Wednesday, 26 January 2011
Seanad Éireann Debate
An Leas-Chathaoirleach: I welcome the Minister and congratulate him on assuming responsibility for the Department of Justice and Law Reform, as well as the Department of Agriculture, Fisheries and Food.
I am pleased to bring the Bill before the House. It updates the law on begging in two respects. First, it addresses the situation that prevails following the High Court’s ruling that the previous law was unconstitutional. Second, it deals with the relatively new phenomenon of organising and directing begging and living off the proceeds.
I will begin with the High Court’s judgment in Dillon v. DPP (2007). The applicant was being prosecuted under section 3 of the Vagrancy (Ireland) Act 1847. He sought and was granted a declaration that the section was unconstitutional. The court held it to be unconstitutional on two separate grounds relating to Articles 34 and 40 of the Constitution. Article 34 concerns the operation of the courts, while Article 40 concerns personal rights. The first ground was that the section violated Articles 34 and 40 by being too vague and imprecise, thus failing to satisfy the requirement that the law must be stated in terms that are certain, clear and precise when describing the behaviour and circumstances that give rise to an offence. The court also held that the constitutional right to free expression and communication as provided for in Article 40 was being curtailed unreasonably by the section. The conclusion to be drawn is that begging becomes an offence only when accompanied by actions or behaviours that interfere unacceptably with the rights of other persons.
Apart from these findings, the judgment contains some useful commentary that has been taken on board in preparing the Bill. The court stated unequivocally that “an overall ban on all forms of begging is unconstitutional”. That remark is of central importance. The court also said, “nothing in this judgement should be construed as preventing the legislature making laws controlling the location, time, date, duration and manner in which begging or the seeking of alms might take place and the age of any person involved in such activity”.
The court accepted that legislation may set limits on the right to communicate, saying “it is undoubtedly so, that the right to communicate and the right to freedom of expression can be limited in the interests of the common good”. It is clear, therefore, that begging can be controlled by law, provided that the law is certain in its definition of the offending activity and proportionate in any restrictions it places on what are, in other circumstances, constitutional rights.
I will refer to a number of issues before dealing with each section of the Bill. It is accepted that persons who are begging are often vulnerable individuals who may have, for example, health care needs or housing requirements. However, it is also true that begging can create public order concerns. In my capacity as Minister for Justice and Law Reform, I am obliged to ensure the maintenance of public order. The Bill, therefore, addresses begging from that perspective. In doing so, it is making no judgment on the persons concerned. The Bill has no implications for the conduct of public charity collections which are regulated by, for example, the Street and House to House Collections Act 1962. This will be the first Bill to set fines for summary offences by reference to a class of fine rather than a monetary amount. Senators will be aware that this is a consequence of the Fines Act 2010.
Section 1 defines terms used in the Bill. Wherever possible, the definitions are aligned with those contained in the Criminal Justice (Public Order) Act 1994. For example, the terms “dwelling” and “place” have the same meaning in this Bill as they have in the 1994 Act. This approach facilitates the operation of the law on begging as part of the general public order laws. In defining “begging” the Bill draws a distinction between, on the one hand, the activity that constitutes begging and, on the other, the circumstances where an offence of begging is committed. The activity can arise in a public or private place and it will amount to begging where the person who requests money or goods is doing so while not having a licence or permit as required by the relevant statutes or by-laws.
Section 2 provides for the offence of begging. The section applies to persons of all ages and may occur in “any place”, either public or private. The offence is committed when begging is accompanied by harassment, intimidation, assault, threats to any person or the obstruction of passage by persons or vehicles. It is a summary offence subject to a sentence of up to one month’s imprisonment or a class E fine which has a ceiling of €500, or both. An example will help to distinguish between the activity and the offence. If a person who is short of change for a bus fare late at night asks another person at a bus stop for help in paying a fare, that person may be said to be begging but an offence is committed only if he or she threatens, assaults or intimidates the other person.
Section 3 is significant. It develops the possibilities presented by the remarks I quoted from the Dillon judgment to the effect that the Legislature may include restrictions in any laws on begging that are proportionate and that relate, for example, to the location, time and manner in which begging is carried on.
Section 3 gives effect to the remarks by bestowing on the Garda Síochána a power to give directions to persons who are begging in particular locations or circumstances. Gardaí will be able to direct the person to desist from begging and to leave the vicinity of that place in a peaceable manner. Each of subsections (1), (2), (3) and (4) applies this power in particular locations. Section 3(1) permits a garda to give a direction in any place provided he or she reasonably believes that the person is committing or has committed an offence under section 2 or where the begging creates reasonable fears for the safety of persons or property or for the maintenance of public peace. It can be seen that this subsection can be applied in a variety of circumstances, including cases of begging on roadways or at busy junctions.
Section 3(2) provides that a garda may exercise the new power where the person is begging “at or near” the entrance to a dwelling, an automated teller machine, night safe or a vending machine in, for example, multi-storey car parks. I am sure this subsection will do much to address the concern and unease felt by many about begging at ATMs and similar locations.
Section 3(3) provides that directions may be given where the person is begging “at or near” the entrance to a business premises while the premises is open for business and where the member has reasonable grounds for believing that the public is being deterred from entering that premises. The subsection is designed to assist traders whose businesses are adversely affected by begging. However, we must respect the judgment. Therefore, in line with the judgment that the begging must be causing obstruction or intimidating potential customers, it must be causing or likely to cause people to stay away.
Sections 3(4) and 3(8) apply to a person who is begging in a private place. Either a garda, under subsection (4), or the owner or occupier, under subsection (8), may direct the person to desist and leave the premises. Senators will know about the special status under the Constitution of a private dwelling; subsection (7) therefore provides that the Garda may exercise the powers to give directions in a dwelling house when he or she is there with the consent of the owner or occupier.
Section (6) demonstrates a sensitivity to the particular features that can arise in this area — it requires the Garda to use clear language when explaining the effect of a direction to any person. A person who contravenes a direction from a garda is guilty of an offence and is liable to a class E fine with a ceiling of €500.
Section 3 reflects our policy position that the nuisance created by begging should not, as a rule, result in prosecutions or, indeed, imprisonment. Section 3 provides an alternative means whereby the Garda can address particular cases quickly, fairly and effectively.
Section 4 sets out the powers a garda may exercise under the legislation. A garda may arrest without warrant any person whom he or she reasonably suspects has committed an offence under sections 2 or 3. A garda may also require a person to give his or her name and address. Any person who fails to comply or who gives false or misleading information is guilty of an offence and is liable to a class E fine, with a ceiling of €500.
I draw the attention of Senators to subsection (5). It provides that a person’s address may be a place that the person regularly visits. Similar to section 3(6), subsection (5) shows an awareness of the issues that we can expect in cases arising under the Bill. It aims to facilitate persons who are without a permanent address, making it more likely that they can comply with the Garda’s request for details of their address.
In section 5 we are dealing with a very different aspect of begging. It provides for an offence of organising and controlling begging. We have heard anecdotal accounts of organised begging but legislative changes need to be based on firmer evidence. The Garda was in a position to provide good information on the situation around the country. Based on intelligence and observation, the Garda is aware that begging is being organised in Dublin and other parts of the State; the organisers rarely beg but the Garda is satisfied that the operation is directed and organised.
An examination of the crime figures produced by the CSO suggests a fall-off in prosecutions for all types of begging, including of the more organised variety. The absence of a specific offence of organised begging, together with the uncertainty in the law on begging in recent years has contributed to this seemingly low level of prosecutions. The number of prosecutions should not, however, be interpreted to suggest the absence of begging, including the organised variety. The evidence is that begging, including the organised type, is happening and it is now time to respond.
Section 5 is modelled on section 9 of the Criminal Law (Sexual Offences) Act 1993. While prostitution, like begging, is not in itself an offence, the organisation of it is criminalised under section 9. In this Bill we are adopting the approach taken in section 9 of the 1993 Act. The new offence may be prosecuted either as a summary offence or on indictment. Subsection (2)(a) deals with the summary proceedings — on conviction a class A fine, that is, up to €5,000, or imprisonment for a term of up to 12 months, or both, may be imposed. Subsection (2)(b) deals with penalties for conviction on indictment. It provides for a fine of up to €200,000 or a term of imprisonment not exceeding five years, or both.
Organised begging is a dangerous and sinister activity, and a lucrative one. The penalties proposed in the Bill are severe. They make it clear that we consider organised begging to be just as reprehensible as any other form of organised crime. The new measures will act as a deterrent to anyone contemplating such criminality in this jurisdiction.
Section 6 creates an offence of living off the proceeds of organised begging and is aimed at disrupting the support systems needed by those who engage in the organising and directing of begging. It too is modelled on the Criminal Law (Sexual Offences) Act 1993, in particular on section 10.
A person who is convicted under section 5 and is additionally found to be living in whole or in part from the proceeds of begging by another person is liable under section 6 to a class A fine — not exceeding €5,000 — or to imprisonment for a term not exceeding 12 months or both.
Section 7 amends the level of fines in section 247 of the Children Act 2001. That section deals with situations where adults having control of children are prosecuted for allowing them to beg. The amendments ensure that the fines in section 247 are higher than the maximum stipulated in section 2 of the Bill for the offence of begging, that is, €500. Accordingly, the fines are being raised from £250 to €750 for a first offence under section 247 and from £500 to €1,500 for a subsequent offence. No other changes are proposed to section 247. Section 7(2) makes that clear. In other words, section 247 is being retained in addition to the new measures in sections 5 and 6. Some of the more serious cases arising under section 247 may be more appropriate to sections 5 or 6. However, experience suggests that many cases under section 247 are in the realm of neglect rather than the wilful, organised use of children for begging. It would be more appropriate to pursue such cases under section 247 rather than to treat them as a form of organised crime. For this reason, section 247 remains relevant. However, with the new sections 5 and 6 in place, we will be better placed to deal with the full array of cases that might arise.
This short Bill adds to our criminal law in a number of respects. It responds comprehensively to the position arising from the Dillon judgment. It focuses in a proportionate way on the maintenance of public order where it is being challenged by persons who are begging. However, as a result of the Bill, we can look forward to less reliance on prosecutions and imprisonment for begging. We can, instead, look to the new, pragmatic approach provided in section 3 to ensure effective enforcement. The Bill also provides the means to counter the problem of organised begging, making it clear that it is a very unacceptable activity. I am pleased to commend the Bill to Seanad Éireann.
Senator Eugene Regan: I welcome the new Minister for Justice and Law Reform, Deputy Smith, and thank him for his exposé on the Bill. As he indicated, it is a response to the High Court judgment in the Dillon v. DPP case of 2007, which itself very much relied on a New York city court judgment, Young v. New York City Transit Authority where it was found that to have a blanket ban on begging interfered with the constitutional rights of the defendant in terms of communication and association. The decision in the Dillon case struck down the Vagrancy (Ireland) Act 1847. The decision raised a number of important constitutional and legal issues as to whether it was appropriate to outlaw begging. The Bill does not outlaw begging per se but it does outlaw it when it is accompanied by other acts, namely, harassment, intimidation, assault, threatening behaviour or obstructing the passage of persons or vehicles. In not outlawing begging per se and in ensuring that for an offence to be created or committed there must be such accompanying acts, the Bill is a proportionate response to the lacuna in the law which has existed since the Dillon case. The legislation is necessary and I support it.
I realise that in the Dáil, amendments suggested by Fine Gael and other Opposition parties were accepted or at least reflected in Government amendments. The Bill is tailored to a problem it is designed to resolve and it provides a balanced approach to it. It deals with the most difficult issues concerning organised begging and begging undertaken with threatening and aggressive behaviour. The Bill leaves a good deal of discretion to the Garda Síochána which is appropriate in the circumstances. Clearly, the Criminal Justice (Public Order) Acts were insufficient on their own to deal with this issue and this is why the Bill is necessary, given all the circumstances.
When one discusses the issue of begging it is in the context of the fact that there is extensive homelessness and poverty. Most people accept that begging in general is born out of necessity and there is no justification for outlawing it per se. However, where it is accompanied by aggravating and offending acts that interfere with other people’s rights, there must be a proportionate response. The Bill provides for this and it has my support.
Senator Lisa McDonald: I welcome the new Minister for Justice and Law Reform to the House and the introduction of the Criminal Justice (Public Order) Bill. When we are discussing the amendment of the Vagrancy (Ireland) Act 1847 we may note without argument that the review and amendment of the law in this area is long overdue. For years, we have been unable to enforce the Vagrancy (Ireland) Act in its true form because it is altogether out of date and does not reflect modern society. The people of Ireland in 1847 lived in an entirely different world. Issues arising from the Dillon case have resulted in a lacuna in the law that we are required to address. In this regard we are here today to amend the law and to address the issues raised in the Dillon case.
As the Minister and Senator Regan have remarked, we must remember always the vulnerable in society. There have been many people during this recession who, unfortunately and through no fault of their own, have been thrown into poverty. The Bill deals with the issue of begging in a compassionate way.
I am keen to highlight the work carried out by the Simon communities, the Combat Poverty Agency and Merchants Quay Ireland. They are among several groups in Ireland which have carried out great work and put in great efforts to take people off the streets and away from begging. It is timely to mention the contribution these organisations have made to our society.
It is clear that begging is sometimes organised by individuals who may not necessarily be homeless. This is clear from going into the cities, from listening to “Liveline” some weeks ago and from speaking to people who live in such cities as Dublin, Limerick and Cork. I am from rural Ireland but I have spoken to people who live in cities and they maintain they are afraid to come into the cities at night.
Economic issues arise as well. Shopkeepers and people with businesses in the main thoroughfares where begging takes place have a problem in trying to ensure their premises remain open and that they have a welcoming environment for people who wish to come into their shops and spend money. It is necessary to consider this point as well. The manner in which the Garda has been given powers to move and remove people who act unreasonably and violently is proportionate with regard to the act of begging. The idea of using a sledge-hammer to crack a nut is unwelcome and this is a compassionate way of dealing with the issue.
We will never have a full answer to anything in life but this law will help to deal with the matter in a more proportionate way. It always struck me that it was necessary to do this because the Garda did not have sufficient powers. People who were convicted under the Vagrancy (Ireland) Act were brought before the courts and were getting legal aid, representing an additional cost to the State. We must consider the whole picture and understand it is an improvement to make begging an offence when it is accompanied by unacceptable conduct such as harassment, intimidation or obstruction.
The issue of begging by children is difficult to discuss. It is terrible to see children begging on the streets. A great deal of work has been done in this area in recent times, including the passing of the Children Act 2001 and the establishment of Leanbh by the Irish Society for the Prevention of Cruelty to Children in 1997. These developments led to a considerable fall in numbers but the non-governmental organisation in question has become concerned about the rise in numbers in recent years. There are genuine concerns about the exposure of children to bad weather, violence and drugs. They are vulnerable and susceptible to all kinds of violence.
There is no evidence to suggest that children are involved in organised begging but, at the same time, it is difficult to prove and it could be below the surface. Parents should examine their own behaviour as well. If parents are helping to organise begging for their own children, it is beyond contempt. However, the Bill attempts to deal with the issue of moving people on in a compassionate and proportionate way.
The issues of homelessness and housing relate to a different area and a different Minister. However, it is vital that we consider joining the dots between Departments at some stage. For example, we are dealing with begging in this case but there is another side of the issue which relates to homelessness and poverty and this is dealt with by a different Ministry. Therefore, things can fall between two stools and a lacuna may arise. It may not be a lacuna in the law but problems may be caused by the way in which there is no seamless connection between Departments.
Ultimately, people are intimidated by begging at automated teller machines, ATMs, and parking and vending machines. It is welcome that the Garda now has the power to enforce the law and to move people ten metres away. Sometimes people are bullied into giving money to beggars. While many wish to give out of the goodness of their hearts and feel sorry for people, it must be done in a proportionate way. This is something to which everyone is entitled.
I note the remarks of the Minister regarding charities and the position taken that the Bill does not include people who seek to collect for charities. However, what is the situation with busking? Often, busking on the streets adds a certain charm and ambience, especially to Grafton Street or other main thoroughfares. Does this classify as begging or does it fall into a different category? Overall, I welcome the Bill, the long overdue amendment of the law and the measures to modernise the legal code.
I brought up the topic of begging several months ago, following a letter I received from the owner of ten shops in Dublin 1 and 2 who felt threatened by the behaviour of beggars as he moved between his premises. He also made the point that such behaviour affected business from tourists. When I visited India, I was warned the sheer number of beggars on the streets would make me feel uncomfortable and advised to have small denomination notes to give them. Once a comparatively small gift was given, one was not threatened by them. The threatening behaviour of beggars here, however, is becoming an issue of concern. Ireland did not have a tradition of begging to the extent now seen. We have not been able to acquaint the newcomers who engage in threatening behaviour while begging with our traditions and practices in this regard.
The Minister has explained how in the Dillon case the courts found an overall ban on all forms of begging to be unconstitutional. I understand how this legislation will overcome this. The question that arises, however, is the legislation proportionate to what is required. Senator Regan referred to some of the amendments made by the Dáil. The Bill is balanced to ensure those persons, including tourists, who feel threatened by the behaviour of beggars will be accommodated. The Minister has achieved a balance in the legislation which I support.
Senator Ivana Bacik: I welcome the Minister, Deputy Smith, and congratulate him on assuming his new ministerial role, albeit short-lived. We are debating the Bill in surreal times, with general political attention focused elsewhere on the finance Bill.
The Labour Party recognises that the legislation stems from the Dillon case which the Minister explained and, as such, did not oppose it in the Dáil. Likewise, it will not oppose its passage in this House. The offences provided for in sections 5 and 6 relating to living off the proceeds of and organising begging are welcome.
Deputy Rabbitte raised several concerns when the Bill was taken in the Dáil. Section 2 imposes the penalty of imprisonment for one month when someone is unable to pay a fine for begging. This is contradictory to the Minister’s policy in the Fines Act 2010 which the Labour Party supported. In our penal policy document, A Fair and Effective Penal System, we argued imprisonment should be preserved as a sanction of last resort. In this case, it would be more appropriate to provide for community service as an alternative punishment.
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