Public order offences
The law on public order offences is mainly set down in the Criminal Justice (Public Order) Act, 1994. This legislation deals with the behaviour of people in public places and provides for various controls to be exercised at public events. The main purpose of the Act was as follows:
- To update the law in relation to public order offences
- To create specific offences with regard to racketeering and demanding money with menaces;
- To deal with crowd control at public events; and
- To deal with miscellaneous (various) matters including a new offence prohibiting the advertising of brothels and prostitution.
For the purposes of the law, a ‘public place’ includes roads, public parks or recreational areas, cemeteries, churchyards, trains, buses and other public transport vehicles.
In the case of most of the offences under this Act, if a Garda suspects you of being involved, you are obliged to give your name and address if asked. In fact, it is an offence if you fail to do so. You may be arrested without warrant if you fail to give your name and address. You are liable on summary conviction to a class D fine for that offence. You may be arrested without warrant if the Garda suspects you of having committed one of these offences.
The Criminal Justice (Public Order) Act 2003 provides that, if you are convicted of certain offences under the 1994 Act, you may be excluded from a premises for up to a year. This is in addition to the penalty under the 1994 Act.
Intoxication (being drunk) in a public place
Section 4 of the Criminal Justice (Public Order) Act 1994 deals with the offence of being intoxicated (that is, drunk) in a public place. While the maximum fine for being intoxicated in a public place is a class E fine, the section gives the Gardai the power to seize the intoxicating substance (normally, the alcohol) where they suspect that an offence of being intoxicated in a public place is being committed.
Section 23B has been inserted in the Act by section 184 of the Criminal Justice Act 2006 and provides for a fixed charge fine instead of court proceedings for being intoxicated in a public place. This fixed charge fine, currently €100, may be set and varied by the Minister for Justice and Equality.
Disorderly conduct in a public place
This offence is concerned with what is described as “offensive conduct”.
Section 5(i) of the Criminal Justice (Public Order) Act 1994 makes it an offence for anyone in a public place to engage in offensive conduct:
- Between the hours of 12 o’clock midnight and 7 o’clock in the morning next following; or
- At any time, after having been requested by a member of An Garda Siochana to desist.
Offensive conduct is unreasonable behaviour which (having regard to the circumstances), is likely to cause serious offence or serious annoyance to other people. The penalty for this offence is a class D fine.
The purpose of this offence was to deal with the types of disorderly behaviour which falls short of threatening behaviour but could nevertheless adversely affect the quality of people’s lives. A typical example of this offence would be people shouting late at night having left nightclubs where this would cause serious annoyance to local residents.
Section 23A has been inserted in the Act by Section 184 of the Criminal Justice Act 2006 and allows the Gardai to impose a fixed charge fine for disorderly conduct in a public place instead of court proceedings for this offence. In order to have the offence treated as a fixed charge offence, you must give your name and address to the Garda. Failure to do so means you may arrested without warrant and be convicted of a summary offence for which the maximum penalty is a class C fine. If the Gardai choose to have this offence treated as a fixed-charge offence, they may serve notice on you that you will not be charged if a stated amount is paid within 28 days. The amount of the fixed charge, currently €140, is set by Regulations.
Threatening, abusive or insulting behaviour in a public place
Section 6 of the Criminal Justice (Public Order) Act 1994 makes it an offence for any person in a public place to use threatening, abusive or insulting words or behaviour with the intention of causing a breach of the peace. A typical example of this would be where a person, by their words or actions, was likely to cause a fight with the person or persons they were insulting. It would also cover the situation where groups of youths were looking for trouble by their threatening behaviour towards other people. Again, the Garda may confiscate alcohol.
Any person found guilty of this offence can be liable to class D fine and to a prison sentence of 3 months maximum.
Begging in an intimidating or threatening manner
Under Section 2 of the Criminal Justice (Public Order) Act 2011 a person who begs in an aggressive, intimidating or aggressive manner is guilty of an offence. A person found guilty of such an offence is liable on summary conviction to a class E fine and/or up to one month in prison. The Act provides that where someone is begging near certain places such as an ATM, a night safe, a vending machine or a shop entrance the Gardaí have the powers to direct them to leave the area. Failure to do as directed by a Garda is an offence with a class E fine on summary conviction.
The Act also makes it an offence to organise or direct begging by another person. On summary conviction you are liable to a class A fine and/or up to 12 months in prison.
Distribution or display in a public place of material which is threatening, abusive, insulting or obscene
While Section 6 of the Criminal Justice (Public Order) Act 1994 deals with words or behaviour, Section 7 of the 1994 Act deals with distribution or display of offensive material. The penalty for this offence is a class D fine and or a prison sentence of 3 months maximum. The main difficulty which arises in section 7 is the fact that while something may be obscene to one person it might be thought to be quite normal by another person.
The European Court of Human Rights has dealt with the issue of sensitivity in the case of Muller v. Switzerland (1991) 13 E.H.R.R.. That case considered a conviction in Switzerland against Mr Muller for displaying obscene paintings. The paintings depicted, in a crude manner, sexual relations between men and animals. The court held that the paintings were liable or likely to grossly offend the sense of sexual propriety of persons of ordinary sensitivity. It can therefore be said that the courts will apply the “ordinary man” test when deciding if the distribution or display of material is obscene or not.
Failure to comply with the direction of a member of An Garda Siochana
Section 8 of the Criminal Justice (Public Order) Act 1994 was designed to create an offence of failure to comply with a direction from a member of the Gardai to desist (or stop) from such conduct in circumstances where the Garda concerned has a reasonable apprehension (or fear) for the safety of persons or property or for the maintenance of the public peace. The section represents a sensible approach where people are acting contrary to section 4, 5 or 6 (above) and the Gardai are of the view that to simply nip in the bud the potential trouble they can direct such people simply “move on” without having to apply the full force of the criminal law through arresting, charging and bringing before the courts such people.
It shall be an offence to fail to comply, without reasonable excuse or lawful authority, with a direction given by a Garda under this section. Any person convicted of this offence is liable on summary conviction to a class D fine or to a maximum term of 6 months in prison or both.
Under Section 9 of the Criminal Justice (Public Order) Act 1994 anyone without legal authority or reasonable excuse, wilfully prevents or interrupts the free passage of any person or vehicle in any public place shall be guilty of an offence. The penalty for this offence is a class E fine.
This section was created in order to protect the constitutional rights of the individual to pass and re-pass on a public highway. While the Gardai have no power of arrest under this Section they can invoke the powers of Section 8 of the Act and direct any person to desist from the obstruction in question. Failure to comply with that direction is an offence.
Entering a building, etc, with intent to commit an offence
Section 11 of the 1994 Act makes it an offence for anyone to enter (i.e., trespass) a building or the vicinity of a building with the intention of committing an offence and/or interfering with property.
For example, you need not have entered a building to commit an offence under this section. By being on the property (i.e. in the back garden or the driveway of a house) this will be enough to bring a person within the definition of this section. It will be a matter for the prosecution in any proceedings to prove that the accused person was present in the building or on the property with the intention of committing an offence or with intent to interfere with any property. Those found guilty of this offence will be liable on summary conviction to a class C fine or to a maximum term in prison of 6 months or to both.
Trespass on a building, etc.
It is an offence to trespass in a manner likely to cause fear in another person under Section 13 of the Act. There is no inclusion of any intent to commit a crime or to interfere with property in this section. This can be seen from the powers given to the Gardai under this Section. A Garda may direct any person he or she finds trespassing on a building or the cartilage, in such a manner as causes or is likely to cause fear in another, to desist from acting in such a manner and to leave immediately the vicinity or area of the place concerned in a peaceable and orderly manner. However, if the person fails or refuses, without reasonable excuse or lawful authority, to comply with the direction of the Garda he or she is guilty of an offence and is liable to a class D fine or sent to prison for a maximum of 6 months or to both.
The offence of riot is seen as one of the major and most serious of the public order offences. Section 14 of the Criminal Justice (Public Order) Act 1994 defines riot as;
- 12 or more persons who are present together as any place (public or private) use or threaten to use unlawful violence for a common purpose, and
- The conduct of these persons, taken together, is such as would cause a person of reasonable firmness present at that place to fear for his or another person’s safety
then, each of the person’s using unlawful violence for the common purpose shall be guilty of the offence of riot”.
The important parts of this offence are:-
- That at least 12 people must use or threaten to use violence,
- They must have a common purpose in doing so,
- That the conduct would cause a reasonable observer to fear for his or her safety or the safety of some other person, and
- The accused did in fact use unlawful violence.
This offence can be committed in a public or private place. The offence of riot can be utilised by the Gardai in situations where large groups assemble in protest and the protest turns into unlawful violence.
The maximum penalty for the offence of riot is an unlimited fine and/or a period of imprisonment for up to 10 years.
Violent disorder, which is covered by Section 15 of the Act, is similar to the offence of riot although it is a lesser version of that offence. Violent disorder reduces the number of persons present to a minimum of 3. These persons present must use or threaten to use violence and the conduct of those persons, taken together is such as would cause a person of reasonable firmness, if present at that place to fear for his or her safety or the safety of another person.
For an offence of riot to take place the accused person must have used violence whereas in the case of violent disorder the accused person need only threaten to use violence. It is also of note that riot and violent disorder differ in that there is no requirement for the group to share a common design or purpose. The maximum penalty for violent disorder is an unlimited fine and or a period of imprisonment for up to 10 years.
- Two or more persons at any place (public or private) use or threaten to use violence towards each other, and
- The violence so used or threatened by one of those persons is unlawful, and
- The conduct of those persons, taken together, is such as would cause a person of reasonable firmness present at that place to fear for his or her safety or the safety of another,
then, each such person who uses or threatens to use unlawful violence shall be guilty of the offence of affray”.
The most important difference between affray and the offences of riot and violent disorder is that the violence involved in affray must be directed towards each other and not innocent by-standards. An example of this would simply be a group of persons fighting against each other in the street. However, as in the previous two offences the affray can take place in public or private. The offence of affray is only committed where there is actual unlawful violence used. Threats alone will not constitute the offence of affray. A person convicted of affray may receive a maximum penalty of an unlimited fine and or a term of imprisonment for up to five years.
Blackmail, extortion and demanding money with menaces
Section 17 of the Criminal Justice (Public Order) Act 1994 creates a new version of the blackmail and extortion offences which were previously contained in the Larceny Act, 1916 which have now been repealed. If a person makes an unwarranted demand with menaces for the purpose of making a gain for themselves or another or with the intention to cause a loss to another they will be guilty of this offence. The exception to this offence is that if the person making the demand with menaces believes that:-
- He has reasonable grounds for making the demand, and
- The use of menaces is a proper means of reinforcing the demand.
While there is no definition in the Act of “menaces” the meaning of the word was defined in case-law under the Old Larceny Act, 1916. In a case called Thorne–v-Motor Trade Association (1937) the court stated that:-
“the word menace is to be liberally construed, and not as limited to threats of violence but as to include threats of any action detrimental to or unpleasant to the person addressed”.
Therefore the definition of menace would include threats to post on the internet details of a persons sexual life or threats to publish explicit photographs of a person. Neither of these actions could be said to be a proper way of enforcing what would otherwise be a legitimate demand for the payment of a debt. If a person is convicted of this offence the maximum punishment is an unlimited fine and or a term of imprisonment of up to 14 years.
Assault with intent to cause bodily harm or commit an indictable offence
While the main area of law that deals with assault is the Non-fatal Offences against the Person Act, 1997, Section 18 of the Criminal Justice (Public Order) Act 1994 creates a further offence of assault with intent to cause bodily harm or to commit an indictable offence. This is an aggravated assault and states-
“Any person who assaults another person with intent to cause bodily harm or to commit an indictable offence shall be guilty of an offence”.
A person convicted of this offence could face a maximum penalty of an unlimited fine and or term of imprisonment for up to 5 years.
Assault or obstruction of a peace officer
Section 19 of the Criminal Justice (Public Order) Act 1994 defines a “Peace Officer” as a member of the Garda Siochana, a Prison Officer or a member of the Defence Forces. Section 185 of the Criminal Justice Act 2006 has extended this definition to ambulance personnel and fire brigade personnel. The offence replaces the old offence of assaulting or obstructing a peace officer which was contained in section 38 of the Offences against the Person Act, 1861. The important elements of this offence are as follows:
- That the assault was on a peace officer acting in the execution of their duty, or
- That the assault was on any other person who was aiding or assisting the peace officer, or
- That the assault on any other person was to prevent the lawful arrest or detention of himself or of any other person for any offence.
Similarly, a person will be guilty of the offence if they wilfully obstruct a peace officer acting in the course of their duty or obstructs any person who is assisting or helping the peace office in the course of their duty. The most interesting aspect to the punishment for assault is that the accused person is given a choice as to whether or not to have their case dealt with in the District Court or to have the case dealt with in the Circuit Criminal Court before a jury.
If someone is convicted in the District Court the maximum penalty is a class A fine and/or a term of imprisonment not exceeding 12 months. In relation to obstruction, the maximum penalty is a class C fine and/or a term of imprisonment of 6 months.
Attacks on emergency service personnel
The Criminal Justice Act 2006 has, as mentioned above, amended Section 19 of
the Criminal Justice (Public Order) Act 1994 to include people providing
emergency services. The Act creates new offences of assaulting or obstructing
emergency service personnel, such as fire brigade personnel and ambulance
crews, engaged in providing emergency services. It also covers those working in
accident and emergency departments of hospitals. Further
information on emergency health services is available here.