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 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 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 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 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 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 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 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? 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.