I have already looked at the proposal. However, we are not simply talking about catering premises in the ordinary colloquial understanding of the term. This phrase includes licensed premises, discos and the like. If one looks at the definition of "catering premises", we are not just talking about fast food outlets or the like, we are talking about all night time activity.
For this section to have any effect, there must be disorder in a premises. It must be disorder that is likely to recur. The Garda's opinion must be that there has been disorder either on the premises or in the vicinity, and involving persons who are on the premises, or noise emanating from the premises, or emanating from the vicinity of the premises and caused by persons who were on the premises, has been so loud, so continuous, so repeated, of such duration or pitch or occurring at such times as to give reasonable cause for annoyance to persons in that vicinity, and such disorder or noise is likely to recur.
In those circumstances a member of the Garda Síochána can go to the court to seek an order. The first thing he must do is request the licensee to take such action as is reasonably in his control to prevent it. A licensee cannot prevent people from behaving in a way which is totally outside his control. One cannot ask people to prevent events from happening if, with the best will in the world, they cannot make people behave.
If a person does not comply with a reasonable request of the Garda Síochána, an officer of the Garda must go to the District Court – there is no problem at this stage – and persuade a District Court judge that it is unreasonable of the person to refuse to comply with the request he has made of him. In those circumstances only, the District Court has discretion to make an order.
The term "serious" in this context either means non-trivial, substantial or something like that. I do not believe that a member of the Garda Síochána not below the rank of inspector will act unreasonably or deal in trivialities. However, if he had a bad-minded garda who would do that, he can do nothing on his own account because he would have to persuade a District Court judge to agree with him that what he was proposing was fair in the circumstances. If it was unreasonable he would not succeed – we must have some faith in our Judiciary. If the owner of the premises was aggrieved by that, they could appeal the matter to the Circuit Court. Before anyone could be badly damaged by this process, it would require a conspiracy of a senior garda, a District Court judge and a Circuit Court judge to bolster the unfair decision made in the first instance.
Perhaps I can explain what I have in mind. If there is a premises which is likely to continue to be the focus of disorder unless something is done, a senior garda can advise the owner that he or she will have to take action. The garda might suggest that the owner install CCTV or, if there are big queues outside the premises, either do his or her business differently or put a security man outside. The owner cannot just ignore the consequences for the vicinity and for public order and say that it is none of their business if the people who come to the premises behave badly. He or she cannot say that they do not intend to do anything because they merely make the chips and hand them out, that they just run a disco or serve alcohol or that what happens between people loitering outside their premises is no concern of theirs.
We are dealing with discos, nightclubs and licensed premises. In some circumstances, such as in Cork, the gardaí have a partnership approach which, in effect, anticipates this legislation. Members of the local judiciary, the Garda and the partners in the entertainment industry, if one can use that phrase to cover the categories referred to in the legislation, have a joint strategy. A superintendent can say to a proprietor of a premises that they need more security people on the door because the situation is getting out of hand and there is constant trouble or he or she might advise the proprietor to get CCTV because people seem to think they are safe to start fights outside the premises. In Cork, gardaí will advise the owner of a disco to tone down the music or lower the pace for the last 20 or 30 minutes so that when people are leaving, they are not coming away from throbbing disco music on to the street. That is the type of advice given.
Under the Bill, the advice has to be given in writing and it has to be reasonable. A district justice must then deem it a reasonable request in view of the evidence presented by the Garda and judge that the owner can reasonably comply with it. In those circumstances, it is not necessary to qualify the provision by the inclusion of the term "serious". I do not believe a District Court judge, a Circuit Court judge or a senior Garda officer will act unreasonably in these circumstances.
We are aware of cases where it has been alleged that gardaí have come down hard on particular premises and harassed the occupiers in an improper fashion. If the Bill proposed to give gardaí the power, as American cities do in some cases, to close and seal premises, it would be necessary to have stringent criteria in the legislation before such action could be taken. However, this process will require written notice to be given to the licensee of the premises and the Garda will have to persuade a District Court judge that its advice to the licensee is reasonable.
If Senator Tuffy tabled this amendment because she fears this will be done on trivial grounds and in respect of inconsequential matters, I ask her to rely on the common sense of a garda not to waste his or her time going to court and also on the sound judgment of District Court judges who will decide if requests are reasonable. If these safeguards do not avail, the person has the right to go to the Circuit Court and make the case that they have been the subject of an unreasonable order. The order can be reversed on appeal to that court.
I do not propose to accept the amendment. It assumes that a District Court judge would close down a premises for something other than serious reasons. I do not believe that would happen.