Official Report: Minutes of Evidence

The Chairperson (Mr Frew): I welcome Professor Kevin Brown to the meeting. You are very welcome. Get yourself settled, by all means, and, please, make an opening statement.

Professor Kevin Brown (Queen's University Belfast): Thank you, Chair and Committee, for inviting me to give evidence. It might be helpful if I begin by setting the scene with a five-minute overview of what I see as being the key issues and possible ways forward. That might help engender some discussion and debate.

I fully support the repeal of section 4 of the Vagrancy Act 1824 and the Vagrancy (Ireland) Act 1847. They are deeply outdated laws, rooted in a 19th-century mindset that treated poverty as criminal. Indeed, if you look at the year of the second Act — 1847 — you will see that it was passed during the ongoing suffering from the great famine.

The provisions still in force that are relevant to homelessness today are section 3 of the 1847 Act, which criminalises begging, and section 4 of the 1824 Act, which criminalises rough sleeping. Together, they treat poverty as a threat to public order. Section 4 of the 1824 Act criminalises the homeless person. Section 3 of the 1847 Act criminalises the destitute person who asks for help. Both are crimes of status. That was often how the vagrancy Acts worked over the centuries: they punished existence rather than conduct. That is not how the modern criminal law works.

A complete ban on begging is actually a crime of status because it criminalises destitution itself. In the modern criminal law, we draw a clear line between status and conduct. Rough sleeping is purely a status offence: it punishes a person for being without shelter. That is arguably indefensible in modern criminal law or human rights terms. Begging, by contrast, is conduct. It is not intrinsically wrong — that is not what I am saying. In most cases, it is passive and harmless, but, in a small number of cases, it becomes aggressive, intimidating, obstructive or exploitative. In those limited categories, proportionate legal tools are justified.

Therefore, while I very much welcome the Department's recognition that the vagrancy Acts' provisions are outdated and in need of repeal, I would caution that, with regard to begging, repealing without replacement would potentially create significant operational gaps. I believe that existing public order and anti-trafficking laws that are mentioned by the Department of Justice in its consultation and, indeed, responses to the consultation, are not well suited to filling that gap. They either leave a gap in the sense that harmful behaviour is not criminalised, or they over-criminalise by treating vulnerable people as public order offenders. That is why other consultation responders and I argued for narrow, purpose-built provisions that target harmful behaviour without stigmatising poverty.

At present, with regard to begging, the PSNI operates a proportionate, engagement-first approach. Officers engage with the person, establish the circumstances, offer support and signposting — there is a lot of joined-up multi-agency working — and ask them to move on. If that does not work, according to the Department of Justice and the PSNI, they can issue out-of-court disposals, such as community resolution notices, and only in persistent or aggressive cases do they move to arrest. Arrest is seen as a last resort by the PSNI. If the begging offence disappears without anything in its place, I fear that it would take the feet out from under that graduated, proportionate approach. The police would lose the current, structured approach, which involves, as I say, engagement and warning to a disposal — usually a community resolution — and then to prosecution only where necessary. Without a statutory basis — this relates, as I say, to begging, not to rough sleeping — the police would either have to ignore genuine concerns or rely on much blunter public order offences. You can see how it, therefore, potentially affects negatively in both directions: one is that there is a gap in the law with regard to harmful behaviour, but it also has the potential to lead to vulnerable people being subjected to more-severe public order offences. It works in both directions.

I would also be cautious about other unintended consequences. I have to admit that this was not one that I picked up on myself but came from reading the legislation in England and Wales that has come from the Labour Government and then looking at the legislation from the Republic of Ireland, because the legislation — unusually for legislation that we deal with — predates partition, so it applied both north and south. Both those jurisdictions are legislating. Obviously, the Republic repealed its vagrancy provisions some time ago — a few decades ago — and England and Wales are in the process of doing so. Not only is their response to begging different from what is being proposed in Northern Ireland, but they identified a gap on trespass with intent. As I said, I noticed that provision in the English and Welsh legislation and, indeed, the Republic of Ireland legislation. I am not sure whether it has become obsolete. It is not about homelessness. Section 4 of the 1824 Act lists a whole range of behaviours, as was often the case in statutes that were written at that time. If you look at section 4, you will see that it includes fortune telling and such things, as well as trespass. The evidence base is thin, but trespass with intent is another example of why we need to not base it on assumptions about what works. It is about looking, as the Committee is doing — what the Committee is doing is really useful — at how to avoid creating avoidable gaps.

I am outlining my position to, hopefully, engender debate and questions. You will have your own views on what the way forward should be. However, I recommend repealing the rough sleeping offence and not replacing it with anything, because it criminalises a person's status rather than their conduct. I also recommend repealing section 3 of the Vagrancy (Ireland) Act 1847 on begging and replacing it with a narrowly drawn offence of arranging or facilitating begging for gain. That is what is going through in England and Wales at the minute. A very similar offence was created by the Dublin Government when they repealed their vagrancy provisions. That offence does not target individuals who beg; it targets those who exploit the vulnerable by arranging or facilitating begging for gain.

On acts of begging by a difficult individual, there is no need for a new offence per se but a proportionate desist and move-on direction for the PSNI. That would be confined to genuinely aggressive, obstructive or intimidating cases of begging. The previous Government in England and Wales partly took that approach. They were creating a very detailed and, some said, overly complex system that has now been abandoned, but one of the provisions was a move-on direction. The Dublin Government also adopted that approach when they replaced the legislation. It would offer a more balanced approach, rather than just creating another begging offence. It would only be an offence if someone were to ignore the move-on direction.

As I say, we do not necessarily need a new trespass with intent offence, but I suggest that the Committee take a further look at that and speak to the PSNI about whether it is being used. I found reference to it in a Freedom of Information (FOI) request from the Public Prosecution Service (PPS) and in statistics released by the Policing Board, but I could not see whether or not it is still being used in Northern Ireland. It is worth looking at.

Such an approach could decriminalise poverty while preserving a proportionate response that addresses genuine harm. At this stage, I will say thank you. I look forward to discussing the issues with you and addressing any questions that you may have.

The Chairperson (Mr Frew): Thank you, Professor Brown, for your presentation and for all your diligent work in your submissions to the consultation. I will open up the discussion to members. Brian, you are first.

Mr Kingston: Thank you, Kevin, for your paper, your research and your suggestions on the matter. I understand what you are saying. Vagrancy and rough sleeping should not automatically be an offence. I am mindful, however, that I attended a meeting this week in Belfast city centre with various business owners, elected representatives and the police about ongoing incidents in the city centre. I, as an elected representative for North Belfast, and all elected representatives have to protect our public spaces. I think that rough sleeping should be absolutely discouraged: people should not be sleeping on the street. I understand the view that you cannot simply arrest your way out of the problem, but there needs to be legislation that discourages it, and which gives the police the tools that they need to discourage it. I am concerned that we would leave the police with insufficient tools.

That was brought to light by a recent brawl in the city centre, which you might be aware of.

Professor Brown: Yes.

Mr Kingston: The police said that, yes, there is a problem with people with complex needs, addiction issues and mental health issues who are a harm to themselves and a harm to each other, but they are also a harm to the public. If that is discouraging people from going into the city centre, then help with its prevention is something for which legislation is needed. That is my concern. The police highlighted some additional powers that the police in GB have, such as public space protection orders (PSPOs) — I do not know if you are familiar with those —

Professor Brown: Yes.

Mr Kingston: — dispersal orders and civil injunctions for antisocial behaviour. They have a range of tools that they can bring to bear, without going for one, automatically. The harassment of people is happening — I hear that from people in the city centre. Every morning, shops and businesses, which are trying to survive financially, have to clear up human waste and remnants from people who are rough sleeping. To say that we do not have a view on that is insufficient. Our view should be that people should not be rough sleeping — absolutely — and not rough sleeping in our commercial centres. We need to give the police and authorities the sufficient tools to not just work with people and try to encourage them not to be doing it but to enforce, when required.

Professor Brown: That comes through in the PSNI's response to the consultation. There were also two responses from representatives of businesses in Belfast. You can see that concern expressed there. Obviously, there are the two provisions: one in relation to begging and one in relation to rough sleeping. I draw the distinction because rough sleeping is a status whereas begging is conduct. I will address the point on rough sleeping. If someone who is sleeping in a doorway refuses to move when the business opens, for example, it may well be because of a health-related issue — physical or mental. That would need to be addressed by the emergency services and might include the attendance of paramedics and the PSNI. There is an obstruction offence under our current public order legislation. Potentially, that could be used by the PSNI if an individual is obstructing the public pathway or roadway. Having looked at some of the evidence, I know that a reason for someone who is rough sleeping refusing to move — assuming that it is not for health reasons — could be that they are intoxicated. Obviously, there is a relationship between rough sleeping and drug and alcohol addiction. If it is the case that it is not so much a serious health-related issue, but that they are drunk in a public place, they could be arrested under article 10(1) of the Criminal Justice (Northern Ireland) Order 1980. Where it spills into fighting and other disorderly behaviour, article 19 of the Public Order (Northern Ireland) Order 1987 will apply.

It was interesting to see the responses to the consultation and some of the documents that the Committee received on the matter. It did not come from everyone who participated, but, sometimes, you can see a conflation of homelessness, rough sleeping and begging. People talk about the need to decriminalise homelessness, but what exactly do they mean when they say that? Do they mean rough sleeping and begging? Do they mean begging in all circumstances so that we have no begging offence? It is kind of a catchy phrase and one that tugs at the heartstrings because, from a moral standpoint, never mind a human rights standpoint, we do not want to be criminalising people who are homeless.

The previous Conservative Government legislated for repeal of the vagrancy provisions in England and Wales, and those same provisions apply to rough sleeping. Obviously, the provisions for begging are different. There was a specific Act for pre-partition Ireland. The previous Government created a nuisance begging provision and a nuisance rough sleeping provision, and it was the nuisance rough sleeping provision, in particular, that I think outraged a lot of people. They felt that that was criminalising homelessness. I do not think that the nuisance begging provision was as controversial. That Bill was very complex, containing about 30 clauses. The one on nuisance rough sleeping was the one that caused a lot of issues. For someone who is rough sleeping consistently and is refusing to move, causing a lot of issues persistently, ASBOs still exist. I raise that partly with another hat on in that I chaired for DOJ all the groups that came together to look at reforming the ASBO. I will not get bogged down in that now, but potential reforms to the ASBO would also help to address those issues in cases where someone was persistently doing that.

Mr Kingston: My concern is that we repeal the offence of vagrancy — rough sleeping — and that businesses, especially, and people who are going about their own peaceful lifestyle in the city centre will find that we are making it more difficult to address the negative consequences of people who are causing nuisance. Whilst we have sympathy for people with complex issues in their lives, where that is causing real difficulties for businesses and people who want to pass through the city centre, we have a duty to ensure that the police and other authorities can act.

Professor Brown: You represent North Belfast, is that right?

Mr Kingston: Yes, that is right.

Professor Brown: You are one of my MLAs, and I pass through the city centre every day, going to Queen's from north to south Belfast. Where there is difficult behaviour that I see, it tends to be begging that has become aggressive or intimidating. I do pass through Royal Avenue and the Dublin Road and so on, and the behaviour that I see is in relation to begging, where it can spill into behaviour that is harmful and intimidating.

Mr Kingston: Also, harassment of people.

Professor Brown: Yes, harassment of people.

Mr McGlone: Thanks very much, Professor Brown. Thank you for making the point, which I was going to make, that you do not want to criminalise homelessness on ethical, moral or legal grounds or on any other grounds. You just do not want to go there.

In the documentation that you have referred to about the repeal of vagrancy and the rights of vulnerable individuals and the issues around reform of what we have in front of us, you state that reform:

You have touched on some of that, but can you give us the specific bullet points of what those unintended legislative gaps might be?

In a similar vein, maybe related and certainly on the same policy thrust, you state that the approach that you suggest will:

I am sure that there is an overlap between the legislative gaps and the challenges that those would create for individuals and communities alike.

Can you give us a wee bit of an insight, in bullet-point form, into those challenges and, likewise, the legislative voids that might be there, please?

Professor Brown: Certainly. The legislative gap is likely to relate to the begging provisions. I will not get bogged down in jurisprudence, but the European Court of Human Rights had a case in 2021 in which it said that an absolute prohibition on begging is contrary to article 8 of the European Convention on Human Rights. The court revisited that in another case and said that targeted provisions that do not have an absolute prohibition on begging are not contrary to the convention. I believe that that was a Danish case.

Mr McGlone: Sorry to interrupt, but what did the court mean by "targeted provisions"?

Professor Brown: Currently, under the vagrancy provisions, begging is a criminal offence in all circumstances. It is not that the PSNI arrest people who are begging in all circumstances, but the law is interpreted as applying in all circumstances. Most countries that have offences on begging will say that, if the behaviour is aggressive, harassing or obstructive, it becomes a criminal offence. That is what the European Court said. Those kinds of measures are proportionate, so they are not contrary to the European Convention on Human Rights, whereas the complete prohibition on begging that we currently have from pre-partition legislation is contrary to the European Convention.

A gap has been identified by the legislatures in London and Dublin, although Dublin also did so some time ago. They said that those who organise individuals to beg and exploit them — for example, gangs — should face prosecution for doing so. An offence is passing through Westminster at the moment, and one is already in operation in the Republic of Ireland. I do not want to misrepresent the DOJ, but its response was to say that that is not an issue in Northern Ireland at the moment and that, if it were to become an issue, it could look at it. Some respondents to the consultation thought that people organising others to beg or taking advantage of them was an issue, though not in all circumstances. The DOJ said, "Well, even if that is happening, you could use the human trafficking provisions". However, without getting too bogged down in the technicalities, those provisions understandably set a very high threshold. It does not always have to involve bringing people in from another country; there is a high threshold to be met for it to be deemed coercion. The DOJ is leaving exposed the issue of those who facilitate or organise begging by people who are often vulnerable and then take most of their proceeds. There is clearly a gap in that area. Another response to the consultation suggested that we could just wait and see whether it becomes a problem, but I am a bit worried about the speed of things: naturally, it takes time to pass legislation. Do we want to leave it? Do we want to communicate to wider society and gangs that we have decided not to legislate on the issue? That is worrying.

The other issue relates to individual instances of begging that becomes intimidating, harassing or obstructive, such as in shop doorways, as you mentioned. A provision should be legislated for to allow the PSNI to request or give a direction to someone to desist and move on. Begging itself would not be a crime, so the person would not be given a criminal record, but the PSNI would tell them, "If you do not desist and move on, it will be a criminal offence". Again, they have that in the Republic of Ireland. Through the PSPO legislation in England and Wales, they effectively have it, even if it is not there at a national level. There is the need for a desist and move-on direction, because, otherwise, the PSNI may say, "Well, begging is no longer anything to do with us". We know that the PSNI is under immense resource pressure. There has been a lot of discussion about the fact that, people feel, public disorder in Belfast city centre and other towns and cities is increasing. If the PSNI's response is, "We have limited resources, and now you have told us that, under no circumstances, is begging an offence, unless it gets violent", it would send out a worrying signal. However, I do not think that we should criminalise begging per se.

Mr McGlone: OK. That is grand. Thanks very much.

The Chairperson (Mr Frew): On that point, there are two distinct aspects: begging and rough sleeping. When people are enjoying or travelling through a town centre, they see that visually and feel it physically. You recommend introducing a new law to deal with begging:

If someone is rough sleeping in a doorway, they are not begging, yet they are causing a nuisance. Do you perceive there to be the need for a law to deal with rough sleeping where it causes harassment, obstruction or public order concerns? That sounds really bad, but it is really what, you suggest, we need to do to close a gap.

Professor Brown: I take your point about the distinction. The previous Conservative Government in London wrestled with that in their reforms. I can understand that, and the previous Conservative Government took that view, although the legislation was not passed before the election. The Labour Party is going in a different direction. Is someone's sleeping in a doorway harassing behaviour? It is potentially obstructive behaviour if they refuse to move. When I have walked past the Grand Opera House, for example, I have noticed people sleeping under the canopy there, but, from what I have seen — I have not spoken to them, so I should not make assumptions — there seems to be a relationship whereby those individuals know that they should move early enough in the morning. In that case, it is not obstructive. If someone is rough sleeping, assuming that they are not causing an obstruction, are they causing harassment? If someone urinates or defecates in public, that can be dealt with under provisions in existing legislation. We all know that if someone causes criminal damage or attempts to steal something —

The Chairperson (Mr Frew): I do not think that the offence of trespassing with intent to commit a criminal offence was designed to deal with rough sleepers in a doorway, or was it?

Professor Brown: It is interesting. I do not think so, but the Conservative Government put the offence in that part of their proposed legislation. There is so little written about it. In my second report, I put in something from one of the leading texts on it, but that is from an England and Wales perspective. If someone was trespassing with intent, it would have to be with intent to commit a crime, and, if rough sleeping is not a crime, I do not think that you can say that that provision applies. If, however, they had caused criminal damage or attempted theft or even if they had urinated or defecated, that provision probably would apply.

The Chairperson (Mr Frew): The reason I asked that question is this: if we give the police further powers to direct a person to desist and move on, what must the person, who was simply rough sleeping, have done to justify the police's directing them to desist and move on?

Professor Brown: That would be if it covers rough sleeping. That is why I have not suggested a move-on direction with regard to rough sleeping, only with regard to begging. That is why I have made the distinction.

The Chairperson (Mr Frew): There is a distinction — there absolutely is — between someone's begging and someone's rough sleeping, but they can still cause the same obstruction to a doorway of a business that might see its custom and profits fall as a result.

Professor Brown: If, during opening hours, they were sleeping in the doorway, that is a potential obstruction issue. From what I was reading — you may well have heard from others who might have more evidence than I do — the issue was not so much that people were sleeping in doorways during the day and during opening hours. Obviously, different businesses have different opening hours. The Grand Opera House is an example of a business that opens later into the evening. When I have been to the Grand Opera House, I have not seen people rough sleeping there at 10.30 pm and 11.00 pm, when shows are finishing.

Look, for example, at the approaches in London and Dublin. When Dublin repealed the same legislation as ours, they created a version of the move-on and desist provision with regard to troublesome begging, and they defined that, but they did not do so with regard to rough sleeping, even though they have more rough sleepers than we have. In England and Wales, they have the public space protection orders. I first got involved in this particular issue when I was an academic in Newcastle at the time when PSPOs were introduced. Successive Governments have said that PSPOs generally should not be used for rough sleeping, but they are often used for begging. I think that I gave two examples in my second report: I just picked Birmingham and Peterborough. In England, when they have tried to use PSPOs to cover rough sleeping, that has often been challenged in the courts. The local authority has often backed down and dropped it before the court made a decision, whereas the begging provisions have not caused that risk for local authorities.

Ms Ferguson: Thank you, Kevin, for your paper. Like us, you agree that we should repeal the vagrancy provisions on rough sleeping and begging. It is about ensuring that a compassionate approach is taken to people who are most vulnerable and find themselves in those vulnerable situations, and trying to balance that with the rights of others who use public spaces not to be distressed, intimidated or harassed. I really get that aspect of it.

On the offence of arranging or facilitating begging for gain, would you have confidence if provisions such as those that exist in the Twenty-six Counties under, I think, the Criminal Justice (Public Order) Act, 1994, in conjunction with section 3 of the Criminal Justice (Public Order) Act 2011, were introduced or replicated here? What are your thoughts on that?

Professor Brown: From looking at its consultation, I know that the DOJ thought that, in cases where someone was facilitating or organising begging, we should rely on the human trafficking provisions. I think that the DOJ mentions that a couple of times. You could see instances where the human trafficking legislation would be relevant, but it, understandably, sets such a high threshold. That legislation would apply where someone has been trafficked into the country and forced to beg, or where a child — I have not seen examples of it in Northern Ireland — has been forced to beg. I think that the trafficking legislation would apply even if those people had not been trafficked into the country, because there are different thresholds. However, I think that there would be a gap where there are adult individuals who are part of a group in which there might be elements of coercion and adults who are vulnerable. Arguably, there already is a gap because the vagrancy provision does not cover groups or gangs that are involved in that. That is the approach in London, where legislation is currently going through, and in Dublin. The two jurisdictions word their offences differently, but I think that a version of that, maybe combining elements of the two, would be worthwhile. Even if was not used much, I do not see what would be lost by having it. The DOJ says that it has no evidence that that issue exists, but, if we do not have an offence that covers it per se, how do we know that it does not exist? I also think that it would bring a communicative power by saying, "If you take advantage of vulnerable individuals by facilitating their begging or organising and pressurising them into begging, that is an offence". That would send out the right signal that we are not encouraging people to take advantage of vulnerable individuals.

Ms Ferguson: When we met the PSNI on this issue, it listed some of the offences that you, in your response, challenge on their applicability and reasonableness. That includes the disorderly behaviour and breach of peace offences. The PSNI advocated looking at and exploring other approaches in other jurisdictions, which you have done clearly in your paper. Do you believe that the Department has done that satisfactorily? Have you attempted to engage directly with the Minister regarding your research on the different approaches?

Professor Brown: The first paper that I submitted to the Committee was my original consultation response. I responded officially in that. I think that 11 responses were received, and I was the only academic who responded. However, there were responses from a range of homelessness charities and from representatives of business groups. I read through some of the responses. One of the responses — I cannot remember if it was to the consultation or in evidence to you; I think it was to the consultation — was from, I think, Homeless Connect, which set out its view very articulately. There was also a part from what, I think, Homeless Connect calls its user group — I cannot remember the term that it uses. I do not want to make assumptions, but I assume that the user group is made up of people who have been homeless in the past rather than the professionals who work for the charity. The individuals who had been through the experience said that there is a distinction between rough sleeping and begging. It was interesting to hear that from them. They said that begging per se should not be criminalised. They did not necessarily talk about human rights, but they said that it was a waste of time and was stigmatising. However, they could see the justification for having criminal offences where that begging behaviour became particularly troublesome. I am not speaking on behalf of Homeless Connect, but that distinction was made by, what, I think, is called its user group.

Ms Ferguson: On organised crime and begging, the PSNI indicated in its oral evidence session that it believes that there is suitable legislation under the organised crime infrastructure. Do you agree?

Professor Brown: I think not, partly because two Governments in London have thought that legislation is needed. We tend to have very similar legislation to London, although, obviously, it is not identical. Some of our public order legislation, for example, differs, partly because of the history of Northern Ireland. Often, particularly high thresholds are set for organised criminality, human trafficking or coercive behaviour. I fear that, if it is more passive organisation — say, where someone takes advantage and tells the person who is begging that they will get a cut of 10% or £20 a day, but that person has not been trafficked into the country; there is not extensive coercion; and it is difficult to get evidence of that, maybe because extended families are involved — the lack of a particular offence that covers that will, potentially, be problematic, even if I take the DOJ at its word that is not a problem that is manifesting significantly in Northern Ireland.

Ms Ferguson: I have one final question. Do you believe that we should be engaging with anyone else on the legislative gap that potentially exists?

Professor Brown: I thought about that more so as regards the issues around trespass with intent. I did not pick up on that in my first response to the consultation, partly because the DOJ did not ask anyone about it. We can look at the legislation in the Republic of Ireland that was repealed, because it is the same legislation. In the Republic of Ireland, they thought that they needed to introduce a trespass with intent offence. There is an interesting distinction between how London is currently dealing with trespass with intent and how Dublin dealt with it in the past and has addressed it more recently.

In my paper, I include a few quotes about trespass with intent from a Labour Minister and two Labour MPs. They were mostly talking about the risk to commercial businesses from trespass with intent offences and about bridging the gap between someone who is trespassing and someone who is committing theft. In the Republic of Ireland, the offence covers that, but it focuses more on people who are trespassing and causing fear or intimidation. You can imagine examples, such as someone being found with a spray can in an area where people write racist or sectarian graffiti on houses: that could be trespass with intent. That application does not seem to be used in Northern Ireland at the moment, and there might be good reasons why that situation is not treated as trespass with intent.

It would be particularly useful to hear from the PSNI again on that issue, because I do not think that it would have realised that it was an issue at the time either. It might say, "Oh, we don't use that any more" and provide sufficient reasons for that. Hearing from the Public Prosecution Service might also be useful, because it acknowledged that it was an offence a few years ago when it responded to the freedom of information request. Why did that seem to vanish? Why did the DOJ not pick up on it? An excellent research report — apologies, I cannot remember the author's name — was written for the Assembly. It set out section 4, and, looking at it through modern legislative eyes, you can see how badly worded it is, but it does seem to cover trespass with intent. Why was that not consulted on? Maybe it does not matter that it was not consulted on, but it would be worth the Committee's looking at trespass with intent, as well as dealing with the homelessness issues of rough sleeping and begging.

The Chairperson (Mr Frew): Brian, do you want to come in with a wee quick point before I bring in Maurice?

Mr Kingston: I am happy to wait, because I have already had a go.

Mr Bradley: Thanks very much. First, can the Committee see some sort of matrix that makes a distinction between vagrancy, where it is aggressive, intimidating or obstructive, and homelessness? Can we have something that we can look at to see how officers on the beat assess whether somebody is homeless or begging?

Secondly, is there a danger of displacing people who are professionally begging from main streets and into residential areas or into and outside public buildings? What evidence is there that paramilitary groups or organised crime groups engage, force or coerce people to beg on their behalf?

Professor Brown: Those are interesting points. I have not read anything to date about paramilitary organisations being involved in that, but that does not necessarily mean that it does not happen. That is something further to ask the PSNI about.

That argument, which is legitimate, says that you are just moving the problem of begging on, and, if there were a move-on direction for those who are rough sleeping, the argument would apply to that as well. There could be an element of that, but the way that the legislation is drafted in the Republic of Ireland and the move-on direction for nuisance begging that the Conservative Government proposed seem to be very similar and are similar even to how PSPOs work in England and Wales. They give examples of behaviour that is seen as harassment, obstructive or intimidating, so it is not just what we might be used to when we hear about causing someone alarm or distress.

Those measures also list examples. The area around an ATM machine, for example, or in front of a commercial property come under the legislation in the Republic and in what was proposed in England and Wales and what you can find in PSPOs. Other examples, including areas that are outside private dwellings, are covered. You would need to make the legislation extensive enough to give those examples. As you said, if the legislation did not mention private properties, the problem could be moved on to private properties. The original proposed legislation in London and the current legislation in the Republic of Ireland cover begging outside private dwellings. The behaviour does not necessarily have to be harassing or causing alarm or distress; the mere fact that it is taking place is covered. I imagine that it does not happen that often, but there are properties in town centres where people live, so I guess that it could happen.

The Chairperson (Mr Frew): Maurice asked about the bobby on the beat. Professor Brown, do you have any thoughts on that?

Professor Brown: The PSNI has said that its approach is not to criminalise rough sleeping but that it will not ignore the problem. Its approach is to coordinate with homelessness charities to not just signpost people to where to get help but bring in those organisations to help. Obviously, that differs depending on the town or city, but, in the evenings, I think that SOS NI provides a service. During the day, the Housing Executive and another charitable organisation have a function. It takes a tiered approach to begging. Even now, where there is the complete criminalisation of begging, the PSNI's approach is to get involved only where the begging is persistent or causing harassment or distress. Through that tiered approach, it will give a warning, ask someone to leave the area and then move on to a community resolution notice or, eventually, to prosecution. A power of arrest is attached to that if necessary. The PSNI's approach is sensible, and I endorse it. I do not want to speak for the PSNI, but I think that it comes through that it fears that repeating the vagrancy provisions and without replacing them would create a gap that would undermine what is not a draconian but a proportionate and step-by-step approach.

The Chairperson (Mr Frew): Maurice, are you happy enough?

Mr Bradley: I am happy enough with that. Thank you, Professor.

The Chairperson (Mr Frew): I have a few questions, Professor Brown. Very helpfully, you set out the wording for a clause on begging causing harassment and obstruction and for the public order piece. You did not set out what a clause should look like for the offence of arranging or facilitating begging for gain. Why not?

Professor Brown: Legislation for England and Wales is currently going through Parliament, and we could use the wording from that. The Labour Government's wording on that is the same as that of the Conservative Government. That part of it was carried through by the two parties. I have not heard of other parties objecting to that provision in England and Wales. When the Labour Government announced that package of reforms, which includes that offence in England and Wales, the press statements carried endorsements from homelessness charities. I have not seen homelessness charities criticising that provision in England and Wales, but I could have missed it; I do not want to make assumptions. That provision is in the current Bill in England and Wales.

In the Republic of Ireland, the relevant provision is section 5 of the Criminal Justice (Public Order) Act 2011. The Republic of Ireland's approach uses different wording. It talks about how:

The maximum prison sentence in the Republic of Ireland is very high for that offence. It is five years. Arguably, that is too high. If you were dealing with a very serious case, you would hope that the human trafficking provisions would kick in, but we are dealing with the gap in between. If you decided that you wanted an offence in that area, it would be useful for your legislative draftspeople to say, "In the context of this jurisdiction, the terminology from England and Wales might fit better" or, "The terminology from the Republic of Ireland might fit better", or it could be a mixture of the two. The Republic of Ireland's legislation is more specific about what is covered. You could say that that is its advantage. However, the penalty that is attached to it is potentially too high. It could well be that the English and Welsh legislation fits with our system better, but, if it were decided in principle to have such an offence, draftspeople could look at those two provisions.

The Chairperson (Mr Frew): During the Department's review of the vagrancy legislation, the police did not see organised or coerced begging as an issue. Do you see it as an issue? If you do, can you put any sort of percentage terms on how organised it is in our begging community, for want of a better term?

Professor Brown: I take the PSNI at its word when it says that it does not see a significant issue with it. Part of the reason why we have the criminal law is to communicate a message to society. If that message says, "We have decided, unlike London and Dublin, that we're not going to cover this behaviour", you could end up creating a significant problem. If it were then said, "We're going to wait for a review for two years and then decide whether we deal with this", that would be a significant cause for concern. However, I take the PSNI at its word when it says that there is not a huge problem with that at the minute.

The Chairperson (Mr Frew): You could end up creating a marketplace, basically, for organised crime.

Professor Brown: Yes. Are we sending a message to groups in Northern Ireland, GB or the Republic of Ireland that —?

The Chairperson (Mr Frew): We have, from time to time, heard stories about paramilitaries coercing young people to raise and collect money.

Professor Brown: Yes.

The Chairperson (Mr Frew): So, it would not be a stretch to say that they could commence begging.

Professor Brown: Yes. That is a very good point.

The Chairperson (Mr Frew): It is all about raising money.

I am of a mind that we should be looking at repealing more law. A legislature such as this could repeal law just as much as it makes law. It is horrendous to read the 1824 Act and the 1847 Act, given the context of those times. The first Act was made straight after the Napoleonic Wars, when soldiers went home injured or families were left without a breadwinner. The 1847 Act was made when there were victims of famine and hunger. Basically, those laws were created to stop that nuisance. We do not think in such terms any more. Soldiers in the Napoleonic Wars — Tommies and redcoats — were not adored or seen as heroes; they were seen as a nuisance.

You can understand why the laws were put in place, but repealing them — "repeal" is probably the wrong word; legislators should go about modernising the law. Do you have sympathy with that idea, which says that we should modernise the law more often?

Professor Brown: Yes. It is interesting. I teach that subject to students in the second semester. I am not a legal historian, but you can trace the original vagrancy provisions — I do not mean those ones but earlier ones — all the way back to the Black Death. Often, they were about preventing people moving for fear that that could cause issues. Gradually, they have been modernised. Actually, in England and Wales, a version of section 4 was brought in to say that rough sleeping in all circumstances is not a crime. That legislation is from around 100 years ago, although I cannot remember the exact date of the Act offhand.

As it is currently written, our legislation actually goes further than that of England and Wales by having a complete ban on rough sleeping, yet England and Wales is still repealing their legislation. When you look at the wording of it, you can ask this: does it have trespass with intent offence, or does it not? Why is that not being used? It is because the wording is so archaic that it is hard for us to identify what provisions are in there and what provisions will be lost. When I looked at the freedom of information request that someone put into the Public Prosecution Service, I saw that it came back with a range of offences that are actually covered under section 4. It was more just statistical analysis — I think that the person who made the freedom of information request was just interested in homelessness — and it showed that there was a range of offences.

It would have been helpful, and it might still be, for the DOJ to spell out whether there are any other offences under section 4 that would be lost, particularly because it did not ask that question and prompt people to consider it. It might well come back and say, "No, there is not. We do not have to worry about trespass with intent for reasons x, y and z ", but it would be helpful to go back and say what might have been missed, if anything.

The Chairperson (Mr Frew): Yes. Section 4 talks about:

It talks about "a rogue and vagabond". It is archaic. It is really bad.

Professor Brown: That is the clause that has now been interpreted in modern criminal law — at least, it has in England, where it might have slightly different wording — as trespass with intent. The police in England and Wales told the current Labour Government and, I think, the previous Conservative Government that they were actually going to mistakenly remove that when they were concerned primarily with decriminalising homelessness.

The Chairperson (Mr Frew): OK. Fair point. We could chase that up with the Department. Brian, do you still want in?

Mr Kingston: Yes, Chair.

The Chairperson (Mr Frew): Patsy, you also wanted in.

Mr Kingston: Your paper is very helpful, Professor Brown. What concerns me most is that, in our papers, there is the position from the office of the Justice Minister. I do not know whether that has since changed. That paper says that in repealing those two sections in the two Vagrancy Acts:

It also says:

I contrast that with what you advised us happened in England and Wales, where the old law has been repealed but not implemented due to insufficient replacement. In Scotland, they repealed theirs, but they have additional offences that we do not have, such as the common-law offence of breach of the peace. They also have local authorities that actually want to bring forward by-laws to give them the tools to address problematic behaviour, but the Scottish Government are blocking those measures.

Professor Brown: That is correct, yes.

Mr Kingston: Your conclusion is that, if we repeal the vagrancy legislation:

That may still be the Minister's position, although I do not think that we have the actual wording of the draft legislation. Is that right? Do we have that or just the intention?

The Chairperson (Mr Frew): We have the amendment to repeal.

Mr Kingston: Yes, but do we have the actual wording that would be in —?

The Chairperson (Mr Frew): It is very vague. It basically says that we will repeal Part 1 of the Vagrancy Act 1824 and make consequential amendments relating to the repeal of the Acts. It basically covers section 4 of the 1824 Act and section 3 of the Vagrancy (Ireland) Act 1847.

Mr Kingston: If it is essentially saying that they are going to remove those provisions but not address what is already a lack of other measures for the authorities, that would be harmful. It needs more examination.

Professor Brown: You have raised a useful point that we have not addressed so far. As you correctly said, Scotland has different legislative powers to begin with. Local authorities there have felt that they have insufficient powers to deal with intimidating or aggressive begging, even considering that they have a much wider breach of the peace power than we have. The current SNP Government's position is that they will not allow that. If we simply passed what DOJ proposes and repeal, some local authorities in Northern Ireland will probably say that they want to introduce by-laws. You will know this better than me, but would that go to the Department for Communities for approval?

Mr Kingston: Ultimately, it will have to go through the Executive at some level.

Professor Brown: Is that right? OK. It has to go through the Executive.

Mr Kingston: It could be blocked there.

Professor Brown: OK. I did not realise that. What you will see, then, is a piecemeal approach, assuming that it is not blocked. I would also be worried about the fact that local authorities might see it as a real problem here, but we have not legislated across Northern Ireland to deal with it and do not let local authorities do so. If we do let local authorities deal with it, some people might complain and say that the power has gone too far in one local authority but begging has not been criminalised at all in another. There are risks with that.

The enforcement of by-laws is quite tricky, as we know, compared with that of criminal law. I would be worried that not doing anything would certainly lead to some local authorities to say, "We need by-laws to deal with this". There has been an issue with public drinking in that we do not have enacted legislation, although I know that the DOJ has proposed that we introduce new legislation on that in the next mandate. However, councils feel that by-laws are not necessarily effective enough.

Mr McGlone: You have set me thinking about trespass. I am thinking of a range of issues, and the standard answer from the police could be that that is a civil matter or whatever. You rightly touched on the examples of someone with a spray can going into a private housing estate or whatever — it does not really matter — to spray a litany of racist or sectarian graffiti, right through to someone who is caught with gear, breaking into or about to break into a property. I know that that can come under breaking and entering. It could cover the harassment of an individual or about people with a spade and dogs who are about to go badger baiting on private property.

In order to contemporise all those issues that cover trespass, would you suggest that there be one descriptor that says that it is an offence to trespass with intent to commit a criminal offence, or one that talks about trespass with intent to commit a criminal offence and to list what those offences could be?

Professor Brown: That is a good question. The approach of the current Government in London is to have trespass with intent without specifying offences. In Dublin, it is a mixture of the two. I will get the exact wording. There is a more general measure on trespass with intent in the Criminal Justice (Public Order) Act 1994, which says:

That is the more general measure in the Republic.

Mr McGlone: That just refers to a building, not property.

Professor Brown: Or to people being in the vicinity. I did not read the next sentence.

Mr McGlone: OK. Sorry.

Professor Brown: You are right. That is the important point. The Republic of Ireland, when it introduced its hate crime legislation — we will be coming to hate crime legislation in the sentencing Bill — created a version of that, which is the:

That is the example that you gave — where the graffiti is racist or sectarian, there was intention. They also have a specific provision in the Republic that they do not have in England and Wales that says that:

It is interesting what —.

The Chairperson (Mr Frew): Is that in the Republic?

Professor Brown: Yes, that is in the Republic, not England or Wales. In those circumstances, the gardaí can ask the person to move on. I am guessing that that might be used in similar circumstances where harassment of individuals or even politicians is taking place or something like that, for example. Causing fear is not necessarily a crime, so that is maybe why that was distinguished and why there is a separate measure on it.

Mr McGlone: You could interpret that as one person's fear is another person saying, "so what?".

Professor Brown: Yes, it is a widely written clause, so I do not know how often it is used. Was it necessary when you had the general provision that they have in the Republic, and then you have it "aggravated by hatred", if necessary? I must admit that I do not know how often that is used and under what circumstances the guards might use it.

Mr McGlone: Would it be better to have one specific clause that says "trespass with intent to commit a criminal act" — full stop — or that says "trespass with intent to commit a criminal act" and then to have not examples but a specific list of what those acts may be?

Professor Brown: A more general clause with the words "with intent" would be better, because we have specific examples of criminal trespass with intent under specific legislation. If someone is trespassing with intent to commit a sexual offence, that is already covered. We have trespassing with intent to commit theft, and I think that GBH and criminal damage are under the burglary provisions, so you do not have to actually —.

Mr McGlone: And trespass.

Professor Brown: Yes. Others may be influenced by the history of Northern Ireland, and some could cover trespassing in public buildings, which would include here or where I work. There is quite a wide interpretation of "public buildings". Our legislation has specific examples of "trespass with intent", but there is not a general example. As I say, I do not know the extent to which the PSNI uses what is currently under section 4. I could not find information or much discussion on that. If the Committee thinks that that might be useful to have, it would be worth asking the PSNI and the Public Prosecution Service whether that offence is still there, and why, if it seems to be, it is not being used. If it is not being used, when is it being used? Would a modern replacement be something that they would value?

Mr McGlone: Thank you. That is very helpful.

The Chairperson (Mr Frew): OK, thank you. Nobody else wants to come in on this, so it remains for me to thank you, Professor Brown, for your time and input and for the detailed consultation responses that you have kindly shared with us and added to. Thank you very much. It has been very worthwhile.

Professor Brown: Thank you, and take care, everyone.