Michael McDowell (Dublin South East, Progressive Democrats)

I thank the House for inviting me this evening to discuss the important issue of anti-social behaviour orders or ASBOs. I abhor the behaviour mentioned by Senator Brian Hayes. It is by no means normal but it is also by no means unheard of.

There are people in society who behave in an anti-social manner. We cannot avoid that fact. There are various remedies available to us but to use the criminal law as the only sanction is not always effective. Article 40.3 of the Constitution states:

1° The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.

2° The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.

It is not simply a question of the State establishing a criminal law to prohibit certain behaviours but of taking active steps to protect the victims of anti-social behaviour from the consequences of that behaviour.

To rely purely on the criminal process, which involves proving things beyond reasonable doubt in trials conducted in courts, is unfair to the victims. The reason it is unfair is that the wealthy in our society, should they be confronted with an anti-social neighbour of the type described by Senator Brian Hayes, would hire a private detective to find out the names of the people involved, get a solicitor to secure an injunction against those people and would, inevitably, be in a position to ensure that somebody who breached a court order in the form of the injunction would be sent to jail for contempt. That course is theoretically available to people under civil law where criminal prosecutions, for one reason or another, are not sustainable. However, it is not available to ordinary people unless they have extremely thick wallets. It is open to everybody to dine in the Savoy Hotel in London provided they can afford it. It is wrong to claim that our criminal law, or our civil law, is adequate to deal with anti-social behaviour.

This is not something new. Mr. Justice Rory O'Hanlon said in the High Court, in a case in 1994 involving Deputy Gregory among others, that a person who is the victim of abusive, intimidating or violent language or behaviour on the part of another person should be able to invoke the protection of the legal process without waiting for an actual assault to take place and without having to embark on costly legal proceedings in search of an injunction. He said it seemed reasonable and proper that a person who has been guilty of some form of outrageous behaviour or language should be asked to give guarantees in an appropriate form that it will not be repeated in the future. He went on to point out that this has been the course adopted by the courts for so many centuries that the origin of the jurisdiction is buried in the mists of the common law. He was talking about the right of justices of the peace to bind people over and require them to put up sureties for their future good behaviour.

The concept of a non-criminal intervention to prevent people from making other people's lives a misery already exists. Critics are lining up, particularly in one newspaper, to claim there is something wrong with anti-social behaviour orders. They should get real and talk to people in communities where these are important issues. They should get out of their leafy suburbs, the halls and corridors of their universities and their lawyers' offices and talk to people who must put up with this type of behaviour every day. A coalition against ASBOs has been founded by a group of people who clearly are not on the receiving end of anti-social behaviour. They do not know anybody and would not know how to talk to anybody in the position described by Senator Brian Hayes.

Last December, I announced in the Dáil and at a meeting of Dublin City Council that I intended to take the ASBO option. For Senator Cummins's information, I said at the time that I would table amendments to the Criminal Justice Bill, which is currently before the Houses, to introduce into Irish law a system of anti-social behaviour orders. I make no apology to any coalition or aspiring coalition for my initiative. We must provide adequate protection for people who are subjected to such behaviour.

It is not enough to advise people to get an injunction or to state that gardaí should be able to prevent it through policing. Anti-social behaviour practitioners can text to each other the location of gardaí on an estate, if they are there. The gardaí cannot be there when the beer can is thrown at the window or stand guard at every gable wall to prevent the house resonating as soccer is played against it until midnight while the poor old woman who lives in the house is terrified. They cannot be in all these places at all times to prevent this type of behaviour. It is delusional to think they can.

However, they can do what has been done in Britain, which implements a system of law that applies not merely to juveniles but also to adults. A recent House of Commons report identified that the majority of ASBOs made in Britain related to adults. It should be possible to bring a person before a court to say he or she has been loitering in the front garden of Mrs. so and so who is a widow and drinking cans and throwing them against her wall or syringing blood into her room or whatever the case may be. It can be made clear that if the person is near this woman's house again in such circumstances he or she will be committing a criminal offence. In such circumstances a person can be prohibited from certain categories of behaviour so as to protect the rights of the woman in question. Nothing could be more civilised or more fair than such a jurisdiction. It did exist in common law in the form of the right to bind people over to keep the peace and be of good behaviour without criminal conviction and without proceeding to prove cases beyond reasonable doubt, as is required for due process in criminal law.

I make no apology for going down the ASBO route to this group of people who I would put at the pointy-headed intellectual end of the spectrum. They know nothing about the effect that anti-social behaviour can have on people who have no protection in the absence of some means of enforcing a degree of decency on neighbours from hell or people from the neighbourhood who are making their life a hell. I make no apology for the proposal to adopt ASBOs. This approach has been tried in Britain and the House of Commons has reviewed its effectiveness. I invite those people who think there is something wrong with the system to consult those reports.

I will not slavishly follow the British model. I do not believe that it is correct for an ASBO to be imposed for a minimum of two years. A maximum of two years would be a more effective system. I do not believe it is possible to have an ASBO system that is at variance with our system of juvenile justice as set out in the Children Act. It has to be married to reality in the case of people who are under the age of 18. The system cannot be one which is designed for adults and applied to juvenile justice in exactly the same way.

People over the age of 14 should be amenable to ASBOs in the ordinary course of events. A person of that age is of sufficient maturity, of sufficient physical maturity in particular, to intimidate neighbours. Fourteen to 18 year olds should be amenable to being brought before juvenile courts for the purpose of a hearing as to whether an ASBO should be made in regard to them. That does not criminalise young people because there is no conviction in having an anti-social behaviour order made against one. Where one does commit a crime is if one breaches that order. However, having been brought before a court and been shown the yellow card, if one deliberately breaches that order then in those circumstances one should be liable to further punishment. In appropriate cases relating to younger persons, parental supervision regimes can be put in place.

I make no apology for the principle of this matter. It is well overdue that it should happen. When I announced proposal this last December there was not too much fuss about it. It was only when Fine Gael and the Labour Party showed some agreement with me on the subject in April that a coalition against ASBOs came into existence.