Screening Regulatory Impact Analysis
Criminal Justice (Public Order)(Amendment) Bill 2008.
1. Purpose
The present Memorandum seeks Government approval to draft the Criminal Justice
(Public Order)(Amendment) Bill 2008. The proposal relates to the law on begging
and arises from the High Court judgement in the case Niall Dillon –v- the DPP. The
High Court found that the current law is unconstitutional.
2.
Why does this issue now require attention?
Following the Dillon judgement there is now no general legislation available to deal
with begging. There is, therefore, at best, confusion about the current state of the law
on begging or, at worst, there is a gap which needs to be filled. The extent of that gap
can be assessed by reference to the levels of arrests and convictions for begging
offences in recent years (see details at paragraph 4.4 below). The figures indicate that
there was a high level of reliance on the law which is now no longer available.
3.
Does the High Court Judgement permit new Legislation?
The Bill being proposed seeks to address the situation arising from the Dillon
judgement. It is obliged to do so within the terms of the judgement.
A number of facts can be drawn from the judgement:
(i) there is no bar to legislation in respect of begging,.
(ii) the legislation must, however, be clear as to the activity that constitutes the
offences, the vagueness and the moral tone of the 1847 Act is no longer appropriate,
(iii) the legislation can include reasonable restrictions on the right to free expression
and communication,
(iv) it can also take account of factors such as time, location, duration, etc.
(v) the Court generally endorsed the LRC Report ; that Report proposed to deal with
the question of begging as a public order matter
The following quotations from the judgement are relevant:
“….an overall ban on all forms of begging is unconstitutional.”
“… it is undoubtedly so that the right to communicate and the right to freedom of
expression can be limited in the interests of the common good. Nothing in this
judgement should be construed as preventing the legislature making laws controlling
the age, duration, location, time, date and manner in which begging or the seeking of
alms takes place.”
4. Options
The options available to the Minister are discussed below.
(i) Maintain Status Quo as it now exists, post ’Dillon’
Maintaining the current situation is not feasible or acceptable. Anti-begging
legislation is necessary both from a public order perspective, as begging often gives
rise to unacceptable behaviour and because it can be harmful to trade and commercial
activity. The position is well summed up by the Law Reform Commission Report. In
paragraph 9.10 of its Report it states that it “considers that some such general offence
should be retained as a prohibition on a form of conduct which constitutes a form of
public nuisance”.
It is necessary in a well ordered society to prevent interference by those begging with
the conduct of their legitimate business by others, whether it be personal business,
retailing, catering or any other legitimate commercial activity. From a social policy
perspective, it is highly undesirable to encourage begging through the absence of a
balanced and reasonable legal framework. From an income – support perspective,
begging cannot be justified in view of the comprehensive systems (including
supplementary welfare systems) in place for income supports, health care (including
primary care and mental health services), public (including emergency) housing.
There is a perception that much of the begging in towns is carried on by foreign
nationals. Anecdote and hearsay in the public realm can contribute to fostering
prejudice and unjustified negative perceptions of the general character of migrant
communities. Unless issues around the perception of migrants by the indigenous Irish
are addressed early on, there could be medium to longer term problems for
integration.
In conclusion, begging is an unacceptable public nuisance that cannot be accepted or
excused on any social or economic grounds. It is an issue that calls for regulation and
control on public order grounds.
(ii) A Public Order Bill ?
In paragraph 2 of the judgement, the court identifies a major function of the 1847 Act,
i.e. to assist the authorities in controlling the social effects of the calamity (i.e. the
Famine). One of the main planks of the judgement was that the 1847 legislation was
too vague. It decided this by reference to terminology such as “wandering abroad”. In
addition, the Law Reform Commission expressed the view that begging “should be
taken out of the context of the Vagrancy Acts, with their pejorative terminology of
‘rogues and vagabonds’, etc”.
It seems clear from these remarks that it would be inappropriate to set any new law in
a social context. In any event, it can be seen that, in light of the comprehensive range
of social and other supports available from the State and other publicly funded
sources, there is no longer any justification for begging in terms of necessity or
income support. It is therefore proposed to treat is as a public nuisance and for this
reason the Bill is a Public Order Bill (as advocated by the LRC Report).
(iii) Appeal to the Supreme Court
The Minister sought the advice of the Counsel for the State in Dillon as to the
prospects for a successful appeal to the Supreme Court. Counsel advised that the
probability of a successful appeal to the Supreme Court was low. The Attorney
General’s Office and the Office of the Chief State Solicitor concurred. In these
circumstances, the Minister agreed not to pursue an appeal. Instead, he considered the
matter should be addressed in legislation.
(iv) Using existing legislative provisions
A number of existing legislative provisions may be applicable in cases where the
behaviour of those engaged in begging is considered unacceptable. Certain offences
under public order legislation will, on occasions, arise where begging is taking place,
e.g. harassment, failing to comply with the direction of a Garda, threatening or
abusive behaviour in a public place, obstruction, trespass. However, these offences
do not address the core issue of begging. Under the proposed Bill begging is the
activity which is central to the offence; the related activity, if it entails violence or the
threat of violence of any kind, merely reduces or eliminates the possibility of pleading
justification or excuse.
Since the High Court judgement, it seems from the available information that no
proceedings have been brought against persons engaged in begging. Given the
previously high degree of reliance on the law that is no longer available (as
demonstrated by the extract from the crime figures, below), it can be concluded that,
prior to the judgement, the existing public order legislation alone was not sufficient to
address begging activity. The absence of prosecutions since Dillon would appear to
confirm that that remains the situation. Begging, of course, continues and certain
sources, including the Gardaí, would suggest it has increased; based therefore on the
information on activity in the periods both before and after Dillon, it would seem
clear the existing public order laws are either not appropriate or suitable to deal with
begging and that the Gardaí and the Courts must therefore be provided with new
powers in legislation to enable them deal with the problem. It is instructive to review
the Garda figures on begging in the years prior to Dillon, as set out below.
Begging activity by adults has been recorded on the Garda PULSE system for the
years 2003 to 2006 as follows:
Year
No. of
Proceedings
Convictions
2003
2004
2005
2006
732
418
663
396
278
138
237
153
Case pending
(incl.
appeals)
259
140
244
98
NonConviction
74
70
97
80
Source: Garda Recorded Crime Statistics 2003-2006, CSO April 2008
(v) Must it be Primary Legislation?
Until 15 March 2007, the law on begging was set out in primary legislation. There is
currently no basis for secondary legislation on the subject. In addition, it should be
noted that in a series of cases in recent years, the Supreme Court has made it clear that
the use of secondary legislation to create offences must be discouraged. New primary
legislation in needed.
(vi) Conclusion
There have been no prosecutions for begging by adults since 15 March 2007. Given
the advice on the likelihood of a successful Supreme Court appeal, the unsuitability of
existing public order legislation, and the lack of a basis for secondary legislation, the
only practicable solution to address the levels of anti-social begging activity is for
primary legislation to be introduced.
5. Identification of costs, benefits and impact of the option
recommended.
Statistics on the number of convictions for begging under Section 3 of the Vagrancy
(Ireland) Act 1847 are available for the years 2004, 2005 and 2006. The average number
of convictions over this three year period is 176. Using the average cost of keeping a
prisoner for the year in 2006 (€91,700) we can make a rough projection of the absolute
maximum cost of imprisoning persons for begging under the proposed new legislation.
Assuming the court hands down the maximum custodial sentence of one month in prison
to all persons convicted of begging offences, the projected annual cost of detention will
be €1,344,934. However the assumption that a custodial sentence will be handed down in
one hundred percent of cases is completely unrealistic. In fact the implementation of the
legislative proposals is expected to be cost neutral. The inclusion in the Scheme of the
new Garda power to direct persons to desist from begging may result in reduced reliance
on prosecutions (see Head 3). This would result in not only cost savings but would also
result in time savings. Criminal prosecutions for begging are therefore unlikely to exceed
the levels which existed before the Dillon judgement in March 2007.
Potentially, the Bill will have significant and positive impacts in relation to Garda and
District Court time and resources. The new powers in Head 3 will provide a realistic
alternative to court proceedings.
In framing the proposals, every effort has been made to facilitate interpretation and
implementation. For example, the same definitions are being used for ‘public place’ and
‘house’ as are already used and well established in current legislation. In addition, Head 3
requires the Garda to explain in clear language the effects of a failure to comply with a
direction to cease begging.
The social and economic impacts of the legislative proposals are likely to be very
positive. The legislation is unlikely to have any adverse affects on social welfare
spending as it is highly improbable that people are begging as an alternative to claiming
welfare payments. However, the Bill will have a positive external effects on business
activity in the retail and tourism sectors by providing an effective deterrent to anti-social
begging activity as well as improving the overall levels of public order in society.
Negative perceptions of Ireland by tourists confronted by beggars will be reduced where
there is an appropriate legal framework to discourage begging.
6. Enforcement and Compliance
As all the proposals in the legislation are strictly criminal law provisions, enforcement
will be a matter for the Garda Síochána, the Director of Public Prosecutions and the
Courts. However, as noted earlier, it is hoped to facilitate enforcement by reliance on
established concepts such as ‘public place’ and ‘house’, thus reducing the scope for
argument, etc about interpretation and application of the law. It is also hoped that the
procedure in head 3 will prove effective, thus reducing the need for prosecutions (and
all the related time and manpower costs).
7. Review
The new provisions will be kept under continuing review as to their practicality and
workability. This is a feature of all new criminal law.
8. Further Analysis
As this legislation deals exclusively with criminal law, a full Regulatory Impact
Analysis has not been conducted.