Tuesday, 19 October 1993
Dáil Éireann Debate
Both on Committee Stage and on Second Stage many Deputies expressed concern about the three months waiting period or gap provided before the Act would come into force. On Committee Stage I undertook to reduce the time involved to one month. After detailed consultations I am now satisfied that this would prove feasible and accordingly I have brought forward amendment No. 1 to this effect. Deputy Gilmore's amendment would not be feasible, given the need for the Garda to be allowed some time to familarise themselves with the provisions of the Bill. I hope Deputy Gilmore will be able to accept my amendment as a reasonable compromise.
Mr. M. McDowell: I agree with the Minister's view. Three months is too much of a lead-in time for the commencement of this Bill, but one month  is practical in view of the fact that all the District Court computers will have to be keyed up to issue summons for the new offence and members of the Garda Síochána will have to be briefed on the new Act. Therefore, one month is sufficient and three months would have been excessive.
I have been advised that amendment No. 4 would be superfluous in the sense that a mobile home would be covered by the use of the word “vehicle”. However, for the avoidance of any doubt that the present wording is not sufficiently comprehensive, and particularly in the light of the amendment in the name of the Progressive Democrats, I propose in amendment No. 3 to substitute the word “includes” for “means” so that the items listed would not have to be regarded by the courts as exhaustive. I believe that amendment would put the matter beyond doubt and in the circumstances I would very much appreciate if Deputy McDowell would see fit not to move his amendment.
(b) any outdoor area to which at the material time members of the public have or are permitted to have access, whether as of right or as a trespasser or otherwise, and which is used for public recreational purposes,
(d) any premises or other place to which at the material time members of the public have or are premitted to have access, whether as of right or by express or implied permission, or whether on payment or otherwise, and
I acknowledged on Committee Stage that there may have been a difficulty with the definition of “public place” in section 3 in that it might not cover places such as public parks while closed. However, this has now been addressed by amendment No. 5 which now includes, as part of the definition of “public place”, any outdoor area to which at the material time members of the public have or are permitted access, whether as of right or as a trespasser or otherwise, and which is used for public recreational purposes. We are also including specifically cemeteries and churchyards. This meets the concerns expressed by Deputy Mitchell and, in the circumstances, I hope he will not move amendment No. 15. It is preferable that the inclusion of public parks, whether  open or closed, should not be confined merely to section 5 and perhaps the Deputy will accept that.
Mr. G. Mitchell: I am pleased with the wording of the Minister's amendment. The Minister is taking into account many of the reservations expressed on Committee Stage. There are two problems, one of which the Minister's amendment appears to address. I would like to tease out the other problem of public parks whether open or closed, which amendment No. 15 seeks to address. In relation to any cemetery or churchyard one of our greatest problems — it is regrettable to have to say this in the House — is that they are not being accorded the respect traditionally enjoyed in this country. Mount Jerome cemetery in my own constituency — often referred to as the dead centre of Dublin South-Central — the main cemetery in terms of the city, has become very dangerous for lone women visitors because of handbag snatching and the vandals escape over the walls. People have taken to stoning nearby houses from the cemetery where undesirable activities are also taking place. Quite simply, people have lost respect and fear. I am glad that cemeteries and churchyards are included in the definition of “public place”. Since they are included, I presume the Garda will have access to the cemeteries to pursue these vandals. I find it very difficult to use any type of normal language to address somebody who engages in violent activities in a cemetery. It is a problem and in that regard I welcome the amendment.
In regard to public parks and open spaces, to which my amendment refers, I will certainly be disposed to not moving amendment No. 15 if I can tease out how the new amendment would deal with the problem. The problem in Dublin — and I am sure it is no different in the Minister's constituency and throughout the country generally — in major residential areas adjacent to open spaces or parks, whether open or closed, is that youths take intoxicating substances and literally make life very difficult for many people. There is a suspicion that some of these  people are watching houses and when the residents leave they burgle the houses and use the funds for their drinking or intoxicating substances habit. Where this is happening inside a closed park it is very difficult for the Garda to get in after hours in that they have to climb over gates. They should have the right to enter parks; I am not sure whether they have that right and perhaps the Minister would address that question. It may be that this is a matter for by-laws which in the case of Dublin City Council, are with the Minister for the Environment for approval.
I think the Garda should have the right to go into the park and those who are carrying on inside it should be subject to the full rigours of the legislation. Some people are carrying on similar activities in open spaces. In many cases this can be worse because it can make life hell for those who live nearby. It totally devalues the property; people have to lock their cars with chains at night because they fear what will happen; children cannot be sent to the shops on an errand because they would have to pass gangs of youths; old people are terrified to cross their threshold, etc. People are literally imprisoned.
The gardaí seem powerless beyond telling the young people to move on. Under this Bill they will have the power to tell them to move on and if they do not obey, the gardaí will have further powers to deal with them. Heretofore the gardaí did not have the power to address in an effective way problems arising from behaviour in open spaces. If the Minister can assure me that this amendment deals with that problem, I would be willing to withdraw mine because I am anxious to ensure that parks and open spaces are included under the provisions of the Bill and that the gardaí can deal with the problems, confiscate the drink, if necessary, and move the young people on in order to restore law and order so that the law abiding citizens can enjoy their homes. Everybody in the State should be able to aspire to peace in their own homes.
Mr. M. McDowell: I am critical of paragraph  (b) of this amendment but I have no objection to the enumeration of places set out in paragraphs (a), (c) and (d). As far as I am concerned, paragraph (b) does not hit the nail on the head. Paragraph (b) states:
any outdoor area to which at the material time members of the public have or are permitted to have access, whether as of right or as a trespasser or otherwise, and which is used for public recreational purposes,
This confines the notion of public spaces to places which must be used for public recreational purposes. The word “and” in that paragraph makes it very clear that the public place must be used for public recreational purposes. I am worried about this provision because what I said on Committee Stage still holds and it is not addressed by this amendment. What I want is a workable law. For instance, if there is a derelict house beside Sandymount Green and people are shouting and roaring all night long on the site of this derelict house, this does not fall within the definition set out in paragraph (b).
What I want — and we will come to it in my amendment No. 6 — is to extend the concept of public place to cover people who are standing on private property immediately beside a public place and who are behaving in a manner prohibited by sections 5, 6 and 7. One does not need to have a very vivid imagination to work out that once the element Deputy Mitchell spoke about, who visit Mount Jerome Cemetery at night, cotton on to the fact that they are immune from arrest as they are not in a public place at the time they are committing the offence, there will be huge difficulties.
Youngsters will stand in front gardens of derelict sites, have parties and start roaring and shouting on industrial estates. These areas are not open to them but they are trespassers and nobody will be able to stop them committing the offences in question. If we are serious about preserving public order in public places we need to extend the concept of “public place” to places from which  offending behaviour can be seen and heard, otherwise it will make a joke of this legislation. People will stand in their own gardens, start roaring and shouting or getting drunk and being abusive to people from their own doorstep but will not be in a public place.
There is a school of thought that one creates a disturbance in a public place if one is heard or seen in a public place being offensive or unruly as the case may be. This is a criminal statute and unless the Minister can show me some authority for the proposition that standing in a garden which is visible from a public place and committing any of the offences set out in sections 4, 5, 6, 7 and 8 is, in fact, an offence, my view is that the Bill will not cover a great deal of behaviour that ought to be dealt with.
Mr. R. Burke: I welcome this very important Bill and congratulate the Minister on bringing it forward. Much work has been done on Committee Stage and the legislation has been considerably improved since its introduction. I compliment her also on her willingness to put forward amendments in the context of the arguments that have been made on Committee Stage. While this amendment is good as far as it goes, I think something much more radical is called for, and I would go a little further than the two previous speakers. Section 4 states:
(1) It shall be an offence for any person to be present in any public place while intoxicated to such an extent as would give rise to a reasonable apprehension that he might endanger himself or any other person in his vicinity.
The Minister has extended section 3, the interpretation section, to include a list of areas. I accept that this is desirable and well intentioned but I would go further. My suggestion, and I ask the Minister to consider it overnight, is that stating “being intoxicated to such an extent as would give rise to a reasonable apprehension that he might endanger himself or any other person in his vicinity” looks at the problem in a negative way. I suggest  that a positive way would be for the legislation to provide the opportunity for the Garda Síochána and the local authority to declare alcohol free zones. This would not leave the gardaí in the position of having to decide whether there is reasonable apprehension that a person might endanger himself or any other person in his vicinity. It would be preferable if some of the open areas, public parks, linear parks and streets could be alcohol free zones. This has happened very successfully in the UK. I know it is a radical change from what is being proposed in the Bill but I believe it achieves what the Minister is attempting and does so in a better way.
Let me give the Minister some examples that have arisen in my constituency. For many years the rear of the gardens in one particular estate opened on to an inaccessible area and when a road was built, the portion of land between the backs of the gardens and the boundary wall of the new road became an open space and was developed into a linear park. Where there was once total privacy there is now a movement of people. Such areas are unused except by teenagers and young adults who congregate there late at night for drinking sessions and are a nuisance to the people who have lived in peace for many years in nearby houses. The quality of life for those living at the end of such linear parks has disimproved and that is not covered in legislation dealing with intoxication in public places, as there is no reason to believe that the young people involved might endanger themselves or others in the vicinity. However, the Bill as drafted, with the best will in the world and the Minister's total co-operation, will not create a sense of security or give peace of mind to the occupants of houses in such areas.
I urge the Minister to consider the concept of setting up alcohol free zones in certain public areas which could be decided on by the Garda in co-operation with local authorities or by the local authorities themselves. Rather than going down the defensive road to which the Minister referred, that concept should be  given consideration, but I do not expect her to reply positively at this stage. A number of chambers of commerce and business associations in my area have strongly advocated the concept of alcohol free zones because they are aware of the success of such a concept in the North and elsewhere. That would be better than stipulating a number of churchyards, highways, trains, vessels and so on as places where people cannot consume alcohol. The areas to which I referred should be identified as alcohol free zones and if people are caught drinking alcohol or any other intoxicating substance in such places they should be immediately apprehended by the gardaí. The gardaí should not have to wait until they are intoxicated or until they consider them a danger to themselves or others before taking action. They should be able to take immediate action. I encourage the Minister to accept my proposal.
Mrs. Geoghegan-Quinn: I seek your guidance, Sir, in relation to the points raised by Deputy McDowell. All the points he raised relate specifically to his amendment and before you took the Chair, the Leas-Cheann Comhairle ruled that we could not discuss this matter until we disposed of amendments Nos. 5 and 15.
I am glad Deputy Mitchell welcomes the reference to cemeteries and churchyards because he and others expressed concern in that regard during our long  Committee Stage debate. In regard to public parks which are closed at a certain time in the evening, the words of particular relevance are contained in paragraph (b) of amendment No. 5 which states, “...as a trespasser or otherwise ...” which means that if a person is caught in a public park after it is closed, he or she is a trespasser. The question of access by the Garda will have to be considered carefully by members of the Garda and the local authorities or whoever is responsible for the public park concerned. That would be the best way to ensure that gardaí have access to such parks at any time.
In regard to Deputy Burke's point, the designation of areas as alcohol free zones is a fairly radical departure in this area and, as the Deputy stated, it has worked effectively in other countries. I am advised that is primarily a matter for environmental legislation rather than criminal justice legislation and I will discuss it with my colleague, the Minister for the Environment.
On both Second and Committee Stages we discussed at great length the necessity to include, as far as possible, the matter of open spaces to which Deputy Burke referred, in other words, green open spaces around housing estates that once were peaceful zones but are now used by young adults for the consumption of alcohol and other substances. The behaviour of people in such places is covered under the legislation provided a crime is being committed. Moving a step further and deciding that a green open space or some such place should be an alcohol free zone would be a matter not only for the Department of the Environment but for local authorities who hold strong views, in many cases similar to those of Deputy Burke, in that regard. That matter is certainly worth considering and because Deputy Burke raised it, I will discuss it with the Minister for the Environment.
While I appreciate the thinking behind the views expressed by Deputy McDowell, they go too far. Essentially, the very nature of public order offences is that they occur in areas to which the public generally have access. They are not  designed to regulate behaviour where a person is on his or her own private property. In terms of civil liberties considerations, it is reasonable to suggest that the standards of behaviour required from people when they are in areas to which others also have access involved different considerations from the type of behaviour in which people can indulge, say, in their own back gardens. This distinction would be particularly acute in relation to disorderly behaviour under section 5, whatever precise definition we adopt in relation to that behaviour. As a general principle, the criminal law should be more reluctant to intervene where behaviour of the kind covered in the early sections of the Bill takes place other than in a public place. Otherwise, for example, there would be a danger that the gardaí would be called on frequently to adjudicate on relatively trivial disputes between neighbours who, say, object to the behaviour of each other when in their back gardens.
While I do not dispute that genuine difficulties can arise in this regard, I would regard the intervention of the criminal law, as envisaged by Deputy McDowell's amendment, as far too blunt an instrument and going beyond the purpose of the Bill. In particular, I am not satisfied that such a fundamental change in our law — which could be seen as significantly altering the balance between the standards of behaviour required in public or in private — would be warranted. I will, however, keep the operation of the proposed legislation under review and, if genuine and substantial difficulties emerge which might be met by an amendment along the lines of what is being proposed, then I would consider the matter further.
In summary, Deputy McDowell like other Deputies, will appreciate that considerable disquiet was expressed in regard to this legislation from people concerned about civil liberties. Deputy McDowell now has the benefit of my thoughts on this matter, what he proposes  goes much further than I would wish.
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