Wednesday, 15 April 1981
Seanad Eireann Debate
Minister of State at the Department of Justice (Mr. Doherty): I am pleased to have the opportunity to address the Seanad on the Second Stage of this Bill. The Bill proposes to consolidate with amendments what is commonly called the malicious injuries code, that is, the statutory basis for the payment out of the rates of compensation for malicious damage to property. The provisions of the present code are contained in a number of statutes commencing with the Grand Jury (Ireland) Act, 1836. These statutes are listed in the Schedule to the Bill.
I am not going to enter into a discussion of the origins of the code — to do so would be a pointless exercise — although I am aware of the criticism that have been levelled at it as being an instrument of colonial subjugation imposed by an alien Government. On the other hand, there is the view that the code was never intended as such but was primarily intended to deal with the problem of 19th Century agrarian disturbances common to a number of countries. Whatever its origins, it must be recognised — and I know that many people do so recognise it — as having become a non-profit-making and valuable system of communal  insurance against malicious damage to property.
There is no doubt that it has been the financing of the code which has given rise to most of the criticism of it which has arisen in recent years. However, it must be said that the financing of the code has never imposed an excessive burden on ratepayers, and it should not be forgotten that ratepayers themselves whose property was maliciously damaged have benefited under the code. Up to 1963 the average charge on the rates in respect of malicious injuries did not exceed ½p in the pound for the whole country.
In more recent years the cost of malicious injuries has increased more in line with increases generally in rates and, by 1979, the annual average charge on the rates had risen to 8p in the pound. Perhaps a better measure of the incidence of malicious injuries on the rates is the percentage of the total rate attributable to charges in respect of malicious injuries. This has risen from 0.1 per cent in the fifties to 0.8 per cent in 1979.
In 1974, in order to put a ceiling on ratepayers' liability for malicious injuries compensation, a non-statutory arrangement was introduced whereby if, in any financial year, the cost of compensation to a local authority exceeds the produce of a rate of 20p in the pound the excess is recouped to the local authority from the Exchequer.
Senators will recall that the Local Government (Financial Provisions) Act, 1978, provided full relief in relation to payment of rates on domestic and certain other property. This did not, however, result in increased amounts being payable by those who continued to be liable for rates — for example, occupiers of agricultural land above a certain valuation and occupiers of industrial or commercial premises, factories, offices and shops. This is because local authorities are compensated by a grant from the Exchequer equal to the loss in rates income resulting from the relief to ratepayers granted by the Act.
Since the financial responsibility of local authorities for malicious injuries compensation has been reduced and limited in the ways that I have just mentioned  it might be argued that local authorities should now be relieved of all responsibility for malicious injury compensation. The Government do not accept this argument. Local authority involvement is a key factor, and this approach is fundamental to the main provisions of the Bill. The involvement of local authorities means that the services of their professional and other staff can be used at minimal cost in connection with the processing of malicious injury claims and the contesting of such claims in appropriate cases at court hearings.
To transfer the responsibility to the State would necessitate the establishment of a new and expensive organisation with legal and other specialist staff, probably Dublin-based, which would greatly increase the cost of compensating for malicious injuries, whilst the removal of responsibility from the local authorities would not result in any tangible saving to them by way of staff or accommodation.
The Interdepartmental Committee on Malicious Injuries, in a report furnished some years ago, expressed a similar view, which the Government have accepted. Their basic recommendation was to the effect that a system of compensation for malicious injuries to property should be retained and the cost should continue to be payable by local authorities. The Bill accordingly provides that local authorities will continue to be liable for malicious damage to property, subject to certain exceptions and on the basis that local authorities will be recouped from the Exchequer for any compensation paid in excess of the produce of a rate of 20p in the pound, this being an existing non-statutory arrangement which I have already mentioned and which is being given a statutory basis in section 20 of the Bill.
As I have said, the Bill proposes to consolidate, with amendments, the law providing for compensation for malicious injuries to property. The explanatory memorandum, which was circulated to Senators with the text of the Bill, deals in some detail with its provisions and the side notes in the Bill indicate those provisions which are new to the law or new in part. I shall now outline the main  changes in the law for which the Bill provides.
At present all claims for compensation must be heard by the Circuit Court. A number of these claims are for very small sums. It is now proposed in section 13 of the Bill that any case where the claim is for a sum not exceeding £2,500 will be dealt with in the District Court. Senators will be aware that this is the new general limit proposed for District Court contract and tort cases in the Courts Bill, 1980, which was circulated at the same time as this Bill. Claims for greater amounts will be heard by the Circuit Court, as at present.
A right of appeal from the District Court to the Circuit Court is provided in section 17 and in section 18 there is also provision to have a case stated by the District Court for the opinion of the Supreme Court. This is in line with the views of the Committee on Court Practice and Procedure in relation to cases stated in general and as set out in the recommendations of their 11th Report.
At present compensation is payable where the malicious damage exceeds £5. This figure was fixed in 1898. In 1963 the interdepartmental committee, having noted that the costs involved in the hearing of certain cases were greater than the amount of the claims themselves and that there was an undue number of trivial cases, recommended that compensation should be payable only where damage exceeds £20. Section 5(1) of the Bill proposes that the “threshold” should be raised to £100. This is being done so as to take account of the fall in the value of money since 1963. In Northern Ireland the “threshold” figure was increased from £20 in 1971 to £100 in 1977. Section 26 of the Bill provides that the Minister for Justice, with the consent of the Minister for Finance, may by order vary the amount of the “threshold” figure. There is no equivalent provision in the present law.
Another innovation as far as our law is concerned is the provision in section 12(2) prohibiting the award of compensation in respect of the first £100 of any claim so that no applicant may suffer a reduction in respect of more than one  claim for the same property as a result of actions occurring during any period of 12 months. There is a similar provision in Northern Ireland. It is a common practice with insurance companies to provide for exclusions of this type in their policies. In our present malicious injuries code, however, there is no such provision: if the damage exceeds £5, compensation for the full amount, including the first £5 may be awarded. I believe that the logic behind the proposed provision is clear. In the absence of such a provision a person who suffered damage amounting to say £99 would not be entitled to any compensation, whereas a person who suffered damage amounting to £101 would be entitled to the full amount.
Compensation for malicious damage to property in coastal waters is another matter in relation to which the Bill makes provision for a change in the law. Until 1979, compensation for damages to property in coastal waters was not payable under the Malicious Injuries Code. In that year, in an unreported case, Brown v Donegal County Council, the Supreme Court held that by reason of section 685 of the Merchant Shipping Act, 1894, where a vessel is maliciously damaged while lying off the coast, compensation may be recovered from the county off which she lies. Section 685 of the 1894 Act deals with jurisdiction over vessels “being on, or lying or passing off” a coast or “being in or near” a bay, channel and so on. On the one had, the present law as it stands following the 1979 Supreme Court decision is too restrictive as its coverage is limited to malicious damage to “vessels”.
As defined in the 1894 Act a “vessel” is any ship or boat or other description of vessel used in navigation and may not, for example, cover such things as fixed offshore navigation lights, drilling rigs or equipment used in fish farming operations. On the other hand, the distance from the coast within which malicious damage to a vessel will qualify for compensation is too imprecisely described by the terms “lying off or passing off the coast,” and so on that are used in section 685 of the 1894 Act. It is for these reasons  that section 5(3) of the Bill, provides that damage to property which is within any harbour or within one mile beyond the coastal boundary of a local authority will qualify for compensation.
I should mention, too, that the interdepartmental committee recommend that the area of liability of local authorities should be extended to include coastal waters. The committee's recommendation was not restricted to any particular kind of property nor did they define what they meant by coastal waters.
Section 16 of the Bill provides that local authorities against whom claims are brought will be empowered to settle the claims out of court and to lodge money in court. These are new provisions in so far as the malicious injuries code is concerned and they follow the procedure that obtains in ordinary civil actions. They are intended to encourage the settlement of claims for compensation before the case comes before the court thus saving the time of the courts and reducing the liability of local authorities for costs. Another advantage will be that persons whose property has been maliciously damaged and who agree to a settlement will receive payment of compensation much sooner than they would under the present code.
The Bill also provides for the repeal without re-enactment of the local levy provision in the Grand Jury (Ireland) Act, 1836 whereby the court may direct that the cost of meeting compensation for malicious injuries will be levied on the rates of a particular small locality such as a parish or townland. This is undoubtedly a punitive provision that was designed to bring their civic responsibility home to the people of a particular area in cases where the court was convinced that some, at least, of them had been involved in or privy to communal activity leading to the malicious damage giving rise to the claim for compensation. With the abolition of rates on domestic property, circumstances in this regard have changed completely and the retention of a provision in the law enabling a local levy to be imposed on the rated occupiers of non-domestic property such as shops and factories  in a small locality would be clearly inappropriate.
Compensation for property stolen in the course of a riot is provided for in England and in Northern Ireland. There is no similar provision in Irish law at present. Section 6 of the Bill is designed to cover such cases. It provides for payment of compensation in respect of loss of property which is unlawfully taken from a building during the course of a riot in which other property is also maliciously damaged. This provision is included in the Bill because a property owner in such circumstances is at the mercy of the wrongdoers and normally he cannot secure insurance cover to protect himself against loss or damage caused by persons riotously assembled. The provision extends to a riot on board a ship which is in a harbour or within one mile of shore. It may be observed that section 5 provides for compensation for damage caused to property during a riot whereas section 6 provides for compensation for property that is stolen during a riot.
Under the present law, an award of compensation cannot be paid until the local authority have included the amount in its estimates for the following year and the rate has been levied and collected. This means that — apart from any other delays — there can be a time-lag of almost two years between the occurrence of the damage and the actual payment of the award. Section 11 of the Bill which provides for the payment on foot of a court award of compensation ‘out of the funds’ of the local authority will have the effect of reducing the time-lag very considerably — by a year or more in many cases.
In order to close a loophole in the Bill as initiated I introduced amendments in the Dáil which will prevent an applicant from obtaining compensation “on the double”. These provisions are in section 12(3)(C) and 19.
There are a few other proposed changes in the law that should be mentioned at this stage. Three of these changes will have the effect of providing an entitlement to compensation for malicious damage in cases where such compensation  is not payable under the present law. First is a new provision in section 5 which classifies damage caused in the course of the committing of a crime as malicious damage for the purpose of the legislation. An amendment introduced in the Dáil ensures that the crime involved must be one against the property damaged and not just any crime. Damage caused for the purpose of committing a crime, which is covered in the present law, is also provided for in the section.
The second change is provided for in section 2 where “property” is defined, for the purpose of this legislation, as including incorporeal hereditaments which are not covered by the present law on compensation for malicious damage. The effect of this new definition of property is that malicious damage to inter alia rights of fishing, shooting or herbage will qualify for compensation, as was recommended by the Interdepartmental Committee on Malicious Injuries. Destruction of a fishery, for example, may cause more damage to be done to those who hold the fishing rights and whose living is threatened by the damage than to the landlord who, under the present law, is entitled to recover compensation for damage to the river bed.
The third change, which is provided for in section 7, relates to compensation for damage that is caused by a person of unsound mind or by a child. Under the present code compensation is excluded where damage is caused by a person of unsound mind or by a child under the age of seven years; the position in regard to chtildren between seven and 14 is doubtful, because many of the decisions relating to children of this age are apparently conflicting. From the age of 14 years on, a person has full criminal responsibility. There is no justification for the exclusion from the scope of the Bill of damage caused by persons of unsound mind or by children, that is, those under 14 years of age. Section 7 will, accordingly, allow persons whose property is damaged in this way to qualify for compensation. In this regard, I should mention that personal injuries inflicted by children and by persons of unsound mind are covered by the non-statutory scheme of compensation  for personal injuries criminally inflicted that was introduced by the Minister for Justice in 1974.
Other proposed changes in the law will have the effect of reducing or excluding compensation in certain cases. Section 12 of the Bill provides that compensation will not be payable in respect of damage to or loss of coins, currency notes, postal orders, money orders or stamps or in respect of damage to or loss of articles of personal ornament, including watches and jewellery if these articles are kept otherwise than as part of stock-in-trade. To prove or disprove the existence of such items can be difficult, if not impossible, and it can be difficult to prove or disprove exactly when and in what circumstances an item of personal ornament is damaged or lost. There is, therefore, the danger of fraudulent claims being made in respect of these items.
Section 12 also provides for the reduction or exclusion of compensation where the applicant did not take reasonable precautions to avoid the damage or loss or reasonable steps to minimise the extent of it or where he himself bears some responsibility for it. A number of local authorities have requested the inclusion of a provision of this type. The same section provides that compensation will not be payable in respect of damage to a structure which is erected in contravention of, or otherwise does not conform to the requirements of the Planning Acts. Apart from these instances there are, as I mentioned earlier, other provisions which will have the effect of limiting the financial liability of local authorities, namely, their recoupment from the Exchequer for any compensation they pay in excess of the produce of a rate of 20p in the £; the raising of the threshold figure for payment of compensation to £100; and the exclusion of compensation for the first £100 of damage.
The Bill also provides for a number of procedural changes of a minor nature, details of which are given in the Explanatory Memorandum. The need for these changes has become apparent from experience over the years and Senators will, I trust, agree that they can more appropriately  be dealt with during Committee Stage.
Before I conclude, however, there are a few points that should be brought to the attention of the House. The provisions in sections 5 and 6 of the Bill which exclude compensation for any loss consequential on the actual damage or loss will make no change in the present law. In 1975 the Supreme Court disallowed a claim in respect of consequential loss. In the case in question the actual damage amounted to £29,000 while the claim for consequential loss amounted to £220,000. It can be seen that if the Bill were to provide for consequential loss the financial implications for public funds could be serious.
Senators will note that the Bill does not cover compensation for criminal injury to the person. In 1974 a non-statutory scheme, financed from State funds was introduced. Under that scheme payment of compensation may be made on an ex gratia basis in respect of personal injuries, fatal and non-fatal directly attributable to a crime of violence or to circumstances arising from the action of the victim in assisting, or attempting to assist in the prevention of a crime or in the saving of human life. The scheme is administered by the Criminal Injuries Compensation Tribunal and has operated satisfactorily. The Minister for Justice will however, be reviewing the scheme to see whether it is necessary to make any changes in it and also to see whether it should not be put on a statutory basis. There is a provision in section 10(2) of the Bill which entitles a ratepayer to appear and be heard at the court hearing of an application for compensation in which his local authority is involved. Related provisions concerning a rate-payer's right to intervention in such proceedings occur in sections 15, 17 and 18.
It was suggested during the debate on the Bill in the Dáil that, because many persons have the legal status of ratepayers although no longer actually paying rates and because the Exchequer contribution to local authorities is now so great, these rights should be given to a wider sector of the community, say taxpayers generally. I do not see that there is any  need to do this. The Government's view is that, on balance, to provide for the continuance of the ratepayers' rights, as is proposed in the Bill, is the best course. Since what is involved is a right which is provided for in the present law, and even though I understand that, in the past, few ratepayers exercised this right, I think that, as a matter of principle, we should be slow to interfere with it while there still remains the possibility — though a diminishing one — that it could be usefully invoked. It would be open to any member of the public who has information concerning an incident that gives rise to a claim for compensation to communicate with either party to the proceedings and it would be open to that party to call him as a witness.
Mr. Molony: This is a fairly technical Bill and one on which speakers would have more to offer on Committee Stage than on Second Stage. There are some points of importance that the Minister has proposed to change in the malicious injuries code and there are matters in the Bill of a specific nature upon which I would like to touch.
The most significant aspect of the Minister's contribution was the absence of any acknowledgement of the frightening increase we have seen in recent years in the number of people who now apply to local authorities for compensation for malicious injuries to their property. The last figures available are contained in the Garda Commissioner's Report in 1978. Regarding offences against property with violence, in 1975 there were 16,432 such cases and in 1978 there were 21,119 cases. With a rate of increase like that we can expect that, when the 1980 figures finally become available, we will see that frightening rate of increase continuing as before.
It is a simple fact of urban development in recent years, not limited to this country, that vandalism of this nature seems to go hand-in-hand with urban development. Clearly there are reasons for this and the Minister in his reply might give some indication as to what plans he has  to reduce the demands for compensation for damage done to property. I know he is concerned about it but I am a little surprised that he did not refer to this problem in his speech. The Minister should tell us what plans he has to deal with the problem of vandalism among young people in the Dublin area and in other city areas throughout this country. It is a very serious problem. I am sure there are reasons for it which could be tackled if they had been identified. I know that many groups, particularly those who are concerned with town planning and development of housing estates and with the needs of young people within those housing estates, have offered ideas as to the cause of this vandalism. The Government must have considered some of the reports on this matter and I would like to know whether they have any plans to deal with it. I am sure it is not their intention to let the problem continue to fester before tackling the root of it.
This Bill is a consolidating measure, although there are some adjustments. The Minister is tinkering around with an old system that came to us in its present form 150 years ago. Although I can sympathise with the Minister because of the limited resources he has and the pressure to introduce all sorts of reforming measures every couple of weeks, it is a pity that a more comprehensive look was not taken at this whole malicious injuries code. Reference has been made in the Minister's speech to the arguments on both sides. As Senators are aware, this was originally introduced as a system of insurance but also as a penal system to force members of the community, where damage was done, to pay for the damage done. The landed gentry or the people of property were the beneficiaries of the system. It is a good idea to have a system of compulsory communal insurance, but we should not try to adopt an old system to suit this purpose.
I see no reason whatever why local authorities should have any liability in this area. Dozens of cases have gone through the courts where local authorities have been fixed with liability for damage done to property in their area, even  though it has been known to the court making the award that the miscreants who caused the malicious damage have come from outside the area of the local authority. There is the famous case of a couple of Dublin lads who stole a CIE bus which got them as far as Drogheda, when they tried to drive it under a bridge which had the capacity to take only a single-decker bus. Having removed the upper deck of the bus the lads were caught and the matter duly came before the Circuit Court. Louth County Council had to suffer the cost of compensating CIE.
If CIE choose to bring a crowd of people to a football match in Thurles and several plate-glass windows are broken in the town, there is no reason why the people of Thurles or North Tipperary should have to pay for the damage. That is what this system envisages. I regret that the Minister has not used this opportunity to change that.
In recent years there have been moves to take the financial pressure off local authorities because of some very big claims. In order to achieve this a limit was introduced some years ago on the amount for which a local authority could be fixed with liability. This now becomes a statutory rule. What is the sense of it? If the local authority have no responsibility in the matter at all, in that it was not somebody from their jurisdiction who caused the trouble, then there is no logic in fixing them with the liability.
The Minister has made the valid point that the local authority have on their administrative staff engineers who can go out and inspect the damage and make an assessment as to what the amount of the damage is. They also have staff who can process claims. It may be cheaper to use that local administration rather than introduce a special section within the Department of the Environment in Dublin. If the Minister wants to do that, then he should ask the local authorities to provide that service and pay the local authorities for their work on a consultancy basis. That is the way to do it. The Minister apparently doubts the loyalty of the local authorities around the country  because he has a provision in the Bill that if a local authority are to fight a case they will pay all the costs, no matter how big those costs. There are very important points of law that arise in these malicious injury cases. I am glad to say there will not be as many in the future because of changes that have been brought about in this measure. Those points of law can find their way through the courts right up to the Supreme Court. It can cost local authorities tens of thousands of pounds in investigation and subsequently in the employment of legal counsel and in connection with witnesses. It might have to go to several courts before the decision is ultimately made.
The local authority would be responsible for all those costs. That is where the inequity comes in, as far as the local authorities are concerned. It is illogical and irrational that the local authorities should have such a liability. That system should be changed and I regret that the Minister has not chosen to change it in this measure. On Committee Stage we will bring forward amendments in this respect. This measure has a theme running through it that is common to another Bill, the Courts Bill which we will be discussing in the not too distant future, and the greater jurisdiction in the District Court.
I am not fussed one way or the other whether the District Court or Circuit Court deals with malicious injury applications but I think it is wrong to split the jurisdiction between two courts. Where matters like this can be dealt with by one court, it does not matter what amount is involved, let it be dealt with by one court. This is a very particular procedure that is at present provided for in our Circuit Court rules. No matter how large the original claim, it has always been brought before the Circuit Court; it has never been seen to be necessary to bring it before the High Court, for example. Even when the jurisdiction of the District Court was £250, if you wanted to apply for £80 compensation for damage for malicious injury, you applied to the Circuit Court. The reason for that seemed to be very simple. It meant there were some staff members in the Circuit Court  office who understood the system, were familiar with the procedure and could process claims more easily. Why impose that burden now on the staffs of two courts? Why not leave it within the jurisdiction of one court, whether it be the District Court or the Circuit Court, and let matters continue on their way? This is a more efficient use of resources and will make for more efficient use of our entire legal system.
I want to compliment the Minister on a most important step he has taken, that is, he has given the local authorities the right to settle these claims out of court. For years this crazy system involved local authorities in enormous costs. Every case, no matter how obviously malicious the damage involved, had to go before the Circuit Court. When we think of the cost of providing a Circuit Court judge, the cost of barristers' and solicitors' time, the cost of witnesses waiting in court and the delays these malicious injury applications for sums between £5 and £100, used to cause, we realise this was the most appalling abuse of our legal system. I want to compliment the Minister on taking this step and giving the local authorities the right to go out to assess the damage and, if the damage is malicious, enabling them to settle the claims and thereby avoid the necessity to go to court. To that extent, this measure is very welcome.
There are other matters which are more appropriate to Committee Stage. There is one of some importance — the Minister might like to respond to it in his reply — but I do not know how we are going to approach it on Committee Stage. There is a provision in this Bill that, where a claim is made in respect of property for which planning permission was not sought, the applicant would not be entitled to be compensated. That provision is a little strict. It would happen that someone for a technical reason might not have received planning permission. I can imagine circumstances in which a property might undergo a change of user and a person might very well believe he did not have to apply for planning permission. Under our present planning laws a private individual is entitled to add a  kitchen or scullery to the back of his house and, provided he is not in excess of a certain square footage, planning permission is not required. But, say poor Seán Citizen extends his house by half a square foot beyond the entitled measure, vandals set fire to this building maliciously and the local authority engineer comes to investigate a malicious injuries claim, and he discovers the extension is half a foot larger than it should be, that planning permission was not sought, that therefore it was an unauthorised development and that the person is not entitled to compensation. That type of case should not be excluded under this section. Although I am well aware that hard cases make bad law, I do not think that is a valid reply to the question I have raised.
Our planning laws in many respects are complicated. Many developments that take place are ordinary small developments. Thousands of instances of change of user of properties occur weekly in respect of which people do not seek planning permission because they genuinely believe they do not require it. It is a little harsh when someone suffers a malicious damage and he is not entitled to compensation merely because of that. If an application for planning permission had been made and lodged and, say, one of the conditions of planning permission had reduced the potential for fire hazards, or something like that, then there is a definite connection between the two. There is every reason in the world why somebody who does not go through the proper procedures should suffer under this measure. In a case where somebody is careless and erects a structure, and even when the damage caused is not exaggerated or exacerbated by the absence of planning permission or proper planning, that person should be penalised because he had not obtained planning permission. This Bill proposes as a general, absolute rule that that is wrong and I urge the Minister to consider some relaxation in this provision to give the judge who will deal with the case some discretion in the matter.
There are other points but they are not of great importance. I will wind up by  mentioning a point I will be making on the Courts Bill. In his reply to the Second Reading debate on the Courts Bill the Minister said he was waiting to see whether the District Court would get busier. If he multiplies by two-and-a-bit the work of any office, he can be assured that they are going to get busier. The jurisdiction of the District Court is very limited at present. It is now planned to give them the entire workload of the Circuit Court and, in this measure, to add to that workload not just a greater jurisdiction than it had before, but a completely new code. I can foresee enormous problems arising in the District Court. If the Minister is not aware of that fact, let him get into his car, drive around the country and stop at any District Court clerk's office and ask him if his office has the capacity, the ability and the resources to take on a multiplied workload. I think the Minister will get such an answer that he will come back and have a rethink of the provisions in some of these Bills that are being filtered through the House today.
Mrs. McGuinness: Perhaps it is because I am also a legal practitioner that many of the things I would like to say about the Bill are somewhat similar to what Senator Molony said. I welcome this Bill in many ways because it will improve the system that operates at present. In particular, section 11, which allows for the payment of compensation out of the funds, will cut down on the inordinate delays which occurred up to now. If the Bill did nothing else but this, it would still be taking a very big step forward. I also feel that the right to settle out of court is a very important step forward. This is quite clear when one listens to the list of malicious injuries claims a judge has to go through — literally hundreds of claims which basically are settled claims and are simply processed through the courts because technically they have to be processed through the courts. To take all these cases out of the courts will make an enormous difference and will greatly improve the system. The sections dealing with compensation for damage to hereditaments, fisheries, and  so on, is important because quite an amount of malicious damage has been done to fish farms, fisheries and so on which, perhaps, did not quite come within the present scheme. Damage done by children, particularly children aged between seven and 14 years, is a very grey area. One could find that for damage which was definitely malicious one could not be compensated because of the age of the person who committed the damage. Alas, we know only too well that in this urban vandalism, very often it is carried out by children between the ages of seven and 14.
I should like to refer, like Senator Molony, to the provision in regard to the Planning Acts. I join him in asking that there be some kind of establishment of a mens rea in this area. Where a person has deliberately put up a structure in defiance of the Planning Acts and it is then damaged, one can understand the justification for the provision in the Bill because that person was deliberately acting in defiance of the law. It could happen that it was an accidental infringement of which the person was unaware or that the property had, perhaps, passed to that person from somebody else although I know that now when actual title passes, the planning permission position is always cleared up. Still, there are times when property is passed from hand to hand within a family without a proper voluntary assignment or voluntary conveyance being entered into. The person in charge of the property when it was damaged might not, in fact, be the person who had defied the law about the planning permission. Some form of discretion should be included so that the innocent are not penalised under this section. That would be an improvement in the Bill. It does not worry me very much where the origins of this legislation came from. I recognise, of course, its historical origins but as long as it works properly today to compensate those who have unfortunately suffered from malicious injuries it does not matter what they are. I agree that it continues to serve a very useful purpose as a communal insurance against this type of damage. As such I welcome the Bill.
Minister of State at the Department of Justice (Mr. Doherty): I should like to thank Senators Molony and McGuinness for their contributions on the Second Stage. Senator Molony referred to the fact that I made no reference to the serious increase in malicious injury claims in recent years. In fact, I did in my Second Stage speech. I indicated that clearly there was an increase in the number of malicious injury awards in recent times. It is regrettable that it is as a direct result of the level of violence that this has happened. Senator Molony also required me to go into some detail regarding proposals to deal with the causes of crime or vandalism. I do not propose to do that because I do not consider that has any relevance or bearing on the Bill. The Senator mentioned also the removal of responsibilities from local authorities. He said that central Government should pay local authorities. The system which operates at present is a suitable, satisfactory method. In one instance, as I stated, administrative and technical facilities are available in local authorities which can be readily and easily availed of. From an investigative point of view there is also the facility in local authority areas of the proximity to the scene of the crime of the malicious injury. There is a greater likelihood that the investigating officers and the technical staff involved would be more familiar with the countryside, the circumstances or facts which might have a bearing on the matter. The right of settlement was raised by Senator McGuinness. The question of early payment is also important.
The question about unauthorised buildings not coming within the scope of the proposed legislation was also raised. I appreciate the difficulty raised by Senators Molony and McGuinness in this regard. I agree that there is a possibility, however faint, that one might have a circumstance or a remote situation where a building could come into the possession of somebody who would not be aware of or familiar with the fact that it was an unauthorised building. On Committee Stage we will discuss that. I will have a look at that in the meantime. In that connection we should realise that where  a building is an unauthorised building there is the right of the owner or occupier to apply for retention. If retention is granted by the local authority or by An Bord Pleanála on appeal, that would rectify the position.
Mr. Doherty: It is an area where a local authority might not wish to see it deferred because of the clash of interests. I very much appreciate both Senators making the point and I will examine the fact that this, while remote, is possible. For the purpose of good law we will see how we should approach it.
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