Committee Reports > List of Committees > Dáil > 1984 > Select Committee on Criminal Lawlessness and Vandalism > Report No. 03 - Decriminalisation of certain offences under the Vagrancy Acts

Membership of the Committee

Dáil Deputies

Michael Woods — Chairman

Gay Mitchell — Vice Chairman

Bertie Ahern

Vincent Brady

John Browne

Liam Cosgrave

Joe Doyle

Jackie Fahey

Mary Flaherty

Alice Glenn

Willie O’Dea

Liam Skelly

Frank Prendergast

Mervyn Taylor

Dan Wallace

Clerk to the Committee: F. J. Brady

1. Introduction

1.1 Among the submissions received by the Committee, in response to its public advertisement, was one from the Simon Community calling for the decriminalisation of vagrancy.

1.2 The Vagrancy Act, 1824 contains various provisions in relation to, among other items, begging and sleeping rough. Section 4, for instance, provides:

“Every person wandering abroad and lodging in any barn or outhouse, or in any deserted or unoccupied building, or in the open air, or under a tent, or in any cart or wagon … and not giving a good account of himself or herself”

and

“Every person being found in or upon any dwelling house, warehouse, coach-house, stable or outhouse, or in any enclosed yard, garden, or area, for any unlawful purpose”

“ . . . . . . . shall be deemed to be a rogue and a vagabond, within the true intent and meaning of this Act”. Both these offences carry a maximum penalty on first conviction of a fine or three months imprisonment.

1.3 The Committee considered the submission and met with representatives of the Simon Community to discuss the contents of the submission. Further consideration was then given to the matter and the members decided that they should report to the House on their deliberations.

2. Proposals from the Simon Community

2.1 Simon contend in their submission that, under the law, it is a crime to be homeless and that this is far from an academic matter. At the moment, it is thought that there are 3,000 homeless people in the 26 counties, and at least a further 1,000 in Northern Ireland, where the Vagrancy Law is also still in force. Precise figures are not available, as the Central Statistics Office does not keep records of the numbers of our homeless citizens at present. While the Simon Community meets over 1,000 homeless people each year in its night shelters in Dublin, Cork, Galway and Dundalk, other agencies will meet many more. Homeless people can be found sleeping rough, in hostels and night shelters, in prison, psychiatric units, hospitals and the casual wards of our County Homes. While there are 1,646 night shelter beds in the country, Simon are of the view that this only tackles part of the problem.

2.2 In 1983, proceedings were taken against 412 people for violating the Vagrancy Acts. However, in 73 cases the charges were subsequently withdrawn or dismissed; a total of 247 convictions were secured. Apart from begging, which accounted for 164 proceedings, the Garda Commissioner’s Report does not specify the headings for the other offences. These figures compare with a total of 498 proceedings in 1956 and 741 in 1977. The following is an analysis of the types of proceedings taken under the Vagrancy Acts in 1898 and 1956:—

Since a breakdown of statistics as detailed as 1956 no longer exists — and according to the Garda Office is not readily obtainable — Simon suggest that the major offences prosecuted continued to be (besides begging) — sleeping out, wandering abroad, and ‘found in enclosed premises’.

2.3 Simon argue that the Vagrancy Acts are used much as they were in the past with the exception, of course, of the offence of ‘loitering with intent’, which was struck down as unconstitutional, because it presumed a person’s guilt.

2.4 According to the submission from the Simon Community, begging causes much visual offence to some people; its effect on the tourist industry was the subject of a speech by the Director General of Bord Failte in 1982. Whilst there are some people who beg who do have other — possibly adequate — incomes, nevertheless, Simon allege (Feb. 1984) that the following are reasons why homeless people beg:—

—The level of social welfare payments is inadequate. The basic rate for a single homeless person is £28. The largest hostel in Dublin, for example, costs £3 per night, or £21 per week. This only leaves £7 for food, tobacco, washing items, bus fares, newspapers, shoes, haircuts, personal hygiene etc.

—Homeless people have difficulty getting any welfare entitlement. The social worker of the Catholic Archdiocese of Dublin, Open Door counselling service, noted in September 1983—

“Those sleeping rough are not entitled to any income at all. We have found that Community Welfare Officers will not pay those who are sleeping out”.

2.5 In 1983, Dublin Simon found 94 men, women and girls sleeping rough and are of the view that for some of them, begging may be the only way of keeping alive. In September, 1983, Dublin Simon opened a nightly mobile soup kitchen on Arran Quay.

2.6 The submission deals with the offence of being drunk and disorderly and makes a number of comments relating this offence to homeless persons. Under S.12 of the Licensing Act, 1872, a person can be convicted of being drunk in public. This discriminates — unintentionally perhaps in this case — against homeless people who cannot, by definition get drunk in private and who will often take drink in order to stay warm at night.

2.7 Simon feel there are good grounds for re-examining the desirability of this law in that regular drinkers, particularly regular heavy drinkers, are in need of social and medical attention and detoxification, rather than criminal prosecution. The absence of detoxification facilities is something that Simon has highlighted for some time. They feel there should not be criminal solutions for medical problems. The following is an extract from the Cork Simon Annual Report of 1981:—

“Recently three of our residents were sentenced to a week in prison for drunk and disorderly behaviour. They were held in Cork and then moved from Cork to Limerick Prison. Limerick Prison was full. From there they were taken to Mountjoy. Mountjoy was full. All three were given their fares back to Cork. They spent 3 days in custody, at a cost to the State of approximately £1,000. The deterrent effect was nil. During the year 41 of our more regular residents were imprisoned for public drunkenness. Almost a quarter of these went down two or more times during the year, the average period of imprisonment being a month, and at an approximate cost to the State of £63,000. It costs the State approximately £20,000 to keep one person in prison for one year. One man we met in Simon spent 45 out of 52 weeks in and out of prison on charges of drunkenness.

Keeping someone in prison for a minor offence is costly and ineffective. Repeatedly imprisoning them for drunk and disorderly behaviour, particularly if they are alcoholic, is a waste of people’s lives and of public money.

Studies in Britain (Habitual Drunkenness Offenders Report; Criminal Justice Act 1969) recognise the importance of getting the alcoholic out of prison and into the field of therapy and medical care. The kind of care required centres around the provision of community-based specialised hostels for alcoholics, and detoxification centres. We have none in Cork”.

2.8 The present law on vagrancy goes back to one of 1331, which provided for the arrest of beggars. No less than 49 Acts of Parliament were passed against vagrants from 1522 to 1822. Sentences included — the stocks (1399), loss of an ear (1530), death (1535), branding (1557) and transportation (1603). Social historians have noted sentencing policies as being more severe in times of social upheaval and being associated with fear of the poor by the Parliament of the day. The 1824 Act was designed to consolidate the previous 49 Acts. It was extended to Ireland in 1871, and the Vagrancy Acts were associated with the Victorian Poor Law. Despite the Vagrancy Acts, the numbers of destitute people facing the Courts always rose and fell proportionately with economic boom and slump. The 1906 Departmental Committee on Vagrancy noted this, and went on to state:

“There is the very general feeling throughout the country that the present laws dealing with vagrants are unsatisfactory”.

Yet 77 years later they remain in force. Despite 662 years of anti-vagrant laws, people are still committing the offence. One is left with the suspicion that people are being punished for a social, rather than a criminal, problem. This is the contention of the Simon Community.

2.9 Simon point out that homeless people are not generally eligible for public housing. Six local authorities refuse to consider the ‘able-bodied’ single, however destitute they are. Most of the rest make the homeless a very low priority. Most local authorities believe the homeless are a matter for the Health Board, Health Boards feel the homeless are a matter for the local authority.

2.10 Simon believes that the social element of the Vagrancy Acts should be removed from the statute book. What concerns them are the offences of begging, sleeping out, frequenting and wandering abroad and they argue that:—

1.Such offences are the product of the social conditions of the most poor and destitute. They are the direct result of the refusal of society to provide the destitute with welfare and the homeless with housing.

2.The very term ‘vagrancy‘ is offensive. Homeless people are simply ordinary people with a serious accommodation problem. They are not wild, aggressive lunatics who need to be locked up — an image which the term ‘vagrant’ reinforces.

Position in the United Kingdom

3.1 The law relating to vagrancy and other street offences was considered by a Home Office Working Party on Vagrancy and Street Offences, who produced a Working Paper in 1974 and a Report in 1976. The Home Affairs Committee of the House of Commons, using the Working Paper and Report as a starting point, considered this topic and produced a Report on Vagrancy Offences, in May, 1981.

3.2 Report of the Working Party (1976)

(a)General

The Working Party received comments from a wide range of organisations on their Working Paper (1974). Having considered the comments, the Committee came to the general conclusion that it was a matter for judgement by members of Parliament as to the extent to which the criminal law should be used to protect society against ‘nuisance’ and for ‘preventive’ purposes.

(b)Sleeping Rough

The existing offence in Section 4 of the Vagrancy Act, 1824 prohibits a person from sleeping rough; an amending 1935 Act provides that the defendant must have declined to use free shelter or must have caused damage.

The Working Party considered that a balance must be struck between the desire not to apply the criminal law to those who sleep out and cause no harm, and the need for the law to provide some protection for other members of the public, who would suffer from the unrestricted activities of those who in sleeping rough may cause a considerable nuisance. Organisations dealing with these people contend that the nuisance caused to other people by those sleeping rough is relatively slight and temporary. Public opinion, however, appears to expect the police to act in those cases and without the sanction of the criminal law, they would be powerless to intervene.

The Working Party recommends the creation of a new offence of causing a nuisance by sleeping rough with a fine of £50 and/or one month’s imprisonment.

(c)Begging

The Working Party believed that because the behaviour of beggars can be a nuisance and, for some people, frightening, it needs to be controlled; and that it is justifiable to have a criminal sanction to deal with persistent beggars, not all of whom are necessarily deprived.

The Report recommends the repeal of existing laws and their replacement by a new offence whose essential element would be persistence. The maximum penalty should be a fine of £50 and/or one month’s imprisonment.

(d)Being found on Enclosed Premises

Section 4 of the Vagrancy Act provides that every person being found in enclosed premises for any unlawful purpose commits an offence.

The Working Paper suggested that a provision of this kind is still needed; the essence of the offence should be that the presence of a person, in a particular place and in particular circumstances, raises the reasonable suspicion that he is there for a criminal purpose, and the Report recommends accordingly. The maximum penalty should be a fine of £100 and/or three months imprisonment.

3.3 Report of the Home Affairs Committee (1981)

The Home Affairs Committee considered the Working Paper and the Report of the Home Office Working Party and also met with representatives of the Police, the Campaign for the Homeless and Rootless (CHAR) and the Home Office.

While there was agreement that the terminology of the 1824 Act reflected social conditions at that time, the main argument centred on whether the offences could safely be repealed altogether, or whether they should be replaced with new provisions.

CHAR contended that:—

(i)vagrancy is a social problem rather than a matter deserving punishment,

(ii)fines or imprisonment had no deterrent effect,

(iii)any abuses by vagrants could be dealt with by other provisions of the existing law.

The police felt that the repeal of the laws would leave a gap in the law, which would not be in the public interest.

The concept of persistent begging, as recommended by the Working Party, was generally felt to be likely to give rise to difficulties of definition.

The very existence of a “begging” offence constitutes a useful deterrent.

In relation to sleeping rough and begging, the Committee concluded that:—

(i)(sleeping rough) “we do not feel that it would be helpful to recommend the abolition of a power which, though employed vary rarely, has been found useful for this particular purpose, and we consider that the limitations imposed by the 1935 Act provide sufficient safeguards against arbitrary or oppressive use of this offence”.

(ii)(begging) “we would be reluctant to recommend the removal of a provision which may well have acted as an effective deterrent in keeping down the problem of begging to manageable proportions. Furthermore, we are anxious to avoid introducing possible complications and anomalies into the law relating to charitable collections”.

(iii)“Though we accept that the criminal law must continue to play a limited role in controlling the activities of beggars and vagrants, we consider that it is quite wrong that they should be faced with the theoretical possibility of imprisonment on these grounds alone, and we therefore recommend that both sleeping rough and begging should cease to be imprisonable offences”.

In relation to the offence of ‘being found on enclosed premises’ the Committee:—

“consider that it would be inadvisable at this stage to alter, still less to do away with, a provision which the police find valuable in dealing with a particular type of criminal activity and which in any case is scarcely ever applied to vagrants. Furthermore, as we regard this offence as potentially far more serious than begging or sleeping rough, we see no reason why the courts should not continue to possess the power to impose a prison sentence”.

3.4 Section 70 of the Criminal Justice Act, 1982 (United Kingdom) removes the sanction of imprisonment for the offences of begging and sleeping rough as recommended by the Home Affairs Committee. A copy of Section 70 is contained in Appendix B.

Recommendations of the Committee

4.1 The Committee was advised that the Law Reform Commission is examining this topic and that progress has been made towards producing a working paper. The Committee considers that it would be very useful to its deliberations, if the Commission could proceed and produce a Working Paper or a Report at an early stage.

4.2 The Committee is aware that there are a number of other persons and organisations who take an active interest in the welfare of the homeless. However, none of these individuals or groups have made a case to the Committee. The Committee would be very anxious to obtain the views of persons involved with the homeless on the question of whether the offences of begging and sleeping rough should be removed from the scope of the criminal law.

4.3 The Committee decided that it should await the outcome of the Working Paper/Report of the Law Reform Commission and any other views that may be submitted before taking a final decision on the Simon Community proposal to decriminalise begging and sleeping rough.

4.4 Nevertheless, the members are concerned that, while there is often a need to remove persons for begging and sleeping rough, there should be an alternative to imprisonment. Some intermediate facilities, such as a hostel, should be available and, only in the event of failure to avail of such facilities, should resort be had to imprisonment.

5 Acknowledgement

5.1 The Committee wishes to record its appreciation of the work of its Clerk, Mr. F. J. Brady and of its Secretary, Ms. G. Murphy.

5.2 Thanks are also due to Mr. Brian Harvey and Ms. Anne O’Neill of the Simon Community, for their submission and for attending at a meeting of the Committee, on 8th May, 1984, to elaborate on the contents of their submission. While the Committee has not decided to support their case at this point in time, the members would also like to take this opportunity to put on record their appreciation of the work performed by the many members of the Simon Community in assisting the homeless and socially handicapped.

Michael Woods T.D.,

Chairman.

16th October, 1984.