Adequate services and supports should be State’s response rather than criminalising very vulnerable people for begging
The Irish Human Rights Commission (IHRC) today expressed grave concern about draft legislation which includes a fine of up to €700 and /or a month in prison for people who engage in "persistent" begging. The IHRC said that the draft legislation was a draconian measure which could result in criminalisation of extremely vulnerable people.
The draft legislation comes as a response to a High Court judgement declaring a blanket prohibition against all begging in the Vagrancy Act 1847 unconstitutional. The High Court found that the prohibition violated the right to freedom of expression and the right to communicate. In its Observations on the General Scheme of the Criminal Justice (Public Order) (Amendment) Bill 2008 which it submitted to the Department of Justice, Equality and Law Reform the IHRC stated that the Scheme of the Bill may be a disproportionate interference with the right to freedom of expression and the right to communicate. The IHRC considers the Scheme is neither a measured response to the issue of begging nor is it helpful in addressing the root causes of begging.
Dr Maurice Manning, President of the Irish Human Rights Commission (IHRC) said "While there should be measures which would allow for action to be taken against people who engage in intimidating and threatening behaviour under the guise of begging, this legislation is likely to have a disproportionate impact on some of the most vulnerable people in our society, people who because of their personal circumstances find themselves in a position where begging is the only option they feel they have. In a time of recession extreme vulnerability is only likely to increase."
Commissioner Alice Leahy, Irish Human Rights Commission, said: "The government should not criminalise vulnerable people who beg. Many vulnerable people are often left with no option but to beg as a result of mental health or addiction problems which they must endure without the supports they need. Indeed, placing the onus on the criminal justice system to address begging when health, social and homeless services should be at the forefront in tackling these problems represents an abdication of responsibility by the Irish state, and a denial of its responsibility to protect the rights of our most vulnerable citizens."
Chief Executive Éamonn Mac Aodha continued "In many cases begging indicates a failure by the State to adequately uphold the right to an adequate standard of living for all members of our society equally. This is an issue which the IHRC is particularly concerned with and on which it benefits from the expertise and experience of Commissioner Alice Leahy, who is co-founder and Director of TRUST which offers services to homeless people. "
The IHRC’s key recommendations in relation to the Scheme of the Bill are as follows:
Remove definition of Persistent Begging
The IHRC is concerned that the Scheme of the Bill considers that people who persistently beg "in the same place for a period of time" are guilty of a criminal offence. Begging on a regular basis is not the same as a situation where begging maybe accompanied by harassment, intimidation, threats or assaults or other aggressive or abusive behaviour.
The IHRC recommends that the definition of persistent begging in the Scheme of the Bill be removed.
Remove excessive penalties for not having an fixed address
The IHRC is concerned that the Bill proposes if a person who is "persistently" begging can be arrested without warrant if they do not provide the Gardaí with an address. The IHRC is concerned that often people who beg are homeless or with out a fixed address and will be unable to provide the Gardaí with an address.
The IHRC recommends that the Bill should take into account that a person who is homeless has a reasonable excuse for not giving an address to An Garda Síochána.
Powers of Arrest are Disproportionate
The IHRC is concerned that the Bill effectively gives Gardaí powers to direct any person to desist from begging and if they fail or refuse to do so, even if the begging is very passive, to arrest them without warrant and charge him or her with an offence. The IHRC considers that this is not a measured and focused response to dealing with begging that is accompanied by criminal behaviour, not covered by existing public order offences.
The IHRC recommends that the section of the Bill dealing with the Gardaí Powers be removed because it is not a proportionate response to begging as defined in the legislation.
ENDS/
Notes to the Editor
The number of people homeless is increasing. According to the most recent figures released by the Homeless Agency number 110 adults.[1] It is notable also that according to these statistics the total number of adults who are homeless has increased by 4% between 2005 and 2008 and now numbers 2366 adults.[2]
The impact of the Habitual Residence Condition may also result in people not having any access to regular social welfare entitlements particularly where there are aggravating factors such as work place exploitation or domestic violence which results in a person becoming destitute. Asylum seekers who have limited social assistance and who are ejected from their Direct Provision accommodation may represent a further group of persons who are compelled to beg. Figures from the Homeless Agency indicate that between 2005 and 2008 there has been a notable increase in the number of non-Irish nationals who are sleeping rough. When compared with the figures for 2005 (which showed that 9% of those sleeping rough were non-Irish nationals) the 2008 figure represents an increase to over one third (38%) of all rough sleepers as non-Irish nationals.[3]
The proposed legislation will repeal Section 3 of the Vagrancy (Ireland) Act 1847. Section 3 of the Vagrancy (Ireland) Act 1847 constitutes a prohibition against begging in any public place in all circumstances. It was struck down as unconstitutional by the High Court in March 2007. In the case Dillon v. DPP, Mr. Justice de Valera of the High Court confirmed that begging comes within the ambit of the right to communicate and the right to freedom of expression protected by Article 40.3 and Article 40.6.1 of the Irish Constitution respectively.[4]
Mr. Justice de Valera acknowledged that the right to communicate and the right to freedom of expression can be limited in the interests of the "common good". However, it is firmly established in domestic law and in the jurisprudence of the European Court of Human Rights that any interference with an individual’s rights must be justified by demonstrating that the interference is in pursuit of a legitimate aim and that the interference is proportionate to that aim. (The right to freedom of expression is protected under Article 10 of the European Convention of Human Rights. The ECHR has been given express effect in Irish law by way of the European Convention on Human Rights Act 2003.)
An interference with an individual’s rights will be considered to be in pursuit of a legitimate aim if it is "necessary in a democratic society", which has been interpreted by the European Court of Human Rights as corresponding to a "pressing social need".[5] In assessing the proportionality of the interference the European Court of Human Rights considers whether adequate and effective safeguards exist to ensure that the interference with the right is no greater than necessary and that measures are in place to protect the individual from an arbitrary or unjustifiable interference.[6]
[1] Home Agency, Counted in 2008: A Report on the Extent of Homelessness in Dublin, 15 December 2008.
[2] Ibid. The Homeless Agency asserts that it is important to note that Dublin’s population has increased by 5% since 2005, so the homeless population in 2008 represents a decrease of 1% relative to population growth in Dublin city and county.
[3] Ibid.
[4] Dillon v. DPP, [2007] IEHC 480.
[5] Silver and Others v. The United Kingdom, Judgment of 25 March 1983, (1983) 5 EHRR 347, at para. 97.
[6] See, Camenzind v. Switzerland, Judgment of 16 December 1997, (1997), at para. 45-47; Klass and Others v. Germany, Judgment of 6 September 1978, at para. 50.