On Street Begging: Criminal Justice (Public Order) Bill

Below is the speech I made in the Oireachtas on the Criminal Justice(Public Order) Bill in relation to on-street begging:

I have no doubt the irony of this legislation at this specific time has crossed many people’s minds, including the Minister and those officials who have drafted this Criminal Justice (Public Order) Bill 2010. I know that the Minister will not want to hear this — I do not say it facetiously — but the people of Ireland have surely been the victims of the greatest act of begging, or indeed even mugging, over the past two years. With NAMA and bank recapitalisation, the Department of Finance on Upper Merrion Street could be regarded as the greatest ATM machine in the country. At this stage, it would be nice to see the potential powers enabled by this legislation applied retrospectively. It would be just reward for the people of Ireland if the new powers included in this Bill enabling the gardaí to direct persons begging within 10 m of an ATM to desist and to move on from the vicinity, could be handed down to those who arrived in Merrion Square, with their hands out in September 2008 who indeed have exhibited persistent tendencies ever since.

I congratulate the Minister on the initiative he showed last weekend at the Law Society of Ireland dinner with regard to his proposed Corruption Bill dealing with white collar crime. The Minister has made amendments to the Bill since publication of the general scheme in November 2008 and the Bill is the better for it. However, he still has some a have drafted this Criminal Justice (Public Order) Bill 2010. I know that the Minister will not want to hear this — I do not say it facetiously — but the people of Ireland have surely been the victims of the greatest act of begging, or indeed even mugging, over the past two years. With NAMA and bank recapitalisation, the Department of Finance on Upper Merrion Street could be regarded as the greatest ATM machine in the country. At this stage, it would be nice to see the potential powers enabled by this legislation applied retrospectively. It would be just reward for the people of Ireland if the new powers included in this Bill enabling the gardaí to direct persons begging within 10 m of an ATM to desist and to move on from the vicinity, could be handed down to those who arrived in Merrion Square, with their hands out in September 2008 who indeed have exhibited persistent tendencies ever since.

I congratulate the Minister on the initiative he showed last weekend at the Law Society of Ireland dinner with regard to his proposed Corruption Bill dealing with white collar crime. The Minister has made amendments to the Bill since publication of the general scheme in November 2008 and the Bill is the better for it. However, he still has some adjustments to make.

The purpose of this Bill is the provision of a legal mechanism to control and deter begging. It is regrettable, in my view, that we are debating this issue; it is regrettable that we as legislators are enacting laws to prevent the act of begging on our streets, at a time when many families are living in poverty. Begging is inextricably linked to poverty, homelessness and access to social services. The real issue here is that the Government needs to address the reasons we have a begging issue.

Until the High Court decision in Dillon v. DPP in December 2007, the law on begging in this country had been governed by the Vagrancy (Ireland) Act 1847. This law was introduced in Ireland during a period right after the Great Famine. The purpose of the Act was to regulate the social effects of the Famine disaster.

In 1985, the Law Reform Commission published a report on vagrancy and related offences, in which it recommended that the Vagrancy Act be amended, consolidated, or replaced, but not entirely abolished. At that time, the Law Reform Commission suggested that a general offence of begging should be retained. Then came the Dillon judgment, where Mr. Niall Dillon had challenged the provisions of section 3 claiming that they were inconsistent with the Constitution in that they interfered with his constitutional right to freedom of expression and to communicate, contrary to Article 40.6.1°, and were disproportionate and interfered with his constitutional rights to a greater extent than that necessary, having regard to the offence and the circumstances of the applicant.

Mr. Justice de Valera struck down the 1847 provision for being too broad and not attempting to balance the rights of society against those of the beggar. While he struck down section 3 of the 1847 Act as unconstitutional, the judge clearly held that there was no necessary constitutional problem with anti-begging legislation. So here we are at this legal juncture, having to provide for the practice of begging on our streets.

The distinction between begging and public nuisance is important in this legislation. In 2007, a Eurobarometer survey indicated that Irish people are relatively tolerant of the practice of begging on the streets. They are able to make the distinction that most people do not choose to beg, and that there are many underlying causes for begging in the first place.

According to the survey of 27 EU member states, on average, 36% of people give money to charitable organisations, while 74% of Irish people do so. Across the EU, 29% give money to people on the streets, while in Ireland we were again above the average with 32% of people doing so. Most interestingly, the EU average of those giving no help whatsoever is 18%, while the figure for Ireland is practically nil, at 2%. These figures indicate that Irish people are significantly more charitable in nature than our EU partners concerning street begging.

I would not like to see this legislation being imposed in a draconian manner. It must not be used as sledgehammer legislation to crack a problem which is a relatively small nut. Just across the road from my constituency office in Francis Street, Ennis, an elderly woman sits outside a parochial centre. She has been there for years, since before my time as a politician. I have never seen that woman intimidating or harassing anybody. At this stage, I would say that her presence seems acceptable to everyone. The terms of this legislation, however, would indicate that she could be fined or imprisoned for her actions. Given the data established on Irish attitudes to begging, I do not think anyone wants to see this legislation applied to cases such as the one I have just cited. That is why the distinction between begging and public nuisance must be made clearer. The definitions of “harass” and “intimidate” as used in the Bill, are subjective in nature and somewhat undermine the High Court’s decision in the Dillon judgment, in which it was stated that “…an overall ban on all forms of begging is unconstitutional”.

Section 1 attempts to recognise the judgment of the High Court in the Dillon case. It creates the balance or differentiation between what could be interpreted as a vindication of the rights, as recognised by the Constitution with regard to legal begging and begging accompanied by the aggravating factors of harassment, intimidation, assault, obstruction and threatening behaviour. I must re-emphasise that on Committee Stage the Minister needs to deal with the subjective nature of section 2.

Outside the subjectivity of section 2, the fact that this section does not refer in any way to the possibility of someone begging in a manner as described — whether by harassment, intimidation, assault, obstruction or threatening or, perhaps, by offering a token good or service in return for moneys offered — could render this section irrelevant, where the offence is thus defined. The Minister should re-examine section 2 of the Bill from those perspectives. I recognise that this needs a delicate approach, in that we do have a culture of quality street entertainment, including busking. However, it is a loophole that should be addressed at this early stage of its implementation.

The existing law on begging by children is covered by section 247(3) of the Children Act 2001. It is proposed that in this legislation no age distinction be made, but I am uncomfortable with this. The basic tenet in establishing our relatively new juvenile justice system was to create a distinction between children and adults. Raising the criminal age of intent to 12 years was a repeal of legislation dating from Victorian times, similar to what this legislation seeks to do by repealing the Vagrancy (Ireland) Act of 1847.

The fact that this legislation does not expressly make a distinction between an adult and a child is a regressive step. Notwithstanding the fact that children who are tried and convicted of an offence under this Bill will, as in most other cases affecting children, be dealt with in accordance with the child-focused provisions of the Children Act 2001, this element of the legislation is weak and not proofed vis-à-vis the Children Act 2001. Under section 247(1) of the Children Act 2001, a person is guilty of an offence if he or she procure a child, or allows a child in his or her care, to be in any street or public place for the purpose of begging. Section 247(3) provides that a person found guilty of an offence under this section is liable on summary conviction to a fine not exceeding €250, in the case of a first offence, or €500 for a second or subsequent offence.

Interestingly, under the Bill the offence of begging offers the liability on summary conviction of a fine not exceeding €400 or imprisonment for a term not exceeding one month, or both. One can conclude from this that the child convicted of begging can be fined up to €400 and imprisoned for a month, while the parent or person directing the activity can be only fined up to €250. The Minister should amend the legislation to correct this anomaly.

Under section 4 it will also be an offence to fail to give one’s name and address, or to give false details on arrest for begging, with a separate fine of up to €200 for committing this specific offence of failing to give one’s details. It is difficult to see how workable this particular section of the legislation will be. By its nature, begging is carried out by homeless people who have fallen on hard times and are often living rough on the streets. It will be difficult for some homeless people to comply with this requirement, in that an address at which they reside will not apply. I cannot see any provision in the Bill as published to mitigate the fact that a homeless person has a reasonable excuse for not being able to give an address to the Garda.

The Housing Act 1988 defines a homeless person as somebody who has no reasonable accommodation to live in or who lives in a hospital, institution or night shelter because of the lack of a home. All of these categories can comply with the legislation. However, it is the visible homeless — those living on the streets and sleeping rough who also beg — who will potentially come into conflict with this aspect of the legislation.

In 2008, the Homeless Agency conducted a survey of homelessness in Dublin. It counted 2,366 people who were homeless in the city, of whom 110 were sleeping rough. Through his various media releases on this Bill, the Minister has been at pains to point out that he considers there are many appropriate services in place and that we should not have this level of begging on our streets.

I accept the point the Minister is making. It is essentially an academic, bureaucratic or end-of-year report type comment. The fact remains that there are many who for various reasons cannot avail of the services that are on offer. Despite the Minister’s opinion, the State has shown itself to come up short on many occasions.

One would not have to travel very far from Dáil Éireann any night to witness at first hand the rate of homelessness. It is quite disturbing to see people of all ages, men and women, sleeping rough on cardboard boxes and sleeping bags in the doorways throughout Dublin city. In my constituency office in recent months I have noticed an increase in the number of people requiring help with social welfare payments and entitlements. In many cases, for whatever reason, the Department is using the habitual residency clause to delay payments. Many of the people in question have no money and are under extreme pressure. The emergency budgets administered by community welfare officers are stretched and people are just not getting their money. That is happening more and more each week. The particularly bureaucratic nature of our systems and the retrenchment of many of our social services will contribute in a negative way to begging on the streets in future. Poverty related issues are likely to surface now that we are two years into the recession. The effects of long-term unemployment, the relentless nature of personal debt and the breakdown of relationships will manifest themselves on our streets in the years to come.

It is interesting to note that the vagrancy Act, which this legislation proposes to replace, was introduced in 1847, a number of years after the Famine began. The statistics as presented in the Bills digest for this legislation make for interesting reading. Those available are from 2003 to 2007. The year 2007 itself can be disregarded in that the Dillon judgment came into effect during that year. There is a consistency in the rate of conviction of approximately 35%, however, the number of proceedings varies, from a high of 729 in 2003 to a low of 395 in 2006, with 416 in 2004 and 663 in 2005. That seems to indicate an issue that is not receiving a co-ordinated and systemic approach. I do not think that is purely because of the lack of legislation. The digest does not contain any specific statistics on the proceedings and convictions carried out as a result of section 247 of the Children Act 2001. That, in itself, is a figure that would be of interest.

Section 3 deals with the powers of the Garda to give direction. Subsection 3(6) states: “A member of the Garda Síochána shall, upon giving a direction under this section, inform the person to whom the direction is given, in clear language, that if he or she fails to comply with the direction he or she shall be guilty of an offence.” What about foreign nationals who beg? In that case what would constitute clear language? What if the individual in question does not understand English or Irish?

There is a strong belief that legislation alone is not the universal answer to the complex social issues surrounding begging. Begging is inextricably linked to poverty, homelessness and proper access to social services. While the legislation is necessary b