Malicious Injuries Bill, 1980: Second Stage (Resumed).

Tuesday, 27 January 1981

Dáil Eireann Debate
Vol. 326 No. 1

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Question again proposed: “That the Bill be now read a Second Time.”

Mr. Keating: Information on Michael Keating  Zoom on Michael Keating  I dealt with this measure at some length prior to the adjournment so I do not intend to delay the House unduly. Since our discussion, and further to it, a number of other issues need to be dealt with. We now have before us the most recent report of the Garda Commissioner on crime statistics which is a helpful barometer of the manner in which we can adjudicate upon the success or otherwise of the administration in relation to dealing with malicious crime and other forms of crime.

I am mindful of the fact that the Minister, in his introductory remarks, referred to this series of statistics and the indication of increase in relation to malicious injury and crime as being one more unfortunate index of a general increase in criminality in our society. The most recent figures from the Garda Commissioner unfortunately give no cause for consolation but underline once again the fact that we are failing to tackle the problems in this area. In 1979, under the heading offences against property with violence, there is an increase in the general category of 2 per cent, from 21,119 [196] crimes recorded in 1978 to 21,535 in 1979. The detection rate unfortunately is still disappointingly low despite the best efforts of the Garda so that on average one is less likely to be caught than not be. In other words well over half of the offences in this area are not detected. I stress there is a significant distinction between detection and conviction and the latter, conviction would be lower still.

I suggest with respect that the Bill before us, which is fundamenetally a fiscal matter and endeavours to tidy up certain matters in relation to existing legislation in respect of malicious injuries, should be more fundamental. What we are really talking about is tidying up the administration of malicious injuries but what we should be doing is talking about how to stop them occurring. Nowhere is that concern expressed in this Bill.

In an article in The Evening Herald on 19 November 1980 the comments of a managing director of a company are reported. He said that school vandalism has soared over the past 12 months to a record £750,000 in insurance claims. That is a staggering figure and is part of a trend. The commissioner's report spells out under the heading arson and malicious damage that there were 1,259 cases of malicious damage of which 150 cases were arson; 661 or 52.5 per cent were detected. In 1978 the total figure for arson was 114 showing an increase for 1979 of 31.6 per cent. In one 12-month period the figure for this most fundamental form of damage showed an increase of almost one-third which is staggering. Nowhere in the Minister's comments or in the comments, actions or attitudes of the Minister for Justice has there been decisive and progressive steps taken to counter such trends. Instead of that we are forced to talk about a Bill which fundamentally does nothing more than recognise that inflation and passing years have made existing legislation outdated and antiquated.

The right way to deal with matters such as minimum or maximum limits in relation to figures in legislation would be to have them index-linked in some way to reasonable economic indicators. This would mean that everytime one wanted [197] to increase the jurisdiction of a court in an area or any time one wanted to increase the minimum damage subject to a claim, one would not have to run into the House and waste its time with a matter which is no more than up-dating to take account of inflation. Many of the measures in this Bill do only that. This House should be more centrally engaged in dealing with the real issues and the real issue in this Bill is not whether the minimum damage subject to a claim is to be increased from £5 to £100, is not whether the District Court should be empowered to deal with claims for compensation not exceeding £2,500 but how to deal with malicious crime in the community in a constructive, enlightened but determined manner. That is not what we are talking about. Instead we are talking about bookkeeping, accountancy and administration. That is not the fundamental job of our Parliament; it is the job of those who regulate the way Bills work.

The Minister should consider incorporating in the Bill a series of amendments which will mean that the next time a similar Bill is introduced we will not have to spend our time arguing about the increases requested by the Minister which do not do anything more than take account of the passing of years and the soaring rate of inflation. I would much prefer a constructive and enlightened discussion in the real area of public concern, which is how we can stop crime and prevent malicious injury. We could be more usefully engaged in such a debate but we are bound to deal with matters which though significant and important in themselves are of less importance than other issues which we will never get a chance to discuss.

A request has been made to me by Deputy Deasy in relation to this Bill and in the course of it he outlined the experience of his local authority, Waterford County Council. Deputy Deasy wants the burden which falls on local authorities in regard to such claims taken off them. Unless we honestly recognise that local authorities in contesting a claim in the context of this Bill stand to lose substantial sums of money then we are doing local authorities, and the services they [198] provide such as housing, an injury. I will deal with the amendment he has suggested in more detail on Committee Stage but the essence of it is to have included as a charge to malicious injury expenditure the cost incurred by a local authority in defending claims. At present those costs are not allowable. In one case in Waterford recently the cost of fighting such a claim amounted to about £30,000 and the council had to stand the loss of that money. Local authorities should not be asked to do so because it means that people are deprived of essential services. They fight claims on behalf of local citizens but in doing so they run the risk of having to cut back on their services. If local authorities accept the loss from now on they will tend not to contest such claims so as not to incur such heavy costs. An injustice would arise in such cases and there would be a heavy cost to the State. I have no doubt that the Minister will consider this matter sympathetically.

I do not think any Member will disagree with the sensible request to increase the monetory limits in the Bill. In fact, the Minister is only taking account of inflation in recent years. The Minister should consider some way of linking them to economic indicators. The increase in the jurisdiction of the District Court can be more appropriately dealt with in the course of the debate on the Bill dealing with our courts but this change will mean a greater sense of realism. However, it will present problems because the District Court has difficulty in dealing with its present work load.

The power to be granted to local authorities to pay compensation without delay on foot of court awards is welcome. It will mean that those granted decrees will get justice. In the past the payment of such awards was delayed for years. There is a need for vigilance in regard to that power and to the power to settle claims out of court. In some circumstances there could be unconscious abuse of such powers which could mean that public money is dispensed with more largesse than appropriate. I am sure some mechanics will be devised for dealing with those matters. I am concerned that under the Bill it will no longer be a [199] defence to an application for compensation for malicious damage merely to show that malicious damage was caused by a child or person of unsound mind. I have serious reservations about removing that defence. It is contradictory to suggest, as the Bill does, that one can have a malicious injury inflicted by a person of unsound mind. Clearly, there is an injury inflicted but the degree of maliciousness obviously implies full knowledge, clear consent and some maturity in the mentality of the person involved. The person of unsound mind, by definition, does not have some of those qualities. I imagine that shortly after the Bill is passed a test case will be brought before the courts in relation to that matter. I do not understand how a person of unsound mind, or a child, who arguably is not aware of what he or she is doing, can be found guilty of malicious injury, something which implies a deliberate and knowing attempt to inflict malicious damage or injury. The Minister should consider that matter carefully.

There is a proposal in the Bill to the effect that compensation will not be payable where the property in question does not have planning permission or where the development was not done in conformity with planning permission. In general I approve of that but there should be some exceptions. Prior to 1963 there was virtual open season with regard to planning laws here and those in breach of planning laws at present need only prove that the development concerned existed prior to 1963. If a person purchases or inherits a property part of which is in breach of the planning laws I do not think he should be penalised. The intent is to encourage people to keep within the planning legislation and it is timely to do that because the planning laws are largely flouted and ignored. We have the ludicrous position of people being entitled to apply for permission to retain illegal planning developments even though they entered into such illegal work knowingly. Consideration should be given to exceptions such as cases where people either through ignorance or through an historical accident or through inheritance [200] acquired property. In such cases it is reasonable to accept that they did not know about the degree of legality in relation to the planning laws. The Government should assist such people in rectifying the matter. With that exception the principle in the Bill is acceptable.

I find one proposal in the Bill a little mysterious. Loosely worded it means that a court would be empowered to reduce the amount of compensation it would otherwise award having regard to the general conduct of the applicant including, in particular, his conduct in respect of any precautions he might reasonably have taken to avoid any damage or loss.

There is a significant implication here that one may make a judgment retrospectively about alleged action or inaction taken by a person who makes a claim. That should be looked at very closely and I hope to do that in co-operation with the Minister on Committee Stage. It could mean that we may get attempts to impute motives or to imply actions or acts of commission or omission prior to the incident, say a fire, in which a person will find that he will have to produce evidence to defend his innocence. The onus must always be on people who bring a prosecution to prove guilt and I am a little unhappy about that section which apparently gives the courts — this is the interesting part — not the right to say “You did not take precautions, therefore you are not entitled to the compensation” but “You are somewhat culpable or we think you are slightly culpable and therefore we will reduce the compensation”. If the real thrust of this section is to try to keep these awards down, let us say so, but I would not be happy in the case of a decent person who genuinely has suffered injury that for some technical reason far above his head the court decided that, as the phrase is, the general conduct of the applicant — whatever that means — was found to be deficient in some way. Now and again the conduct of all of us could be found to be deficient and I would hate to think that it might be the basis for a reduction in a compensatory award. I would like the Minister to spell out precisely what that [201] section means and until then we will withhold our judgment in that regard.

Section 5 (3) states that a person shall be entitled to claim compensation for property damaged maliciously within a harbour or within one mile beyond the coastal boundary of a local authority area. That is right and proper and, depending on how the subsection would be implemented, we will support that. I would like to know how that extension of jurisdiction is to be implemented and who would be involved in the process of bringing the matter to light, commenting on it, supplying evidence and so on.

The unlawful taking of property in the course of a riot will be covered by the code. I would have thought that present provisions would allow for malicious damage say in the event of trouble at a football match. This section indicates that it is felt necessary to enlarge upon that. I hope that the Minister will tell us a little bit more about this when he is replying. What is the rationale of it?

I am pleased that the period for lodging claims is to be increased from seven to 14 days and I would not be adverse to it being increased much more than that. I cannot see the reason or immediate need for a deadline in this regard. The lodging of a claim is not the easiest matter in the world. It needs legal advice and assistance, in some cases a good post assistance, and a certain amount of concentrated attention by the person making the claim which he may not be able to afford in the wake of perhaps a very traumatic event like a fire or serious damage to property. I do not see why 14 days should be the limit and I ask the Minister to consider the possiblity of increasing it still further. It is immaterial whether it is 14 days or 28 days. What is material is that a person who has been hard done by in this respect should get the opportunity of achieving justice. It has happened that some genuine person lodging a claim eight days after an incident has been disbarred from having that processed in the same way as the Bill would propose that anyone doing it after 14 days would be. That is over-bureaucratic. I cannot see the reason for it and I ask the Minister to be a lot more flexible in his approach to [202] accepting claims than the 14 days' limit would allow. Again maybe the rationale here is not clear to me and if so I would like to hear it.

In line with that, as there is a proposed increase of 100 per cent in the date of lodging claims there is a similar percentage increase proposed in relation to the period of limitation of commencement of proceedings to be reduced from six to three years, except on this occasion it is inverse. Again I would like to see that justified. Any parameter which tends to reduce the opportunity for people to obtain justice has to be at least frowned upon initially and justified by the Government of the day. The whole process and the procedure of adjudication on such claims is the forum which is supposed to be able to make an assessment of the degree of damage, compensation and justice applicable. We should not pre-judge that by setting limits if they are avoidable. I know there has to be some limit, but I think that the six-year limit has served us not badly and I would like to hear the argument for a reduction. Again it can happen that people by omission or by presuming that a solicitor has done it on their behalf or that another member of the family has looked after it would find suddenly that it is not being done or has not been done. Putting that with the fact that at the moment adjudications on these take two or three years anyway on occasion, it can mean that before one knows whether it is even coming up in the court the time limit within which people are supposed to have applied has expired. I am not happy about that and I cannot see the reason for it. If there is some reason why the six-year limit has not served us well that might be brought forward.

There are a number of other relatively minor points but my comments today in conjunction with what I said before the adjournment will suffice. I ask the Minister, therefore, to rid us of legislation which is principally about updating financial limits and taking account of inflation. These matters should be dealt with in another and, in my view, better way. Let us get down to the real issues. Why is malicious injury increasing in the community? [203] Can we do anything about it? I believe it is increasing a lot more even than official statistics show. Any garda will tell any inquirer that more and more people are simply not reporting minor malicious damage because the Garda are hard pressed to deal with the problems they have to face at present. Therefore, there is probably under-reporting of such incidents and poor detection, relatively speaking — that is not the fault of the Garda but of those who do not give them the resources — and an increasing figure of incidents reported and detected. Put together and in conjunction with other crime statistics they show us as a Parliament and a people increasingly unable and even at this stage unwilling to confront the real problem of crime in our community. I would like to see us dealing with a Bill which would endeavour to tackle that fundamentally rather than the economic and fiscal implications of issues arising from such concerns.

Mr. Tully: Information on James Tully  Zoom on James Tully  The Bill before the House is very far short of what I would expect such a Bill to be. If we remember that it is repealing portion of the Grand Jury (Ireland) Act, 1836, the whole of the Malicious Injuries (Ireland) Act, 1848 and the whole of the Malicious Injuries (Ireland) Act, 1853, among other things, we realise that we are trying to amend rather than replace very much out-dated legislation. One other such Bill came before the House dealing with building societies during my time over there and when the matter was brought to my notice I was horrified to find that the shortcomings in the legislation were due mainly to the age of the Act, which then was 103 years old. It had been introduced by the British long before this State became independent and for that reason it dealt with an entirely different set of circumstances from the one in operation at present.

Similarly, this legislation which we are trying to patch up originally dealt with many things that have changed so much that they bear very little relation to what is happening now. Deputy Keating spoke of the alarming rate at which vandalism is increasing here and elsewhere. I would [204] not be as despondent as he is about this because while no doubt malicious acts of various kinds are being committed on a far greater scale than previously, it is also true that in every area the number involved is relatively small. If parental control were tightened up and if the powers that be, particularly the Garda, were empowered to do the job and if when taken to court these miscreants were dealt with in some way rather than by telling them to be good boys and not to do it again — although they have done it 20 times already — there might be a reduction rather than an increase in vandalism.

Having said that, I am glad the Bill has been introduced, inadequate though it is. I find it hard to understand a number of items in it and there are a number of items which are very well thought out. These are some of the points I want to make. First, there is the whole matter of property which is damaged. At present the biggest trouble is in regard to public property. In every city, town and village we find that any telephone kiosk is fair game for the vandals. If one asks local people who should know if they are aware that this is happening they usually say that the damage is done by “strangers” coming from “outside”. If the area is watched as it has been by interested people from time to time it usually turns out that the damage is done by the sons and daughters of the very people who talk about “outsiders” coming and doing it. This is one of the unfortunate aspects of modern vandalism. I believe the legislation before the House could have contained a provision to hold responsible parents or guardians of under-age people who do damage. We might get a reduction of vandalism in that way.

There is reference here to people of unsound mind or children causing damage. That situation exists under present legislation because, peculiarly, it can be so interpreted. I had experience of two children aged 12 and ten attending a school for the mentally handicapped who, having been brought home by a school bus decided that five or six pennies [205] they had noticed on the teacher's desk could be spent by them if they had them. They thumbed their way back to the school, broke into it, stole the pennies and before leaving, set the school on fire. I think the damage cost £21,000. The first court to which the case went decided that there was no jurisdiction because the boys were not mentally sound but on appeal it was decided that this was malicious damage and the ratepayers who were then paying all the rates in the area had to pay full compensation. This sort of thing happens and I think what is included in the present Bill should be the other way around. It should not be held that people of unsound mind can commit a malicious act or that children who have not reached the age of responsibility should be able to commit a malicious act. That is the type of thinking I could not agree with and I believe it should be changed before the Bill leaves the House.

There is also the question of the number of people involved in damage to property. I am rather surprised to find that if three people do something it is a riot and it can be included while, if the number involved is fewer, it cannot be included. I do not think that is a proper interpretation. There is also the question of the first £100 not being counted. I disagree entirely with the former speaker on this because while £100 may not be very much to Members of the House it is a lot to people getting perhaps one-quarter of it as a weekly income. Take car damage: breaking the windscreen or the windows is not unusual and somebody who needs a car to go to work may be asked to bear the cost of the damage himself even though the amount involved may be £50 or £60 but because it is under £100 he cannot recover compensation. It may be that the person has £50 or £60 a week to keep his wife and family. Irrespective of what is done in England or Northern Ireland we should think for ourselves and I think the thinking here is wrong. At present when so many people have incomes on which they can barely exist it is wrong to wipe out the first £100 compensation or rule out a claim for less than £100.

A few years ago when local authorities [206] repaired roads, they tarred them and very often left chippings on them. It was ruled in a number of courts that if somebody travelling such a road had a windscreen smashed by the chippings the cost could be claimed against the local authority. Whether liable or not under the proposed legislation such claims would be ruled out because the windscreen of a car will not cost £100.

One of the good points of the Bill is the suggestion that compensation can be paid out by the local authority without having recourse to the present system whereby the claim must be included in the following year's rates before the money can be paid out. I had an instance of a person I know well who, just before Christmas, received compensation for damage done to a car two years previously. While the law said he could not be paid until it had been included in the rates there was no limit at the other end. As a result the local authority, like most local authorities, did not pay until the end of the year. Instead of having the claim paid as soon as the rate was struck and money coming in, it was not paid until the end of the year so that it was well over two years before payment was made even though the decree had been granted in good time. This is wrong because the value of money changes so much between the time the repair is done and compensation paid.

I mention cars particularly but many other things are being damaged by a relatively small number of persons. I was amazed to find recently that a local authority had reported well over £1¼ million due to be paid by them if the cases were decided against them as almost certainly they will be. There must be another and a better way of dealing with this matter.

It is all right for the Minister to say it is better to leave this communal payment because it costs the ratepayers so little. In his opening speech he referred to the fact that some people considered it was a special punishment. I believe that was the reason it was introduced and I know it is still in operation in some other countries but we should get away from that. In fact, we got away from it when we [207] stopped having a special rate for a separate area. In my view there is no justification for the system as it stands. If somebody from one county goes to another county and causes damage amounting to hundreds of thousands of pounds, why should the unfortunate county in which the damage is caused be held responsible? In many instances the person who causes the damage pays only a fleeting visit to the area where the damage is caused. That is entirely different from the situation where young people cause vandalism on a small scale.

I am not pillorying people from this city but very often there are situations where people from Dublin steal cars which they drive out of the city and county and eventually crash into a hedge or bank in a neighbouring county. The car will be left there until it is completely broken up. Who is responsible? It is not the authority of the area from which the car was stolen but the authority of the area in which the car was crashed. This is something that is difficult to understand. There is very bad liaison between the authorities and those who should be responsible for tracing stolen vehicles. Claims amounting to hundreds of thousands of pounds are made in respect of damaged vehicles and many of them would not have arisen if somebody in authority — I am thinking in particular of the Garda Siochána — reported to a central authority the numbers of the abandoned cars in their area. It is ridiculous that a car can be driven into another area and left there until it is vandalised with the State having to pay all the costs. The Minister might consider this matter.

There are quite a number of points that could be dealt with more effectively on Committee Stage. I should like to see quite a number of amendments introduced to improve the Bill. I agree with the previous speaker that this is not what most of us expected would be put before the House. We considered a Bill to change the law completely should have been introduced, not just some measures to amend it. The Minister is aware that the previous Government introduced a system that ultimately pays compensation [208] in excess of 20p in the £ on the rates and that system does not appear to have changed. I should like the Minister in his reply to explain why the amount in the Estimate has dropped from £3 million last year to £1 million for this year. I do not believe in modern miracles. There must be some reason why the figure has dropped so considerably. This is the amount being paid to local authorities. Does the Minister expect a very substantial reduction in vandalism and does he think that the amount chargeable in the next 12 months will not be nearly as much as was payable in the previous 12 months? Does he think it is a nice, handy figure that can be put down in a budget and replaced at a later stage——

Mr. Kelly: Information on John M. Kelly  Zoom on John M. Kelly  Now the Deputy is talking.

Mr. Tully: Information on James Tully  Zoom on James Tully  It is wrong to have such a situation arising on a Bill like this. If the Government expect co-operation from us we should know what is in their minds. There should be an explanation as to why the Government consider that £1 million will be enough for 1981 while the amount for 1980 was £3 million. I am sure there was not such a reduction in the amount of vandalism.

Mr. Kelly: Information on John M. Kelly  Zoom on John M. Kelly  The State is proposing to take on an additional burden.

An Leas-Cheann Comhairle: Information on Seán Browne  Zoom on Seán Browne  We are starting to deal with the Estimates now.

Mr. Tully: Information on James Tully  Zoom on James Tully  It is only right that we should know what is being proposed. It is a fair question and, knowing the Minister, I am sure he will make an effort to give us the information when he is replying on Second Stage.

Property is defined as including rights of fishing, shooting or herbage that are not compensatable under the present law. It was common practice some time ago to blow up salmon and eel weirs owned by people whose families had got them by way of a gift from some British king and there was no provision for compensation in such cases. I see now that the Minister proposes to include such cases. I have known also of instances [209] where valuable woods were burned and, again, compensation was not payable. If my reading of the Bill is correct, this is now being included. I should be very glad to know from the Minister if he could give us an estimate of the amounts of money that might have been involved if such compensation were allowed. Will the Minister tell us what provision has been made in this area?

Reference has been made to buildings erected without planning permission and I go along with the Minister in his comments on this point. If somebody deliberately flouts the planning laws the State is quite entitled to deal with him. If a person flouts the law and if the property that he erects is subsequently damaged, in my view it is quite ridiculous that he should make a claim against the State or local authority. I am also interested in the decision to reduce the period from six years to three years. This is something new in law. Under a number of other Acts there is provision for a six-year period but now we are providing for a three-year period. Will there be amendments of various Acts to reduce the period to three years?

I entirely agree with the previous speaker that the time for lodgment of claims at present is ridiculously low. Somebody who may not even know where, for instance, the damaged property is, gets only seven or eight days to lodge a claim and cannot do so because of this. It is proposed in this Bill to increase that time to 14 days. It should be longer. I would not leave it open-ended, however. There should be, as with the planning laws, a period of 30 days during which a person would have the right to make a claim. There may very often be reasons why a claim cannot be made in the ridiculously short period. The law should be there to protect those people's rights.

I agree entirely with the decision that anything up to £2,500 should be under the jurisdiction of the District Court, which is one way of ensuring that the matter could be dealt with. I also entirely agree with the proposal that local authorities can make an offer to deal with the claimant outside the court, which will [210] shorten proceedings, as the Minister said. This also can reduce very substantially the legal costs involved. Very often legal costs amount to more than the actual claim.

My car was damaged and the insurance company responsible for the person who damaged my car refused to accept a demand for £550. Subsequently, at the door of the High Court, they agreed to pay £950, because a whole string of people who should not have come into the case at all had to be produced. It did not look very much as if someone was trying to help his friends. It should be possible to negotiate, either directly or through the legal advisers, with local authorities and settle cases out of court, if this can be done. This would be very much easier for the claimants and much cheaper for the local authorities concerned.

I am not exactly in favour of the suggestion that it should be put on the basis that, in the event of going to court and money being lodged in court, if it exceeds the amount which is eventually awarded, the person making the claim will eventually have to carry the cost of the case.

One other thing about which I am not too sure is that the notice would have to be served within the period on the local authority and on the Garda. Why the double notice? Would it not be sufficient to have the notice served solely on the local authority? Many may not be aware of this stipulation and unless they are legally advised may find themselves shut out because of this stipulation.

Finally, with regard to damage done to property at sea, this is something about which one would have to be very careful. Take for instance, a port like Drogheda, half of which is in County Meath and half in County Louth. If a craft comes out from that port from the Louth side and the beach along the Meath side is damaged or vice versa, is it reasonable or right that the area outside which the craft is would have to carry the cost if there is no way of deciding which side the craft was on before coming out?

I am glad that the Bill has been introduced, although I am not happy that it has done everything that I would expect or hope that it would do. Would the [211] Minister have a good, hard look at the Bill before letting it through? Again, would the Minister please tell us how he proposes to pay more compensation with less money, unless this is for election purposes?

Mr. Fox: Information on Christopher Joseph Fox  Zoom on Christopher Joseph Fox  The introduction of this Bill is another step forward by Fianna Fáil on the road of social commitment to the people of this country. In particular, section 15, the section which provides for the abolition of a local levy in the event of a malicious injury claim must be seen in relation to the legislation already passed which removed rates from private dwellings. This is in full conformity with the thinking that local houses should not have to pay a rate or a bill which would be penal and unjust in relation to whatever might happen within the jurisdication of their local authority. This is also very important from the point of view of allowing the local authority more scope to ensure that where such claims exist they can proceed rapidly and be settled to the satisfaction of the unfortunate victim.

When in a position of dispute with one another as to who is liable for compensation, the local authorities should be made to pay on the grounds that where the court case takes place that local authority is to be liable, irrespective of the dispute that may take place between two or three local authorities in relation to liability. It is not fair on persons or firms who, through no fault of their own, are involved in proceedings to recover money under these acts that they should be precluded from swift settlement because of a dispute between local authorities as to who is liable for what. There might be room for a slight change in this area. Nevertheless, the whole idea of this section is commendable and certainly is a vast improvement on previous legislation.

The thinking in relation to damage to an unauthorised structure which had not the necessary planning permission is also very interesting. In this context, another type of malicious injury that occurs is damage to the environment of many of [212] our cities and towns by the unauthorised destruction of property by private individuals or companies for purposes of rebuilding or renewal. In these circumstances, it is impossible for the local authority to take an action against people who deliberately destroy their own property, thereby changing the environment of that district. Would it be possible to introduce a section or subsection into this Bill to penalise people who flout the planning laws and regulations of the various local authorities by maliciously damaging their own property for financial gain, to rebuild on the same site, with no regard whatsoever to planning laws or regulations in existence?

It is in the Bill that if an unauthorised structure is damaged, then no compensation is forthcoming, but I suggest that if people deliberately damage existing buildings they are causing malicious injury to the residents of that area. There is also a suggestion here that if an unauthorised structure is destroyed and no compensation is forthcoming, the owner of that structure is in a very difficult position, perhaps through no fault of his own, in that he cannot seek compensation. There might be a temptation for very bloody-minded people to do something deliberately of a malicious nature which would not be the subject of compensation.

The other areas of the Bill which are a big improvement are those dealing with compensation at sea and for property on boats. With the enormous expansion of the fishing fleet during the past few years this must be of importance to the owners of fishing boats and gear and is to be welcomed. Unfortunately these people are occasionally subject to malicious acts and the section is certainly a step in the right direction. In this context one would wonder about some of the harbour authorities who do not improve their installations and occasionally damage can be done to boats while they are in harbour due to matters which are the direct responsibility of the harbour authority. I refer in particular to the harbours at Balbriggan and Skerries which are the responsibility of the Dublin Port and Docks Board. They are certainly not [213] spending money on these harbours and boats have been damaged at these locations through negligence on the part of that authority. Can this damage be construed as malicious because of the deliberate negligence of the authority in fulfilling their obligation to maintain their property at these locations? This is an interesting point which will have to be carefully examined when this legislation is passed. A small fisherman who finds that his boat has been damaged by lumps of masonry will look to this Act for protection. The damage may be caused as a result of those who own the harbour and allow others to use it when not maintaining it properly.

This type of situation could arise in other areas — for instance, in regard to dangerous buildings which have not been either repaired sufficiently or demolished by their owners. A car owner may find that his vehicle has been severely damaged and he will look to this legislation to recover his losses. I welcome the Bill and make those few suggestions in the hope that they will be considered with a view to protecting the people concerned.

Mr. Kelly: Information on John M. Kelly  Zoom on John M. Kelly  The truth about this Bill is that, despite the praise lavished upon it by Deputy Fox, it is a piece of medieval junk to which this Government are adding a further dimension. The truth about the malicious injury system is that its roots lie in very early Norman England, if not even in Saxon England. It is a penal system designed to punish the inhabitants of a locality for failing to apprehend wrongdoers or for allowing wrongdoers to exist and flourish in their midst. It bore that character right into the 17th and 18th centuries and the forerunners of the legislation scheduled here specifically mention areas which are haunts of reputed Papists as being appropriate areas to lay under charge in respect of damage committed. It is sad that Deputy Fox should think this an apposite moment to praise his own side because a serious look at this legislation and its history would have convinced the Government who wanted to reform it that the entire principle whereby the inhabitants of a locality are laid under contribution for a wrong committed [214] in their geographic midst is absolutely out of tune with the 20th century.

Not only is this the case but, as I hope to show the House in a very few words, it is repugnant to our own Constitution. Although I quite agree with the proposal that the State should contribute anything in excess of an award the product for which can be found only in 20p in the pound or upwards and that this mitigates the impact of a malicious injury award on the individual ratepayer, I warn the Government that they are now proposing to pass into law something which in my view is constitutionally infirm. They can ask their own advisers about it. It is infirm because of the basis on which this legislation ultimately rests, one which proposes to penalise the entire inhabitants of a locality irrespective of their individual share of fault, if any. It proposes to penalise the inhabitants of a locality but not the inhabitants of the locality next door, even though in respect of the only matter which ought to be material- —mainly, culpability, real or imputed — there is nothing to choose between them.

If I were a cantankerous or litigious ratepayer and found myself being charged even as little as £20 on my rates bill in order to meet the local authority's malicious injury bill, I would be strongly inclined to challenge the constitutional propriety of it. I would not have to go to the High Court or Supreme Court to do so because the requirement that one starts in the superior Courts only applies to challenging Acts of the Oireachtas. When this Bill becomes law it will be an Act of the Oireachtas and it would be an expensive business to challenge it. However, it would be enough for me to challenge in the District Court any of the antique Acts which provide the pedestal on which this legislation will repose. I may be wrong about this but I will briefly explain the reasons for my opinion. Perhaps the Government's legal advisers will tell them that what I am saying is a bottle of smoke and to carry on. If so, that is all right and I have not that much pride as to be offended about it.

If one were to neglect the constitutional dimension of the entire system this [215] Bill is undoubtly an improvement in as much as it is a step in a more rational direction in some respects than existing law, but it still carries the infirmity which is borne by the entire malicious injury code. Deputy Tully, who did not purport to give anything but a layman's view, put his finger on this infirmity when he said that it seemed insane that, although the obvious perpetrators of a wrong might be known not to come from a particular district, nevertheless the district in which they perpetrated the wrong was the district to be laid under contribution for the purpose of malicious injury compensation. I endorse everything Deputy Tully said on this matter. Of course it is an absurdity and I will give the House from my own experience at the Bar an instance of how this absurdity can work in a very extreme form.

I have forgotten which side I was on but I recall CIE bringing a malicious injury application against Kildare County Council in respect of damage which CIE said had been caused to one of their trains by football hooligans travelling back from Carlow to Dublin. It was the belief of CIE that the damage was caused while the train was traversing County Kildare. The claim failed because CIE's evidence was a bit shaky and the judge could not be absolutely persuaded that the damage might not have been caused at the point when the night express from Carlow was hurtling over the boundary of County Dublin at Hazelhatch. Only that trivial evidentiary debility in CIE's case prevented the ratepayers of County Kildare in or around the year 1960 from being stuck with the bill for damage caused to a train by hooligans resident in Dublin who had spent the day in Carlow and had never set foot in County Kildare, merely because the train was traversing the county at the moment when the CIE inspector and guard believed that the seats had been ripped, the windows broken and the lavatories smashed. That is an extreme case but anyone who has been at the Bar or practised as a solicitor could not only endorse it but probably produce even more absurd cases.

Take the case of the vandals Deputy [216] Tully had in mind, who travel on a bank holiday to Bettystown and commit damage there. The people of Meath are stuck with that damage. Take the case of hooligans who travel to Bray and commit acts of vandalism there. It is not the people of Dublin who, if any responsibility is to be borne by the neighbours who might be thought to be responsible for the way the children are being brought up, will have to pay for that, it is the people of Wicklow who will have to pay. Sheep farmers from Blessington to Baltinglass will have to contribute in some shape or form to restore the malicious injuries caused by people who may have come from a Dublin suburb simply because the damage was committed across the boundary in the town of Bray.

That is an absurdity but it is an absurdity which has a special dimension in this country. To carry that absurdity through into law represents a breach of the spirit and of the letter of Article 40.1 of the Constitution which provides that all citizens shall as human persons, be held equal before the law. That provision and comparable provisions in comparable constitutions, like those of Germany or Italy, do not mean that every citizen has to be treated in exactly the same way for all purposes all the time. If it did, all legislation would be futile. Legislation has to classify and divide citizens, cases and situations into categories and apply different judgments and assessments to each category. It would be futile otherwise.

The criterion on which the classification is based has to be reasonable. It has to be one which is not invidious or arbitrary. That is the point we are dealing with here and it is being repeatedly laid down by the courts of this country and by the courts of other countries with comparable constitutional provisions. An arbitrary, casual discrimination with no reason behind it cannot be defended when measured against a guarantee of equality before the law. The Government have their legal advisers to contradict me if I am wrong, but I believe the differentiation which will allow a citizen in Shankill, County Dublin, to escape contribution for an act of vandalism committed [217] in a dancehall in Bray by somebody from Balbriggan, but will require a citizen in Baltinglass to pay, is a breach of the provision I am talking about, because it is a discrimination which is entirely arbitrary. It is not in any sense related to the provenance of the wrongdoer — his known provenance, his likely provenance or his putative provenance. It is related simply and solely to the administrative area in which the wrong has been committed.

I want to remind the House that that provision goes back to the 11th or 12th century when the administrative divisions of Saxon England were penalised for allowing rogues, vagabonds and bandits to roam unmolested through their territory. It also goes back to the 17th century and was supposed to terrorise districts in Ireland where people permitted Papists, Raparees and Tories — and the ancestors of some Deputies who are my political opponents — to roam at large through their territories, into making sure these things did not happen. That might have had some reason when there was no police force, no proper law and order and when the only way the King's peace could be kept was by pushing, in this crude way, a measure of responsibility onto the inhabitants. How can that be said of the inhabitants of a surburban terrace in Bray, County Wicklow, in regard to hooliganism committed by people from Dublin or Wexford? Surely that is an arbitrary distinction.

I want to make it clear that I do not complain about the principle whereby the public should compensate the victim of malicious damage. That is a necessary social measure but it should be a contribution levied on the public at large and not on a particular administrative district in which the act is committed for some reason which has no possible connection with the people in that district and for which they can be asked to bear no responsibility.

As a matter of procedural convenience I would have no objection to the local authority being made, for court purposes, the nominal respondent in malicious injuries claims. There could be no objection to that because it is convenient [218] and there is usually a county solicitor and the local authorities are equipped to handle litigation, defend claims and so on. There could be no objection to that provided the burden of the award does not fall on the ratepayer.

Notwithstanding the mitigation contained in this Bill, it is clear that that burden will in some measure fall on the ratepayer. That is recognised by the Bill because in section 17 the ratepayer is specifically given a status in regard to appealing a malicious injuries award. The point I am making is that it is tacitly recognised that the ratepayer is ultimately the victim of the system even though, I freely admit, in a mitigated form. In section 17 an appeal against the grant of an award may be taken by any ratepayer entitled, by virtue of section 10(2), to appear and be heard. Any ratepayer who is so entitled shall be entitled also to appear and be heard at the hearing of an appeal against the decision of such application. In other words, this Bill, produced by a Government who constantly issue certificates to themselves of purity in regard to the pursuit of national ideals, is simply another decoration stuck to the end of a long train of Saxon legislation.

The right thing for the Minister to do is to withdraw this Bill, although there are some sections which could be rescued. We should frankly admit that malicious damage is a charge on the entire community, ought to be recognised as such, and met out of the Central Funds. While there could be no objection from the litigation point of view to the local authority being made the nominal respondent, the payment of the award should be automatically reimbursed in full by the Central Fund, and not merely to the extent of the excess over 20p in the £.

There is a very serious weakness in respect of this arbitrary distinction where the inhabitants on one side of the line, although they have no reasonable putative responsibility for the commission of an act of malicious damage, can be asked to contribute while the residents 100 yards away or on the far side of the road who equally have no responsibility, cannot be asked to contribute. That is arbitrary [219] discrimination. In many malicious injury cases when the provenance of the offender is known — because the offender has been apprehended and convicted — the arbitrary nature of this discrimination becomes even more glaring. If my neighbour in south Dublin goes to Bray and commits an act of vandalism — if one is going to talk about putative responsibility for not keeping the peace and keeping people under control — it would be more reasonable to fix me with the liability for what my neighbour has done than to penalise the people in Bray, among whom he has only been an unwelcome visitor. There might be some sense in that — I still think it would be an arbitrary and unjust system — but there might be some sense in that. But not at all, I am let off the hook, I do not have to contribute one penny, nor do any of the other neighbours. The people who have to contribute are the people who by accident happen to inhabit the administrative section in which this act of vandalism has been committed.

It is clear that this system which we are perpetuating, although in mitigated form, is a violation of Article 40(1). In addition to that, although this aspect is less serious, it is a violation of Article 38 which says that no person shall be tried on any criminal charge save in due course of law. I admit it does not appear on the face of the Bill that anyone is being tried or convicted of anything, but this Bill has to be considered in the context of the legislative corpus on malicious injury which goes back — the stuff which is still in force goes back to the 1830s, I think, maybe the earliest ones are now being repealed. Certainly there are Acts of William IV here and that means the 1830s. There are still some of Chapter 116 of the sixth and seventh of William 1V in force, so the code we are talking about as being still in force here goes back to the 1830s. It goes back seven hundred years further than that in historical fact.

In historical fact it is a penal system. It is intended to punish inhabitants of a district for allowing crime to take place in their midst. To the extent that that [220] nature still adheres in this legislation, it is a breach also of Article 38(1), because that article says that no one shall be tried on any criminal charge save in due course of law. It seems to me a fortiori, and nobody would waste the time of a court in arguing such a point, that if a person cannot be tried on a criminal charge save in due course of law, still less can a person be punished for a criminal offence save in due course of law. Due course of law in this country means, as repeated court decisions have made plain, that a person cannot be punished except for a known offence, an offence known to the law, which has been individually brought home to you. There is no such thing as guilt by association in our State, nor should there be.

There is no such thing as guilt which putatively sits on somebody because of something which the law finds it convenient to assume he has left undone. That does not exist in our law and cannot exist in our law. This system has a conception of that kind at its core. I admit that, with the improvement which this Bill represents, the average ratepayer will not be very heavily mulcted in respect of malicious injury claims no matter how many there may be or how frequent they may be or how heavy they may be. Nonetheless, the principle of the thing, whereby a ratepayer can be asked in respect of a system which imputes guilt to him, without any trial, without any consideration of whether he could have done anything to stop the wrong from being committed — that system is a violation, even though I admit a fairly trivial violation, of Article 38 (1).

I do not want to bore the House on the subject. I hope I have made my feelings about it plain. The Government, if they wish, can take legal advice about it, because I may be wrong in some of the things I have been saying. The Government can take their own course. It would be better and would make the Bill far less constitutionally vulnerable and would put the whole system on a more reasonable basis if the State was willing to assume, not just whatever the excess is of 20p in the £, but the entire burden of recouping local authorities for malicious [221] injury awards. That would not really be revolutionary, because the State is now committed in any case to supporting local authorities by means of extremely large block grants intended to represent — although, of course, they do not—and in the last two budgets have not come near to representing the revenue lost through the abolition of domestic rates. Since the Government are expected to contribute heavily to local authorities it does not seem to be a very serious matter if they simply made a clean job of this, took malicious injury awards under their wing and scrapped the idea of levying even any proportion of an award on local ratepayers.

The absurd so-called local levy, although it was not often used, was a medieval system brought to a very intense point, whereby the inhabitants even of a single townland could be stuck with the entire sum of an award if it was thought that that townland contained a population which had gone in for rick burning or for cattle hocking or whatever the offence concerned might have been. That was a medieval principle in a very extreme form and I am glad to see it is being done away with by the Bill. But the principle which underlines this eight hundred years or more of law is still there at the heart of the Bill. It is not consistent with our Constitution and it would be far simpler, more sensible and it would cost the State nothing to take over the whole of malicious injury awards and not to leave the system open any longer to the kind of reproaches I have been levellling at it.

I would like to list a few points which are really Committee Stage points but I will list them briefly so that the Government can take a look at them if they think fit. On page 4 of the Bill, section 5, we still have this phrase about three or more persons unlawfully, riotously or tumultuously assembled together. I think I am right in saying that the whole business of unlawful assembly, let alone riotous assembly or tumultuous assembly, is a very dark part of the law. Although there are a couple of relatively recent Irish dicta on what an unlawful assembly is, they are not very numerous and any counsel [222] would be hard put to it to explain exactly what an unlawful assembly is and the same goes for explaining what a riotous assembly is. I cannot recall offhand any recent Irish authority of what a tumultuous assembly is. Unless the law advisers to the Government know exactly what they mean by this stuff, they should not put junk like that in merely because it was in the 1836 Act.

Going back to another of my cases when I was at the Bar, appearing for somebody who was looking for compensation because some damage had been done, as far as I remember it was something to do with a wall, most of which had been pushed over. Perhaps it was not a wall, but it was some structure which fell outside most of the Acts but could be the subject of compensation only if it could be brought within a section in which the element of riotous, tumultuous or unlawful assembly was a necessary component. Luckily, the judge before whom I appeared was a man who understood and perceived the absurdities in the code and he said he was willing to assume that the very large scale damage to the wall could not have been done by one or two persons and that it must have taken three persons to do it. Of course, there was no evidence about who had done it, one man working hard all night could have done it. But the judge simply — I will not call it pious perjury but it was a judicial operation comparable with what juries used to do when capital sentences were passed for stealing sheep or a small sum of money—the judge took a short cut and said the damage was very serious and, although he did not know how many people were involved in it, he was willing to suppose that there were three or more and of course since they were causing damage they were unlawfully assembled. He got over it that way. The State and its legal advisers ought to look at this phrase and ask themselves if it is necessary to leave this medieval shackle on counsel appearing for somebody whose property has been maliciously damaged. Need there be any case in which he must show that the people who injured him were three or more in number? What is the point in that? What is the value of it? Is [223] there anything to be said for that standard except that William the IV's draftsmen thought it good enough to put in ten years before the Famine? What else is there to be said for it?

I am all for reforming the law and so on, but if we are going to reform and improve it let us clear the junk out of it, look at every phrase, clause and principle with a fresh eye and not in the usual Paddy way, assuming that just because the English gave it to us—and mind you the malicious injuries code was one of the weapons of English Government here essentially for compensating landlords, essentially for compensating people of property for the deprivations carried out by the people who had nothing, namely us and our forebears—it is good enough. We should free ourselves from that perspective and say “All right, it is a reasonable social purpose on which the people and public at large should club together and compensate somebody for injury wantonly and maliciously committed.” I would accept and support that. But if so, let us start with a clean sheet, let us make a clean job of it, let us not keep this junk which, as I have said, under the influence of the unlawful and tumultuous assembly no lawyer in the country could give a clear explanation of. Let us not keep principles in the law which are constitutionally problematic.

I see that in section 5 (4) a person who has suffered a loss is still not entitled to recover in respect of consequential loss or damage. The rule against recovering on consequential loss and damage is, I think, a judicial rule. I think it has been held by the Supreme Court on a couple of occasions that the malicious injuries code does not cover consequential damage or loss. That is a perfectly fair interpretation of the old English legislation, part of the apparatus of repressive government which the English erected and kept going here and which of course the Paddies thought more than good enough for themselves once the English had left.

I want to know where is the reason for not affording compensation for consequential [224] loss? Where is the reason behind that? If the reason is we cannot afford it. I admit that that is a good reason. If the reason is that there would be no end to the compensation awarded against the State. I can see that that would be a reason—in other words we simply cannot afford to cover consequential loss. If that is the reason it should be frankly admitted because certainly there is no other reason.

Suppose I am a shopkeeper whose premises have been maliciously burned down—I am giving this instance off the top of my head—the law as it stands, if I understand it correctly, will permit me to get compensation for the actual physical damage. But if I have been out of business for a month while my premises were being repaired, I do not get any compensation in respect of that. Why not? If the reason is we cannot afford it, I will accept that. The State has not got a bottomless pocket: I accept that, if that is the reason. But let us be clear what is the reason. If the reason simply is that the Supreme Court said consequential loss was not covered in a couple of cases previously, that is not a reason. Because the Supreme Court was saying consequential loss is not covered, in its capacity as a court construing an ancient British statute — which did not even envisage consequential loss, which arose in days when perhaps consequential loss was not a thing one talked about or experienced very much, the average landowner whose rick was burned down, whose cattle were injured, or whose lock gates were broken up, or whatever injury he might have undergone, probably would not think in terms of the modern, commercial world of consequential loss—I am out of business; I am operating on very narrow margins; I have got competitors all around me who are going to run away with my goodwill. My shop has been burned down and I have been out of business for six weeks while it was being rebuilt and in respect of that loss I cannot get a halfpenny under this Bill. If the reason is that we cannot afford it, I will accept that but let it be that reason. The only other reason could be the judicial interpretation of a very old British statute passed [225] in quite different kinds of times in which most outrage and vandalism was rustic outrage and vandalism, in which the concept of consequential loss would not have had at all the same painful bearing on ordinary people's lives as it would have today.

Having said that, I do not mean to differ with Deputy Keating. Deputy Keating, I remember, said something about how it seemed to him to be incredible that one could be attributing malice to a child or to somebody who was mentally infirm. Of course it is; he is perfectly right about that. At the same time I agree that this change in the Bill is an improvement. One of the problems under the old law — as I recall it from my days in practice — was that if the damage was known to have been caused by small children, or if counsel for the applicants had not excluded the possibility of the damage being caused by small children, excluded the possibility beyond a reasonable doubt — because this was always construed as being a penal statute, as part of a penal code, and the same burden of proof was imposed and presumably even now will still be imposed on a malicious injuries applicant as on the State, or previously on the Crown, in a criminal prosecution — the likelihood that a small child, below the age of criminal liability, had committed the injuries, he was liable to lose his case. A sympathetic judge, a judge permitting pious illegality might quite likely overlook the possibility. But it was open to a local authority to argue — and naturally local authorities did very powerfully argue — that you could not exclude in particular case the possibility that a five or six year old child might have put a match to something, and in that instance the applicant failed. This Bill is an improvement. The fact that the damage may have been caused by a child ought not, in reason, exclude compensation and any doubts one might have about it are ones which arise only from being blinkered by a respect for this ancient British legislation which, in a free Republic, is quite out of place.

Of course if what I say were listened to by the Government, if they would scrap this practice of making local authorities [226] pay anything for malicious injury, this would not arise. But where two local authorities are simultaneously made respondents, which can happen in some instances, section 11 (3) says that the compensation shall be paid in such proportions as the court deems proper. Although that is not too far away from the way the law has been up to now I must say if I were a judge I would welcome some indication as to what I was supposed to do under this subsection. Seeing that neither local authority is to blame for the damage, seeing that the inhabitants of both areas are equally free of guilt, or at least of any guilt which the Constitution permits me to impute to them, seeing that none of them has been tried for anything, seeing particularly where the identity and provenance of the wrongdoer is actually known to be from perhaps a third county, I am not so sure what I should do with this if I were a judge. I suppose I could say equality is equity and split the thing between the two. But is equality equity as between a rich county and a poor one? Probably one could give good examples. In County Mayo the produce of 1p in the £ is only £50 or £60 on the rates. County Sligo, which is next door, has a better produce on 1p in the rates. Would it be fair as between Mayo and Sligo, where the inhabitants of neither county could be blamed for what has happened, to divide an award evenly between them? I cannot expect everything to be spelled out in a Bill but the Government might look at that subsection and ask themselves if it could be improved.

I agree also — and I think this is a wise improvement — with the idea expressed in section 13 of conferring jurisdiction on the District Court and I agree also with the provision in section 16 whereby a local authority can settle a malicious injury claim. Formerly that, in theory, was not possible and it was not possible because of the same antiquated English law that one could not compromise a felony; the local authority could not settle a malicious injury claim because it could not settle an issue of guilt. I am not absolutely certain about this but part of the reason may have been a statutory [227] duty not to hand away the ratepayers' money without a fight. Certainly it was the practice when I was at the Bar that the local authority not just would not but could not legally agree an issue of liability. What it could agree was the amount of the loss; it could acquiesce in the applicant's assessment of the amount of his own loss, but the issue of liability, the issue of whether the damage had in fact been maliciously caused in their area or not could not be compromised due, as I see it, merely to this antique legal history of the whole code and I agree that section 16(1) is to that extent an improvement.

That is all I want to say except to ask that the House be enlightened on a single point arising under section 19. Assuming that the Government go ahead with this Bill and do not do what I suggest they should do, namely, take over the entire responsibility out of the Central Fund for malicious injury awards, what will the mechanism be whereby the amount of the excess over the produce of a rate of 20p in the £ will be refunded to the local authority? I presume the section means — and I would like to be reassured about it — that, as between the ratepayers who are being called on to contribute, the amount of their contribution will be proportionately abated so as to bring their individual contribution proportionately down to the point where it would be as though, so to speak, the entire malicious injury bill were only 20p in the £. Or is it intended that the entire amount will be levied on ratepayers and that the local authority would then get into its fist in pound notes an amount equivalent to the excess but with no statutory duty to make that good to the ratepayer? I do not know whether I am making that clear or not. Probably I am. I would like to be reassured about that. Apart from that I have nothing more to say.

Mr. Briscoe: Information on Ben Briscoe  Zoom on Ben Briscoe  I welcome this Bill. Many people here will welcome the advent of this legislation. I realise it is too late for those who already have claims lodged for malicious damages. But I am thinking of the person who perhaps had a business burned down maliciously and was waiting [228] for two, three or even four years to get his money awarded by the courts. Not so long ago I made representations for a constituent that that had happened to. The man was literally being forced out of business because he had to wait so long for the money to come through. Therefore this legislation is very welcome.

I also welcome in this Bill the fact that these small claims can now be settled between the local authorities and the agreed party out of court. This can clear an awful lot of work once the present load has gone through the courts and allow time to deal with the claims in excess of £2,500. I am also pleased to see that the Minister has included in this legislation the right for the parties to agree between themselves without recourse to law claims in excess of £2,500 if they can so do.

One of the provisions of this Bill which interested me very much was the section dealing with the compensation for damage caused by a person of unsound mind or by a child. I was not aware until I saw that section that there was this rule that if damage was caused by people in this category malicious damages could not be claimed. The reason I was rather surprised is that in my constituency my experience has been that when people had damage done to their cars or saw their car being crashed and spoke to the local Gardaí they were told, when they said they could identify the party who had done this, that if they did so they would not qualify for malicious damages and that they would be better off if they just forgot what the person looked like and then they would get malicious damages. I understand this is not so, that where a person is recognised as having done damage to a car and that person is not in any financial situation to pay for the damage that he or she has done, then—and I am thinking particularly of damage to motor cars because that is particularly prevalent in this city of Dublin certainly—people should know that they can in fact get malicious damages even when these people are brought to court. I think it is tragic that the amount of malicious damage that has been caused throughout our city today by many of [229] these vandals has been allowed to rise to the extent that it has. Certainly the city has very much a vested interest in keeping malicious damage to a minimum. I would think that the sooner the Department of Justice comes up with some scheme of community services that could be served by some of these vandals to make them pay in some way for the damage that they have done the better, because the situation seems to be getting worse daily.

In relation to the raising of the limit from £5 to £100 before one can claim, it is never acceptable when something of that type is raised. But one can understand it because of the long time it has been in operation and because in other countries the threshold figure was increased much earlier. It would be interesting if the Minister was given the figures of how much local authorities incurred last year for costs in court cases, the number of cases the courts had to handle for malicious damages and the total cost. Making it unnecessary for a claim up to £2,500 to be paid out by a court will pay dividends. Most of the claims before the court are minor ones. Money paid out in court cases by local authorities ultimately comes back on the Exchequer.

The Minister is to be congratulated on bringing up to date the repealing of the 1836 Act whereby the court could direct that the cost of meeting compensation for malicious damages could be levied on the rates of a very small locality. This is to be welcomed. I am glad that the Minister has included in the legislation compensation for property stolen in the course of a riot or some such disturbance. This is long overdue and it is only just that it should be included in our legislation. One of the major sources of delay in people getting compensation is the fact that malicious damage claims cannot be entered by the corporation or local authorities until the financial year following the claim. As has been stated by the Minister there is a time lag of almost two years between the occurrence of the damage and payment of the award.

I welcome the part of section 12 which provides for the reduction or exclusion of compensation payable to people who [230] have not taken reasonable precautions to protect their property. It is about time that people found out that their carelessness or recklessness in locking up their premises or leaving their cars in such a situation where they know something could happen to them will be taken into account. I do not know if that sort of situation will be taken into consideration but if it is it is to be welcomed. People must be made to have a sense of responsibility for their property particularly when their fellow citizens have to pay for any damage that may occur to it.

The Minister mentioned the fact that personal compensation as such was not part of the Bill, that is, compensation for criminal injury to the person. The Minister should bring this in as soon as he can because the position about assaults on people leaves a lot to be desired. The Minister referred to the criminal injuries compensation tribunal. That deals with people injured in the course of their duty or in the course of helping someone in distress. I am glad the Minister will be reviewing this whole area. It is part and parcel of malicious damage in the overall picture as I see it. A person could be hit on the head by a drunkard, suffer concussion and be off work for a week and yet he would not have recourse to any kind of claim.

The Bill as it stands contains incentives to people to protect their own property. If they do not do so properly they may find themselves paying for it by reduced compensation. It is important to make this clear to firms. Deputy Keating was against the section which states that unauthorised developments would not be entitled to malicious damages, that is if there was no planning permission. I welcome this, not because it may be vindictive, but if people who fly in the face of their neighbours and the law of the land and ride roughshod over people and antagonise them, know that if the building goes on fire or the structure is knocked down no compensation will be paid to them, they may think twice about it. It should be made widely known that any unauthorised development which is the subject of vandalism will not be considered under this Bill. I welcome the Bill [231] and wish it a speedy passage through the House.

Mr. O'Keeffe: Information on Jim O'Keeffe  Zoom on Jim O'Keeffe  Over the past 25 years claims for malicious damage have increased eightfold. Over the past decade the number of indictable offences recorded increased by 100 per cent. It is bearing in mind these statistics that one must look at the Bill. The situation is that we can brush off such statistics by merely referring to an increase in criminality in our society or we can look deeper at the problem and try to see the root causes of such appalling increases.

When one is in Government one must accept with regard to such a totally appalling situation that the buck stops on the desk of the Minister for Justice and the initiatives that have to be taken to deal with the situation must come from him. It is because of the huge increases in such claims that we tend to accept philosophically that there is no way to stop such instances, that they are part of the normal life of our society and that we must accept that this inexorable increase in crime cannot be halted. Our outlook is shaped by that philosophy. I am disappointed with the approach of the Government who ignore this huge increase in the number of claims for malicious damage and the terrible increase in crimes and, effectively, do not produce any initiative to turn the tide and try to reduce the level of crime. We seem to accept annually that there must be an increase in crime. I do not accept that that should be the situation. Measures must be taken to ensure that crime in the broad sense and, in the specific sense, damage to property, is reduced. It is incumbent on the Government to take steps to reduce crime.

The Minister seems to accept that philosophy. There is a provision in the Bill to the effect that claims under £100 in value cannot be made. In effect that appears to be an acceptance by the Minister that claims under that sum are (a) not worth reporting to the Garda, (b) are not worth claiming for in the courts and (c) generally are not worth talking about. The attitude appears to be that where a [232] crime is committed — a crime is committed if a portion of a car is maliciously damaged even though it may not cost £100 to fix it — and the damage is under £100 it is not worth talking about and that nothing can or should be done about it. I worry about that philosophy which amounts to an admission of defeat by the Government in the face of the rising tide of crime. I put it to the Minister that he and the Government should adopt a new approach in dealing with crime. New initiatives are necessary and the tired, accepting approach in regard to the increase in crime in our society will not do in the future. That is the major point that must be made in connection with this Bill. It is about time it was made because unless I, and people like me, shout this from the rooftops the increase in criminality in our society will be accepted. The lead must come from the Government. They must state that such an increase is not acceptable and there must be an all-out drive to reduce the level of criminality.

Such action must be taken straight away. Those who read newspapers on a regular basis will note that serious crimes get little coverage because they are so common. Vandalism seems to be totally acceptable and, even worse, offences against the person are increasing. While one has sympathy for the person whose car or home is damaged I have the strongest feelings about violence against the person. We cannot under any circumstances accept that there is any acceptable level in our society in relation to offences against the person. We must aim for the perfect society with everybody free to move about without fear of injury to life and limb. I accept that we cannot expect Utopia in the near future but we must aim for it. We must turn around our present approach and reject the acceptance of an inevitable increase in criminality. I will have an opportunity on another occasion of dealing with crime in the broader sense but the increase in the number of malicious injury claims is a reflection of this.

While the Bill in its basic content tidies up a number of administrative matters it does not in any way approach the basic [233] problem. Today I have dealt with a number of matters in the House including the Bill in relation to social welfare and the legislation on the conservation of wild animals but there appears to be a deliberate attempt at evasion by the Government of their responsibility in relation to crime. There has not been any attempt to tackle the basic issues in our society that need to be tackled and while this approach continues so also will the same attitude be adopted by the ordinary citizens. The figure of £100 is not a huge sum but it is the philosophy behind accepting that damage amounting to anything less than that cannot be claimed for that I challenge. The increase in the minimum figure is from £5 to £100. While I have to accept that IR£5 in our present economic difficulty would not carry you very far and possibly should not take up the time of the courts, there are still many people today for whom the sum of IR£100, bad and all as the Irish £ is, represents a considerable amount. It represents a major percentage of their entire wealth. For those who suffer damage of less than that, some possibly marginally less, it does not seem very fair to exclude them from the courts. Maybe it is natural that I would expect that from the Fianna Fáil Party. I always thought that that party represented the interests of the rich, looked at the interests of the rich and had the philosophy of the rich, but they should bear in mind that there may be somebody for whom the widow's mite is an enormous sum. For maybe a council tenant or somebody who has lost a job — and there are a lot of them around nowadays, we are heading into the second hundred thousand — damage to their property of the order of £80 or £90 could be a very major thing and I believe that that is a figure that should be revised.

Also, the philosophy of accepting that damage under that sum has not been worth claiming really concerns me. Whilst there are two major arguments for a revision downwards of that sum and I express considerable sympathy for somebody in poor circumstances who may suffer damage of slightly less than that sum, the point I want to stress here is the philosophy of accepting damage as not [234] being worth bothering about. That outlook has extended right through the approach of this Government to dealing with crime and offences committed against the person and against property. This philosophy has resulted in a totally lacklustre, tired approach which will have to change. Either that or the Government will have to change and I suggest that the best thing for this country is that both would happen. For the citizens of this country who have suffered so much from all types of crime and vandalism over the last number of years that is the best hope.

The Bill provides that claims up to the sum of £2,500 can be dealt with in the District Court and I have always been a great believer that justice must be as close to the people as possible. I have always been a great believer in the District Court and the advantage of ready access to the District Court which is not available to people in the Circuit Court and the High Court, obviously because of the smaller numbers and the fact that they will be sitting a considerable distance from where claimants live. However, this has to be taken into account here. Are the District Courts organised at the moment to deal with this type of claim, bearing in mind the proposed increase in general jurisdiction under the Courts Bill? I know the difficulty that could arise here. When I practised as a lawyer I knew the difficulties in the Circuit Court offices and the High Court offices and the need for staffing and equipment from the point of view of giving a proper service, having proper filing systems, making of orders, and being able to have them available within a reasonable time to the contending parties. While I have been out of practice in the District Court for a few years now I wonder if they are geared to take on this extra jurisdiction. I wonder whether the District Court offices which I used to visit in the course of my practice will be geared for all this extra work. I ask the Minister in his reply to deal with this situation and if they are not perhaps he will tell us what steps he proposes to take to ensure that they will be able to discharge their function effectively. There is no point in giving jurisdiction to the District Court [235] unless the District Court offices are geared properly to deal with it.

An aspect arising out of section 6 is the question of permitting a claim to be made in respect of property taken during a riot. The Minister must consider seriously that this is quite an unusual situation. Once he has opened the door of compensation for loss suffered as a result of property taken has he not to look at the overall situation of the injury suffered by anybody whose property is stolen as a result of crime? The Minister under this Bill re-enacts and updates legislation in regard to injury suffered by somebody who has property damaged, but is not far more injury suffered by somebody whose property is stolen? I have in mind somebody whose car is damaged maliciously. Perhaps the tyres are slashed and dents put in the wings and the bonnet and the cost may be a couple of hundred pounds to fix it up and as provided by this Bill and also under existing legislation such an injured party can recover. However, the car itself might be worth £2,000 or £4,000 and if it is stolen, except in the very unusual situation of a riot, he has no entitlement. While the natural outlook of anybody looking at existing legislation and updating it is to look at it within the narrow confines of the earlier thinking which brought about this legislation which is related solely to malicious damage, the Minister should have a broad look to the equities involved here and to the administration of justice in the broader sense. The basic question that I will pose to him and leave with him is: if somebody should be entitled to claim because his property is damaged maliciously, why should not a person whose property is stolen also be entitled to claim? Where is the balance of equity in that situation? On that note I feel I have given the Minister food for thought and I hope that he will dwell on it.

Mr. E. Collins: Information on Edward Collins  Zoom on Edward Collins  I am pleased to have the opportunity to speak on this Bill. I have one point of substance to make and I hope the Minister will be able to treat it favourably. I understand that where a local council has to take a case to court [236] and the court decides that compensation is payable by the council, the present position is that the legal costs relating to the case must be borne by the ratepayers in the local authority area; and while the amount in excess of 20p in the £ is recoverable from central funds the legal costs the council had to incur are not recoupable from Government funds. This is wrong because it is a disincentive to a local authority testing a case in court because in the event of losing the court case the costs go with the case and the council is not only liable for its own costs but also for the costs of the full litigation. Where legal fees are not recoverable there is a clear disincentive for councils to test a case in court. Rather than have such a disincentive in a major case — and we are talking of cases where large property is involved — where there is a need to go to court the incentive should be on the council's side. The council is protecting the ratepayers' money in the first instance and, secondly, the money of the State. Where a council sees a need to go to court the law should favour the council and I suggest that the legal costs of a case should be recoupable to the council. I am sure the Minister will take note of that very valid point.

I had put down an amendment to the Bill but, obviously, since this would impose a potential levy on the Exchequer it would have been ruled out of order, and I would not have the opportunity of speaking on it. I am availing of this opportunity instead. I ask the Minister to amend one of the sections, probably section 19, and add a new subsection which would enable legal costs to be included in the overall allocation of money so that the compensation would include the legal costs associated with the claim from the point of view of the Act.

I feel the £100 specified in section 5 is too high. While I realise that we must draw the line somewhere, £50 or £75 or £100 may be a lot of money to some persons. Personally, I would opt for a figure of £50. All public representatives are very unhappy about the existence of vandalism especially in the cities. It seems to be an increasing illness in our society and certainly private citizens are [237] entitled to the protection of law in regard to malicious damage to their property. The case instanced by the previous speaker of a stolen car not being eligible for compensation seems to be an anomaly. I know of a case in my own city where a car was stolen and not recovered and apparently the owner is debarred in law from seeking compensation for what is in effect the same type of vandalism as if somebody came along with a hammer and smashed up the car. There are certain anomalies still existing in regard to malicious damage and there is further room for improvement. The District Court does excellent work. It is a local court sitting every week and the justices have a “feel” for their areas and the crime rate, and I think the District Court should be empowered to hear these claims. I am pleased to see that claims with £2,500 as the upper limit can be decided in District Courts. That is good.

The question was raised about backup services and the efficiency of District Courts — whether they have sufficient personnel to deal with the increased workload. I suggest the District Courts are at present overworked and that there is a need for greater investment in the system which does such excellent work which can only excite our admiration for the justices, clerks and others associated with these courts. They do an excellent job. We are here increasing their workload again and I think a positive decision must be made by the Government to give them greater personnel and financial resources because their workload is becoming far too great.

The main point of my contribution relates to the question of legal costs. I believe the Minister is aware of it and will give it serious consideration. With the limiting of the increase in rates by this Government the amount of money local authorities can raise is severely restricted, and where there will be huge legal costs such as would be associated with a large case I think it incumbent on the Government now to introduce an amendment to this Bill allowing legal costs in such a case to be recouped to the local authority. The flexibility of financing the expenditure of an authority is [238] severely restricted because of the limiting of increases in rates. For the past three years credit balances held by local authorities have been whittled away slowly but surely and anything like rebuilding courthouses will completely upset a local authority's ability to provide the essential services for which they exist. It is another case of their being left with bills which they should not have to pay. There is no doubt in my mind that the essential source of funds to fight large cases should be the central Government which should back up the local council in taking cases to court where necessary.

Debate adjourned.


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