have been no political upheavals or violence which would justify the introduction of measures of this kind. It is a case of leaving well enough alone.

Mr. L. Fitzgerald

What do Deputies Gilmore and Mitchell intend to achieve by leaving out the term "with intent to provoke a breach of the peace"? If we were to include the form of words proposed by Deputy Mitchell, "the commission of a criminal offence", would a group be able to assemble with impunity with intent to provoke a breach of the peace as commonly understood in judicial and legal circles? I find it hard to accept that the Deputies could condone such behaviour. Law abiding citizens are entitled to protection under the law if a group assemble with intent to provoke a breach of the peace. It does not matter if it is a Member of this House or an ordinary member of the public. I wonder why the Deputies are insisting that that form of words should be deleted. I am baffled by the Deputies' proposal in this regard.

Mrs. Geoghegan-Quinn

I have examined this matter in great detail since it was discussed on Committee Stage. While I am not happy with Deputy Mitchell's formula "with intent to provoke the commission of a criminal offence", I hope the amendments I am proposing may be regarded as the middle ground. While we are retaining the concept of "breach of the peace" with which the courts are familiar the effect of the amendments would be that we would substitute recklessness as to whether a breach of the peace may be occasioned rather than the concept of whereby a breach of the peace may be occasioned. In other words, the offence will not be committed because a breach of the peace may be occasioned. The person committing the offence will either have to intend to provoke a breach of the peace or be reckless as to whether a breach of the peace may arise.

The effect of Deputy Gilmore's amendment, as he said, would be to delete section 7. I remain convinced of the need for a provision along the lines of section 7. Naturally, I will be opposing Deputy Gilmore's amendment. By raising the threshold in the manner I am proposing we will meet many of the concerns expressed on Committee Stage in relation to the section. In the circumstances few would argue that displaying threatening material with intent to provoke a breach of the peace or being reckless as to whether a breach of the peace may be occasioned should be outside the scope of the criminal law.

Debate adjourned.