Seanad Éireann - Volume 138 - 08 December, 1993
Criminal Justice (Public Order) Bill, 1993: Second Stage
Question proposed: “That the Bill be now read a Second Time.”
Minister for Justice (Mrs. Geoghegan-Quinn) Máire Geoghegan-Quinn
Minister for Justice (Mrs. Geoghegan-Quinn): The purpose of the Bill, which forms part of a comprehensive programme of reform of the criminal law which I have under way at present, is threefold. First, it updates the law in relation to public order offences; second, it provides for an offence specifically aimed at racketeering; and third, it provides for the implementation of certain recommendations made by the committee on public safety and crowd control.
The proposals on public order contained in Part II of the Bill represent a comprehensive modernisation of criminal justice legislation in this area. The proposals arise in part from recommendations made by the Law Reform Commission in two reports: their report on offences under the Dublin Police Acts and related offences and their report on vagrancy and related offences. I am happy to use this opportunity to pay tribute to the work of the commission in this area. The proposals also arise in the context of increasing problems of public disorder in recent years which cannot be coped with effectively under existing legislation. By and large existing provisions are based on 19th century legislation. They are not geared to modern realities and they provide for outdated and inadequate penalties.
While the process of devising proposals in the area of public order legislation inevitably gives rise to complex issues, it is the view of the Government that measures of the kind contained in the Bill are necessary to help and protect the vast majority of our people who want to be free to go about their business unencumbered by those who behave in a way — by harassment, intimidation or otherwise  — that has no regard for the basic rights of others.
I am sure the House will accept that it is important in devising proposals in this area to avoid knee-jerk reactions which, however understandable, would be likely to give rise to proposals which would be at best ineffective and at worst counterproductive. That is why the Government's primary concern in this area has been to devise a series of proposals which are measured and balanced. We must avoid needless restraint on the freedom of people to behave as they will while at the same time provide effective protection for those whose quality of life is endangered by the bad behaviour of others.
I said when introducing this Bill in the other House that the proposals in it were not, of course, written on tablets of stone. I undertook to listen with an open mind to any views expressed to me about this matter. If there were problems in the area of public disorder which it was felt were not being adequately addressed I would have these fully examined. By the same token, if there were fears that what we were proposing in any way went further than what was reasonably necessary I would consider those points. That remains my position.
I believe, however, particularly in the light of the significant number of amendments which I brought forward to the Bill in the other House and the number of Opposition amendments which I accepted, that we managed to achieve a fairly broad consensus that the measures now contained in the Bill represent the right balance in this complex area. I look forward to taking into account the views expressed by Members of this House during the course of this debate.
I am aware of some views which continue to be expressed publicly that the Bill in some way represents a threat to our fundamental civil liberties. This is obviously an issue which we have to be very careful about and I believe that the Bill shows a proper concern in this area. I have to say that some of the public criticisms which have been made seem  to be based on a misunderstanding or misrepresentation of what the Bill actually proposes. Nor do more recent comments appear to take into account changes which have already been made to the Bill. Moreover, I am sure that the House would accept that we must protect as best we can the basic civil liberty of people to be free to go about their business without interference from the antisocial activities of those who show no regard for the rights of others.
I shall now deal in some detail with the main provisions of the Bill. The measured approach which I have referred to is reflected in sections 4 to 7 of the Bill which provide for and distinguish between a range of offences, of varying degrees of seriousness, against public order. What we have tried to do in these sections of the Bill is to address comprehensively and fairly the types of disorderly behaviour which have given rise to so much public concern. Members of this House through their contact with community interests will be more familiar than most with the problems which arise in the area of public disorder, the major concerns to which these give rise and the demand by the public that we, as legislators, should address this issue.
Section 4 deals with intoxication in a public place. I should stress that for an offence to be committed under this section the person must be intoxicated to such an extent as would give rise to a reasonable apprehension that the person might either be a danger to himself or herself or any other person in the vicinity. The Law Reform Commission did not recommend the creation of a specific drunk and disorderly offence and we are following the Commission's approach. Disorderly conduct, whether caused by intoxication or not, can be dealt with under the provisions of section 5 which I will come to in a moment. Section 4 provides as a penalty a fine of up to £100.
Section 4 also gives the gardaí the important power, where it is suspected that an offence is being committed under the section, to confiscate intoxicating substances. This is a power which the gardaí already have in relation to under  age drinkers. It also extends the power of confiscation where it is suspected that an offence under section 5 or section 6 is being committed and that the intoxicating substances are relevant to the offence. This will mean, for example, that where a group are gathered together in a public place drinking and giving rise to behaviour in a disorderly manner under section 5 then, irrespective of their ages, the gardaí will have the power to confiscate their alcohol.
Section 5 makes it an offence for any person in a public place to engage in offensive conduct between the hours of midnight and 7 a.m. or at any other time having been requested by a member of the Garda Síochána to desist. Offensive conduct is defined as any unreasonable behaviour which, having regard to all the circumstances, is likely to cause serious offence or annoyance to any person who is, or might reasonably be expected to be, aware of such behaviour. This is a substantially different formulation of words to that originally contained in the Bill but it is aimed at the same type of behaviour: disorderly behaviour which, while falling short of the more serious forms of behaviour covered in section 6 and other later sections of the Bill, nevertheless gives rise to considerable difficulties for people and against which there is a need for criminal sanctions. I should emphasise that in creating this type of offence we are not setting about penalising anyone's normal social activities; what we are trying to ensure is that other people's rights to peaceful enjoyment of their lives is not upset.
Section 6 provides for the more serious offence of engaging in threatening, abusive or insulting words or behaviour in a public place with intent to provoke a breach of the peace or being reckless as to whether a breach of the peace may be occasioned. The more serious nature of the offence is reflected in the penalty which is provided: a fine of up to £500 or imprisonment for up to 6 months or both. This section will replace section 14(13) of the Dublin Police Act, 1842, which set a maximum fine of £2 for this type of offence. Section 7 contains a similar  offence in relation to the distribution of threatening material. Both of these sections are along the lines of offences recommended by the Law Reform Commission. It is important to stress that for the behaviour to constitute an offence it must be linked in the manner I have outlined with the possibility of the commission of a breach of the peace.
In dealing with the provisions of sections 4, 5, 6 and 7 I should also mention section 8 because that section gives the Garda power to direct a person indulging in the type of behaviour referred to in the earlier sections to desist from the behaviour in question or to move on. The Garda are also being given the power to move on a person who is loitering in circumstances that give rise to a reasonable apprehension for the safety of persons and property.
The effect of the Supreme Court decision in the King case in 1981 is that all of the part of section 4 of the Vagrancy Act, 1824 relating to the offence of loitering with intent is no longer part of Irish law. In drafting the present Bill we looked at the possibility of creating a new loitering with intent offence, but we concluded that any replacement type of offence would be unlikely to withstand constitutional challenge on similar grounds to those used in the King case. We recognised, however, that there was a need for some provision to assist the Garda in this area and what we propose now, while not making loitering of itself an offence, will give the power to the Garda to move on people loitering in the circumstances I have outlined. Failure to obey such a direction from a garda will be an offence subject to a penalty of a fine of up to £500 or imprisonment for up to six months or both.
A power for the Garda to move on people where they are acting contrary to the provisions of sections 4, 5, 6 and 7 represents a sensible approach which avoids the need to deal with every difficulty which can arise from the type of behaviour involved by invoking the full rigours of the criminal law through arrest and charging. It will give the Garda powers to nip in the bud a potentially  difficult situation and the people involved an opportunity to desist from behaviour which they may genuinely not have realised was giving rise to concern. Equally, giving the Garda power to ask people who are loitering in the circumstances specified in the Bill to move on should greatly increase the power of the Garda to deal with the activities of those who stalk certain locations with a view to preying on others.
There are other aspects of the proposals contained in Part II of the Bill which should be brought to the specific attention of the House at this stage. Section 11 provides for an offence of entering a building or its surroundings as a trespasser with intent to commit an offence. Section 13 provides that it will be an offence for a person, without reasonable excuse, to trespass in a building or its surroundings in a manner which causes, or is likely to cause, fear in anothere person. Section 12 provides for a related amendment of section 4 of the Vagrancy Act, 1824.
Sections 9 and 10 provide essentially for increases in the penalties for wilful obstruction and common assault or battery. Wilful obstruction involves the prevention or interruption of the free passage of any person or vehicle in any public place. Section 13 (3) of the Summary Jurisdiction (Ireland) Act, 1851 specifies a fine for this offence of not more than 20 shillings. Clearly that penalty is unreasonable in this day and age and section 9 of the Bill before the House provides for a maximum fine of £200.
Section 11 (2) of the Criminal Justice Act, 1951 provides for a fine of up to £50 or imprisonment for up to six months for the offence of common assault or battery. Section 10 of the present Bill amends the 1951 Act by substituting a fine of up to £1,000 or imprisonment for up to a year. Section 18 of the Bill recreates various assault provisions contained in section 38 of the Offences Against the Person Act, 1861 and replaces the offence of assault with intent to commit a felony with a new offence of assault with intent to cause bodily harm or to commit an indictable  offence. It provides for a penalty, on summary conviction, of a fine of up to £1,000 or imprisonment for up to a year or both; on indictment the penalty will be an unlimited fine, imprisonment for up to five years or both.
The maximum term of imprisonment for assaulting what is referred to in the Bill as a “peace officer” is being increased, under section 19, from two years to five years. A “peace officer“ is defined in subsection 5 as meaning a member of the Garda Síochána, a prison officer or a member of the Defence Forces. I believe that most Members of this House would accept that increasing the penalty which can be imposed on those who assault the people charged with protection of the community and enforcement of the law is an appropriate response to mark the absolute unacceptability of such acts.
Section 19 also restates in modern form the provisions of section 38 of the Offences Against the Person Act, 1861, and, as well as dealing with assault, includes an offence of resisting or wilfully obstructing a peace officer acting in the execution of his duty.
The opportunity has also been taken in Part II of the Bill in the provisions in relation to riot, violent disorder and affray to restate and modernise the law in relation to the major public order offences. As a consequence the common law offences of riot, rout, unlawful assembly and affray are being abolished. The approach which is being taken involves stating clearly and in modern language all of the elements of each offence and distinguishing between the offences on the basis of their gravity.
The House will appreciate that much of what is involved in this is quite technical in nature but it might be helpful if I outlined at this stage the main ingredients of each of the proposed offences.
Section 14 provides that when 12 or more persons who are present at any place use, or threaten to use, unlawful violence for a common purpose, and the conduct of these persons is such that would cause a person of reasonable firmness present to fear for their own or  other people's safety, then each of the persons using unlawful violence for the common purpose will be committing the offence of riot.
The section also provides that it will be immaterial whether or not the 12 or more persons use or threaten to use unlawful violence simultaneously; the common purpose may be inferred from conduct; and no person of reasonable firmness need be present or be likely to be present. A person guilty of the offence of riot will be liable on indictment to an unlimated fine or imprisonment for up to ten years or to both.
Section 15 provides that when three or more persons who are present at any place use, or threaten to use, unlawful violence, and the conduct of those persons is such as would cause people of reasonable firmness present to fear for their own or other people's safety, then each of the persons threatening or using violence will be guilty of the offence of violent disorder. The section goes on to provide that it will be immaterial whether or not the three or more persons use or threaten to use unlawful violence simultaneously; no person of reasonable firmness need be present or be likely to be present; and a person will only be guilty of the offence if the person intends to use or threatens to use violence or is aware that his or her conduct may be violent or threaten violence. A person guilty of violent disorder will be liable on conviction on indictment to an unlimited fine or to imprisonment for up to ten years or to both.
Section 16 provides that when two or more persons at any place use, or threaten to use, violence towards each other, the violence used or threatened by one of those persons is unlawful, and the conduct of those persons is such as would cause people of reasonable firmness present to fear for their own or other people's safety, then each such person will be committing the offence of affray. The section further clarifies, along the lines of what I have already outlined in relation to the offences of riot and violent disorder, the circumstances to be taken  into account by the court in determining whether an offence has taken place.
The last provision of Part II of the Bill to which I should draw the House's attention is section 17 which deals with blackmail, extortion and demanding money with menaces. This is a provision geared to deal with the problem of racketeering. There is no point in pretending that there are not enormous difficulties associated with the prosecution of this type of behaviour, not least because of the reluctance of victims to give evidence. There is existing law which can be used to deal with this type of offence. The main provisions are contained in section 30 of the Larceny Act, 1916 and section 3 of the Criminal Damage Act, 1991, but neither of these provisions is specifically tailored to deal with the problem of racketeering. The Government has concluded that it would be appropriate to create a specific offence in this regard and to mark the seriousness of that offence by providing for a penalty, on indictment, of up to 14 years imprisonment.
Part III of the Bill deals with crowd control at public events. The provisions are along the lines of recommendations made by the Committee on Public Safety and Crowd Control which was chaired by Mr. Justice Hamilton. I am sure that all Members of the House will join with me in expressing appreciation of the work done by that Committee.
The Committee was set up against the background of the disaster at Hillsborough, where many football fans lost their lives because of overcrowding in the stadium. The House will recall that one of the key factors which led to that tragedy was the fact that a crowd of a size which could not be accommodated within the stadium itself had congregated directly around the stadium. The decision was taken to allow that crowd into the stadium with tragic consequences. As the subsequent official report into the incident highlighted, to allow a situation to develop where that number of people were present immediately outside the stadium was, in effect, a recipe for disaster. Part III of the Bill is designed to give the gardaí a comprehensive and clear statutory  basis with which they can deal with crowd control rather than rely, as at present, on common law powers.
Section 21 of the Bill provides for the erection by the gardaí of barriers on roads up to one mile from where a particular event is taking place. The gardaí will have the power to divert persons and, where possession of a ticket is required for entrance to the event, to prohibit people who have no tickets from passing the barrier.
Section 22 gives the gardaí power to search a person going to an event and to seize intoxicating liquor or any disposable container or any other article which could be used to cause injury. I believe that most people would regard the provisions in Part III of the Bill as both sensible and necessary. Putting it simply, they are designed to allow people to attend major events without their personal safety being put in jeopardy.
Part IV of the Bill contains a number of miscellaneous provisions, perhaps the most important of which is contained in section 24. That section allows a member of the Garda Síochána to arrest, without warrant, a person committing many of the offences dealt with in the Bill. I believe it follows inevitably that if we are going to provide for such offences then we must give the gardaí a power of arrest without warrant where those offences are taking place.
The opportunity has also been taken to include a provision relating to the prohibition of advertising of brothels and prostitution. This arises from a suggestion which was made during the progress through the Oireachtas of the Criminal Law (Sexual Offences) Act earlier this year but which it did not prove possible to include in that legislation.
Before concluding, it might be appropriate to mention that in dealing with this Bill in the final stages in the Dáil, I indicated that there were a couple of matter I would look at again during the course of the progress of the Bill through the Seanad. The first of these relates to the definition is section 3 of a public place. While the definition is quite broad,  it was represented to me that it may not be sufficient to cover areas which could give rise to difficulties in terms of public order at present. In particular, disused private lands or buildings were mentioned as well as the possibility of extending the definition to cover other areas adjacent to public areas.
Secondly, it was suggested that offences of wilful obstruction under section 9, might be brought within the offences covered by section 8 where gardaí would have power to direct people to move on or desist from the behaviour in question. These matters are being carefully examined at present and, if it is considered the Bill would be further improved by taking these on board, then appropriate amendments could be brought forward on Committee Stage.
I think it will be clear from what I have had to say that the Bill which the House now has to consider represents a major reform of our criminal law relating to public order. While I will be more than happy to take into account suggestions made during the course of the debate, I believe it is fair to say that the kinds of proposals now included in the Bill represent a considered and balanced response to the real and difficult problems which we are trying to address.
I therefore commend the Bill to the House.
Mr. Neville Mr. Neville
Mr. Neville: I welcome the Minister to the House and congratulate her on bringing forward this Bill. I have called on several occasions in this House for many of the provisions contained in the Bill. These measures are necessary to protect the vast majority of the citizens of this State who want and deserve the freedom to go about their business without being harassed or intimidated by those who have no regard for the basic rights of their fellow citizens.
We must guarantee the freedom of all, but such freedom brings with it responsibility for the freedom of others. Too many do not believe in ways to respect this fundamental right. The State has a duty to protect the quality of life for those  who are threatened by the bad behaviour of others.
The breakdown of law and order is seen as one of the most serious problems in our society. We have house alarms, neighbourhood watches, steel shutters and people imprisoned in their houses after dark. We are under siege from criminals and our citizens are being stripped of their right to protection of their person and their property. Criminal elements in society are enjoying almost total immunity from being brought to justice and having sentences applied.
Ireland provides a rich harvest for criminals. We must, as a matter of urgency, redress this situation. Our system of justice must become more victim oriented. Those who suffer must be confident that the perpetrators of crime will face the full rigours of the law in a fair and consistent fashion, that those who commit serious offences are brought to justice, that there are adequate Garda numbers to ensure full investigation of crime, and that people sent to prison serve their full sentences, with time off for good behaviour as laid down by statute.
Garda crime statistics published in October show an increasing level of indictable offences, from 86,574 in 1986 to 95,391 in 1992. Despite this growing crime rate Garda strength is below the authorised level. The total number of gardaí is falling. It is now becoming apparent that the Minister for Finance has slowed down the Minister for Justice's recruitment plans. This will further damage the level of policing in this country.
In 1985 the number of gardaí in the force was 11,396. This strength was allowed to decline to 10,500 in 1989. In the years 1987 to 1991, 1,000 trainees entered the Garda training college and in 1993 the last of these became fully attested gardaí. Last year 269 students were recruited. It will be early 1994 before the first of these act as fully attested gardaí. This year 324 will be accepted into the force.
The problem is that in the meantime personnel departures have risen from an average of 200 per annum to 450 per  annum, a figure which is set to rise in the coming years. Because of the failure of the Government to renew the retirement age extension, this year and the following two years will see record figures leaving the Garda force. The Minister for Justice recognises this problem and has spoken about accelerating recruitment to bring in 400 new recruits per annuam, yet arrangements have not been made for the next recruitment campaign and advertising has not taken place.
I ask the Minister to inform the House when she pians to recruit more gardaí. If matters continue as they are, the Association of Garda Sergeants and Inspectors has predicted that the strength of the force will drop to less than 10,000 by 1996. This would be a disastrous scenario for the country and give a further boost to the escalating level of crime. It would give a bonanza to the criminals in our society. If the Government is serious about tackling the rising levels of crime, it must ensure Garda strength is adequate.
The increase in drug taking and the associated rise in violent crime are matters of extreme concern. There have been calls in this House today to discuss the drugs issue. I hope Senators will take the opportunity to address the problem in their Second Stage contributions. It was frightening to see communities in Dublin forced to take matters into their own hands recently in order to solve the problem of drugs. The communities had to come together to remove drug peddlers from their areas. This should not happen; it is a dangerous development. The State should be in control in these circumstances and protect these communities.
The developments off the south coast in recent weeks are also frightening. Ireland is becoming the drug trafficking centre of Europe. Over £6 million worth of cannabis has been located off our shores. We said this would happen once borders were opened. Special measures must be taken to ensure this problem does not escalate and is eliminated. On numerous occasions I have floated the idea of involving the Garda in helicopter surveillance of crime, especially for drug  trafficking. Perhaps the Minister in her reply could give her views on Garda use of helicopters for such purposes and say whether she will introduce a pilot scheme to test the value of such an approach.
All this crime is fuelled by the realisation of criminals that the forces against them are stretched and that matters are likely to get worse unless measures are taken to rectify the position. The Government should honour its commitment in the Programme for a Partnership Government, which states: “Specific measures will be taken to include an increase in the number of gardaí through more use of civilians and accelerated recruitment of extra gardaí”. The Government must immediately honour its commitment to recruit more gardaí, otherwise new legislation such as this Bill will have little effect and bring the system of law enforcement into further disrepute. Nonetheless I welcome the Bill.
However alarming the crime figures may be, they do not reflect its true level. Because of the public's growing lack of confidence in the ability of the Garda to detect crime and in the ability of the prison system to apply sanctions authorised by the courts, many crimes go unreported. According to an Irish Independent survey published last October, only 81 per cent of people report burglaries, 91 per cent report theft of property from cars, 79 per cent report vandalism, 62 per cent report theft generally and a mere 56 per cent report assaults. An average of only 78 per cent of people contact the Gardaí when they become victims of crime. This survey shows a lack of confidence in the criminal justice system by the public. This confidence must be regained as a matter of urgency.
The Irish Independent's survey also revealed that six out of ten citizens of Dublin are afraid to walk the streets on their own at night and three-quarters of them believe the number of gardaí in their area is inadequate to provide an acceptable level of security and ensure the safety of themselves and their families.  This is an appalling finding and the Government must endeavour to set up a programme which will reintroduce an acceptable level of law enforcement and regain the confidence of citizens, not alone in Dublin but in urban and rural areas throughout the country. People must be assured their security can be defended so they can feel safe in their homes and when going about their business. This Bill is a good step towards a return to that position.
The Bill introduces a comprehensive set of sanctions against those convicted under its provisions. These include terms of imprisonment under 13 separate sections. I have concerns about the effective implementation of these sanctions. The passing of the legislation will not solve the problems outlined in it. The Government must ensure all the sanctions in the Bill can be implemented. There should be a prison place for anyone who is a danger to society or is sentenced to prison.
The prison system is in urgent need of reform. At present there is a requirement for 2,800 prison places but the number in prison is only in the region of 2,000. Legislation such as this is creating a bottleneck because when containment becomes necessary there are no prison spaces available. The Government must once and for all face up to the revolving door syndrome. Prisoners are being released after serving a fraction of their sentences. It is not surprising that the courts, gardaí and prison officers are frustrated by the approach and the public are losing confidence in the ability of the State to control crime and vandalism.
There was a recent incident in my area where a person was sentenced to 17 days in prison for non-payment of a £500 fine. I would take issue with imprisoning someone like that and the Minister has recognised this, but the person was in a position to pay this fine. He sold a vehicle the previous day for £4,000-£5,000, but he did not want to pay the fine. Two gardaí brought him to Limerick Prison and were told to take him to Dublin. He was taken there by them, was admitted to the prison, had his clothes removed,  was bathed and was issued with prison clothing. His clothes were cleaned and his suit was pressed. The following day, the gardaí met this person on the streets of the town concerned with a newly pressed suit, having got his expenses for the taxi and train fare from Dublin to Limerick. How does that affect the gardaí involved? How will that impress them to act in their duty? There are two aspects to that story. First, the person could have had his assets confiscated because he had the wherewithal to pay that fine. Second, having been imprisoned, he should have served his sentence with time off for good behaviour.
The Bill proposes to increase fines form £2 to a maximum of £1,000 in certain sections. This is welcome, as fines of £2 in the 1990s are ridiculous. Fine Gael has called for some time for the indexation of fines in all areas. This Bill highlights the issue still further.
I have raised in the House previously the whole area of the right to silence and I would like to do so again. There should be a new approach to Garda interrogation. The right to silence, when suspects are being questioned, is a relic of the last century, when individuals had no access to free legal aid and punishment was much harsher. As it stands, the right is currently a major obstacle to gardaí in their investigations into organised crime. A suspect can refuse to answer questions or give any explanation whatsoever about matters put to him in the course of an investigation. Experienced criminals do this as a matter of course and subversives are particularly adept at it. While the abolition of the right would greatly help Garda investigations, it would also protect suspects in cases where overzealous police officers might try to extract confessions.
The abolition of the right to silence would remove the importance of obtaining a self-incriminatory confession in many investigations. The right to silence was introduced at a time when an accused was rarely represented in court and could not give evidence, but today the rules are helping an increasing number of professional criminals to avoid conviction. There should be a system whereby it  would not be an offence to refuse to answer questions or give explanations, but an adverse inference could be drawn from silence on particular issues. The Minister should urgently examine the situation and introduce necessary reforming legislation. This legislation would not be unique in the Irish context. The right to silence does not protect against selfincrimination in a variety of statutory offences especially under the Road Traffic Act such as drunken driving, where suspects are required to provide blood or urine samples on which they may be later convicted of an offence. Likewise the new genetic fingerprinting Act obliges the suspect to provide DNA samples and if he does not, the court will be allowed to draw any inference it wishes from that. In revenue cases, a person being investigated cannot use the right of silence to avoid giving potentially incriminating answers to tax inspectors.
Criminal interviews should also be video recorded to protect gardaí from false allegations and ensure the rights of the individual are protected during the interrogation. This would also provide the courts with a true picture of the realities and difficulties facing the Garda in such circumstances. The Minister in her response might address that issue.
I want to refer briefly to bail laws and the need for reform. The bail laws are facilitating hardened criminals to be freed to commit further crime. The courts should have the power to refuse bail where there is the likelihood of committing serious crime. The bail laws need to be tightened so that the courts will not have to free people who are likely to commit further offences. The problem is that bail cannot be refused by the courts on the grounds that there is a likelihood that further offences may be committed by the accused. I accept that a constitutional amendment is necessary to restore discretion to the court and I ask the Minister to look at that. She has an opportunity to introduce such an amendment at a low cost when the European elections take place next June.
Notorious organised criminals over the years have had little difficulty in getting  bail and abusing it. For the most serious offences such as rape and bank robbery, there is little ground in Irish law for allowing bail. Bank robbers, especially the hardened criminals who know the system well and abuse it, have been known to commit crimes while on bail. Some years ago we saw shocking scenes where organised criminals out on bail were engaged in gun battles with gardaí, putting the lives of gardaí, themselves and the general public at serious risk. They were caught by gardaí for serious crimes, such as bank robbery and were granted bail because the courts could not refuse them, although the judge may have been perfectly aware that they were likely to commit further serious offences. People who would be refused such bail should have a quick trial; trials should not be delayed. That would be an important part of any change in that area.
I await the Minister's response. We have asked on numerous occasions over the past six weeks for debates on crime and lawlessness and the Leader of the House always impressed on us that we would get an opportunity to discuss these issues under the Criminal Justice (Public Order) Bill, 1993. While I discussed the Bill initially, I have used the occasion, as the Leader of the House has suggested, to raise these issues and I invite the Minister to comment on them.
Mr. Crowley Mr. Crowley
Mr. Crowley: I welcome the Minister to the House and congratulate her again on the tremendous reform of the criminal law she is undertaking.
I wish to refer to two of Senator Neville's points because I raised them myself on a number of occasions. With regard to the right to silence and our bail laws, Senator Neville must be getting his cue from the British Home Secretary, Mr. Michael Howard, because the language, formulation and the reasoning behind getting rid of these protections are exactly the same as those of Mr. Howard in Westminster.
Mr. Neville Mr. Neville
Mr. Neville: I was never elected to the British Government.
Mr. Crowley Mr. Crowley
 Mr. Crowley: One has to understand that the right to silence is a basic human right which is superior to——
Mr. Neville Mr. Neville
Mr. Neville: Drunken drivers do not have it.
Mr. Crowley Mr. Crowley
Mr. Crowley: ——positive law. That has to be understood. One has the right not to incriminate oneself.
Mr. Neville Mr. Neville
Mr. Neville: The court should then take an inference from it. They should have the right to——
An Leas-Chathaoirleach An Leas-Chathaoirleach
An Leas-Chathaoirleach: Senator Crowley without interruption.
Mr. Crowley Mr. Crowley
Mr. Crowley: I will discuss this with Senator Neville later.
An Leas-Chathaoirleach An Leas-Chathaoirleach
An Leas-Chathaoirleach: Senator Crowley though the Chair.
Mr. Crowley Mr. Crowley
Mr. Crowley: Our criminal law has grown over many centuries and the purposes of those who framed it and those who have enforced and interpreted it are undoubtedly many and various. However, it is not easy to state what are the aims of criminal law in the present day. Some guidance may be got from the general purposes of the provisions governing the definition of offences in the American Law Institutes Model Penal Code which are laid out as follows: (a) to forbid and prevent conduct that unjustifiably and inexcusably inflicts or threatens substantial harm to individual or public interest; (b) to subject to public control persons whose conduct indicates that they are disposed to commit crimes; (c) to safeguard conduct that is without fault from condemnation as criminal; (d) to give warning to the nature of the conduct declared to be an offence; and (e) to differentiate on reasonable grounds between serious and minor offences.
While the definition of offences can adequately forbid unjustifiable and inexcusable conduct, it can rarely prevent it. The fact that an act is known to be forbidden by criminal law may, for many  persons, be sufficient to ensure that they will not commit such an act, but for others this will not be enough. Hence our need for a law of criminal procedure, of evidence and of sentencing.
When a sentence is to be imposed the first decision to be made should be the object to be achieved by it. Is the aim simply to mete out an appropriate punishment to a wrongdoer or to deter the wrongdoer and others from committing such offences in the future? Is it to protect the public by shutting the offender away or to reform the offender or is it a combination of these objects? When this first decision has been made a second decision, what measure is most appropriate to achieve the desired object, must follow.
An attempt to define a crime at once encounters a serious difficulty. If the definition is a true one, it should enable us to recognise any act or omission as a crime or not a crime by seeing whether it contains all the ingredients of the definition. However, a moment's reflection will suffice to show that it is impossible. When the Legislature enacts that a particular act shall become a crime, or that an act which is now criminal shall cease to be so, the act does not change in nature in any respect other than that of legal classification. All its observable characteristics are precisely the same before as after the statute comes into force.
Any attempt at definition of a crime will thus either include the act at a time when it is not a crime or exclude it when it is. We have seen recently in this House, with the decriminalisation of suicide and of homosexual acts, that while the nature of the acts in question, their morality or immorality and their consequences, do not change overnight, their legal nature does. It is possible to point to certain characteristics which are generally found in acts which are crimes.
They are generally acts which have a particularly harmful effect on the public and do more than merely interfere with private rights. Some acts are so obviously harmful to the public that anyone would say they should be criminal. Such acts  almost certainly are but there are many other acts about which opinions may differ widely. When a person is heard urging that there ought to be a law against it, he is expressing his personal conviction that some variety of act is so harmful to society that it ought to be discouraged by being made the subject of criminal proceedings. There will almost invariably be a body of opinion which disagrees. Even if everybody agreed with him, the act in question would not thereby become a crime. Public condemnation is ineffective without the endorsement of an Act of the Oireachtas or a decision of the court.
When discussing criminal offences a distinction has to be drawn between indictable offences and summary offences. A summary offence is an offence which can be tried by a court having summary jurisdiction, sitting without a jury. An indictable offence an offence where the accused is entitled, as of right, to a trial by jury. The distinction is mainly between offences which are serious and minor. In the case of Conroy v. the Attorney General, 1965, Irish Reports, page 411, Justice Walsh said that from the case law the test as to whether an offence was minor or serious is based on the following: the severity of the punishment; the moral guilt involved; the state of law when the Constitution was enacted; and public opinion. Generally summary offences are classified as road traffic offences, speeding, parking violations, possession of drugs without intent to supply, etc.
One of the cardinal maxims of the criminal law is actus non facit reum nisi mens sit rea, that is, an act does not of itself constitute guilt unless the mind is guilty. The general view is that a crime is made up of two elements, the actus reus and the mens rea. However, recent legal academic writers have expanded this further, one being Professor Lanham who wrote in the 1976 “Criminal Law Review”, page 276:
...as a matter of analysis we can think of a crime as being made up of three ingredients — actus reus, mens  rea and [a negative element] the absence of a valid defence. Some defences [for example, an alibi] negative the actus reus; some defences [for example, “I did not mean to do it”] negative the mens rea. The third group in defences [for example, self-defence] operate without negativing either positive element, in effect as a confession and avoidance. But there is a fourth kind of defence which is perfectly capable of standing as a confession and avoidance for which normally will negative one or other or both of the actus reus and mens rea.
According to this view then actus reus and mens rea do not contain all the ingredients of the definition of a crime.
The purpose of the present Bill is to provide for the updating of the law in relation to public order offences and an offence specifically aimed at racketeering. It also deals with the implementation of certain recommendations made by the Hamilton committee on public safety and crowd control and the prohibition of advertising of brothels and prostitution. Let us be clear about one thing. This Bill has not come about for nothing. Rather it is the product of a crying need that has been expressed by communities all over the country who are under threat and, in some cases, under siege. This is an unavoidable fact.
Far too often in the Houses of the Oireachtas we discuss important matters in rather abstract language that is often removed from the realities of ordinary Irish life, in other words, we often ignore the human dimension. It is that dimension of this important legislation to which I wish to draw attention. This Bill has been the subject of much criticism on the grounds of infringments of civil liberties. While I believe we must be ever vigilant on the matter of civil liberties, I do not believe the argument is relevant in this case. The real civil rights issue here is that of the victims of crime and harassment. This is the group this Bill seeks to protect.
 I contend that in previous years we have not placed sufficient emphasis on the victims of crime. I am glad to note that the Minister is determined to redress this imbalance. We have already seen the fruits of this determination in other progressive and reforming legislation. What is the human dimension of this Bill? Unfortunately there are all too many examples: the old woman who is terrified to leave her house because of the taunting behaviour of a group of youths outside or that same old woman who is terrified inside her house because of the taunts of the group outside; the young couple who are harassed by a group of delinquents as they return from a night out; the young mother who cannot let her children out to play though fear of the congregation of gangs in the vicinity; the shopkeeper whose trade suffers because youths loiter at his door, scaring off customers; and, worst of all, the families on urban housing estates whose daily lives are made an absolute misery by gangs of roving thugs.
I have not invented these events. Ask any person involved with community groups or any garda around the country. There is much fear and intimidation out there, meted out by people who do not care a jot for the niceties of respect for fellow citizens. In this House we have a grave responsibility to the victims and underdogs in Irish society. This Bill is a manifestation of our responsibility and it deserves our full and unequivocal support.
I congratulate the Minister for updating the criminal law, especially in this area, and as can be seen in the Bill, repealing certain sections of statues dating back as far as 1836. It has been a crying need within our criminal law area for many years that the legislation governing criminal law should be updated.
I hope the Minister will review the Larceny Act, 1916, which governs theft and petty crime. The drugs issue, which I raised on the Order of Business and which was referred to by Senator Neville, is an important element of this debate. The increase in drug addiction, drug taking, solvent and alcohol abuse has led to an increase in crime and vandalism  so that people may feed these habits. The majority of the crimes in Cork city and the intimidation which takes place in housing estates relate to solvent and alcohol abuse among young people. Any powers we can give to the gardaí or other peace officers to ensure this intimidation is limited are to be welcomed.
The position with regard to the points raised by Senator Neville in regard to the reduction in the number of gardaí, etc. will, I am sure, be rectified by the Minister. It is important to emphasise that it is not only the gardaí who must enforce the law, it is up to each individual to ensure the law and the rights of each citizen are upheld. We must look after our neighbours and make sure they are safe. At Christmas elderly people living alone in rural areas become victims of crime. There is an onus on all of us — not a statutory, but a human obligation to our fellow human beings — to keep an eye on these people by visiting them and ensuring they are looked after.
The issue of drug related crimes will be looked at by the Minister in future legislation, I welcome that. The only problem I have with this legislation is the provision for arrest without warrant. While I recognise gardaí must have the power to arrest people in relation to offences committed under this Bill, the procedure of arrest without warrant should not be given too broad a definition. I am sure the Minister will clarify this point and I have confidence in the courts to decide on matters before them. The courts are more qualified to decide on jurisdictional and evidential matters than any of us.
More financial penalties rather than custodial sentences should be imposed under the criminal legal system because the prison system is under pressure from dealing with offences brought forward and tried. The system would benefit if financial penalties were imposed. Money would be generated because it costs a lot to keep people in prison and, a financial penalty is a greater deterrent than a custodial sentence. As Senator Neville said, a gentleman who was sent to prison for  17 days, left one day later with his suit pressed.
I welcome the Bill and congratulate the Minister for this badly needed reform in this vast area of law where some legislation dates from the late 18th and early 19th centuries. The Minister has answered cries from communities who have been harassed and under siege by gangs of thugs for so long.
Ms Honan Ms Honan
Ms Honan: I welcome the Minister to the House and congratulate her on this legislation. On behalf of the Progressive Democrats, I welcome this Bill and support many of the measures outlined therein. Members of this House may be aware that the first Private Members' Bill introduced by the Progressive Democrats this year related to public order. I am delighted to see the Minister bring forward this Bill.
There is a need to strengthen the law in this area to deal with breaches of public order. The overall objective of this Bill is to put in place measures which will restore some semblance of civilisation to our streets, housing estates, parks and public places. The predominant concern of all Members is that crime is escalating out of control. If we were to ask people what are their main concerns and what difficulties are uppermost in their minds, I am sure that after unemployment, the increase in crime and the breakdown of law and order would come a close second.
The breakdown of law and order and the growth of threatening and menacing behaviour have reduced the quality of life and the peace of mind of our people. This makes life miserable particularly for large sections of the community, such as the elderly, women living alone and young people. Ireland has become a society of home alarms, steel shuttered businesses, neighbourhood watch and community alert areas. These are desperate moves by a society which feels it is under siege from the epidemic of crime and vandalism which is making people prisoners in their homes. It also undermines public confidence in the capacity of the State to maintain the basic elements of law and order.
 There are many reasons for this deterioration in law and order. Major socio-economic factors are involved, particularly poverty which stems from mass unemployment. There has also been a change in our value system. We are influenced by the glamorous society we see on television. There has been a breakdown in family values, such as parental responsibility, family cohesion and individual responsibility for one's behaviour. Our laws are out of date and the Minister has recognised this. I congratulate her for this and other measures she has taken. She has been busy since she took office and I ask her to continue this good work.
The net effect of these factors is a serious imbalance between the rights of the citizen and the impunity enjoyed by those intent on criminal behaviour. My party believes it is time to cry stop to this perversion of rights. It is time to restore safety and security to all citizens. The gardaí must be given effective powers to tackle the criminal, the thug and the unruly gangs. They must be able to carry out the job they are charged by us to do.
One of the first duties of a civilised and democratic state is to uphold law and order and to ensure the personal safety of all citizens. We need an intergrated policy which would look not only at law enforcement but at social services and other areas associated with social exclusion. Our problems come from high unemployment combined with social exclusion and drug and alcohol abuse, a dangerous mixture. The traditional family structure is breaking down. We must take account of this and policies must reflect and accommodate this change. Family support services must be put in place to support families under stress.
If we look at the Child Care Act, the promised implementation of many of its provisions will make a huge contribution in this area. Many child and young offenders come from dysfunctional families and they grow up in a culture of crime. We must step in at an early stage and try to prevent this. As Senators said during the debate and on the Order of  Business today, drug abuse is a major problem and a major cause of crime in urban areas. Many of the young addicts are getting involved in crime to feed their dependency. Another vulnerable group without adequate support services are homeless children, particularly between the ages of 16 and 18. Seeing these children around certain areas of Dublin makes me stop and wonder if we have any responsibility towards them. These are the people who are being enticed into drug dependency by ruthless drug dealers and thereby move into a life of crime. Once this happens it is very difficult for them to find a way back. We have a responsibility in this House to take steps to prevent this from happening.
Another area of major concern to many people is the manning levels of the Garda. There are now approximately 800 fewer gardaí on our streets than in the mid-1980s. Everyone acknowledges that the crime rate is particularly high and such a reduction is not merited. Garda community liaison officers are required around the country. The Garda and ordinary citizens must work in unison to combat this problem.
There have been many calls for more prison places and I have no doubt that there is a need for them but locking people up without adequate rehabilitation programmes is a waste of time. We will never reduce the incidence of recidivism, which is so prevalent, if we do not introduce effective rehabilitation programmes in all our jails. It is not sufficient to get people off the streets, lock them up and then let them out again to continue their life of crime. We must also examine the criteria used for the release of certain prisoners. Many gardaí feel frustrated when, having tracked down criminals who are then imprisoned, they see them back on the streets a short time later committing the same offences. People who commit violent crimes should serve their full sentences.
There are many socio-economic reasons for the widespread incidence of crime. We have to tackle it in a two-way approach. Over the long term we must deal with the many problems I have mentioned  and we need the measures being proposed by the Minister. We need the slower, gradual approach which takes a long time to produce results, particularly with young people. Statistics show that young offenders account for almost 40 per cent of all crimes committed. That is a frightening figure which forces us to examine the structures needed to deal with these young people. There is an obligation on us to deal with the matter in a preventative way, even though it would not show results for perhaps a generation. Money spent on crime prevention is well worthwhile. It costs £65,000 a year to keep one person in Trinity House and something like £700 a week to keep a prisoner in Mountjoy. It is in our financial and security interests to apply the resources to combat crime in an effective manner.
The first duty of the State is to protect public order. Recent media attention and concern in the community is not just hype by a small group of people. There is a real fear out there. People are afraid to use public transport or to walk down the street late at night. There is a serious crime problem and many people feel the balance is in favour of the criminal. The Garda accept that they have become virtually helpless and the community at large believes the whole system is hopeless. I welcome the measures the Minister is introducing. This House has a responsibility to provide the kind of laws that will give the Garda and the public the kind of reassurance they need that their personal safety will not be put at risk.
The civil liberties of every person are very important. If one talks about stronger powers for the Garda, longer prison sentences and more custodial places there is a tendency to believe that we are not concerned about civil liberties. We can, however, show our concern for civil liberties by ensuring ordinary citizens feel free to walk down their streets at night. Without that assurance the ordinary person cannot feel that they have civil liberties. Our laws must protect those who are taken into custody and questioned by the Garda, and they must provide that appropriate procedures are in  place and are adhered to. Where there are miscarriages of justice we must put them right. This does not contradict the policy of though sentences to deal with the kind of problems outlined.
For as long as crime pays, criminals will engage in it. There are too many people in society who have embarked on a lifetime of crime, it is their full time job. Many of them, particularly the young, engage in crime to feed a serious drug habit. According to Garda sources, it costs an average of £60 a day for each of the estimated 1,500 serious drug abusers to feed their habit. To get that money the addict carries out burglaries or robs handbags. If such a person is caught in possession of drugs, those drugs are confiscated at the Garda station and the addict is charged. The next day the addict is often back out on bail, continuing to abuse drugs and stealing to feed the habit.
Many of the measures the Minister has introduced will go some way towards dealing with these problems. We must get the balance right on civil liberties but we must also be aware of the ordinary victims of crime who live in fear. I welcome the Bill, congratulate the Minister on its introduction, and look forward to the debate on Committee Stage.
Ms Gallagher Ms Gallagher
Ms Gallagher: I welcome the Minister to the House. In considering the legislation before us, I find it difficult to take it all on board. The Bill is wide ranging in its provisions and effects and warrants serious consideration. Many of its provisions are helpful and necessary while others pose problems for me. I would be the first to agree that we must have modern legislation to deal with modern problems. Our laws must provide sufficient powers under which the Garda can maintain law and order. We live in a society where power and force often prevail, where parts of society have fallen into anarchy and there are places where the Garda are rightly afraid to go. It is a society where children can terrify with the flick of a knife, where crime is rampant and appears to be increasing. In today's world we need legislation to  tackle modern problems resulting from drugs.
Our legislation in the arena of public law and order is based on 19th century circumstances. The Minister is right to update it. Some of the legislation contains such small fines and penalties that it would hardly prevent one from committing the crime in question. It is vital to increase such penalties as a real deterrent to crime. Our laws must remind citizens that crime is viewed very seriously and those who choose to break the law must suffer and pay for it. I welcome the changes in this area.
Many people believe that crime is rife and nothing is being done about it. Our legislation must provide protection for our citizens and be seen to do just that. As citizens of a modern democratic State we should be free from intimidation, harassement and fear. Every woman, and in these days of gender proofing I will include men,——
Mr. Neville Mr. Neville
Mr. Neville: Thanks very much.
Ms Gallagher Ms Gallagher
Ms Gallagher: ——must know that creeping feeling when walking down a street at night. One hears speeding footsteps behind. The fear that sound brings is real and I can vouch for that. We need to know that somebody is there to protect us and that our laws will punish wrong doers. We live in an age where such fear is a daily reality for many people. There is a gang of between ten and 20 youths close to where I live. They wear balaclavas and vandalise their way through the local housing estates, bullying children and adults alike. They damage property, throw petrol bombs and other objects. They have skinned dogs. They have frightened the living daylights out of some of our old people. They have beaten a young boy so badly that we could have had another Jamie Bulger case on our doorstep. You name it, they will do it. When I query such matters with the Garda I am told they can do very little. That is where we must provide legislation. I fully agree with the Minister in this regard.
 There is no doubt that the Garda Síochána is a marvellous force. Its members have a wide ranging role in Irish society, not just as people who implement the law and protect citizens but as social workers and community leaders. They are vigilant and hard working. I have nothing but praise for the way they carry out their daily duties. However, legally their hands are often tied. They know what is happening, they often suspect a crime is about to be, or has been, committed but can do nothing about it because our laws do not provide for such circumstances. The Bill provides the Garda with powers to tackle crime. I welcome many of the provisions in this Bill, particularly that dealing with racketeering. These provisions are essential to prevent certain individuals making a fortune from crime and are long overdue.
However, I have some reservations. I studied constitutional law under an English professor who constantly reminded the class that Ireland was much more advanced in the sphere of individual and personal rights than Britain. Our Constitution provides many personal rights and freedoms which enshrine what is known as natural law, which are also in line with the United Nations Charter on Human Rights. We have rights to travel, freedom of expression and bodily integrity among others. I wonder how certain provisions of this Bill fit in with such rights. I have some concern about this.
Section 4 makes intoxication in a public place an offence. I query aspects of this. It says the drinker must be in such a state as to put himself or herself, or any person in the vicinity, in danger. This, together with many provisions in the legislation, relies on the assessment of the individual garda. Drinking in public may not be liked but why should it be made an offence in itself? Anybody drinking, or drunk, in a public place is doing himself or herself a great deal of damage to their livers but they are not necessarily damaging others. If he or she sits in a car with intent to drive, the Road Traffic Act already provides for this by making such an action an offence. If he or she abuses others by word or behaviour, the laws  relating to being drunk and disorderly, assault and battery, etc. come into operation. I fail to see why this provision is necessary.
Section 5 covers the issue of drinking in public. This section makes it an offence to shout, sing or conduct boisterous behaviour in a public place between midnight and 7 a.m., or whenever a garda so decides. On the face of it, this provision, if in place during the last World Cup, would have put most of the country behind bars. I am not joking. It could be said that no garda would arrest a person in such circumstances, but who can tell what an individual garda, who perhaps has a headache, might decide to do at any given time? This legislation gives the power to an individual garda to arrest those celebrating matches, students celebrating examination results and many others in situations where singing and boisterous behaviour are understandable, if not acceptable.
Laws, once enshrined on our Statute Book, are there until they are amended. Therefore, the Garda can implement them and exercise their discretionary powers as they wish. Section 9, for example, gives gardaí power to move individuals on. Such a power may, and does, have positive uses but is also open to abuse. We should be clear that our laws deem a person innocent until proven guilty. This is enshrined in our laws as a democratic society. If a garda sees a long haired, denim clad, unkempt youth, with an earring in his nose, hanging around a sweet shop, he can judge that person by his looks and order him to move on. In spite of the fact that the youth may have only been waiting for a friend to come out of the shop, the law does not protect him. The garda has discretion in such cases. If a garda has a personal problem with an individual — for example somebody who did not favour him on a previous occasion — this law will allow for possible victimisation of that individual. I am not saying this happens often, but I know it has happened. None of us is a saint and we all bear grudges and this can apply to gardaí.
Section 7 makes it an offence for any  person in a public place to distribute or display any writing, sign or visible representation which is threatening, abusive, insulting or obscene. This is wide ranging and leaves a lot to discretion. When Ian Paisley visited Dublin last week a supporter accompanying him carried a placard which stated “Éire get out of Ulster”. I found this offensive and insulting as I live in Ulster, part of which is in the Republic of Ireland. If I saw a person carrying such a placard, does this provision mean that person could be arrested? Apart from the individual's geographic error in this case, freedom of expression is enshrined in our Constitution. The laws of libel and slander have been amended to protect individuals from verbal abuse. How much more legislation is needed in this area? We must be careful that, in attempting to protect our citizens generally, we do not give with one hand and take with the other.
I believe this legislation goes too far in certain areas. The bulk of it is fine but there are certain considerations which must not be forgotten. What we need is an improved court system, improved court procedures and administration, more gardaí on our streets and more resources, training and administrative supports for the Garda to allow them tackle crime on our streets. Most importantly, we need to look at the causes of crime. Why do we have so much crime? Is it because of unemployment or drugs? We must tackle our huge social problems. Crime is only the end result. Rather than always jumping the gun on certain issues, we must examine the factors behind crime if we are to relieve society of this burden in the long run. I ask the Minister to consider the last matters to which I referred because dealing with this problem involves more than legislative provisions. We must tackle the real problem.
Dr. Henry Dr. Henry
Dr. Henry: I welcome the Minister. I wish to speak about under age drinking. An enormous amount of discussion constantly takes place about drug abuse in Dublin and throughout the country. However, under age drinking is a far  more serious problem. Very little has been done to enforce the legislation relating in this area.
There have been countless surveys on under age drinking, the results of which are astonishing. Surveys conducted by youth clubs have found that people aged about 14 have been served in pubs in the afternoon. Because of the time of day, it cannot be argued they were in a crowded place and, thus, not noticed. In 1992, 60 publicans were prosecuted for serving under age persons. I believe ten times as many publicans serve such persons. I live in the city centre where it is common to see people in the lower teens who are drunk. The ESRI conducted a survey some years ago which dealt with children as young as 13 and the number of times they have been drunk. The majority of them said it was easy to get drink. This is a most serious issue which we need to consider. Efforts are being made but more are needed.
The health education unit of the Department of Health has a national policy on alcoholism, one of our most serious psychiatric problems. It accounts for between 6,000 and 7,000 admissions to our mental hospitals every year. All psychiatrists dealing with alcoholism agree that the most important issue is prevention, that is, teaching people early about the abuse of alcohol. The unit has set up a good programme which is being facilitated by the National Youth Council. One thousand teachers and youth leaders have participated in this programme and then returned to their schools and youth clubs to teach about the abuse of alcohol, how it should be avoided, how detrimental it is to people socially, mentally and from the point of view of school work and so on.
We should provide a lot more funding in this area. We constantly talk about the drug problem because it is so dramatic but a large number of drug abusers admit they began by abusing alcohol, some within their homes where alcohol was abused already, but not all. A large number of those surveyed say they knew their parents disapproved strongly of  their behaviour but that peer pressure was an important factor in their beginning to drink.
It is important that we start addressing the real enforcement of our laws on under age drinking. We may eventually require legislation similar to that in America. In almost every state in America the legal age for drinking in pubs is over 21 years. The federal courts managed to get this through almost all states by saying it would affect the registration and licensing of cars in those states if the legal drinking age was not raised.
The first time a pub or club is found to have people under the age of 21 drinking it is heavily fined. If the pub is found to offend a second time it is shut down for six or eight weeks. It takes a considerable amount of time to get back a licence. I would not like to see us having to go to those lengths but it is extremely important that we take a hard look at this situation. We talk about drugs all the time but there is a clear correlation between the abuse of alcohol and the abuse of drugs in many cases.
There are few treatment facilities available for children who are involved in under age drinking and who may be alcoholics. At present, they are treated by the child psychiatric service which is already stretched. I do not know of any in-patient centres where they can be treated, and such treatment may be essential in some cases. We must also look at the treatment of teenagers who become involved in alcohol abuse. They are often from at risk families, as Senator Honan mentioned. These are families who may have other social problems and it is most important that we, as a society, try to rescue them from their problems, encourage them to get treatment and to get out of this serious situation.
A survey of post-primary schools in Cork found that 54 per cent of the male pupils and 46 per cent of the female pupils had been involved in drinking. This is a high figure and we all know about the terrible “celebrations” which have taken place after the intermediate certificate examination — which has been replaced by the junior certificate examination —  where it was obvious that these children had obtained a considerable amount of drink.
Most importantly, many of the children surveyed who were involved in heavy drinking had serious socio-psychological problems. We must address this urgently. We should not concentrate only on hard drugs or even cannabis; we must remember that the abuse of alcohol is also a serious drug problem. Further surveys conducted in Galway yielded similar results. It is particularly important that we deal with these children from as young an age as possible. Many of them appear to have started drinking when they were about 13 years of age. This must be regarded as a serious situation.
How wise is it to make drunkenness which harms only the person involved a criminal offence? Because I am not a lawyer, I do not know if it is possible for a garda to take into custody people who are so drunk that he is afraid they may fall into the road. However, it is serious to have a criminal conviction and if the person is doing no harm to anyone apart from being a danger to themselves lurching around the street need this be a criminal offence? Another Senator said that the gardaí often act as social workers; this is true. Could they extend their social work in that area to taking people into custody but not charging them with an offence if the main danger was to themselves only?
I am not sure it is wise to call for building more prisons. It costs £35,000 a year to keep someone in prison. The recidivist rate is shocking and there are few programmes in the prisons. However, it was a delight to see Wheatfield Prison on television last night. Much more effort is being made to get people into training schemes and courses within the prison. However, as the governor commented, people say it is too soft and the prisoners are living a life of luxury, but if he opened the gates he doubted that many of them would remain. I am sure he is right. Rather than concentrating on building more prisons, it would be better to look at crime prevention and increase the number of  gardaí. An increased number of gardaí on the streets would make a big difference to the level of crime.
If possible, offenders should be dealt with without custodial sentences. There does not seem to be a great improvement in people's behaviour following custodial sentences. There have been cases, as Senator Neville said, where people were in prison overnight and then released. Where the crimes involve finance, it would be better to collect the money from the people involved rather than spend money to keep them in prison.
I would not advocate building more prisons because it costs so much in terms of capital and running costs. I would like to see the existing prison facilities improved. Our money would be better spent dealing with people in a non-custodial fashion where possible and increasing the number of gardaí on the streets, probation officers and social workers. We should provide further education in schools where there is deprivation because many children who drop out of school become involved in crime.
It would be better to spend our money in these areas rather than concentrating on the emotive suggestion of putting more people in prison. I would not be so concerned about this if it was not for the Law Reform Commission's report on sentencing. The results of custodial sentencing are so depressing that one wonders on what we are spending our money, apart from the fact that people are restrained from committing other crimes while they are in prison.
Miss Ormonde Miss Ormonde
Miss Ormonde: I commend the Minister on bringing forward this Bill. She is only a short time in office and is to be congratulated on her grasp of the situation. She quickly understood the problems and has tackled them and seen what we can do about them.
I like the Minister's style in presenting the Bill. She is allowing full discussion and is prepared to listen to opinions and any amendments which may result. It is a likeable style of parliamentary debate where the Opposition does not criticise a Bill just because it comes from the  Government side. It is a new style and one with which I like to work. It requires intelligence and a good grasp of the situation and without it we would produce clumsy Bills. This way highlights party thinking and is the way forward, particularly with a Bill like this which confronts and will be welcomed by all strata of society.
The Bill is a relief to families who have been under siege and abandoned to gangs loitering in open spaces, intimidating people and using abusive language. It is to be welcomed and I am delighted the Minister is sensitive to these problems. The Bill concerns gangs of young people who abuse and have a total disregard for law and order. This starts in the home and extends into the schools. If there is disruption in the home, there is disruption in the schools and in the public arena and there follows a disregard for public property. This is the background to the breakdown of law and order. It does not just start in the school. Working in the school setting as a counsellor I know exactly where the problem lies. I do not totally blame families but the nuclear family has to be taken into consideration. Societal norms are changing and we no longer have the normal family setting. This may be the cause of the breakdown.
While travelling in the constituency I represent I often meet people who discuss the breakdown of law and order and ask what we, the legislators, are doing about it. I look forward to telling my constituents about the Bill and its provisions which cater for all aspects of the breakdown of law and order particularly the problems associated with youths congregating. I am very interested in the provisions which deal with loitering in open spaces and laneways and gangs gathering near areas where old people may be living. They intimidate the people, throw missiles at them and make it difficult for elderly people to feel at peace in their homes in the evening.
I took particular notice of sections 4 to 7 which deal with those offences which have serious ramifications for public  order. Communities will welcome increased garda powers to confiscate alcohol in the possession of those drinking in public places. Until now, they could only confiscate drink where the people were under age but I am glad to see that has been extended to those loitering in gangs.
The Minister referred to the sections of the Bill which deal with groups who hang around between midnight and 7 a.m. We are all familiar with discos and night-clubs closing at 2 a.m. or 3 a.m. and those leaving them thinking they are free to do as they like along the streets or in urban areas. They cause a great deal of disruption and noise and have no regard for people who may be resting or sleeping. The Minister is to be complimented on detailing that aspect of the Bill and highlighting an issue which causes most upset in certain areas.
I am a little concerned about the increase in Garda powers. We have to consider the network in relation to the implementation of the provisions of this Bill. The provisions will only be implemented if the parents, schools and junior liaison officers work together. I compliment the Garda who are trying to do a job under terrible conditions without the necessary backup services.
When implementing this Bill contact should be made with other authorities in the area who deal with the problems relating to gangs of young people loitering. We must look for activities to occupy their time because very often young people are at home during the day and this leaves them with an excessive amount of energy and not knowing what to do with themselves in the evening. They are looking for some activity. Nowadays many young people have enough money to buy drink and this is the root of the problem. Anti-social behaviour stems from excessive drinking. These people are not responsible for their behaviour and they no longer respect authority.
It is all very well to introduce the Bill to curb these problems but we must also tackle it through schools, the social authorities and the Department of Health to see how best we can co-ordinate a policy  that will help the Garda to implement the provisions of this Bill. It is not fair to leave it totally to the Garda. I am delighted that Garda powers will be increased but they will have to get the back-up services.
The phrase “move on” is used in the Bill. It is great to see that but will people “move on”? What happens if they do not? Do the gardaí arrest or fine them? Because they may not have the money to pay a fine I would like to see more detention centres.
If we are going to implement the provisions of this Bill we must tell the world we mean business. If we find young people or others abusing law and order, offending and intimidating people, we must let them know that we mean business and that they will be arrested or fined or receive a prison sentence. We must eliminate the revolving door syndrome which is reputed to exist in this country where people are in prison one day and out the next.
We must make this work. I am glad to see the Minister has returned because I am in full flight. There are some tremendous provisions in this Bill but I worry that without the backup network we are not going to be able to implement it. We will be caught in a situation where the schools will not know what to do. The local juvenile liaison officer may not have the power, even though he has the back-up from the local Garda barracks, to go to the schools or whatever and tackle the problem. Our gardaí will have to be educated. Our teachers will have to be educated. The world must know the provisions of this Bill. A public relations job needs to be done in regard to its provisions.
Once these thugs realise that they are not going to get away with it, we are in business, but this legislation will have no effect if they see it as nothing but words and feel they have heard it all before. If a garda tells a group of thugs to move on, he must be able to implement the provisions of the Bill if they not move do so.
 Recently in my constituency the elderly residents of one road have been intimidated. Missiles have been thrown in their windows and no help is available because there are not enough gardaí on the beat. I went to my local garda station about it and they say their hands are tied, they cannot get rid of these gangs who gather every night behind these houses. This is just one example. My own experience is that three weekends in succession my car was destroyed. The Minister knows about this. I was frightened out of my wits and did not stay in my house. There are many more examples.
We have much to do. I welcome the fact that the Minister has left it open for all of us to make our own contribution, that she is prepared to listen and amend. That is the way to make the Bill more successful. I ask the Minister to get the network going as well. Do not spare the parents. Parents have a very big role in this. They should be told that if their child offends law and order in any way, the penalties will also rest with the parents. I would not be slow in going public on this. The parents are handing over responsibility for their children to the State. I admit that we have changed our family norms and that moral values have broken down, but let us start again. There is no reason why we cannot reshape our country. Here is a golden opportunity, let us start today.
Mr. Roche Mr. Roche
Mr. Roche: This is excellent, progressive, timely and common sense legislation and I compliment the Minister on it. This Bill helps in the task of redressing the balance between the law abiding citizen and the people who are prone to criminality. The Minister has been extremely energetic and progressive in her legislative programme and this Bill can give us all cause for cheering. Anybody who is interested in the law of this land and in the rights of the ordinary, law compliant citizen will compliment the Minister and have reason to thank her. It is particularly welcome in that it is clearly aimed at redressing the balance between people with criminal intent and the bulk of society, the law abiding citizens  of this State. It also addresses areas where problems of public order clearly exist and where the existing law is inadequate or non-existent.
The changes made in the law update a great deal of Victorian legislation, much of which has become confused and blunted. For those reasons, this is in every way model legislation. The Minister is also to be complimented in that the legislation covers a wide range of concerns which affect every man or woman who lives in Ireland. Tragically, there has been a breakdown in society. To pick up Senator Ormonde's last point, there seems to be no willingness on the part of families to accept responsibility. I see this Bill as the first step in that direction.
The Minister made some comments recently about looking at the whole area of family and guardianship responsibility. That too is very progressive because if in society people will not recognise their responsibilities to other citizens, it is up to society to ensure that those deficiencies are corrected.
I wish to deal with specific points arising from various sections in the Bill. I welcome in particular section 4 and the provisions relating to intoxication in a public place. Like the Minister I live in a resort town. I am aware of the plague of young thugs who drink themselves to insensibility and then roar and shout in the streets causing mayhem, disrupting the peace and generally making a nuisance of themselves. They do this at present with impunity.
The provisions of section 4 are very welcome because they give the gardaí commonsense powers. They introduce a fine on summary conviction of not more than £100 and the right of the gardaí to seize without warrant containers which they believe to contain drink or intoxicating substances. The reality is that in any town in Ireland there are areas where young people congregate, they buy cider, beer and spirits or ask others to buy them on their behalf. They then consume this in public at great nuisance and inconvenience to the public as a whole. This  matter has been screaming for attention for a long time.
The Minister's provisions in section 4 very comprehensively address that. I thank her sincerely on behalf of people in towns like Bray where this has been a problem for a long time. We have had the problem of people who come out from Dublin with huge amounts of drink, they go to one or two well recognised locations in the town to consume this drink and they are a plague on everybody in the area. The gardaí have been powerless up to this and the Minister is now giving the guardians of the peace the arm with which to enforce the peace in this regard. I compliment the Minister, as will people all over the country.
In section 5 the provisions on disorderly conduct in a public place are very sensible. The law has been unclear in this area. People come out of discos in the early hours of the morning out of their minds and apparently willing to display their vocal talents on all within the radius of one mile of the place. In a resort town like Bray this can be a dreadful plague. In Greystones, where I lived for many years, we had the problem of youngsters leaving a disco and parading through the town demonstrating their vocal talents, their strength and their destructive capacity. This provision makes it very clear that if they behave in an antisocial way they are breaking the law and will face the penalties for doing so. The Minister deserves our compliments for that.
The areas covered in sections 6 and 7 have caused some questions by civil liberties activists. I have similar concerns regarding section 9. I am very anxious that peaceful picketing and protesting does not become illegal. All of us as politicians have been picketed from time to time. My house has been picketed by ten or 12 people. I remember one famous occasion when my wife and I were out and we had a young teenager baby-sitting who was, to say the least, frightened by some people who had a point to make about extradition. I never objected to their making the point but I was annoyed that they chose to make it outside my private residence. I had no objections to  people picketing outside my office but I felt a sense of outrage that they would picket in an area where they could frighten children or were felt by my neighbours to be intimidatory.
At the same time I believe that in a democratic society they did have rights and I would be cautions of putting a limit — even though I found their activity objectionable personally — on the exercise of that right to express their opposition to what we were doing in the other House at the time in the name of the people. I am concerned about how section 9 relating to wilful obstruction will be construed. I hope this will never be used against picketers because I would not like to see a situation arise where, for example, people operating on behalf of a company that was in dispute could force the law to be used as an instrument in the furtherance of their dispute. That is clearly not the Minister's intention in this Bill but guarantees may need to be given in this regard.
The increase in the penalty for common assault is welcome. It is clear that in recent years there has been a willingness to assault and to cause actual bodily harm. It is an issue that concerns me personally and I have had a good deal of experience of problems in this regard in the recent past. I welcome the increased fine of £1,000 and the term of imprisonment to 12 months.
It is welcome that the issues of trespass and entering buildings are dealt with in sections 11, 12 and 13 because the law has been confused and far from clear cut. What the Minister is doing in section 11 is much more precise than existing provisions. It makes the law absolutely clear cut, particularly in section 13, where we have a clear way of dealing with the issue of trespass. I welcome the reference in section 13 (1) to a person trespassing “on any building or the curtilage thereof” in a way which is likely to cause fear to another person. At present the matter of civil trespass deals with the owner of the building. However, people other than the owner of the building, who may well be in occupancy or occupying a portion of a building, could be concerned about or  fearful of the activities of a trespasser. This legislation clarifies the situation and it is a worthwhile expansion of the existing law.
I find the provisions on riot, disorderly conduct, violent disorder and affray interesting. We are again dealing with Victorian concepts which have become unclear over time. The provisions in this area are quite severe and probably rightly so. In the recent past we have had some occasions where terrifying examples of civil riot have occurred. There was a deficiency in the law and it is clear in this Bill that the new criminal offence of riot created in section 14 — replacing the common law offence of riot — is being seen by the State as a severe breach of the law. People may find themselves with prison sentences of up to ten years.
Section 17 deals with the issues of blackmail, extortion and demanding money with menaces. That is welcome. Racketeering is an activity which we did not have in this country but it is, unfortunately, one of those horrific by-products of the breakdown of law and order in the north-east of our country which has been imported here. People who like to masquerade occasionally as patriots are, of course, little more than common criminals. This horrific outbreak of racketeering, extortion and other crimes was never really addressed properly in the law. The Minister is putting down a clear marker here because the provisions in section 17 include liability on conviction on indictment to a fine or to imprisonment for a term not exceeding 14 years or both. If memory serves me correctly, 14 years would be the sentence for manslaughter and this indicates that we are taking a serious view of this matter.
In her speech the Minister did not refer to section 18, which surprised me. This is an interesting new provision. It is new in that it replaces common assault and assault that occasions bodily harm. We are inserting in the law a provision that assault with intent to cause bodily harm or to commit an indictable offence becomes an offence in itself. There have been some horrific incidents recently. Last week an individual used HIV  infected blood in a syringe to intimidate a shopkeeper in this city. Gardaí have been similarly threatened. I remember a case reported in the press where a garda was threatened that he would be bitten by a person who was HIV positive. These are interesting cases because they demonstrate a new type of deadly weapon — a syringe or a person's bite. The threat is a new type of offence and the Minister has been progressive in section 18 in that she is envisaging a situation where the actual assault does not occur and she is creating an offence here with appropriate sanctions against offenders. The assault or obstruction of a peace officer existed in law but has always needed to be clarified.
Part III of the Bill which deals with crowd control at public events is timely. We are moving to a different area here but the idea of giving the gardaí the power effectively to create a cordon sanitaire and to control what goes in or out of it is a good approach and one which all those who are interested in law and public order will welcome. It gives the gardaí the real power to be guardians of the peace rather than investigators of crime. It means that the Garda is now armed by the Minister with the power to prevent crime.
I would like to mention specifically section 24 dealing with arrest without warrant. These provisions will be welcomed by anybody who is familiar with legal intricacies, the problems and the dilemmas that sometimes face gardaí in difficult situations in deciding whether they can make an arrest and the great pressure on a garda to err on the side of caution and, therefore, let somebody go.
I would like to refer to the general issue of the breakdown in the way we regard law and order. I specifically want to address the issue of juvenile crime, which Senator Ormonde may have had in mind in her closing comments. At present the law does not place enough emphasis on individual responsibility or on family responsibility. Many of the problems which are addressed in the Bill arise because of a careless attitude in society and a willingness to transgress on other  people's rights. When it comes to sentencing offenders, particularly young offenders, custodial sentences and the Probation Act are overused. There is little thought given on any consistent basis to consistency or originality in sentencing. As a result, young people who are sentenced are either closeted with hardened criminals or, almost equally reprehensibly, they get sentences which in no way reflect the gravity of their actions and which ignore the damage they have done to the victims.
We need a radical rethink of this area and I was pleased when the Minister indicated in a public comment recently that, in addition to this legislation, she is thinking along these lines and looking into these issues. We need a sense of personal responsibility for our every action, including criminal actions. The parents and families or guardians of young people who show an inclination towards crime must play a greater role in fulfilling their responsibilities to the nation. The onus on parents and on guardians of young people to prevent anti-social or criminal activity is not expressed in the law at present. We need new systems which will identify young people who are prone to or who are in danger of being led into crime. Some form of early identification of criminality must be established and we must involve parents more than has been the case to date.
When young people commit crime, particularly because of involvement in gangs, some form of curfew must be considered in order to break their cycle of contact. We know that peer pressure on young people is a huge contributor to criminality and we must break the cycle of peer pressure. More emphasis must be placed on community orders. Community service orders, particularly where crimes of vandalism or crimes against property are concerned, should be served in the area where the criminal activity occurred. At present young people from Dún Laoghaire who get community service orders have to serve them in Bray and vice versa. I suggest that those who do damage in Dún Laoghaire should serve their community service in that  community. They should be seen to clean up the grafitti, they should be seen to clean the streets. A sense of personal retribution for what has been done should be reintroduced into the law. That may sound harsh but it is not too harsh. It is something we should consider.
I would also look at the issue of custodial sentences, particularly for young people. I welcome the Minister's announcement that she will try to create more places of detention for youth. Putting young people into prison simply educates them in the ways of crime. I realise the Minister is conscious of this too. I would like to see more youth detention centres but I would also like to see us going a step further.
We should look at the issue of curfewing. If we introduce a curfew for young offenders in order to break gang contacts, we must not only make the parents responsible but we must also assist the parents. In looking at that area and how it will be enforced, the idea of electronic tagging arises. Civil libertarians will wring their hands when they hear it mentioned but, however, if one imposes a curfew it must be effective. Electronic tagging has been introduced to great effect in parts of the United States. People have been curtailed as to where they move. It is easy to detect if a person has moved beyond where they should be and it is easy in that way to break up gangs. We will probably not look at it in the context of this Bill but we could look at it in the future.
Finally, I concur with Senator Ormonde's concluding comments. It is imperative that we all play our part in fighting crime. It is not just the responsibility of the Minister or the gardaí, it is the responsibility of every parent and every school. As Senator Ormonde said, we must create a network of concern in this nation. Otherwise we will go down a road which we would regret.
I compliment the Minister on this excellent legislation.
Mr. O'Kennedy Mr. O'Kennedy
Mr. O'Kennedy: I welcome this Bill. I particularly welcome the disposition of the Minister which was shown in the  course of the discussions in the Dáil and which has clearly been reiterated this afternoon.
As the Minister acknowledged in her opening statement, it is essential that where one is regulating the exercise of fundamental rights one must do so in a sensitive way which recognises that only when it infringes on the exercise of other fundamental rights should the law take the responsibility of creating offences or extra sanctions. To that extent updating the law in the light of many social developments is entirely appropriate at this time. Equally, however, we must be particularly sensitive to the fact that the best guarantee is not the sanction of the law or the implementation of sanctions, particularly imprisonment which I will discuss later, but rather creating a situation where rights can be exercised and where the State authorities can ensure, as far as possible, that those rights will be exercised without let or hindrance. There are good examples of that in this legislation.
The constitutional background to this legislation derives from the provisions of the Constitution on fundamental rights, particularly those in Article 40 which relate to personal rights. In that Article the State, among other obligations imposed on it under the Constitution, “guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen”. It goes on to enumerate those rights and in some instances, which the Minister is attempting to resolve, the exercise of those rights could in a certain sense lead to conflict.
Under Article 40.6.1º “The State guarantees liberty for the exercise of the following rights, subject to public order and morality:”. The rights referred to include, “The right of citizens to assemble peaceably and without arms.” Significantly, the Constitution goes on to say — and this is where the actions being proposed here are consistent with the Constitution — that: “Laws, however, may be enacted for the regulation and control in the public interest of the exercise of the foregoing right.”. This legislation  is a classic example of where those fundamental rights which are guaranteed in the Constitution, such as the right to assemble peaceably and without arms, are being regulated with the degree of sensitivity which is required when the Legislature attempts to regulate fundamental rights.
At the same time that imposes an obligation on us — which I hope we can discharge as our colleagues in the Dáil have done — to tease out on Committee Stage — and the Minister has shown a willingness to listen to views — the implications of some of the new regulations. I do not wish to personalise this debate but, with deference to the Senator, I recall occasions when at public meetings during a by-election campaign in Cork some time ago Senator Sherlock expressed his vigorous right to protest and assemble in a way that would cause a nuisance, and some might even say an offence, to those against whom he was protesting. I am sure the Senator remembers the events well; he was named from the platform for being a troublemaker, which was the view of those of us whom he was inconveniencing. I would hate to think that this legislation would prevent such freedom of expression and association, even if it proved uncomfortable for those who were being discomfited. Where we deal with lawful expression and protest in public places we should be careful not to introduce new offences which could be severely restrictive.
I wish to refer to a second point in that connection. Picketing has been referred to. We should be conscious of the fact that the laws relating to picketing, assembling for picketing and trespassing on property for that purpose, are clearly established in statute law. The purpose of picket was simply to communicate the information that there was a dispute between an employer and an employee as to the conditions of service. That was the only purpose permitted in the law. A picket would only be lawful when used for the communication of information. The irony, however, is that those provisions have been diluted, ignored or, for  some reason, abused. I would prefer to rely on existing powers on which the courts should act rather than introducing new ones. If those powers are not acted on, it would be important to renew them or to encourage the application of the court's powers in an effective way.
When new offences are created, new sanctions are imposed and, as in this case, custodial penalties are introduced for offences which did not previously exist, it is essential to provide custodial accommodation. This point has been made by a number of my colleagues and the Minister knows my views. I support her every effort to get the necessary custodial accommodation. However, if we are not able to accommodate existing convicted persons in our court system — we are not able to do so and this cannot be challenged because the courts and the gardaí know this to be true — I have a grave reservation about introducing further custodial sanctions when the present law and administration are not able to act on the current legislation.
The State authorities, particularly the Garda Síochána, suffer considerable frustration, because people who are convicted and sentenced are back on the streets earlier than they should be because of the lack of adequate custodial accommodation. We should not introduce extra and longer prison sentences if we do not have adequate accommodation to deal with those already sentenced.
I support the views expressed by Senator Roche. I believe — and this is nothing new for me — that community service in the area which has been subjected to the offence is more appropriate than a custodial sanction in some of the cases referred to, such as public disorder or trespassing. I support the balance in the Bill which covers a range of offences.
The Minister has been criticised for being too restrictive — that would be the fate of a Minister who is becoming engaged in the reform of criminal justice law; on the other hand, she has been criticised for not being restrictive enough. She has been criticised in this House today by Senator Neville who referred at some length to the right to  silence. I listened to his speech in my office and, unless I misunderstood him, he suggested that silence should be taken as an indication of guilt.
Mr. Neville Mr. Neville
Mr. Neville: It should be taken as an inference of guilt.
Mr. O'Kennedy Mr. O'Kennedy
Mr. O'Kennedy: Yes, and it should be interpreted as such by the courts.
Mr. Neville Mr. Neville
Mr. Neville: It could be.
Mr. O'Kennedy Mr. O'Kennedy
Mr. O'Kennedy: Let us be clear about this because we must make up our minds.
An Cathaoirleach An Cathaoirleach
An Cathaoirleach: There should be no cross-talking.
Mr. O'Kennedy Mr. O'Kennedy
Mr. O'Kennedy: Do not worry about that, a Chathaoirligh.
Mr. Cregan Mr. Cregan
Mr. Cregan: It is a constructive debate.
Mr. O'Kennedy Mr. O'Kennedy
Mr. O'Kennedy: To prove this is a debating Chamber we should be able to engage in reasonable cross-talk. I assure you, a Chathaoirligh, there will be no disorder which will require sanctions. I welcome interventions from Senator Neville.
We are dealing with fundamental rights, including the right to assemble and the right to vindication of property. If we are to be free to express our opinions and views, a fortiori one must be free not to talk under any circumstances.
Mr. Neville Mr. Neville
Mr. Neville: They should not be free to withhold a specimen in a drunk driving case.
An Cathaoirleach An Cathaoirleach
An Cathaoirleach: Senator O'Kennedy, without interruption.
Mr. O'Kennedy Mr. O'Kennedy
Mr. O'Kennedy: It is the function of the criminal authorities to prove a case on the basis of the evidence they are obliged to gather, it is not a function of any person in this or other jurisdictions, except in the totalitarian states. Senator Neville should remember that in totalitarian jurisdictions people do not enjoy the right to silence. Senator Neville's  suggestions were consistent with the totalitarian regimes which are, fortunately, falling apart. In addition to an interpretation of the exercise of that right, it was an offence if one did not justify what one did in those jurisdictions. This an example where we should festina lente, we should be careful before we encourage this Minister, or any Minister, to move along those lines. The Minister for Justice is not likely to respond to any such restriction.
There have been some significant changes since our Constitution was adopted. The need for this legislation — I would prefer if it was not necessary and I presume the Minister shares this view — arises from the changing pattern of social behaviour. When the Constitution was adopted 50 years ago it did not refer to drunk people leaving discos in the early hours of the morning and creating fear and tension. The Constitution, which guarantees the rights of freedom of assembly, was framed, introduced and adopted when such anti-social behaviour was not the norm, particularly among young people. It is a regrettable reflection on our society — and I am not only blaming young people leaving discos — that we must now introduce restrictions on the fundamental rights included in our Constitution. Perhaps this is due to the failure of parents to create the right disposition and respect for society in the home, or the attempt by publicans and disco owners to maximise profit at every opportunity. It is a measure of the change that has occurred in our society and the obligation on us to ensure that pattern does not continue. I welcome the Minister's assurance that these provisions are not written in tablets of stone and her disposition thus far demonstrates that.
I will be making a couple of points on Committee Stage. One of them will be in relation to trespass. We have all seen the sign: “Trespassers will be prosecuted”. This was always meant to convey that one could be prosecuted for breaking into orchards and the like and as such it worked. This was despite the fact that, under the law, trespassers could not be prosecuted. There was and is not, until  this Bill is enacted, a criminal offence of trespass. There was a civil trespass, whereby the owner of the property could bring a civil action against the person who damaged the property by virtue of that, but the criminal offence, except trespass to the person in the strict sense of the word, did not exist.
It is being introduced now, but, I believe we should be circumspect, especially where we deal with trespass to property. I can see the need for regulating it in view of trends in behaviour and conduct that have emerged in recent times, but I believe section 13 which deals with this matter should be reviewed in greater detail.
Section 14 deals with the new offences that are being created, such as the offence of riot, violent disorder, and affray. However, the rather arbitrary definition of what constitutes riot is contained in section 14:
(a) 12 or more persons who are present together at any place... use or threaten to use unlawful violence for a common purpose...
I ask the obvious question, namely, why 12? The response might be the rhetorical question, namely — why not? Why ten? Why 14? Why 11? Why 50?
Mr. Cassidy Mr. Cassidy
Mr. Cassidy: Perhaps the Last Supper has something to do with it?
Mr. O'Kennedy Mr. O'Kennedy
Mr. O'Kennedy: In view of Senator Cassidy's remark, one could imagine what might have happened if this offence had been in place with that number.
Mr. Neville Mr. Neville
Mr. Neville: Twelve good men, true and strong.
Mr. O'Kennedy Mr. O'Kennedy
Mr. O'Kennedy: I do not believe the Romans would have been too reluctant to use it if they thought that the 12 or more who were gathered on that occasion were gathered for the purpose of using or threatening to use unlawful violence for a common purpose.
 I do not believe the number is, or should be, the determining criterion. This could give rise to considerable difficulty, and some constitutional difficulty. If 11 are creating much more trouble than the 12 envisaged in the section, I cannot see why they should not be included within the category of the offence. Equally, if 12 are involved, but five, six or seven of the 12 are rather more passive than the others, there is a danger that people could be caught up in the statutory offence of riot where, basically, they had no such intention. I will return to this issue.
I welcome the general purpose and direction of the Bill. I regret the need to introduce it. I would prefer to rely on the old constitutional provisions and the old law which may have been allowed to fall into disuse. However, that in itself might be a reflection on the social habits and disorder of our society in recent times.
Mr. Cregan Mr. Cregan
Mr. Cregan: I welcome the Bill and I congratulate the Minister for her openness on it. I come from an area with massive problems of crime. I am deeply involved in the city of Cork and I am conscious of ongoing problems there. The drug problem is very serious, as evident by events off the coast of Cork. The Minister and others involved must consider the structures to be set up to deal with the problem. It is a sad reflection on us that, twice in the past four to six months, others had the facilities to find and advise us of drugs off the west coast of Cork.
It is especially regrettable the Naval Service does not have the appropriate facilities. Equipment is available. It may not be new, but it would reassure the public that we are taking action to ensure that these drugs cannot get into Ireland for distribution later throughout the UK and Europe.
I refer to the delay in getting people into court. I have a high regard for the gardaí and I compliment them on their work. Many of them feel despondent about the lack of prison accommodation for people found guilty by the courts.
 There is no reason more people should not be subject to community work orders, but if that is so it is necessary to ensure that such orders are complied with. There is nothing wrong with letting the public know that people will be undertaking community work in specified areas and on specified days.
As a father of seven children, I believe in young people. However, I am conscious of damage caused by some young people's misbehaviour. For example, 12 months ago injuries were inflicted on a garda at Togher in Cork in an accident which was a sad reflection on the people of Cork. The case has not yet been brought to court and questions are being asked about when, if at all, the court case will take place. If the accused are found guilty, is there anywhere to put them?
Cases like this create a general despondency and nervousness in people and they are reluctant to leave their homes. They are locking their doors earlier. People who I would have thought would not be afraid or nervous are not walking down Patrick Street, Cook Street or Oliver Plunkett Street. Our cities and towns deserve better. We have the facilities to change that and we should not be afraid to use them.
Crime is a serious problem throughout the country. Many people are talking about it and the Minister must listen to them. I hope she is arguing at Cabinet on the Estimates to get extra facilities and moneys before matters get out of hand.
The drug problem is unbelievable. When I inform the local Garda superintendent I am told what the law is and that people can be brought in but nothing will happen to them and they will be out the following day. Several Oireachtas Members have mentioned the bail problem but nothing is being done. Senator O'Kennedy is right to ask where the structures are to implement this new law. This argument must be made at the Estimates discussion in Cabinet so that structures can be set up or other steps taken.
Responsibility has to lie within the family structure. I say that with all respect for mothers and fathers. Can we affect people financially by stopping their  money? The best way to make an impact on someone is to take money from his or her pocket, whether from wages or from social welfare payments. We should not be afraid to consider such measures because people must take responsibility for their own.
We cannot allow what happened in Liverpool or more recently in Manchester to happen here. Everyone knows the Irish cannot be blackguarded. Someone will suffer if people take the law into their hands and I know people who will be well able to do so. This is the place where it should be said.
This Bill gives us an opportunity for change and I hope it is strong enough to ensure older people will be free to walk the streets at night. Anyone who causes them harm must suffer the consequences. Under no circumstances can such conduct be allowed. If I caused harm while my parents were alive I would have been punished. Good behaviour was bred into us. Now excuses are offered that people have no jobs or are stuck inside all day. Men and women alike are guilty of this. The injuries inflicted on a law officer in my parish were shocking. I could not imagine that any of the local children could do that but they could and they did. The case has not been brought to court yet.
I do not speak for the Garda, the Army, the Naval Service, or the customs but all financial and other assistance possible must be given to them. When I see where money is going I wonder where our priorities lie. Our responsibility is to look after our people, young and old.
I am proud of 98 per cent of our young people. From an educational point of view they would bury me and many with me. I am proud of my own family who are doing well educationally and are good to their elders. At the same time we must show example and they deserve to see our example. They have told us to do what is best for the country and they expect us to represent them. We must be strong enough to get this done.
The most important task is to set up structures to put these people away for their full sentences. Financial restraint  must be imposed on them because matters are getting out of hand. O'Connell Street has often been mentioned. It is now well protected but what of other areas? I would not want to be unable to walk down Patrick Street. A Corkman would hate that to happen but it may. Men and women should be able to walk every street in the country whenever they want.
Mr. Cassidy Mr. Cassidy
Mr. Cassidy: Previous speakers have said everything I intended to say but Senator Cregan has summed it up for all of us. He has a business in Cork city and I have had similar experiences in the north inner city of Dublin. There are two main problems, racketeering and drugs. Money is sought and whoever happens to be in the way suffers. This is the year of the elderly and we are fortunate to have a Minister who takes action. I congratulate her on bringing this legislation to the House.
Senator O'Kennedy said that many cases involve those coming out of discos and dancehalls, drinking late at night. The statistics show Saturday night has the highest percentage of cases, but it is impossible to get a bar extension on a Saturday night. There is massive abuse of alcohol by those under age but it is happening in normal licensing hours and during bar extensions as well as after hours. I would welcome a look at underage drinking which is happening on a massive scale.
I wish success to the Bill. I would have made many of the points made earlier but I realise Second Stage is to be concluded today.
Minister for Justice (Mrs. Geoghegan-Quinn) Máire Geoghegan-Quinn
Minister for Justice (Mrs. Geoghegan-Quinn): I will not go into detail on all of the points raised but I will cover some of those made more generally. I echo what Senator O'Kennedy said. When this Bill was introduced in the Dáil I promised I would be open to suggestion by Members. I restate that this evening. A number of Senators have made suggestions we will examine between now and Committee Stage. I hope Senators will  be as active at that time as Members of the Dáil were on the select committee.
I accept some of the points made on Garda numbers and recruitment. We gave a commitment in the Programme for a Partnership Government, which I have since repeated in the House and outside, to take two steps. The first is the acceleration of recruitment. As Members will know the Government made a decision a number of years ago to recruit 1,000 Gardaí and that process is still continuing. They were to be recruited by the end of 1995. I hoped to telescope that to the end of 1994 and start a new recruitment campaign then.
Senators Neville, Cregan and others can be assured I have been fighting strongly on the Estimates. They have now been concluded and Senators can see the results of my efforts and the efforts of others tomorrow. I fought strongly to ensure law and order remains an important element of Government policy. All Members of both Houses and the public are expressing concern of this issue.
The second factor is the way we deploy existing gardaí. It is sometimes forgotten that some gardaí are deployed behind desks, answering telephones, etc. That is work for which they were not primarily trained. One of the decisions of the former Government was that we should have a progressive programme of civilianisation, and that is happening. We are replacing those gardaí on a consistent basis. We have over 700 civilians now involved in what used to be Garda clerical work, and that is a positive step.
Every Member made the same point on prisons and the provision of extra spaces. First, do we need to keep putting all those who commit crime into jail and what does it achieve at the end of the day? Second, do we have enough spaces? The answer to the second question is no, and I admitted that earlier. I hope to be able to convince my ministerial colleague in the Department of Finance that I need money to create additional prison spaces. It will not come cheaply. Building any prison facility is always an expensive business. We need to have a specific purpose-built  building for women prisoners, which we do not have at the moment. We do not provide the type of conditions for women prisoners I would like to see. There are few high security women prisoners and therefore, they do not need the type of high security facility we need for some male prisoners. At the same time, we need about 140-150 additional spaces for male prisoners.
We also need to look at sentencing policy. The Law Reform Commission published a discussion document in July of this year on this area. Their final report, I hope, will be available to me early in the new year. I intend to bring forward one piece of legislation that will deal with sentencing policy. The Law Reform Commission is looking at areas — I have looked at them myself - which Members of both Houses have mentioned on numerous occasions, such as the extension of community service orders, the seizure and confiscation of assets, the attachment of earnings and other elements, rather than the two we now have which are mainly fines or custodial sentencing. As we know, we can only apply a community service order instead of a custodial sentence. It cannot be applied instead of a fine. We need to review that area, the Law Reform Commission has already looked at it.
I will conclude on the area of juvenile justice, a Chathaoirligh. Tá brón orm go bhfuil mé ag dul ar aghaidh chomh fada. Juvenile justice is an area which has not been looked at since 1908. The 1908 Act dealt with justice and welfare. The welfare element has been taken care of and been brought up to date by a fine Child Care Act, which was piloted through by my colleague, the Minister of State at the Department of Transport, Energy and Communications, Deputy Treacy. The justice element is now being carefully looked at. We have a Bill prepared in the Department of Justice — more than 150 sections — which shows one how comprehensive this legislation is. That has been sent to the Department of Education because they have a crucial role to play in the area of juvenile justice.
One of the primary and probably the  most controversial element of that Bill will be the onus of responsibility on parents and how far we will can go within the Constitution and within the other constraints we have in relation to that issue. There are three types of parents. First, there are excellent parents with good parenting skills who do everything for their children, yet one of their children goes astray. The second type have poor parenting skills, live under enormous emotional and financial stress and trauma and need the support of the welfare authorities to cope and to get the good parenting skills we would like them to have. The third element — the parents about whom everybody is talking — actively encourage their children to get involved in crime. They either use them as street dealers for drugs in the major cities and urban areas or as look-outs when they are committing a crime. They are the small percentage of parents we have to deal with under the legislation. We have a section of the Bill to do this but it is the most complicated and controversial element of that Bill.
Before I became Minister for Justice last January, I said we would look at and accelerate a programme of criminal law reform within the Department of Justice. I think I have been one of the more active Ministers in the Government in relation to legislation and I intend to keep that going but it takes much time and effort. I also said at that time that I would like to see the criminal justice system becoming more victim-orientated. I wanted support for victims and I wanted it to be written into law, and we have succeeded in doing that. I have got tremendous support from Members of both Houses in doing that and I intend to continue in the same vein.
There is a comprehensive programme of criminal law. The Bill we have today only deals with an element of that. It is unfortunate, as Senator O'Kennedy said, that we have to deal with it by law, but we have to do so. This legislation cannot deal with all the aspects and elements the Members raised this evening. All I can promise is that we will have a significant number of other pieces of legislation in the new year that hopefully will deal with  the elements we have not been able to deal with in this legislation.
Ba mhaith liom mo bhuíochas, a ghlacadh leis na Seanadóirí a ghlac páirt sa díospóireacht agus atá fábharach don Bille.
Question put and agreed to.
An Cathaoirleach An Cathaoirleach
An Cathaoirleach: When is it proposed to take Committee Stage?
Mr. Wright Mr. Wright
Mr. Wright: Next week.
Committee Stage ordered for Tuesday, 14 December 1993.
Seanad Éireann 138 Criminal Justice (Public Order) Bill, 1993: Second Stage