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Dáil Éireann debate -
Thursday, 4 Dec 1980

Vol. 325 No. 3

Supplementary Estimates, 1980. - Malicious Injuries Bill, 1980: Second Stage.

I move: "That the Bill be now read a Second Time."

This 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 criticisms 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 a ½ 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. This no doubt represents one more unfortunate index of the general increase in criminality in our society.

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.

Deputies 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, I 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 necesitate 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 Inter-departmental 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 19 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 Deputies 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. Deputies will be aware that this is the new general limit proposed for District Court contract and tort cases in the Courts Bill, 1980, which 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 Eleventh Report.

At present compensation is payable where the malicious damage exceeds £5. This figure was fixed in 1898. In 1963 the Inter-departmental 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 25 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 however, 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 and 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 country 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 hand, 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 in the terms “lying off or passing off the coast”, and so on, 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 think that I should mention too, that the inter-departmental 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 an undoubtedly 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 off shore. It may be observed that section 5 provides for compensation for damage caused to property during a riot whereas this section — 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 their 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.

There are a few other proposed changes in the law that should, I feel, 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. 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 Inter-departmental 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 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: the position in regard to children is doubtful. In this regard, I should mention that personal injuries inflicted by such persons are covered by the non-statutory scheme of compensation for personal injuries criminally inflicted that was introduced by my predecessor in 1974. There is no justification for the exclusion from the scope of the Bill of damage caused by persons of unsound mind or by children. Section 7 has, accordingly, been included so as to ensure that such damage will qualify.

Other proposed changes in the law will have the effect of reducing or excluding compensation in certain cases. Section 12 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 in respect of these items. Compensation in respect of the items in question is also excluded in Northern Ireland.

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. 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 have 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 other 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 Deputies 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, I think, should be brought to the attention of the House.

The provisions in sections 5 and 6 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.

Deputies 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 this 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 I am glad to say that it has operated very satisfactorily. I 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 ratepayer's right of intervention in such proceedings occur in sections 15, 17 and 18. I have considered whether these provisions, which provide substantially for the re-enactment of the present law, should not be dropped altogether because the incentive for these who still pay rates — that is the owners of commercial property and the occupiers of land holdings above a certain valuation limit — to intervene in proceedings for malicious damage compensation has diminished as a result of recent developments. One such development to which I have already referred, is the non-statutory arrangement, which is being given a statutory basis in section 19 of the Bill, whereby grants from the Exchequer are made to local authorities so as to ensure that a ratepayer's liability for compensation for malicious damage cannot exceed a rate of 20p in the pound. The proposal to abolish the local levy by not providing for the re-enactment of the relevant provisions in the Bill must also make it even more unlikely that a ratepayer would decide to intervene in these proceedings.

Furthermore, owners of domestic property and others who, since 1978, qualify for full relief from rates obviously no longer have any incentive to intervene — although they are still legally entitled to do so because they have not lost their status as ratepayers. On balance, however, I believe that to provide for the continuance of these ratepayer's 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, I think that, as a matter of principle, we should be slow to abolish it while there still remains the possibility — though a diminishing one — that it could be usefully invoked.

I commend the Bill to the House and ask that it be given a Second Reading.

This Bill is helpful to a very limited extent. The real issue it should hinge on, it only glances off. The Minister pointed to the far more serious issue in relation to malicious injury when he spoke about there being no doubt but that the increase in the various indices in this context represented one more unfortunate index of the general increase of criminality in our society.

This Bill affords us a slight opportunity in the context of the proposals put forward to deal administratively with the problem that confronts us, the whole question of malicious injuries, the increase in the number of crimes, and our inability, indeed our failure, to cope with that problem. Is our response merely to be some kind of fiscal tidying up rather than a true attack on the real roots of the issue? This would imply an honest recognition by the Government that they are failing in the area of dealing with crime and that the Minister has shirked the issue time and again. Every available report or statistic, every commentator who speaks on this issue, whether from private commercial concerns, the individual in the street or concerned organisations, points to a heightening perception by the community of a crime problem increasingly out of control.

Malicious injuries because they are relatively easy to monitor and assess afford us a convenient index by which to judge our ability or otherwise in this area. If that is the case, then the figures available to us show that we have failed and are failing. I would like to quote from the Official Report on 30 June 1976, column 2012, where a Deputy said:

I should like to assure the Minister that there is now wholesale and general acceptance of the fact that the Government have failed very badly to protect people and their property. The Minister for Justice, and the Government, stand accused, and rightly so, of gross negligence and total failure in the maintenance of law and order throughout the State. It is now a fact that armed gangs of hooligans can at will successfully hold up or rob banks, post offices, shops or trains. Instead of making crime more difficult for these people, unfortunately, the situation is the reverse. The situation is ludicrous in the extreme in that the Government for penny-pinching economy reasons withdrew normal Garda protection, withdrew gardaí who would be on duty to protect property and act as a deterrent to those would-be robbers.

Dealing with Dublin this spokesman said:

Crime is rampant in Dublin city and the country at large. This is also the view of the general public and of the Garda Síochána. People are terrified, particularly the old, the infirm and those living alone.

He went on to deal with specific issues in this context and related an editorial from the Garda Review and underlining the undoubted importance of that editorial added:

If they were charges or utterances by people other than those who purport to speak for the Garda they would not have the same importance as they have when they appear in an editorial in the Garda Review.

That spokesman is the present Minister for Justice, Deputy G. Collins. If his words were accurate then when the figures for crime were lower than they are now, and when our ability to deal with the problem was greater on the available statistical evidence and public perception than it now is, how much more must they be at present? Reference to publications by the Garda representative body and the Association of Inspectors and Sergeants, and the degree of emphasis which should rightly attach to those sentiments, has apparently diminished because two weeks ago in this house I expressed the view that the garda have, in many cases, been demoralised, but this idea was pooh-poohed.

The Deputy appears to be getting away from the Bill.

You will find I am being relevant in a moment——

We have been waiting for a long time. This Bill deals with a specific issue and not with all crime in the State.

I am trying to show that this Bill is about malicious injury — about crime of a specific nature. The Minister pooh-poohed the idea that we were unable, by virtue of demoralising the Garda, to deal with this problem.

I want to make a brief comment in that respect. If the Minister or the Minister of State looks at an editorial in the publication of the Association of Garda Inspectors and Sergeants of November 1980 called Horizon, he will find one line which says that morale is at a dangerously low ebb.

The Chair cannot allow the Deputy to continue along those lines. The Bill deals only with compensation for malicious injuries. The Deputy is dealing as he might with a debate on the Department of Justice.

In his speech the Minister of State took leave to refer to this Bill and the statistical patterns underlying it as representing an unfortunate index of the general increase in criminality in our society. If that comment of the Minister of State is valid I submit that I am entitled to make similar type comments. I do not intend to overdwell on it, except to say this, that all the available evidence in the malicious injuries area — and I shall deal with it in detail and statistically in a moment — shows that this Bill is inadequate, is almost irrelevant, tidies up a certain area of law but that our time might be better occupied doing something much more fundamental.

As a concerned spokesman in this area I believe I should be pointing out omissions from the Bill and amendments which should be made. This Bill should not merely be a financial or administrative exercise. This Bill is an attempt to cope with a pattern of crime in this area which has gone totally out of control, a pattern which was a lot less serious when the present Minister for Justice deemed it to be deplorably out of hand. I want to underline the gravity of the present situation by saying that if the position is now worse — if the Minister was speaking the truth in the extract I have just read — then we have a lot more to do than this Bill asks if we are to deal in any sensible way with the whole area of malicious injuries. To give just one indication, in an article in the Evening Herald of 19 November last John Walshe, a writer and journalist noted for conscientious and responsible journalism said:

School vandalism has soared over the past 12 months and a record £750,000 will be paid out in insurance claims this year.

This statistic, and others of a similar nature, were included in a speech by Mr. Gerard Ryan of the Church and General Insurance Company Limited, which insures the bulk of schools in the State. He outlined in his tragic litany of soaring statistics that in a normal year there are four or five serious acts of vandalism leading to insurance claims of £10,000 and over but this year there have already been 20 such claims and a further 1,000 incidents of broken glass, breaking and entering and general destruction. This man, being the managing director of the Church and General Insurance Company Limited, in anybody's language, would be considered an expert. He went on to say that there was a general increase in all types of vandalism, not just in schools, and that the problem seemed to be getting worse. I think he is telling the truth and that is the way the public perceive it. Therefore, I am asking for a much more serious and comprehensive comment, in parliamentary time terms, on malicious injuries than is afforded on this Bill.

If we ran our Parliament properly this type of Bill would not be necessary at all. It is essentially an administrative, bureaucratic exercise which should not warrant legislation. There is nothing of real weight in this Bill other than the updating of some indices, the eradication of one or two minor injustices and the tidying up of a number of other clauses, almost all of which should be handled by ministerial order. On account of the way we do things, legislation is necessary and therefore we must debate this Bill. In a few years time, when the new limits in this Bill, the Courts Bill and all the other Bills, are out of date and eaten up by inflation we will be back saying that we should have index-linked these statistics so that we would not have to waste our time on matters which are essentially not the function of Parliament but rather get on with the serious analysis of social trends, our response to those social trends and the economic issues arising therefrom.

The Garda Commissioner's report of 1978, the most recent one available, under the heading of "Offences Against Property with Violence" where it refers to malicious damage to property being included, gives us another indication of just how seriously out of control this Government have allowed the problem to go. This is shown in two ways — the number of offences have increased and the rate of detection is, to say the least of it, erratic and, at its very best, is a lot less than half what it should be. In 1975 the number of offences recorded and detected in this group were 16,432 and 7,946 respectively, with a detection rate of 48.4 per cent. In 1976 there were 20,903 offences in this category recorded and 9,152 detected, a very significant drop in detection to 43.8 per cent from 48.4 per cent. In 1977, another increase to 23,154 offences was recorded in this category. The detection rate remained almost the same in numerical terms, at 9,491, and the detection rate once again plunged to 41 per cent. In 1978 the recorded figure of offences in this category was 21,119, a slight decrease but the detection rate, unfortunately, also showed a slight decrease in numerical terms at 9,308 which represented 44.1 per cent. What this means is that, by and large, anybody engaged in malicious damage to property has a better than average chance of getting away with it.

That is a serious state of affairs and one about which no Minister for justice should be happy. In a way I am sorry the Minister himself is not here, although I pay full respect to the Minister of State who is more than able to deal with this Bill. I would have been happier had the Minister been here as well as because, to put it bluntly, when confronted with the facts and figures in this area, he has a rather irritating habit of piously washing his hands of the issue and squirming out of the truth of these statistics. For two reasons I suggest that they are worse than these figures show: one — and I defy anybody to contradict me on this — there are fewer crimes being reported in this and indeed other areas now, but particularly in the area of malicious injury of a relatively minor nature, because people are fed up reporting them. The Garda are hard-pressed doing something else and it is a waste of time reporting them in many cases. I suspect that the reporting rate is reducing all the time. Secondly, there is the detection rate. That is interesting because detection does not necessarily mean what it seems; detection does not mean conviction. Therefore, I am worried about that aspect also. What it boils down to is that malicious injuries are now at their most serious in the history of this State.

Our response in this Bill is to amend and consolidate the law relating to compensation for malicious damages to property almost as if the central issue did not exist. I believe the Minister could have done better in this Bill, could have proposed a number of measures which I intend to point out on Committee Stage and which would have helped not just the symptoms of the problem — which is what this Bill is concerned with — but the cause, thereby reducing the symptoms which we might call, in simple language, a tangle of figures and administrative headaches which were the reason for this Bill being introduced.

If one examines the statistical evidence in this area further and the Returns of Local Taxation for 1977 under the County Council's Revenue Accounts, Programme Group 8, Miscellaneous Services, and looks at any one of the county councils, Galway for instance, one gets a frightening picture of the damage to property. In the Galway County Council area last year £108,971 was spent to pay for property damaged. In corporation and other council areas, with their larger conurbations, the figures are more frightening. Even if it is in smaller county council areas, figures come across clearly and the indices point steeply upwards.

In part, this Bill proposes that local authorities will be empowered to pay compensation without delay on foot of court awards. Therefore, we are accepting the inevitability of a trend which is apart from the sad reference, uttered with a sigh at the end of page 2, when the Minister was reading his speech. He said that this indicates one more unfortunate index of a general increase in crime in our society. This is a reflection of the tired attitude of the Minister for Justice. It sums up that this is the way it will be forever.

This Bill should have dealt realistically with the issues not of who pays the compensation or when it should be paid, not whether the minimum damage awarded should be increased from £5 to £100, but how to reduce malicious damage throughout the country, how to stop crime expeditiously, efficiently and with a real deterrent attitude. Any malicious injuries Bill which omits significant reference to that area of parliamentary, social and public concern is faulty.

The Appropriation Accounts for 1979 show that the number of these crimes is increasing all the time. I have endeavoured repeatedly to obtain satisfactory evidence that the Departments of Justice and of the Environment, and the Government as a whole, are concerned about these matters. I asked how many incidents have occurred in recent years, how many claims have been made as distinct from the total compensation paid. I wanted to learn the degree to which there are immoral and exaggerated claims in respect of damages to cars and other property. There is reasonable evidence that claims are exaggerated when the public purse is the target. Insurance companies will testify to that.

This has not been dealt with in the Bill. Therefore, we have not provided how malicious injury awards should be assessed. Should there be a check on the figures? Should there be some degree of monitoring or should we accept any figure somebody wishes to claim? If we are to allow a psychology of inflation to develop in this area it will soon become extremely profitable for weak-minded characters to get into the malicious injuries area.

If the Minister is sufficiently interested he should have given me accurate information on the number of claims. That has not been made available to me and therefore I ask the Minister to monitor the size of claims, which in many areas are padded disgracefully, and to tidy up the system of dealing with the number of claims. On 25 November I asked the Minister for the Environment the number and the amounts of claims paid. The reply given was: "The precise information requested by the Deputy is not available in my Department."

The number of the crimes committed is of great importance. If the figure for compensation for a county is £250,000, has that amount been paid for ten claims or 100 claims? What is the pattern? Those figures are not available. If one rings a local authority a vague figure is given. Dublin Corporation have stated that last year 5,000 cases were decreed. The total amount was £4 million.

Why are accurate statistics not kept? Why can we not be told the number of claims last year? With the absence of such figures I am forced to conclude that we are completely uninterested in tackling the problem. We are not even bothering to keep accounts of the number of claims, which is easy to do because each claim is handled by the law departments of county councils and corporations. Therefore, the Bill does not deal with matters of fundamental concern to us all and therefore the Bill should be strengthened and made more comprehensive. I do not want to be told that that will require another Bill——

That is what the Chair was about to say. This Bill does not deal with criminals or others who commit offences. What the Deputy is talking about is a matter for other legislation at another time.

I was talking about the omissions from this Bill.

The Deputy may not deal with omissions from this Bill which deals with compensation for malicious damage and injury. The Deputy has been dealing mainly with people who commit crimes which is a matter for other legislation.

I have given statistical evidence that malicious injuries and damages have been increasing and that the Government have not been doing anything about them. In my view, what I have been saying is relevant because the implication of the figures I have quoted has relevance in the administration of this Bill. I have studied the Bill and I have found 13 main proposals in it. The Minister dealt with some of them in his speech. The minimum damage subject to a claim is to be increased from £5 to £100. I appeal to the Minister, in view of the increasing inability of the House to cope with the challenges of our society, to rid this parliamentary forum, as much as possible, of needless bureaucratic exercises of updating limits, estimates and specific figures in Bills, when this is purely to take account of inflation. The Minister, by specifying £100 as opposed to £5, automatically creates room for further injustice. Any such figure which is not related to current values at that time, means that any two people applying for malicious damages under the Bill at any given time are being dealt with, on account of inflation, differently from each other, depending on the degree of change in real prices and real values.

Is it not possible for the Minister to include in the Bill provision whereby the financial limits in the Bill are subject to being automatically updated by him by a ministerial order, if necessary subsequent to consultation by him with interested parties like the banking groups, the insurance groups or any economic institution, who would keep the Minister right on economic values. If that is not done we will have a Malicious Injuries Bill 1981, another for 1982 and so on because of rampant inflation or an increase in property values. It will then be necessary to talk about the need to adjust those figures. Anybody who gets in immediately after the Bill becomes law has the best chance of making the most out of it. The longer it goes on the more unjust it becomes.

I ask the Minister to seriously consider that kind of thinking, which would mean that we would not have Bills or portions of Bills demanding a large amount of time and energy, basically updating due to inflation. That is not what parliaments are for. I believe that a formula could easily be devised to take into account typical economic indices like the Consumer Price Index and current interest rates. The good sense of the Minister at the time, after consultation with those institutions, could decide what the figure would be. This could be done every two years or every three years, automatically, by the Minister. If this is not done I believe we are doing injustice because of having a figure at a given point in time, which is allowed on real terms to decrease in value over the years, causing those at the end of the chain to get less per £ than those who acted earlier on.

The District Court under the Bill will be empowered to deal with complaints for compensation not exceeding £2,500. That is as a result of the extension of the jurisdiction of the courts and is to be welcomed. I have the same plea to put to the Minister in that respect. A sum of £2,500 could be seen to be significant next year but it is not. Any type of damage to a car nowadays can cost that much, particularly in the manner in which those damages are assessed, with, on occasions, a cavalier approach. In ten years' time, when this is still the figure unless another Bill is introduced, that sum will be ridiculous. It will mean that any type of damage to any property will have to go to another court above the District Court.

A section in the Bill says that local authorities will be empowered to settle claims for payments out of court. There is good sense in this but I have some concern about it. The Minister said that those provisions are intended to encourage the settlement of claims for compensation before the case comes to court thus saving the time of the courts and reducing the liability of local authorities for costs. If justice is to be done here to public finances it is important that there is an incentive for ensuring holding out where such is in the public interest. There should be some type of waiting factor which would ensure that the settlement is not too rapid in order to save time or costs. Has the Minister considered how this will work in practice? The real problem is not that there is a difficulty over being able to pay on account or settling prior to the courts because that can be done at any time. The real problem is the delay involved in paying damages. The Minister tries to deal with it in this Bill but it is genuinely a matter for another Bill.

It is unjust that it should take two years or more for those damages to be paid when it is borne in mind that in many cases, as the Garda Commissioner's Report for 1978 shows, the figures are small but because of their nature, because they relate to broken windows, damage to property, damage to a home, are costs which a family, an old person or an individual incurs and are, therefore, very important to that person. In 1978 there were 180 cases of offences against property which had less than £1 involved, there were 249 cases with £1 to £2 involved, there were 1,010 cases of between £5 and £10 involved. Some of the sums involved are quite small. If the situation is allowed to continue, whereby the sum involved is so small and the chances of a decree being brought against the plaintiff and the costs are significant, many people will say that it is not worth it. How many times have people said to us after their property was damaged what is the point, we will never get the money?

Section 16 appears to be an attempt to deal with this. It 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. I do not believe that is the only way or the best way to deal with the matter. This intention of encouraging the settlement of claims for compensation before the claims come up should be done in a very responsible way, ensuring that it is not simply a question of giving a person half or a quarter of his or her claim for the ease of administration or, as is sometimes said in Garda circles, for clearing the books. Perhaps the Minister should consider the possibility of surcharging in such cases but in any case there should be some inducement to the authorities involved to ensure that the highest standards of responsibility apply. This is what happens in most cases in this area. Otherwise, people will simply be handing out money on demand to settle claims with more claims being made simply because people know that they will get something anyway. Not only would that situation be irresponsible but it would be extremely unhelpful to the public office.

Therefore, the sections which deal with the increasing of the powers of the local authorities to pay compensation without delay on foot of court awards and of empowering them to settle claims out of court will have the effect of helping people who make claims. However, I should like to know if the Minister considers this to be the best way of dealing with the matter. Are we setting a precedent here? There is somehow an implied inducement to people not to proceed with claims. The kernel of the issue is the question of what is just. Settlements out of court will inevitably be lower than settlements within court. Otherwise, presumably, defendants would not settle. However, if a person has suffered damage to the extent of £1,000 and if he makes a claim for that amount but is offered £300 and is told, or if it is implied, that he should settle on this because it might take years for him to get the other money, or that indeed he might not get it at all, is there not being created an easy way out whereby malicious injuries will not be dealt with justly but will be in some way bought off?

These are legitimate concerns. I am thinking of somebody such as a widow who needs to be recompensed for damage to her home or other property. I am satisfied with the provisions so long as the assessment and the payment of the award in any case is made under two conditions. These are, first, that payment be made as soon as is humanly possible. That is not happening at present. Second, following in reverse the precedent adopted by the Revenue Commissioners of imposing a percentage charge on tax outstanding, that, if people have to wait up to two years for compensation, they will be given the extra amount that would have accrued on that money at the commercial interest rate. This is the least we might ask for after a person had been through the trauma of a case. In these inflationary times money devalues considerably in a two-year period.

I am not satisfied that we are tackling the real problem, which is the expedition of the hearing of claims and ensuring that they are paid immediately. We are still accepting that local authorities will pay on account but people may not get from these local authorities what they are entitled to in terms of a judicial matter. We are not talking about some sort of negotiation on the part of skilled local authority negotiators. We are talking about independent judicial decisions from a law department whose daily stock-in-trade this business is. We are talking about some old woman or some harassed husband who does not have the time, the money or the expertise to negotiate on his or her own behalf and who on seeing a £100 on the table in tempted, as the Americans would say, to take the money and run, whereas their best interests might be to refuse and to pursue the case for damages in full. These measures do not meet that point adequately.

Another section deals with the removal of the defence which exists where compensation is excluded in the event of the damage being caused by a person of unsound mind. In this regard the Minister said that:

... personal injuries inflicted by such persons are covered by the non-statutory scheme of compensation for personal injuries criminally inflicted that was introduced by my predecessor in 1974. There is no justification for the exclusion from the scope of the Bill of damage caused by persons of unsound mind or by children. Section 7 has, accordingly, been included so as to ensure that such damage will qualify.

The Minister says he is satisfied that this is a good suggestion but I have some doubts about it. In malicious injuries cases there is the very notion of malicious injury which clearly implies evidential culpability. In other words, there is the clear implication that the person concerned has acted maliciously. Surely a person of unsound mind or, as he might be referred to in the Gaelic, duine le Dia, cannot be guilty in that respect. Neither can a child be guilty in such respect though for so long as the age of criminal responsibility remains as it is some children could be argued to be culpable. What I am asking is whether there is a legal contradiction and whether there might very well be a test case subsequently on the basis that it is a contradiction in terms to talk about a malicious injury being inflicted by a person of unsound mind. While there may be injury it can hardly be regarded as malicious other than in the limited terms of that person. Therefore, I would ask the Minister to consider the legal wisdom of this provision. There may be some other way round it. Presumably the point of the proposal is to ensure compensation for the victim. I acknowledge and respect that motive but there is very little consolation for a person to know that the damage he has suffered was due to, say, a fire having been started by a child or by a person of unsound mind. If we are to ensure that compensation will be payable I do not think we should run into the area of the risk of the type of case that could be brought in those circumstances.

There is provision also in another section whereby compensation will not be payable where the necessary planning permission for the property in question had not been obtained or where the development was not in conformity with planning permission.

Debate adjourned.
The Dáil adjourned at 5 p.m. until 2.30 p.m. on Tuesday, 9 December 1980.
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