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26 2006

CRIMINAL JUSTICE ACT 2006

PART 11

Civil Proceedings in Relation to Anti-Social Behaviour

Interpretation and application of this Part.

113 .— (1) In this Part—

“ behaviour warning ” has the meaning assigned to it under section 114 ;

“ civil order ” means an order described in section 115 (1);

“ senior member of the Garda Síochána ” means a member of the Garda Síochána not below the rank of a superintendent.

(2) For the purposes of this Part, a person behaves in an anti-social manner if the person causes or, in the circumstances, is likely to cause, to one or more persons who are not of the same household as the person—

(a) harassment,

(b) significant or persistent alarm, distress, fear or intimidation, or

(c) significant or persistent impairment of their use or enjoyment of their property.

(3) This Part does not apply—

(a) in respect of behaviour of a person who is under the age of 18 years at the time the behaviour takes place,

(b) to any behaviour of a person that takes place before this section comes into force, or

(c) to any act or omission of a person in respect of which criminal proceedings have been instituted against that person.

Behaviour warnings.

114 .— (1) Subject to subsection (5), a member of the Garda Síochána may issue a behaviour warning to a person who has behaved in an anti-social manner.

(2) The behaviour warning may be issued orally or in writing and, if it is issued orally, it shall be recorded in writing as soon as reasonably practicable and a written record of the behaviour warning shall be served on the person personally or by post.

(3) The behaviour warning or, if it is given orally, the written record of it shall—

(a) include a statement that the person has behaved in an anti-social manner and indicate what that behaviour is and when and where it took place,

(b) demand that the person cease the behaviour or otherwise address the behaviour in the manner specified in the warning, and

(c) include notice that—

(i) failure to comply with a demand under paragraph (b), or

(ii) issuance of a subsequent behaviour warning,

may result in an application being made for a civil order.

(4) The member of the Garda Síochána referred to in subsection (1) may require the person to give his or her name and address to the member for purposes of the behaviour warning or the written record of it.

(5) A behaviour warning may not be issued more than one month after the time that—

(a) the behaviour took place, or

(b) in the case of persistent behaviour, the most recent known instance of that behaviour took place.

(6) Subject to subsection (7), a behaviour warning remains in force against the person to whom it is issued for 3 months from the date that it is issued.

(7) If an application is made under section 115 in respect of the person, the behaviour warning remains in force against the person until the application is heard or otherwise determined by the District Court.

Civil orders.

115 .— (1) On application made in accordance with this section, 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—

(a) the respondent has behaved in an anti-social manner,

(b) the order is necessary to prevent the respondent from continuing to behave in that manner, and

(c) having regard to the effect or likely effect of that behaviour on other persons, the order is reasonable and proportionate in the circumstances.

(2) The court may impose terms or conditions in the civil order that the court considers appropriate.

(3) An application for a civil order may only be made by a senior member of the Garda Síochána and shall be made—

(a) on notice to the respondent, and

(b) in the district court district in which the respondent resides at the time.

(4) 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:

(a) the respondent has been issued a behaviour warning and has not complied with one or more of the demands of that warning;

(b) the respondent has been issued 3 or more behaviour warnings in less than 6 consecutive months.

(5) The respondent in an application under subsection (1) may not at any time be charged with, prosecuted or punished for an offence if the act or omission that constitutes the offence is the same behaviour that is the subject of the application and is to be determined by the court under subsection (1)(a).

(6) Unless discharged under subsection (7), a civil order remains in force for no more than the lesser of the following:

(a) two years from the date the order is made;

(b) the period specified in the order.

(7) The court may vary or discharge a civil order on the application of the person subject to that order or a senior member of the Garda Síochána.

(8) An applicant under subsection (7) shall give notice of the application—

(a) if the applicant is the person subject to the civil order, to a senior member of the Garda Síochána in the Garda Síochána district in which the applicant resides, or

(b) if the applicant is a senior member of the Garda Síochána, to the person who is the subject of the civil order.

(9) The standard of proof in proceedings under this section is that applicable to civil proceedings.

(10) The jurisdiction conferred on the District Court by this section may be exercised as follows:

(a) in respect of subsections (1) and (2), by a judge of the District Court for the time being assigned to the district court district in which the respondent resides at the time the application is made;

(b) in respect of subsection (7), by a judge of the District Court for the time being assigned to the district court district in which the person subject to the civil order resides at the time the application is made.

Appeals against a civil order.

116 .— (1) A person against whom a civil order has been made may, within 21 days from the date that the order is made, appeal the making of the order to the Circuit Court.

(2) An appellant under subsection (1) shall give notice of the appeal to a senior member of the Garda Síochána in the Garda Síochána district in which the appellant resides.

(3) Notwithstanding the appeal, the civil order shall remain in force unless the court that made the order or the appeal court places a stay on it.

(4) An appeal under this section shall be in the nature of a rehearing of the application under section 115 and, for this purpose, subsections (1), (2) and (5) of that section apply in respect of the matter.

(5) If on appeal under this section, the appeal court makes a civil order, the provisions of section 115 (6) to (8) apply in respect of the matter.

(6) Notwithstanding the appeal period described in subsection (1), the Circuit Court may, on application by the person subject to the civil order, extend the appeal period if satisfied that exceptional circumstances exist which warrant the extension.

(7) The standard of proof in proceedings under this section is that applicable to civil proceedings.

(8) The jurisdiction conferred on the Circuit Court by this section may be exercised as follows:

(a) in respect of section 115 (1) and (2) as those provisions apply to the Circuit Court under subsection (4) of this section, by a judge of the Circuit Court for the time being assigned to the circuit in which the appellant under this section resides at the time the appeal is commenced;

(b) in respect of section 115 (7) as it applies to the Circuit Court under subsection (5) of this section, by a judge of the Circuit Court for the time being assigned to the circuit in which the person subject to the civil order resides at the time the application is made;

(c) in respect of subsection (6) of this section, by a judge of the Circuit Court for the time being assigned to the circuit in which the person subject to the civil order resides at the time the application is made.

Offences.

117 .— (1) A person commits an offence who—

(a) fails to give a name and address when required to do so under section 114 (4) or gives a name or address that is false or misleading in response to that requirement, or

(b) without reasonable excuse, does not comply with a civil order to which the person is subject.

(2) A member of the Garda Síochána may arrest a person without warrant if the member has reasonable grounds to believe that the person has committed an offence under subsection (1)(b).

(3) A person who commits an offence under subsection (1) is liable, on summary conviction, to the following:

(a) for an offence under subsection (1)(a), a fine not exceeding €500;

(b) for an offence under subsection (1)(b), a fine not exceeding €3,000 or imprisonment for a term not exceeding 6 months or both.

Legal aid.

118 .— (1) Subject to subsection (2), a person who is the subject of an application for a civil order may be granted a certificate for free legal aid (in this Part referred to as a “legal aid (civil order) certificate”) in preparation for and representation at the hearing of—

(a) the application,

(b) an application by the person to vary or discharge a civil order,

(c) any appeal by the person against the making of the civil order, and

(d) any proceedings in the High Court or Supreme Court arising out of the making of the application, the appeal or any subsequent proceedings.

(2) A legal aid (civil order) certificate may not be granted under subsection (1) unless it appears to the court hearing the application for the certificate that—

(a) the means of the person concerned are insufficient to enable that person to obtain legal aid, and

(b) by reason of the gravity of the behaviour alleged to be anti-social or of exceptional circumstances, it is essential in the interests of justice that the person should have legal aid in preparation for and representation at the hearing concerned.

(3) A person who is granted a legal aid (civil order) certificate is entitled—

(a) to free legal aid in preparation for and representation at the hearing of the application for a civil order and any proceedings referred to in subsection (1)(b), (c) and (d), and

(b) to have, in such manner as may be prescribed,

(i) a solicitor assigned to the person in relation to the application for the civil order or any application to vary or discharge it,

(ii) a solicitor assigned to the person in relation to any other such proceedings, and

(iii) if the court granting the certificate considers it appropriate, a counsel assigned to the person in relation to proceedings referred to in subparagraph (ii).

(4) If a legal aid (civil order) certificate is granted, any fees, costs or other expenses properly incurred in preparation for and representation at the proceedings concerned shall, subject to regulations under section 119 , be paid out of moneys provided by the Oireachtas.

(5) A person applying for a legal aid (civil order) certificate may be required by the court granting the certificate to furnish a written statement of the person’s means.

(6) A person who, for the purpose of obtaining free legal aid under this section, whether for himself or herself or for some other person, knowingly makes a false or misleading statement or representation either orally or in writing, or knowingly conceals any material fact, commits an offence and is liable on summary conviction to a fine not exceeding €2,500 or imprisonment for a term not exceeding 6 months or both.

(7) On conviction of a person for an offence under this section, the court by which the person is convicted may, if in the circumstances of the case it thinks fit, order the person to pay to the Minister the whole or part of any sum paid under subsection (4) in respect of the free legal aid in relation to which the offence was committed, and any sum so paid to the Minister shall be paid into and disposed of for the benefit of the Exchequer in accordance with the directions of the Minister for Finance.

Regulations (legal aid).

119 .— (1) The Minister may make regulations for carrying section 118 into effect.

(2) The regulations may, in particular, prescribe any of the following:

(a) the form of certificates granted under that section;

(b) the rates or scales of payment of any fees, costs or other expenses payable out of moneys provided by the Oireachtas under those certificates;

(c) the manner in which solicitors and counsel are to be assigned under those certificates.

(3) Regulations under subsection (2)(b) shall not be made without the consent of the Minister for Finance.

(4) Pending the making of regulations under this section, the regulations under section 10 of the Criminal Justice (Legal Aid) Act 1962 apply and have effect, with the necessary modifications, in relation to certificates for free legal aid granted under section 118 of this Act as if they were certificates for free legal aid granted under the Criminal Justice (Legal Aid) Act 1962 .