Penalties
Section 8 gives the gardai extra powers in addition to those specified in sections 4, 5, 6, 7 or 9. Where the gardai suspect a person to be acting contrary to any of these provisions, or to be loitering in a public place without lawful authority or reasonable excuse in a manner that raises a reasonable fear for the safety of people or property or the maintenance of public peace, they may order the person to do one or both of two things:
(a) to stop acting in such a manner, or
(b) to leave the vicinity immediately.
A failure by that person to comply with the order is an offence punishable by up to six months' imprisonment or a fine or both, unless the person has lawful authority or a reasonable excuse for not complying with the order.
Public order offences relate in the main to conduct that causes annoyance, distress or alarm to general members of the public. The main such offences are riot, violent disorder, affray.
Riot
The common law offence of riot was defined in O'Faolain v. Lord Mayor of Dublin (1996) as occurring where three or more people assemble together to execute a common purpose with the intent of using force if necessary to help each other against anyone who might try to stop them, and actually use force or violence in such a manner as would alarm at least one person of reasonable firmness and courage. Common law riot was abolished by section 14(4) of the 1994 Act, and replaced by the provisions of section 14. The new offence is defined in section 14(1) as requiring the following elements:
(a) the presence of at least twelve people in any place, whether public or private;
(b) the use of, or threats to use, unlawful violence to effect a common purpose, which may be inferred from the conduct of the group;
(c) the conduct of the people is such as would cause a person of reasonable firmness present at that place to fear for his own safety or that of any other person.
Where these elements are present, any of the people who use unlawful violence commit the new offence of riot. It does not have to be shown that the people used or threatened to use violence simultaneously. Therefore, where any one person in a group of twelve or more threatens to use or actually uses violence to effect the common purpose, riot is committed.
What actually constitutes violence for the purposes of a riot is not clear. In particular, it is not clear if it differs from the concept of force under the common law offence. In O'Faolain v. Lord Mayor of Dublin (1996), one of the men involved in a riot stared at a woman in such a way that she left the scene. It was held that it was reasonable to assume that if the stare had not forced the woman to leave, the man would have resorted to violence. Therefore, this stare constituted force under the common law definition of the offence. Whether such a stare could constitute violence for the new offence is unclear. In practice, it is likely to be a matter of degree. Where the defendant uses any degree of force, and it is decided that it would cause a reasonable person to fear for his own safety, and then regardless of how violent the action actually was, it will constitute violence. Finally, the requirement that a person of reasonable firmness would fear for his own safety or that of others creates an objective test. The prosecution does not have to prove that a person at that place actually feared for his own safety.
Violent Disorder
The common law offences of rout and unlawful assembly are abolished by section 15(6), and replaced by the offence of violent disorder created by section 15. This new offence is virtually identical to that of riot, except in two respects. First, there need only be three or more people present instead of the twelve required for riot. Second, section 15(3) requires that before a person can be convicted of violent disorder, it must be shown that he either intended to use or threatened to use violence, or is aware that his conduct may be violent or threaten violence. Therefore, if the threats were intended only as a joke, no conviction is possible.
Finally, section 15(5) provides that any reference in any statute passed prior to the 1994 Act that contains a reference to the common law offences of riot or riot and tumult should be construed as a reference to violent disorder. For example, the Malicious Injuries Act 1981 refers to damage caused by three or more people tumultuously and riotously assembled. By virtue of section 15(5), this Act now refers to damage caused by three or more people engaged in a violent disorder. In practical terms, given the similarities between violent disorder and common law riot, the difference should be minimal.
Affray
At common law, an affray occurred where two or more people engaged in a fight in a public place to the terror of the general public. Common law affray was abolished by section 16(5) and replaced by a new offence of affray created by section 16. This offence requires the following elements: (a) two or more people in any place, whether public or private, (b) who use or threaten to use unlawful violence towards each other, and (c) do so in a manner that would cause a person of reasonable firmness present at that place to fear for his own safety or that of another. Where these elements are established, any person who actually uses or threatens to use violence commits affray. As with riot and violent disorder, it is not necessary to show that a person of reasonable firmness was actually present. The threats cannot be made merely by words. Consequently, there must be evidence of some hostile action as well as words, such as the swinging of clubs or the shaking of fists. Finally, there is also a mens rea provision similar to that for violent disorder: the defendant must either intend to use or threaten to use violence, or be aware that his conduct may be violent or threaten violence.
Assault Offences
The Act creates two assault offences. Section 18 makes it an offence to assault any person with intent either to cause bodily harm or to commit an indictable offence. As common law assault has now been abolished assault for the purposes of this Act, must be read in the light of the new statutory definition of assault contained in the Non-Fatal Offences against the Person Act 1997. Section 18 effectively creates two offences: assault with the intent to cause bodily harm, and assault with the intent to commit any indictable offence. In both cases, the defendant must be shown to have acted intentionally; it is not sufficient to show that he acted recklessly.
Section 19 concerns assaults on members of the gardai, and replaces section 38 of the Offences Against the Person Act 1861. Section 19 covers four separate offences, three of which are in section 19(1):
(a) assault on a garda acting in the course of his duty, knowing he is a garda or being reckless as to whether he is a garda;
(b) assault on any other person assisting a garda;
(c) assault on any other person with the intention of resisting or preventing his own arrest or that of any other person for any offence.
Section 19(3) provides a fourth form of the offence: resisting or wilfully obstructing a member of the garda acting in the course of his duty or any person assisting a garda in the execution of his duty, while knowing that he is a garda or being reckless as to whether or not he is a garda.
The first and fourth of these offences are similar in construction to capital murder, and should be read in the light of the Supreme Court decision in The People (DPP) v, Murray (1977). Consequently, it must be shown that the defendant either knew that the person being assaulted or obstructed was a garda, or was reckless as to whether he was a garda. Recklessness in this respect is subjective. The second offence also requires some knowledge on the part of the defendant that the person being assaulted is assisting a member of the gardai.
The third offence requires an intention on the part of the defendant to resist the arrest of some person, whether himself or anyone else. The prosecution must show that he was aware that an arrest was being made, although it is not necessary that he knows for what offence the arrest was being made. It is also apparently irrelevant whether the person trying to make the arrest is a member of the gardai or a member of the public, providing it is a lawful arrest. For a member of the public to make a lawful arrest, it is necessary, under section 4 of the Criminal Law Act 1997, that the member of the public believe with reasonable cause that an arrestable offence has been or is being committed, and that the person being arrested would attempt to avoid arrest by the gardai. Where these conditions have been complied with, any assault committed with the intention of preventing the arrest of a person constitutes the third offence under section 19.
Even the Act 1994 covered the wide area of public offences, it seem not to be enough to control the growing crime in this area. Behaviour which is unwanted can occur in your town centre, your housing estate or even your backyard. Anti-Social Behaviour appears to be more of the 'norm' in modern society than ever before.
The Criminal Justice Act 2006
New laws and measures have been introduced in Ireland to tackle anti-social behaviour, including Behaviour Orders (more commonly known as ASBOs) on the 1st January 2007 for adults and on the 1st March 2007 for children (i.e between the ages of 12 and 18 years).
To borrow the phrase of the late John Kelly TD,1 it is one in a long line of legislative ideas 'taken over here and given a green outfit with silver buttons to make it look native', with little thought being given to our less severe crime problem and cultural differences. What it is antisocial Behaviour?
The Antisocial Behaviour Act says it's:
"Acting in a manner that causes or is likely to cause alarm or distress"
Antisocial behaviour may be obvious, involving aggressive actions against siblings, peers, parents, teachers, or other adults, such as verbal abuse, bullying and hitting; or covert, involving aggressive actions against property, such as theft, vandalism, and fire-setting.. Antisocial behaviours also include drug and alcohol abuse and high-risk activities involving self and others.
An anti-social behaviour order (ASBO) prevents the 'perpetrator' (those people responsible) from carrying out an anti-social act or series of anti-social behaviour. ASBO's are designed to stop unacceptable and anti-social behaviour and prevent members of the public being targeted further by such acts. The ASBO, in theory, prevents a perpetrator from being present in specific areas in local communities (known as 'exclusion zones').
Examples of antisocial behaviour (ASB) are:
- nuisance neighbours
- rowdy and nuisance behaviour
- yobbish behaviour and intimidating groups taking over public spaces
- vandalism, graffiti and fly-posting
- people dealing and buying drugs on the street
- people dumping rubbish and abandoning cars
- begging and anti-social drinking
- the misuse of fireworks
In theory, local communities can become fully involved and encourage one another to report anti-social behaviour and crime in their areas and help protect the community, together. The Garda Síochána may now take a number of actions to stop a person behaving in an anti-social way. The Gardai and Local Authorities are able to make an application for an ASBO where it is felt appropriate to offer protection to individuals who are in their area (the 'relevant persons') - it doesn't matter where the anti-social behaviour actually happened.
A Behaviour Order is an order made by a court to protect the public from anti-social behaviour. Although it is designated as civil in nature, breach of a Behaviour Order does not invoke the normal contempt of court procedure for breach of a civil order, but in fact constitutes a criminal offence.
And I do not think that it’s seems clear distinction between criminal the civil law.
ASBO's are not planned to be implemented as a criminal punishment and the offender is not intended to be the subject of such a criminal consequence. Paradoxically to some victims of anti-social behaviour who themselves have been on the receiving end of ASB, this can feel unfair and unjustified.
An ASBO revolves around the 'prohibition' of an individual and hopefully prevents further anti-social acts and from being present in specific locations (e.g. pubs and town centres, etc). Members of the public are being placed at risk from such anti-social behaviour and the orders are of a civil kind and made in proceedings of a civil nature. The status of the ASBO 'civil law' has knock on effects which define the kind of court proceedings where ASBO applications are listened to; which includes the evidence type that can be heard to enable any application have further support.
Young people therefore often exist at the bottom of the scale of power in the community and as a result are likely to have norms, rules and definitions of order imposed upon them. Crawford (1999b) suggests that there is an assumption in the community danger occupies public, not private space. Young people living in poor and some overcrowded housing, expelled from school, youth and community facilities have choice but to occupy public space. In this sense they are a marginal group and at perceived as dangerous or at least as having the potential to create disorder.
Young people are punished 'as a legitimate response to their wrongdoings against the citizenship of others (i.e. adults)' while at the same time the state is 'simultaneously denying or suppressing the reality that young people themselves are barely accorded citizenship rights' (Brown 1998).
Criticism of the Behaviour Order as a mechanism of social control for young people does not imply a denial of the seriousness and impact of anti-social behaviour on the community. Behaviour Orders are unlikely to be the most effective method of either addressing such behaviour or preventing future criminality.
It remains the case under the Irish legislation that the conduct described may be criminal but it is not limited to criminal behaviour. Some of the behaviour may therefore constitute a civil wrong (most likely nuisance) while other behaviour may not constitute any wrong at all in law. The definition also allows, like the English legislation, for a hypothetical assessment of the effect of the defendant's conduct. The retention of the words 'is likely to cause' in the above definition means that the court may not always be concerned with a situation where the defendant has actually harassed someone or caused serious fear or persistent danger, but may be asked to engage in a risk assessment exercise where no member of the community has in fact been victimized. This shift from the factual to the hypothetical is all the more a cause of concern if this risk assessment is, as contemplated above, entirely context dependent.
Difficulties with the protean definition of anti-social behaviour are compounded by the
low standards of evidence and proof required under the legislation. The standard of
proof required as regards the making of a Behaviour Order is the civil standard of
balance of probabilities. Section 257D(1) of the Children Act 2001 (as inserted by s.162
of the Criminal Justice Act) provides that a District Court judge must be 'satisfied' as to
the anti-social behaviour and the necessity for an order.
The provisions of the new Irish legislation with regard to the definition of anti-social behaviour do not go far enough in safeguarding young people and children from abuses by more powerful community members.
The behaviour in question, even if capable of amounting to a criminal offence, will therefore not have to be proved to a standard of beyond all reasonable doubt and the defendant can be placed under a Behaviour Order even if there is reasonable doubt as to the behaviour in question. This begs the question whether the proceeding is in reality criminal and whether the civil procedure is being used as a means of subverting the strictures of the criminal law, including fundamental legal values such as the presumption of innocence.
In a challenge to the legislation in England in R v. Crown Court at Manchester, ex parte McCann this question has been answered by the House of Lords in the negative, albeit with the important proviso that a heightened (criminal) standard of proof apply. The House held that ASBO proceedings were civil, not criminal, both for the purposes of domestic law and the law under the European Convention on Human Rights. This conclusion was based on a mixture of factors: proceedings were not brought by the Crown Prosecution Service; there was no formal accusation of a breach of the criminal law; ASBOs did not appear on criminal records; and there is no immediate imposition of imprisonment. In this latter regard, the House held that proceedings for breach of an order, though undoubtedly criminal in character, should be considered separately from the initial application. It is questionable, however, whether an Irish court would reach the same conclusion. While a superficial reading of the English legislation supports the Lords' conclusion, it is submitted that many of the above elements, such as the absence of a formal charge and criminal record, focus on form rather than substance and as such should not have influenced the decision of the court. Further, it is at least arguable that the original application for an ASBO cannot be so conveniently separated from its criminal counterpart given that the initial civil procedure defines the outer limits of the behaviour which can constitute a criminal offence. Indeed, it is impossible to defend proceedings for breach without harking back to the terms of the original order. The Lords also appear contradictory in their conclusion that the proceedings are civil in nature and therefore hearsay or second-hand evidence can be adduced (presented in court), yet the 'seriousness of the matters involved' mandate that the criminal standard of proof apply. Overall, the effect of the judgment is to give free reign to New Labour's policy of simply reclassifying criminal proceedings as civil in order to avoid the protections attaching to defendants in criminal proceedings.
In relation to the cognate issue of the admissibility of hearsay evidence, the House of Lords held that hearsay evidence could be adduced in ASBO proceedings. The Irish legislation is silent on this issue and, given that the proceedings are civil in nature, it would appear that hearsay evidence may be admitted to the extent that it is permitted in civil proceedings. In practice the hearsay rule is applied with less vigour in civil rather than criminal matters, however, and the dangers of such evidence should be noted. The adduction of hearsay evidence means that the defendant is denied the right to cross-examine his or her accusers which makes claims very difficult to refute.
The combination of the civil standard of proof and the possible adduction of hearsay evidence means that the court may impose a Behaviour Order on the basis of unproven evidence from a member of the Gardai (a Superintendent or member of superior ranking) as to what the defendant's neighbours report. This places a great deal of power in the hands of the Gardai to determine what non-criminal behaviour may form the subject of a Behaviour Order.
The sanction of detention for breach of a Behaviour Order flagrantly breaches the principle of proportionality in sentencing which requires that the penalty be proportionate to the circumstances of the 'offence'. Section 257F(3) of the Children Act 2001 (as inserted by s.164 of the Criminal Justice Act) makes reference to the child having committed a summary offence which is punishable by a maximum fine of €800 or detention for a period of up to 3 months or both. While this period is significantly lower than the English maximum tariff of 5 years, the use of the severest penalty in the land to punish acts of nuisance which are not necessarily criminal in nature nor indeed constitute any wrong in law is disproportionate by any standard.
Conclusion.
It has been the concern of this assignment to show that the legal structure which surrounds the Behaviour Order facilitates the institutionalization of intolerance in Ireland, a process well under way in the UK since the introduction of ASBOs. The civil procedure imposes an order on individuals on the basis of a potentially subjective and variable definition of anti-social behaviour which does not have to be formally proved. This order comes with such open-ended conditions that it may rightly be said that 'never before has such a wide range of conduct come within the remit of a single statutory order' (Ireland 2005). Breach of any one of the conditions attached, however, may result in the imposition of imprisonment. The introduction of Behaviour Orders in the Republic of Ireland is another example of reactionary government policy to deal with the 'problem of youth' and constitutes a blunt tool with which to tackle the issues. The National Crime Council (2003) has acknowledged a number of inadequacies in the current service provision for youth including the lack of available and affordable facilities in their communities; the need for more intensive outreach work with 'at risk' youth; the lack of State services outside office hours; the need for drug and alcohol treatment and the need for accommodation provision. More effective approach to the problem of anti-social behaviour is likely to be created through a strategic focus on creating better communities by investing in appropriate services and facilities to meet the needs of young people, provide opportunities for positive engagement with them and reduce the risk of further anti-social behaviour.
Bibliography:
Legislation:
- Children Act 2001
- Criminal Justice (Public Order) Act 1994
- Criminal Justice Act 2006
- Criminal Law Act 1997
- Domestic Violence Act 1996
- Malicious Injuries Act 1981
- Offences Against the Person Act 1861.
- Offences against the Person Act 1997
Cases:
- O’Faolain v. Lord Mayor of Dublin (1996)
- R v Hicklin (1868)
- R v. Crown Court at Manchester
- The People (DPP) v, Murray (1977)
References:
- Principles of Irish law. Brian Doolan. 1991
- The Rule of Law, Public Order Targeting, and the Construction of Crime.1998
- Sentencing Law and Practice. Thomas O’Marley. Dublin, Round Hall Sweet &Maxwell 2000
- Criminal Law. T.J.McIntyre and Sinead McMullan. Round Hall, 2001
- Criminal Law. Smith and Hogan. 1996
- Criminal Law in Ireland. Sean E.Quinn. 1988
- Anti-social Behaviour, Crime Control and Social Control. Brown A.P. 2004
Acknowledgements:
T.J.McIntyre
Drogheda Partnership
Drogheda Garda Station
