Brendan Smith (Cavan-Monaghan, Fianna Fail)

I thank the Leas-Chathaoirleach.

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.

The legislation comprises eight sections. Sections 2 to 4, inclusive, respond to the High Court judgment, while sections 5 and 6 deal with organised begging.

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 earlier 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 the 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.

Section 8 is a standard provision on the Short Title of the Bill and the collective citation of the public order Acts. The citation underlines how this Bill is linked in to the public order Acts.

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.