The meeting has been convened to consider the Criminal Justice (Public Order) Bill 2010. I welcome the Minister for Justice and Law Reform, Deputy Dermot Ahern, and his officials to the meeting. An amendment grouping list has been circulated. Correspondence received on this Bill has also been circulated.
SECTION 1
Amendment No. 1 is a ministerial amendment and amendments Nos. 2 to 4, inclusive, are related. Therefore, amendments Nos. 1 to 4, inclusive, may be discussed together.
I move amendment No. 1:
In page 3, between lines 16 and 17, to insert the following:
" "enactment" has the same meaning as it has in the Interpretation Act 2005;"
These amendments clarify the definition of "begging" in section 1. The main purpose of the Bill is to establish a new legal framework on begging. Therefore, it is absolutely essential that the term "begging" is clearly defined. During the Second Stage debate several Deputies raised the issue and I reviewed the definition of begging. I thank Deputies, on all sides of the House, for their helpful remarks in that respect.
One of my concerns was to ensure there was clarity about begging as opposed to other activities that involve asking people for money, particularly on the street. In that context I looked at the phrase "without lawful authority" as used in the Bill as presented. Begging is currently defined in the Bill as "soliciting money or goods from persons without lawful authority". I felt the term "without lawful authority" did not have enough clarity about it. For example, it fails to convey clearly that the collection of money or goods from the public is regulated by statute or that collectors require appropriate permission in the form of a permit or licence from the relevant authorities. Normally the local Garda superintendent in the District Court would apply for it and it would be granted by the courts. The new wording, on the other hand, makes it clear that collections and similar activities may be carried out only where a permit or authorisation has been granted.
The collection of money in a public place is authorised under two Acts in particular, the Street and House to House Collections Act 1962 and the Casual Trading Act 1995. These Acts provide for permits and licences to be granted for street collections and trading. Amendments Nos. 1 and 2 take account of these existing statutory arrangements. They bring clarity to the definition of "begging". Amendments Nos. 3 and 4 also add to the clarity required for such a central definition. While amendments Nos. 1 and 2 address the legal basis for a lawful collection, amendments Nos. 3 and 4 address the activity itself. On Second Stage a number of Deputies felt that the present definition provided scope for finding ways to circumvent the terms of the Bill and to claim the activity was not technically begging. For example, those begging could offer some form of cheap token or trinket in exchange for money. This is quite a common activity elsewhere in Europe where persons enter restaurants and leave small toys and other trinkets on tables in the hope that the diners will offer some money in exchange. In the event of such activity here there might be a doubt as to whether the activity could be regarded as begging for purposes of the Bill in its current form. Amendments Nos. 3 and 4 remove this uncertainty by deleting the condition that begging arises only where there is no offer of money, goods or services in exchange for the money or goods or services sought by the person who is begging.
However, lest there be fears that any request to another would result in a court appearance, I remind the committee that the basic proposal in the Bill, namely that begging, of itself, is not an offence, is not changed by these amendments. The offence of begging is dealt with in section 2 and requires an additional element, such as obstruction or harassment, before it can be regarded as an offence. The change in the definition of the activity does not alter the definition of the offence. It eliminates a potential source of doubt and argument about the precise meaning of the term.
These amendments are technical. While they broaden the thrust of the Bill, perhaps it will bring in, for instance, window washers at traffic lights. That act could be termed begging, because there is intimidation in the act of doing that. It is unfortunate that we must introduce this Bill because begging is inextricably linked to homelessness, social issues and poverty. The Government would be better served by examining the reasons we have begging on our streets. That said, I have no problem with the amendments. I thank the Minister for his views and for taking on board the views expressed by Members on Second Stage.
The example mentioned by Deputy Carey, namely, window washers, occurred to me. Does the legislation outlaw them?
There is separate public order legislation whereby someone cannot cause an obstruction on a highway. We have tried to deal with the situation and clarify the issue of people having permits. Amendments Nos. 3 and 4 remove any uncertainty with regard to lawful authority by deleting the condition that begging arises only where there is no offer of money or a service. If a person in a car indicated that he or she wanted something done, there is no problem. It only becomes a problem when a person harasses someone or puts fear into the motorist. If he or she does so without any indication from the motorist, the issue of begging arises and whether it is lawful when a person demands money and does so in an intimidatory or harassing way. That will determine whether what has taken place is an offence. Clear principles are laid down on the issue of begging per se because of the High Court case. Begging of itself is something we cannot ban completely because of the constitutionality test laid down in the legislation. This involves begging with harassment and intimidation, subject to the other conditions in the legislation.
There is a related point. The Minister referred to the Street and House to House Collections Act. I referred to this on Second Stage but I wish to draw it to the attention of the Minister, although it may not be covered here. It has been brought to my attention that very often permits are issued locally for collections. It is also possible to issue permits nationally, sometimes for the same organisation. The result is that there may not be co-ordination between a national and local collection. The public may be faced with multiple collections in a town or city. The issue is not directly covered here but the Minister mentioned the legislation. Will the Minister examine this and ask the authorities to co-ordinate all collections that occur in a given town or city such that multiple collections do not take place and such that a local Garda superintendent would know about all local and national collections?
In the case of the first tranche of legislation I referred to earlier, the national organisation must nominate local organisers and collectors such that there should be no confusion. However, I realise from my own experience that there can be conflicts on streets when local and national permits are permitted. Although it does not fall within the scope of the Bill, it is reasonably well cared for in the existing legislation, provided the organisations adhere to the conditions upon which they received the licence in the first place.
What if there are two, three or four different organisations in the same town? People may get harassed by the number of collections.
I have had that experience.
I realise they are legal and lawful but there seems to be a lack of co-ordination between local and national arrangements.
I seek clarification on one point. I am deputising for Deputy Pat Rabbitte and I am not familiar with the Bill, although I have read through it. Does the Bill afford the Garda the right to determine a "protected place" or must that come by way of regulation?
I do not recall there being a reference to "protected place". However, section 3(2) states "a member of the Garda Síochána may direct a person who is begging within 10 metres of (a) the entrance of a building, (b) an automated teller machine, or (c) a vending machine, to desist from begging...". We will make some amendments to that later.
Okay.
It is fairly well defined in the Bill.
That explains the matter. I was unclear about it.
Section 3(3) refers to "within 10 metres of the entrance of a business premises".
I move amendment No. 2:
In page 3, subsection (2)(a), line 20, to delete “without lawful authority” and substitute the following:
"other than in accordance with a licence, permit or authorisation (howsoever described) granted by or under an enactment".
I move amendment No. 3:
In page 3, subsection (2)(a), lines 22 and 23, to delete all words from and including “and” in line 22 down to and including “therefor,” in line 23.
I move amendment No. 4:
In page 3, subsection (2)(b), lines 27 and 28, to delete all words from and including “, and” in line 27 down to and including “therefor” in line 28.
Amendments Nos. 5 and 17 are related and may be discussed together.
I move amendment No. 5:
In page 3, before section 2, to insert the following new section:
2.—A person who organises, manages or otherwise coordinates begging in any place shall be guilty of an offence and shall be liable on summary conviction to a fine of €5000 or imprisonment of up to one year or both and on conviction on indictment to a fine of up to €100,000 or to imprisonment of up to five years or both.".
The amendment serves to criminalise the offence of organised begging. When initiated, the Bill failed to address this issue. I raised this point on Second Stage. I am unsure to what extent such activities take place in Ireland but I have received correspondence from the Dublin City Business Improvement District scheme, which claims organised begging is active in Dublin. We must address the issue in the Bill. I am unsure if the Minister has seen the film "Slumdog Millionaire".
I have.
It depicted horrific scenes of children being defaced. They were mutilated to get more money from the public. A disgusting and a criminal element was involved in that. I dread to think such activity would take place in this State. It is incumbent on us to put in place a suitable amendment. I welcome the fact that the Minister has tabled an amendment as well and I would be pleased to hear the Minister's views. I look forward to some provision in the legislation.
The spirit of Deputy Carey's remarks is important. We live in a modern, multicultural society not only in Ireland but in the global world, where mobility has been the order of the day and the transfer of resources has also been the order of the day. This has led to the crises facing the world now. If we reflect on the matter, there are ethnic, sectoral, geographical and structural creations and constructions of organised begging which intimidate property owners, consumers, tourists, pedestrians and others and which also interfere with the mobility of people. This is something to which we must give serious consideration.
Different types of people beg. Certain people are genuinely under ferocious pressure trying to keep body and soul together. I understand others are making a great deal of money from this. This includes people who organise such activities. It is almost like an industry. We must recognise people are under enormous pressure. All one need do is walk within a quarter of a mile of this building to come across such people on the streets. It is an indictment of our society that so many people seem to be under so much pressure. They are abandoned, forgotten about and have no assistance. People have genuinely fallen on hard times and must now cope with the winter's cold, bleak and damp weather.
We must not forget that there are genuine hardship cases, but there are others who see this as an industry. They are organising this activity and I understand they are making a lot of money. I urge the Minister and the Government to focus attention on those at risk. Mental health issues, as well as drug and alcohol problems, may be involved in such cases, which need our support. That does not justify intimidation, of course.
The difficulty with organised begging is that it is usually a family industry in which a relation does the organising. In such circumstances it is notoriously difficult to get people to give evidence or even make a statement. It would be very difficult to enforce the law in such cases, although it is important that such provisions exist in the legislation. Amendment No. 17 in the Minister's name probably does cover it, but it is notoriously difficult to deal with such cases unless there is an undercover operation. I am not certain that the resolve is there to do something like that. We should make a distinction between begging as an organised industry and people who genuinely find themselves unexpectedly homeless. The bulk of young men and women who beg on the streets have suddenly found themselves without recourse to other supports.
We discussed these issues with the Garda Síochána in detail both before and after publishing the Bill. It was always our intention to table an amendment along these lines, particularly because it was raised on Second Stage. There is not much difference between us. The only difference between the Fine Gael amendment and mine is that for a summary offence, which is basically a minor offence, Fine Gael is proposing 12 months as opposed to six months. On indictment for a serious offence, my amendment allows for a prison term of up to five years and a fine of €50,000. My amendment provides for a term of six months for a minor offence, compared to 12 months in the Fine Gael amendment. The reason for that is that my amendment is broadly equivalent in respect of penalties available for the offence of organising prostitution under section 9 of the Criminal Law (Sexual Offences) Act 1993. My amendment is based on the 1993 offence, which involves the issue of directing and organising prostitution.
I have also been guided by advice from the Attorney General on the appropriate levels of sentencing, which for a minor offence would normally - not always, but generally - be up to six months. With respect, I am satisfied that my proposal meets this issue better than the Fine Gael one.
On Second Stage, I indicated that I was examining the question of introducing an amendment to provide for organising and controlling. Several Deputies supported that provision. I did not include such a provision in the Bill as published because I wanted to satisfy myself that we had a proper case and a legal basis for such an offence. We also wanted to liaise further with the Garda Síochána. As the committee knows, ever since the Dillon case there have been virtually no prosecutions for begging. The Dillon case raised the whole issue of the constitutional entitlement of people to freedom of expression and congregation. However, we have come across anecdotal evidence of organised begging, but of itself that is not a sufficient basis for creating a new offence. Having discussed the matter further with the Garda Síochána I now believe we have a good basis to proceed. Although, due to the legal lacuna since the Dillon case, they have not been able to prosecute, they are aware that begging is being organised in certain parts of the country. It is controlled by persons who do not take part in it themselves, but are clearly directing and organising the activity and collect the proceeds.
Given the state of the law on begging generally since the old Act was struck down in the Dillon case and in the absence of an offence specifically addressed at those who organise and control begging, the Garda has, up to now, had no legal basis for formally investigating or prosecuting these activities. Therefore, the case for a new offence cannot be supported by reference to actual prosecutions or convictions. However, the Garda is satisfied from their observations and other information that this is happening. I am therefore happy to proceed with the amendment.
The Oireachtas has already, albeit in limited circumstances, indicated its concern about the exploitative aspects of some begging activity. I refer to section 247 of the Children Act 2001, which created the offence of causing or procuring a child to beg, or allowing a child in a person's custody to beg. That section - as we will see when we come to amendment No. 19, which concerns the Childrens Act - will continue to apply even after this new offence becomes operative. I am satisfied that the types of activity covered by section 247 are very often qualitatively different from those coming within the new offence, and that it should be retained as a separate offence. It meets a particular need. It is part of our child protection measures and the nature of the offending behaviour is often in the realm of, for example, parental neglect. However, the addition of this new offence gives us the means to deal with that more organised and sinister activity of orchestrated begging.
The potential for exploitation of begging activity is also a concern at EU level. The proposal for a directive of the European Parliament and of the Council on preventing and combating trafficking in human beings, and protecting victims, repealing Framework Decision 2002/629JHA, includes forced begging in its definition of exploitation. Article 23 of the proposal for a directive defines exploitation as follows: "Exploitation shall include as a minimum the exploitation of the prostitution or other forms of sexual exploitation, forced labour or services, including begging, slavery and practices similar to slavery, servitude and the exploitation of criminal activities and the removal of organs".
Turning to the content of my amendment, it proposes a new section 5 which makes it an offence to direct or organise betting. As I indicated, the provision is based on section 9 of the Criminal Law (Sexual Offences) 1993. That section criminalises the organisation of prostitution. It is important to note that although begging, like prostitution, is not of itself an offence, the organisation of it can be, as the 1992 Act demonstrates. Therefore it can be criminalised.
Two very different actors are involved in these types of transactions, whether it is prostitution or organised begging. There is the foot-soldier and then there is a dark figure in the background organising, manipulating and in effect exploiting the foot-soldiers. The two players can be easily distinguished by reference to their motivation and the circumstances of the case. Therefore a person found guilty of an offence under this new proposed section 5, is liable on summary conviction to a jail sentence of up to six months and a fine of €3,000, or in the event of a conviction on indictment, to a jail term of up to five years and a fine of €50,000.
The only real, fundamental difference between my amendment and that of the Minister concerns penalties. I am happy to withdraw my amendment. Perhaps the Minister could reconsider the penalties. He referred to the foot-soldiers and the people at the top of the game. These people are organising the vulnerable and I urge the Minister to reconsider on Report Stage the penalties being imposed. Fine Gael believes the penalty should be a fine of up to €100,000 or imprisonment up to five years.
Has the Minister any information as to how much money people who organise begging are typically making? Has any research been carried out in the area? The Minister compared prostitution to begging and mentioned the various forces involved. In the area of prostitution there is the so-called customer. Prostitution would probably not exist to the same extent as it does if the demand was controlled and if those on the demand side were penalised in some way as happens in Sweden. Has the Minister given any thought to that matter? I understand that this area is rampant and needs urgent attention.
On the later point, I am well aware of and have asked my officials to investigate the issue of prostitution generally and to consider a possible change to the law along the lines of the Swedish example. We sponsored - I believe it is called the dignity project - a number of NGOs and departmental officials to go to Sweden to liaise with the Swedish authorities. I recently received their report, which gives a signpost as to how we should proceed in the future. We are considering it in consultation with the Office of the Attorney General. While there is some logic in changing the law in an attempt to cut off the demand, we do not want to do something that would in effect drive it even further underground. The same is true with begging to a certain extent; although with begging, people need to come into direct contact with people. That is also the case in prostitution but it is probably a more insidious trade.
While I do not want to stifle the debate, we are straying into other territory.
In any event it is being considered and I am open to persuasion on the Swedish model, which indicates that the streets have been cleaned up, but may have driven it further underground.
Deputy Carey asked if there was research. There is not because the Garda can only operate on the basis of offences created under statute and because of the Dillon case there has been no law available to it to investigate crimes of begging or the activity of begging. We have not been given any hard information from the Garda Síochána other than anecdotal evidence of organised begging in the main cities. I will look at the matter again, but the Office of the Attorney General was consulted on the appropriateness of the penalties. While I might be inclined to increase the fines, it would be better to have a six-month penalty for a summary offence because it may be a relatively mild level of organisation for a minor offence and having a penalty of up to 12 months' imprisonment might be somewhat draconian. That is not to say that the court would not have discretion to return people to the Circuit Court for trial on indictment and a sentence of 12 months' imprisonment being available to that court under the second leg of the offences section.
My line of reasoning was that the fines and penalties should possibly bear some relationship to the amount of money that might be made by people who organise this and anecdotally I am told the amount could be quite considerable. If the fine is not high enough, it does not act as a sufficient deterrent, which is self-evident. It would be useful to know if there is any evidence of how much people who control organised begging are making. By Report Stage the Minister might be able to get information - even if only anecdotal - as to what is happening on the streets
We will try to get that for Report Stage, although as I said it is anecdotal more than anything else; no statistics are being compiled.
I move amendment No. 6:
In page 3, paragraph (b), line 32, to delete “persons” and substitute “a person”.
The purpose of the amendment is to address the unintended effect of criminalising a person who is sitting on a street begging but not interfering with others who would merely need to walk around the person who is begging. Such a person is not intimidating, harassing or interfering with someone.
I draw the Deputy's attention to section 18 of the Interpretation Act 2005, which states:
"The following provisions apply to the construction of an enactment:
(a) Singular and plural: a word importing the singular shall be read as also importing the plural, and a word importing the plural shall be read as also importing the singular.”
I believe this is conclusive and the amendment is not necessary. In every Bill I have taken since becoming Minister for Justice and Law Reform, the Opposition has raised this issue. I am assured by the Attorney General that the Interpretation Act 2005 takes care of the issue of plural versus single.
My amendment proposes to deal with a single person who is not causing interference to the general public. Such a person on his or her own is not harassing or intimidating others. If a number of people were in the act of begging it would cause a problem.
My advice is that the interpretation Act covers the issue such that where the Bill states "A person who, while begging in any place... obstructs the passage of persons", that includes a person.
Amendments Nos. 7 and 9 are related and may be discussed together by agreement.
I move amendment No. 7:
In page 4, subsection (2), line 14, to delete "within 10 metres of" and substitute "at or near".
Amendments Nos. 7 and 9 address a central condition whereby a member of the Garda Síochána may direct a person who is begging to desist and to move on from a number of specific locations: the vicinity of an ATM; a vending machine; a dwelling; or, subject to certain conditions, business premises. I made clear on Second Stage my view that this is a crucial element of the Bill and it is the one I expect to have most impact.
At present the Bill empowers the Garda to use the directing provision when a person is begging within 10 m of these locations. This provision aims to facilitate the public when accessing their homes or when conducting their business at an ATM or vending machine, by giving them a sense of security. People may feel vulnerable to the presence of strangers at these locations or may feel intimidated upon entering or exiting business premises to be met by the attentions of persons begging. There may be some difficulties in applying the 10 m distance requirement. It is a constituent element of the offence. Accordingly, where the direction of a garda under section 3 is ignored and an arrest and prosecution results, there would be an onus on the garda to produce evidence in court to prove the person was within a 10 m distance of the ATM. This would create practical difficulties for the Garda and undermine the operational effectiveness of the legislation. It is also likely the layout of the street and the precise location of the ATM would render the 10 m requirement irrelevant in instances where the machine, for example, was on a corner.
I therefore propose to amend the term to "at or near 10 m". This will allow local circumstances and particular features of the site in question to be taken into account. What might be near in one instance might be a safe distance elsewhere. In any event, the formula is not new in criminal law. It is used in section 9(2) of the Non-Fatal Offences against the Person Act 1997, dealing with coercion, in section 2(b) in the Offences against the State (Amendment) Act 1972, dealing with persons found near the scene of a scheduled offence and also in section 18 of the Criminal Law Amendment Act 1935, dealing with public indecency.
This amendment will ensure the Garda has effective and meaningful powers and the legislation will achieve its intended results.
This is a fundamental part of the Bill. Why did the Minister opt first for the 10 m rule? Does the Minister see problems in the courts with this amendment? One garda's interpretation of near will inevitably differ to another's. Why was there a change of heart on this matter?
When I first received the Bill, I queried this provision because I could see the evidential difficulty of proving whether an offence had happened within 10 m of an ATM. I told my officials this could become potentially a lawyers' playground with the poor gardaí having to take out a measuring tape to be satisfied the offence occurred within 10 m. I always believed this section would have to be re-examined.
I allowed it to be published on the understanding that it could be amended and to hear the views of the Oireachtas to see if a better formulation could be achieved. The "at or near" formula is a reasonably tried and trusted one that has not caused any difficulties in the courts heretofore. For example, section 9(2) of the Non-Fatal Offences Against the Person Act 1997 states that a person attending at or near the premises or place where a person resides shall not be deemed guilty of a watching or besetting offence.
I accept the Minister's point. Effective and meaningful powers must be given to the Garda to move on people engaged in begging which is causing a nuisance to business people.
I have observed that no sooner has a garda or a security person moved away from the location, than the person begging returns. Is there any provision in this section to prohibit them from returning to the original point? Is there any way a person engaged in begging could be directed to go away and stay away?
No, every circumstance determines whether it is an offence. If the person keeps coming back to a point, the garda would have to determine whether an offence has taken place. The Bill does not provide for recurring offences or injunctions against someone begging.
We examined the issue of persistent begging in certain locations. There was some opposition to providing for this by the Irish Human Rights Commission and Barnardos.
The Minister claims it is up to the Garda to determine whether an offence has taken place. I thought that was the courts' job.
It is up to the Garda to determine whether it should bring a prosecution.
In the scenario I raised, the person will still not have broken any law and the garda cannot continually return to the spot to check. It may be necessary to make an amendment on Report Stage to insist that the person moves away and stays away from a location.
We can have another look at it but some of those we liaised with on this legislation raised objections.
Will the Minister outline their concerns?
Ultimately they concerned using criminal legislation to restrict the free movement of people. There would be some constitutional barrier to moving someone back and forth on a sidewalk. I will examine it again for Report Stage.
It should be remembered section 8(1) of the Criminal Justice (Public Order) Act 1994 provides for failure to comply with a direction of a member of Garda Síochána. I will see if such a provision could be extended to this legislation to deal with persistent begging.
Amendments Nos. 8 and 11 are related and may be discussed together.
I move amendment No. 8:
In page 4, subsection (2)(b), lines 16 and 17, to delete all words from and including “or” in line 16, down to and including “machine,” in line 17, and substitute the following:
"(c) a vending machine, or
(d) a night safe,”.
Amendments Nos. 8 and 11 provide additional locations at which the Garda may exercise the power to direct a person to desist from begging and move on. The locations in section 3 are selected because they are ones at which people may be anxious for their safety and security.
Night safes obviously come within this criteria and it is proposed to add them to the list. They are often used outside of bank premises at weekends or late at night by local businesses. Those operating them are in possession of substantial amounts of cash and are prime candidates for interference by anyone in close proximity.
Quite apart from the safety of those using night safes, public policy is served by the removal from circulation of large sums of cash and its secure lodgement in, for example, a night safe. It reduces the opportunities for theft and robbery. Adding to the security of night safes is therefore clearly in the public interest.
Amendment No. 11 follows on from the amendment to section 3(2) and provides for a definition of a night safe. These safes are available at all times, despite the reference to "night" in their title.
I have no difficulty with these technical amendments.
I move amendment No. 9:
In page 4, subsection (3), line 21, to delete "within 10 metres of" and substitute "at or near".
Amendments Nos. 10 and 15 are related and will be discussed together.
I move amendment No. 10:
In page 4, subsection (5), line 36, after "€300" to insert "or in the alternative, 7 days imprisonment".
I tabled this amendment because one month in prison is far too harsh a penalty. If someone is convicted of begging and brought to Mountjoy Prison, that person will not see the inside of the jail because there is no room.
I do not agree with Deputy Carey. He is not correct if he says we are including this provision knowing full well that imprisonment is not possible because of physical capacity problems. One cannot legislate on that basis.
There must be a penalty. The effect of this legislation is to provide powers to the Garda Síochána to move on people who are begging in a harassing or intimidatory fashion.
In both cases, the amendments seek to add imprisonment as an option. The old 1847 Act was attacked partly because it offered only imprisonment as a sanction. By general agreement, this was an unsatisfactory situation and we do not now wish to provide for imprisonment except as a last resort. I have outlined policy to reduce reliance on imprisonment, especially short-term imprisonment for minor offences. This is evident from the Fines Act, with the new emphasis on ability to pay, instalment payments, community service and, as a last resort, imprisonment in lieu of default. It will be seen again when my proposals for greater reliance on community service orders come before the Oireachtas. In that new Bill I will focus on instances where sentences of six months or less are proposed. In such cases, the Bill will provide that community service orders must be considered by the judge as an alternative.
Amendment No. 15 proposes an increase in the level of fines. I paid attention to the level of fines proposed by the Bill as I was aware that we are dealing with people of limited means. An increase would not be suitable or appropriate. In view of my general policy, I am against adding imprisonment as an option. It is inconsistent with the policy I have enunciated and put in place. The proposal in the community service order Bill will be that judges must consider community service as an option before they sentence anyone to a term of less than six months. At the moment, they do not have to consider it. Providing for imprisonment would go against policy because we are trying to keep people out of prison for relatively minor offences.
The real effect of this legislation is to give the Garda Síochána power to move on people who are begging, causing nuisance and intimidating people. That must be addressed. This amendment proposes a penalty, as opposed to the Minister's suggestion.
I cannot agree with that because it goes against the policy move we made, which is to keep people of lesser means out of prison and only to imprison people in respect of fines and unpaid civil debt. People would not be begging unless they had to, unless it is organised begging. The foot soldiers doing the begging are those who can ill afford excessive fines. Those who are begging may feel one month's imprisonment is not a bad thing. We must have balance.
I move amendment No. 11:
In page 5, subsection (9), between lines 13 and 14, to insert the following:
" "night safe" means a device located on the external wall of a premises occupied by a bank or other financial services provider in which money, in whatever form, may be deposited by or on behalf of customers of that bank or financial services provider;".
Amendments Nos. 12 to 14, inclusive, and 16 are related and will be discussed together.
I move amendment No. 12:
In page 5, lines 22 to 24, to delete subsection (2) and substitute the following:
"(2) A member of the Garda Síochána may require a person whom he or she suspects of having committed an offence under section 2 or 3 to inform the member of his or her name and the address at which he or she resides.”.
This amendment concerns the circumstances in which a garda may ask a person suspected of an offence under sections 2 or 3 for his or her name and address. Section 4(1) provides gardaí with a power of arrest when an offence under sections 2 or 3 is suspected. Section 4(2) as it currently stands provides that gardaí may seek the name and address only after an arrest has been made under section 4(1). The amendment separates the operation of sections 4(1) and 4(2) to the extent that the execution of the powers in section 4(2) will not be dependent on an arrest having first been made under section 4(1). Although the powers in both subsections may be availed of in any particular case, we will, as a result of this amendment, have a situation where the name and address may be sought once the garda has formed the view that an offence has been committed under section 2 or 3. As a result, the garda may decide to proceed by summons. In that event, all that is required is the person's name and address. This amendment should, therefore, result in fewer arrests than might otherwise have been the case.
Amendment No. 13 from Deputy Carey continues the requirement for arrest prior to asking for the name and address. The amendment I propose will be especially beneficial in situations where the offence occurs at a place well removed from a Garda station, for instance, in a rural area or in a small village. There would be a delay in getting the person to a station. While such delays are unavoidable, it is important that they should be avoided whenever possible.
My amendment draws on section 24 of the Criminal Justice (Public Order) Act 1994. Section 24(1) provides a power of arrest without warrant for offences under the Act. Section 24(2) deals with name and address and states that the garda may seek those details "where he is of the opinion that an offence has been committed" under the Act. This contrasts with section 4(2) of the present Bill, which states that the details may be sought from "a person arrested under this section". This Bill is to be cited collectively with the 1994 Act and it is important that it should be consistent with that Act.
I have mentioned that amendment No. 13 repeats the difficulty of arrest prior to asking for the person's name and address. On the general point that many of those who are begging have no permanent address, which Deputy Carey raised on Second Stage, I draw his attention and that of the committee to section 4(5). It recognises the problem mentioned by Deputy Carey and provides an adequate solution. His amendment is unnecessary in light of section 4(5) and it repeats the difficulty that my amendment resolves, namely the question of arrest before proceeding to ask for name and address. Therefore, I do not accept his amendment.
I do not propose to accept amendment No. 16. I recognise that the issue is the need to address the person begging in clear language. That is the case in section 3 but the circumstances there are quite different. In section 3, the garda is giving a direction and is required to explain the consequences of a failure to comply. In the case of asking for a person's name, it is one question everyone will understand. For that reason alone, the proposed amendment is not necessary. Elsewhere in the public order legislation, there is no such requirement when issues about name and address are dealt with. This Bill is to be cited collectively with that existing legislation. To accept the amendment would introduce an element of inconsistency.
I do not have a problem with the Bill making it an offence for an individual not to supply his or her name. I put forward my amendment. Homeless people do not stay in the same place every night. They move around. The Bill as constituted makes it an offence for one not to give one's address. In some circumstances, but not all, a homeless person moves around and does not have a permanent address. That is why we tabled the amendment.
Section 4(5) deals with these type of circumstances adequately. Being overly prescriptive could cause a difficulty. The provision states that for the purposes of the section a person resides at his or her main residence, or if he or she has no main residence his or her usual place of abode, or if he or she has no usual place of abode, the place which he or she regularly visits. That adequately covers any circumstance where perhaps someone is of no fixed abode.
On another related issue, earlier I mentioned that some unfortunate people have mental health issues or may be under the influence of illegal substances or in come cases legal substances or both. Has the Minister taken into account how they may be treated in such circumstances where they may not be able to articulate the information requested? They may be helped in other ways. I am not sure whether the Minister has walked around the city late in the evening. If he has not, perhaps it is something he could do. It is an eye-opener to see what is happening in some places and to see unfortunate people even last night under blankets with rain lashing down on top of them. Tonight it will be freezing and they are just under sheets. Many of those people have mental health issues as well. That brings me back to the Mental Capacity Bill, for which we have been waiting for some time and which has long been promised. Where someone does not have the mental capacity to provide the information or if he or she is totally out of it, how can they be dealt with? Has the Minister considered the issue? I accept that we are dealing with different types of people; some who are bordering on the criminal and making a great deal of money but others who are not. That is something of which we must be cognisant.
Ultimately all of this is determined by the Garda Síochána adopting a commonsense approach. If the Garda becomes aware of circumstances where it is not a case of begging per se, but it is more to do with a person finding himself or herself in a difficult situation, services are available to the homeless. The Bill is intended to deal with a public order issue on the streets. Deputy Stanton is referring to a much wider issue that can be and is dealt with under other legislation. In legislation one cannot deal with every event. Ultimately, one relies on the understanding of human nature and the commonsense approach of the individuals who come across those people.
I agree with the Minister that we cannot be prepared for every eventuality. However, it is more likely that a garda patrolling the streets will encounter people who have a personal difficulty, be that a mental health issue or something else. Several years ago in Cork before the sexual assault unit was set up all complaints of a sexual nature were sent to one garda sergeant in an urban station. He chose a female garda to interview victims. The system worked extraordinarily well because the sergeant had a way of dealing with the issue.
In city centre locations, not just in Dublin but in Cork and Limerick where one is more likely to find people who get into difficultly and subsequently become homeless - I accept we are not dealing with homelessness but it is intrinsically linked - it might be helpful if a garda was allocated the specific duty of dealing with persons who it is believed might have a difficulty and do not fall into the categories we are dealing with currently. It is not as if one has 4,000 individuals lined up outside on the street. One is not talking about large numbers. Such an approach might help.
Deputy Lynch's point is a general one. I am aware that the Garda has set up liaison officers in stations to deal with issues such as sexual assault. We are dealing with begging in this instance.
One simply may not know the address of where one regularly stays or visits, as outlined in section 4(5). One could stay in a hostel without even knowing the address. I accept we may be splitting hairs.
What if one's regular address is under the canopy of the Department of Justice and Law Reform?
Or wherever else.
The Bill strikes a balance. When the Dillon case arose the State could have appealed it to the Supreme Court but based on the advice of the Attorney General it was felt that if we were to introduce an outright ban on begging it would potentially infringe the rights under the Constitution to freedom of expression and congregation and therefore it would not be constitutionally sound. The Bill is a balanced measure and it is left to the discretion of the prosecuting authorities. The intention is not to criminalise people; it is to allow the Garda to have a tool to stop begging. The amendment on organised begging is one of the things we really want to deal with above all.
I move amendment No. 17:
In page 5, after line 39, before section 5, to insert the following new section:
5.—(1) A person who—
(a) controls or directs the actions of another person for the purposes of begging,
(b) organises or is materially involved in the organisation of begging by another person,
(c) forces another person to beg, or
(d) otherwise causes another person to beg,
is guilty of an offence.
(2) A person guilty of an offence under this section is liable—
(a) on summary conviction to a fine not exceeding €3,000 or imprisonment for a term not exceeding 6 months or both, or
(b) on conviction on indictment to a fine not exceeding €50,000 or imprisonment for a term not exceeding 5 years or both.”.
I move amendment No. 18:
In page 5, after line 39, before section 5, to insert the following new section:
6.—A person who derives a living, in whole or in part, from the proceeds of begging by another person and who, in relation to that person, commits an offence under section 5 or aids and abets the commission of such an offence is guilty of an offence and is liable on summary conviction to a fine not exceeding €5,000 or imprisonment for a term not exceeding 12 months or both.”.
Following on from section 17, which relates to the new section on the offence of organising and directing begging, as we have already discussed, the amendment provides for the offence of living off the earnings of begging. It can be committed by persons who commit an offence of organising and directing begging or who aid and abet the commission of such an offence. We modelled the offence on section 10 of the Criminal Law (Sexual Offences) Act 1993 which related to living on the earnings of prostitution.
I mention two aspects of the new section. It applies where the offender is living in whole or in part on the earnings of organised begging. It will be sufficient to show that some of his or her earnings derive from that source. It covers those who aid and abet the main offence, namely organising begging, and who derive income as a result of having given that assistance. This attacks the support systems related to the organisation, such as drivers or anyone who assists the operation. Like the 1993 provision, there is a penalty of up to €5,000 or a jail sentence of up to 12 months for persons convicted of a summary offence under the new section.
Why is the Minister limiting this provision to a summary conviction while the other section refers to a conviction on indictment?
It has to do with trying to be consistent with the 1993 Act. Were we to have a tougher regime for begging as opposed to sexual offences and prostitution, it would show the Legislature to be inconsistent.
I move amendment No. 19:
In page 5, after line 39, before section 5, to insert the following new section:
7.--(1) Section 247 of the Act of 2001 is amended--
(a) in paragraph (a) of subsection (3), by the substitution of “€750” for “£250”, and
(b) in paragraph (b) of that subsection, by the substitution of “€1,500” for “£500”.
(2) Sections 5 and 6 are in addition to, and not in substitution for, section 247 of the Act of 2001.
(3) In this section "Act of 2001" means the Children Act 2001.".
This amendment updates the fine levels under section 247 of the Children Act 2001. Earlier, I discussed the position of section 247 in the overall scheme of measures aimed at those who control and direct begging. Section 247 provides for an offence of procuring or causing a child to beg or allowing a child in one's custody to beg. The offence under section 247 is a summary one and the penalties provided when the Act was enacted were a fine of up to £250 for a first offence and a fine of £500 for the second or subsequent offence.
It was noted on Second Stage by Deputy Carey that these amounts were lower than those proposed under section 2 for the offence of begging. I agree that the section 247 offence is a more serious one and this should be reflected in the respective penalties. Therefore, I propose in subsection (1) to increase the fines to €750 and €1,500, respectively.
Deputies may wonder if the Fines Act 2010 will have an impact on these amounts. The short answer is "Yes", but as a result of the increases now proposed, the section 247 fine will be in a different and higher category than the section 2 fine, in that it will be a class D fine for the first offence and a class C for the second or subsequent offence. The fine under section 2 of this Bill will be a class E fine, the lowest class. In other words, the relative positions established by this amendment will continue to be adhered to when the classification in the Fines Act comes into operation.
As we discussed, subsection (2) confirms that section 247 will continue to apply and will be in addition to the new sections 5 and 6 in the Bill, which relate to organising and living off the proceeds of begging. It is important to be clear on the continued existence of the section 247 arrangements. As I noted, these can relate to circumstances where the new section on organised begging might not be the appropriate way to deal with a situation.
Subsection (3) is a definition stating that references to the 2001 Act are to the Children Act 2001.
I know that this matter must be dealt with under the Children Act 2001. Clearly, we must clean up the situation of children begging, although it has already been substantially cleaned up. One could not walk ten feet in Dublin a few years ago without a scantily dressed little child standing in front of one and begging for money. What will we do about mothers who use babies as-----
Props.
-----mechanisms to get more money out of people?
Fathers have not started using their children as props yet.
I was very slow there. That is not like me.
No.
The Minister knows what I mean - a mother sitting on the ground with a baby well wrapped up in her arms. I am sure the baby is well fed, although one does not get to see him or her in any great detail. Being out in all sorts of weather and being used as a prop for begging cannot be good for a small baby. If adults are going to do it, they should do it themselves. I do not know what we can do about this issue. Perhaps it should be addressed through the Children Act. It is outrageous and should not be allowed. I do not suggest that children be removed from mothers, as I am not that extreme on the issue, but some concern should be had for the baby.
I concur with Deputy Lynch. This is a real problem that can be seen on the streets. This morning, I passed a lady cradling a baby in her arms. The baby was well wrapped up, but exposing a child to that environment is outrageous. The Minister's amendment strengthens the provisions on fines, but we need to enforce every part of the 2001 Act so that we can deal with people who bring children begging in terrible weather conditions. It is damaging to children and we need to do more to enforce the legislation.
The Children Act should be used to deal with this situation, which is more a question of child welfare than criminal prosecution. A mother with a child does not commit an offence under this legislation if she is not intimidating people.
The Bill cannot prohibit a mother having a child with her. A catch-all provision in the Bill allows a garda to move someone on, particularly if that person is in the vicinity of certain areas.
We should start with the Children Act.
Under the catch-all provision, the person need not be harassing anyone.
I move amendment No. 20:
In page 3, line 10, to delete "CIRCUMSTANCES; AND" and substitute the following:
"CIRCUMSTANCES; TO PROHIBIT THE DIRECTION OR ORGANISATION OF BEGGING BY OTHERS; AND".
This amendment amends the Long Title to take account of the new offences being provided in respect of organised begging. It is a direct consequence of amendment No. 17.
I thank the Minister and his officials. I also thank members for their co-operation.
