The Criminal Justice Act 2006 provides for antisocial behaviour orders. This is separate from the Children Act which makes similar provisions for behaviour orders in relation to children.
A person behaves in an antisocial manner if he causes or in the circumstances is likely to cause to one or more persons who are not in the same household as the person
- significant or persistent alarm, distress, fear or intimidation
- significant or persistent impairment of the use and enjoyment of their property.
The legislation does not apply to persons in respect of whom criminal proceedings are initiated.
Members of an Garda Siochana may give a behaviour warning to persons who have behaved in an antisocial manner, within the above definition. This informs the person that he or she has behaved in an antisocial manner and demands that he cease to behave or otherwise or otherwise address the issue.
The warning may be given verbally or in writing. If it is given verbally, a record is to be made as soon as practicable and sent to the person concerned.
A member of an Garda Siochana may require that a person furnish his name and address for the purpose of the order. There is a time limit (one month) in which an order may be issued. It remains in force for three months.
Civil proceedings may be instituted while the warning remains in force. Before making the application, the senior member of the Garda Síochána must be satisfied that either or both of the following conditions have been met:
- the respondent has been issued a behaviour warning and has not complied with one or more of the demands of that warning;
- the respondent has been issued 3 or more behaviour warnings in less than 6 consecutive months.
On application made, the District Court may make an order (a “civil order”) prohibiting the respondent from doing anything specified in the order if the court is satisfied that—
- the respondent has behaved in an anti-social manner,
- the order is necessary to prevent the respondent from continuing to behave in that manner, and
- having regard to the effect or likely effect of that behaviour on other persons, the order is reasonable and proportionate in the circumstances.
The court may impose terms or conditions in the civil order that the court considers appropriate.
Civil Order Issues
An application for a civil order may only be made by a senior member of the Garda Síochána and shall be made on notice to the respondent, and in the district court district in which the respondent resides at the time.
A civil order may be made only after a breach of a behaviour warning or after three or more behaviour warnings are given in a six-month period. The maximum civil order duration is two years. The civil order may impose terms and conditions as the court considers appropriate.
The applicant may not be prosecuted or punished in relation to an offence comprising the act or omission of the subject of the civil order pursuant to a behaviour order.
The standard of proof in proceedings is that applicable in civil proceedings.
A person may appeal against the civil order to the Circuit Court. This must be taken, if at all, within 21 days from the date of the order. Notice is to be given of the appeal to the relevant senior member of an Garda Siochana. The civil order is to remain in force unless a stay is placed on it.
It is an offence to fail to give a name and address when requested by a member of an Garda Siochana. It is an offence to fail to comply with the civil order to which a person is subject. A member of an Garda Siochana may arrest a person in breach of a civil order without a warrant.
The penalty for failure to provide a name and address is up to €500compliance.
The fine for non-compliance with a civil order is fine up to €3,000 or imprisonment up to six months.
A member of an Garda Siochana may arrest a person without a warrant where he has reasonable grounds to believe that he has committed one of the above offences.
A person who is the subject of an application for civil order may in some cases be granted free legal aid. There is a specific provision for a legal aid civil order certificate. It is potentially available to assist a person in preparation and presentation at the hearing of an application for a civil order or the variation or discharge of the civil order in certain subsequent proceedings.
A legal aid certificate may not be granted unless it appears to the court that the person’s means are insufficient to enable him to obtain legal aid, by reason of the gravity of the behaviour alleged to be antisocial or of exceptional circumstances, it is essential in the interests of the justice that the person should have legal aid and representation in the hearing. The Minister for Justice may make regulations for the purpose of the legal aid scheme for civil orders.
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