Dermot Ahern (Louth, Fianna Fail)

I move: "That the Bill be now read a Second Time."

I am pleased to bring the Criminal Justice (Public Order) Bill 2010 to this House. The aim of the Bill is to replace the old begging regime which criminalised all begging at all times with a more humane and progressive approach where begging only will be an offence where accompanied by disruptive behaviour such as harassment or intimidation.

In particular, the Bill takes full account of the judgment delivered in December 2007 by the High Court in Dillon v. DPP. Before we consider the Bill, it would be helpful to outline the main elements of that judgment. It resulted from an action by a person charged with begging who sought a declaration that the law under which he was charged, namely, section 3 of the Vagrancy (Ireland) Act 1847, was unconstitutional. The court found that section 3 was, in fact, unconstitutional on two counts. For the record, section 3 states that "every person wandering abroad and begging, or placing himself in any public place, street, highway, court or passage to beg or gather alms" is guilty of the offence of begging.

The court held that this specification of the offence was too vague and arbitrary and therefore in violation of Article 34.1, Article 40.1, Article 40.3 and Article 40.4.1° of the Constitution. Article 34 concerns the operation of the courts while Article 40 concerns personal rights.

Having just heard me quote the text of section 3, I am sure Deputies might understand why it was struck down. As can be seen, it is vague and generalised in the manner in which it defined the offence.

The court also held that the constitutional right to free expression and communication as provided for in Article 40.3 and Article 40.6.1° was being curtailed unreasonably by section 3. This merely confirms that, subject to the law, citizens are entitled to communicate with fellow citizens in the normal course of daily life.

The judgment went on to make very significant points that have been of great assistance in framing our response to the situation that we find ourselves in as a result of the decision. I can do no better than to quote directly from the judgment. The court stated that "an overall ban on all forms of begging is unconstitutional", but added that "Nothing in this judgment 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".

It is important I emphasise that in the case, which was not appealed to the Supreme Court because it was so clear and the legal advice from the Attorney General was that we would not win, the court stated that "an overall ban on all forms of begging is unconstitutional". Obviously, we had to follow that in the framing of this legislation.

On the possibility that legislation may set limits on the right to communicate, the judgment stated that "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".

A number of clear conclusions can be drawn from these remarks. First, begging can be controlled. Second, however, the law must be certain in its definition of the offending activity and it must be proportionate in any restrictions it places on what are, in other circumstances, constitutional rights. Third, begging, of itself, is not necessarily an offence - it becomes an offence only when accompanied by certain disruptive behaviour, for example, harassment or intimidation.

I welcome the judgment not only for the opportunity it gives us to update and express in modern terms the law as it applies to begging, but for the detail and guidance it contains. It gives an opportunity to move away from laws that have their origin in a dark and tragic period in our past - I refer, of course, to the Great Famine.

The Bill takes a radically different view of begging from the 1847 Act and pursues a more reasonable and rational approach. I want to make a few further points before addressing the Bill in detail. First, I emphasise that the legislation treats begging as a public order issue; that much is already clear from the Title. The year 1847 was a time of enormous social upheaval and the Act may have had social control as part of its purpose, but circumstances have changed since then.

It is essential to note that this Bill does not present any threat or risk for the most needy and most vulnerable in society - all the social and other supports provided by State and voluntary agencies funded by the State will continue to be available. I also emphasise that the Bill has no impact on the conduct of, for example, public charity collections. These are already regulated by the Street and House to House Collections Act 1962 and by the Charities Act 2009.

The Bill contains five sections, the most important being sections 2 and 3. Section 1 contains the definitions of terms used in the Bill. In so far as possible, the definitions are aligned with the definitions in the Criminal Justice (Public Order) Act 1994. In that respect, I draw attention to, for example, the definitions of "dwelling" and "place" - they have the same meaning in this Bill as they have in the 1994 Act. For example, "public place" is given a wide definition and includes a highway, a churchyard or cemetery, a premises to which the public has access or a train or vessel. A "private place" is any place that is not a public place. This approach integrates the law on begging into the general body of public order law. It also promotes consistency, certainty and clarity in the understanding and application of the law on public or private places.

On the term "begging", the Bill draws a distinction between the activity that constitutes begging and the circumstances where the offence of begging is committed. The activity is defined in section 1. Begging can arise in a public or private place. It entails seeking money or goods from others "without lawful authority". In other words, the activity entails requesting money when in a public place and not having a licence or permit under any of the relevant statutes or by-laws and where nothing, either goods or services, is offered in return for the donation. When conducted in a private place, begging is defined as being done without the consent of the owner or occupier.

Section 2 provides for the offence of begging. It has general application - by that I mean it applies to persons of all ages and may occur in any place, either public or private. Bearing in mind that the court stated already, in Dillon v. DPP, that "an overall ban on all forms of begging is unconstitutional', but noting also that it stated that this did not prevent the introduction of legislation that controlled the manner and circumstances in which begging can take place, the offence in section 2 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 with a maximum fine of €400 or a custodial sentence of up to one month, or both. I think an example will demonstrate the point I have been making. Anyone who asks another person at a bus stop late at night to help with the fare is, perhaps, engaged in the activity of begging but it is not an offence if done in an agreeable manner. It becomes an offence if the person threatens, assaults or intimidates his fellow passengers.

Section 3 is, to my mind, very significant. Deputies will recall from one of the extracts I quoted from the judgment that the Legislature may include appropriate restrictions in any laws on begging, and that the restrictions could relate to, for example, location, time and manner in which begging is carried on. Section 3 avails of the possibilities presented by the judgment in this respect. It bestows on members of the Garda Síochána a power to give directions to persons who are begging in particular locations or circumstances. Members of the Garda Síochána will be able to direct a person who is begging to desist from acting in that manner and to leave the vicinity of that place in a peaceful manner. Before dealing with each of the circumstances and locations where this power may be exercised, I will note that subsection (6) requires the Garda to use clear language when explaining the effect of a direction to any person.

Subsection (1) provides that the member may give a direction when he or she has reasonable grounds for believing that the person who is begging is acting in a manner that constitutes an offence under section 2 or gives rise to a reasonable apprehension for the safety of persons or property or for the maintenance of the public peace. As Deputies will recall, this can include begging on roadways or at busy junctions.

Subsection (2) provides that a Garda may exercise the new power where the person is begging within 10 m of the entrance to a dwelling, an automated teller machine or a vending machine. These locations are chosen because they are ones where people are often distracted by the activity immediately at hand and often feel vulnerable in the presence of strangers. They may be fearful of having keys snatched as they enter or leave their home. In the case of ATMs, we know they are now an essential feature of our lives; many of us use them to transact much of our financial affairs. Having another unknown person in close proximity while operating an ATM can give rise to anxiety and apprehension. I had the reference to "vending machine" added so as to include machines in multistorey car parks, for example. These are locations where people should be able to conduct their business with a sense of security and I believe this section of the Bill provides that security.

Subsection (3) provides that directions may be given where the person is begging within 10 m of the entrance to a business premises at any time when that premises is open to the public for business and the member has reasonable grounds for believing that the behaviour or number of persons begging is deterring the public from entering that premises. This subsection will prove very useful for traders whose businesses are blighted by the presence of persons who are begging. However, in line with the judgment, a person who is begging near a business premises but in a manner that is not interfering with customers, may not be subject to such a direction. The conditions in this subsection or in subsection (1) must be met before a direction may be issued. In other words, the begging must be causing obstruction or intimidating potential customers; it must be causing or likely to cause people to stay away.

Subsections (4) and (8) apply to a person who is begging in a private place or a private dwelling. Either a garda, under subsection (4), or the owner or occupier, under subsection (8), may direct the person to desist and leave the premises. Having regard to the special status under the constitution of a private dwelling, subsection (7) 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.

A person who contravenes a direction from a member of the Garda Síochána is guilty of an offence and is liable, on summary conviction, to a fine of up to €300.

Before I leave section 3, I want to give a clear message about the enforcement powers under this Bill, especially those in section 3. It is my clear intention that the nuisance created by begging should not as a rule result in prosecutions and I am particularly keen to ensure imprisonment is not seen to be a solution. Section 3 enables the difficulty in any particular case to be resolved quickly and effectively without recourse to prosecutions. All that is required is goodwill and co-operation from those who are begging.

The powers in section 3 will save Garda Síochána and court time and will save costs generally. Each prosecution ties up a lot of personnel and resources that could be better used in other areas. Section 3 provides a means of avoiding many of those costs while also ensuring respect for the law. As regards reliance on imprisonment, I know it has to be available as a last resort but I am ensuring we have a means available to avoid prosecutions and as a result reduce the possibility of sending people to prison for offences such as begging. The Dáil has recently passed the Fines Bill which will be signed by the President in the coming days and this will also have an added effect in that respect. On the overall scale of things, begging is a minor offence and prisons should not be used in such cases, except as a last resort.

Section 4 establishes the powers of arrest under this legislation. The section provides that the Garda Síochána may arrest without warrant any person who is reasonably suspected of having committed an offence under sections 2 or 3. A garda may require a person arrested under this section to give his or her name and address. Any person who fails to comply with this request or who gives false or misleading information is guilty of an offence and is liable to a fine not exceeding €200 upon summary conviction. Members of the Garda Síochána may carry out their functions under this section when in a dwelling only if they are in the dwelling with the consent of the owner or occupier.

I draw the attention of the House to subsection (5) which provides that a person's address may be a place which he regularly visits. This has been added to facilitate persons who are without a permanent address and it ensures they can comply with the request for details of their address from the arresting garda. Section 5 is a standard provision on the Short Title of the Bill and the collective citation of the Public Order Acts. The citation underlines my earlier remarks on how this Bill is linked in to the Public Order Acts.

I wish to inform the House that I am examining whether additional legislative provision is required to deal with what might be termed as "organised begging rings". If additional measures are required, it is likely I will bring them forward on Committee Stage. On a related point, I wish to make clear that the Bill does not alter in any way section 247 of the Children Act 2001. That section makes it an offence to procure or to control a child for the purposes of begging. A number of Deputies have made the point over the years that organised begging rings are in operation in major urban areas. I am open to amendments in that respect and I will be examining such provisions.

This is a short Bill but it is a comprehensive response to the High Court judgment. It enables the law on begging to be updated in a manner that is not only consistent with the Constitution, but also ensures maximum effectiveness in enforcement with reduced emphasis on prosecutions and penalties. It targets those whose begging presents an unacceptable interference with the normal conduct of life in society. Unlike the 1847 Act, which it is replacing, this Bill implies no judgment on the persons who are begging. Its only concern is the maintenance of public order where that order is being challenged by persons who are begging. In other words, the focus is on dealing with the activity that represents an unacceptable interference with public order. I am pleased to commend the Bill to the House.

See this speech in context