Dáil Éireann debate -
Thursday, 29 Nov 1990

Vol. 403 No. 3

Criminal Damage Bill, 1990: Second Stage.

Minister for Justice (Mr. Burke)

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

This is a measure of law reform which will, I think, be generally welcomed. It simplifies and modernises the law of criminal damage to property and in this it gives effect to the recommendations of the Law Reform Commission in their report on this subject which was published in September 1988. It goes further in penalising interference with computerised data and other forms of computer misuse.

I shall deal first with criminal damage to tangible property. The present law is contained in the Malicious Damage Act of 1861, which has survived with only minor amendments to the present day. The first 50 sections are devoted to specific offences of malicious damage to different kinds of property by different means. The Law Reform Commission report I have referred to sets out no fewer than 108 kinds of property and 62 different words to express the causing of damage. The Bill cuts through all this complicated verbiage by providing just three offences of damage to property in general. These are, first of all, a simple offence of damage to another's property; second, an aggravated offence of damage to any property where the damage is done with intent to endanger the life of another or with recklessness in that regard; and finally, an offence of damage to any property where there is an intent to defraud. There are also two subsidiary offences of threatening to cause damage to property or to have custody or control of anything with intent to cause damage with it. All these offences are covered in three provisions — sections 2, 3 and 4.

The Bill also deals with a problem of much more recent origin, that is, that of computer misuse by what is called hacking. By hacking I mean getting access to computerised information without the permission of the owner of the computer system or the information. It can be done either from inside an organisation or from outside by someone who has no legitimate connection with it. "Insider" hacking takes place when an employee with legitimate access to the data equipment either uses it for a wrongful purpose or exceeds his level of authorisation in accessing particular data: The "insider" may of course be using a terminal that is located far away from the central processing system of the organisation concerned. "Outsider" hacking takes place when a person who has no legitimate connection with a data system gains access to it by using a computer in his own home or office connected to the telephone network. It is the kind of activity that people most often think of when referring to hacking but it is no different in principle from "insider" hacking.

Before computer systems became common, confidential information was kept locked away in filing cabinets in locked rooms so that it could not be tampered with or copied by persons outside the organisation, though of course there was always the posibility of collusion between employees or burglary. Nowadays information on any computer system linked to the telephone network is vulnerable to access by complete strangers. The situation has been compared to paper files kept in a locked cabinet but left in a public place. It is just a matter of finding the right key to fit the cabinet and the person who wants to read the files — in this case the hacker — can spend as long as he likes trying different keys until he finds one that opens the lock.

The motives of hackers vary considerably. At one end of the scale, they could be altering, say, payroll programmes for fraudulent purposes. Those who do so are liable to the penalties prescribed by the law governing fraud. A crime is a crime irrespective of whether the criminal uses a jemmy or a computer to commit it. At the other end, there are those, usually young people, who are motivated by a sense of achievement on being able to penetrate the security systems of organisations not only in this country but worldwide and who may just "look around" the system or copy the information on it or perhaps add on a message of their own.

Hacking can cause very serious damage, whether the computer system is used only for storing information or has an operational role. If the system is dealing only with information storage, the hacker can erase the information or introduce false data. If it has an operational role — if it is dealing with, say, inter-bank fund transfers, air traffic control, stock control and automatic reordering, airline and hotel bookings, payrolls and so on — the hacker can reprogramme these systems or add false data with the possibility of causing substantial damage and financial losses. In both cases, he can introduce "viruses" or "worms", that is, programmes that replicate themselves and either use up the capacity of the system or delete existing programmes or data.

That is why we have added to the measures recommended by the Law Reform Commission in relation to damage to tangible property a number of provisions to ensure that any interference with data held on computerised systems will be equated with damage and be punishable accordingly. But not all hackers interfere with the data held on the target computer on every occasion that they engage in this activity. They may not have any particular computer system in mind when they start off and be merely seeking to log on to the first system they gain access to, whatever it may turn out to be. And when they do gain access, they may be satisfied just to "look around" it without modifying the data in any way or they may want to proceed further into the system but find that they are unable to do so because they cannot penetrate the level of security provided by it.

It could be argued that hacking activity which does not result in data or programs being modified — the "looking around" activity I have mentioned — should not be made an offence on the grounds that, first, what is involved is merely a breach of confidentiality and, second, that such breaches are not punishable under the criminal law except in two cases, these being breaches of the Official Secrets Act, 1963, or of section 22 of the Data Protection Act, 1988, which makes it an offence to disclose personal data that has been improperly obtained. I think that many people would regard the breach of confidentiality as sufficient, without more, to justify criminalising this activity and I sympathise with that view but the Government's reason for doing so is based on other grounds.

The fact is that hacking is a matter of major and legitimate concern to users of computer systems. To counter it, ever more sophisticated security measures have to be put in place which reduce their speed and efficiency. In addition, the systems must be monitored regularly to check whether there have been unauthorised attempts at entry. If any instance of hacking, however trivial, is detected it must be investigated to see if any damage has been caused. Even if it has not, it may be advisable to close down the system and rewrite the software completely as a precaution. In particular, hacking into operational computer systems, such as those I have mentioned — and they include such operations as air traffic control — could have most serious consequences. That is why in recent years any form of unauthorised access to computer systems has been made an offence in many countries, including the US, Canada, the UK, the Netherlands, Germany, Iceland and France.

Section 5, then, makes it an offence merely to access or attempt to access data or, as the section puts it, to operate a computer with intent to access any data that are kept either inside or outside the State. It applies whether any data are actually accessed and whether the intention is to access any particular data. It will also be an offence under our law for anyone abroad to try to access data kept on a computer here. The offence is punishable on summary conviction by a £500 fine or imprisonment for a maximum term of three months or by both a fine and imprisonment. Of course, if as part of the hacking activity any data are modified, the modification constitutes an offence under section 2 and makes the hacker liable to the far heavier penalties provided there. Also, a person who is found not guilty of modifying data under section 2 may be found guilty, if the facts justify it, of the lesser offence of unauthorised access under section 5. That is provided by section 7 (3).

Before leaving secion 5, I should explain that it does not cover what is called electronic eavesdropping, that is, the remote monitoring of electromagnetic emissions from computer equipment. It is possible to pick up the radiation from a computer screen in much the same way as radio or television transmissions are picked up and to convert this radiation into an image on the eavesdropper's own computer screen. But all that can be seen on that screen is whatever happens to be on the screen that is being monitored at that particular time and, in practice, the results are likely to be unsatisfactory because of the limited strength of the radiation — and consequently the limited area over which it can be received — and also because of its susceptibility to electrical inter-eference. This kind of surveillance is essentially no different from any other kind of electronic eavesdropping of current activities. It is "passive" and does not have the potential, as hacking does, of reading all the data files of the company being hacked or of going further and manipulating or even rendering useless its entire information system.

I should now like to refer to the provision being made for the mental element in the offence of damage to property. Under the Malicious Damage Act, 1861, damage had to be done "maliciously". Ever since 1861 this term has been interpreted as meaning intentionally or recklessly and the word "recklessly" has been given a subjective meaning. In other words, a person would be regarded as reckless only if he had foreseen that the particular kind of harm which in fact was done might be done and yet had gone on to take the risk of it. The Bill incorporates that subjective definition of "reckless" in section 2 (6) to make it clear that there is no intention of making any change in the traditional interpretation of the "malicious" element in the offence of criminal damage.

I may say that the Law Reform Commission, while equally anxious to ensure that a subjective interpretation of "reckless" would be retained, proposed a formulation taken from the tentative draft of the United States Model Penal Code. However, this proposal was made on the basis that there would be a common approach to the mental element — the mens rea— in criminal offences generally, unless there were special reasons for adopting a different approach having regard to the particular offence under consideration. The Government took the view, pending the adoption of a common standard of recklessness under the general criminal law, that it would be better to retain the traditional formula.

It was also a requirement under the 1861 Act that damage had to be done "unlawfully" and this element in the offence is being retained by the use of the words "without lawful excuse". Some of the circumstances in which an accused person may have a lawful excuse are set out in section 6 but these special defences are without prejudice to any other lawful defences that a person may have under the existing law, such as the defence of necessity. Under section 6 a person who damages property, or modifies data, will have a lawful excuse if he has an honest belief that the person entitled to consent to or authorise the damage or modification had in fact done so or would have done so had he known the circumstances.

The other special defence provided by the section is an honest belief that it was reasonable to do the damage, or make the modification, to protect oneself or another or to protect property belonging to oneself or another or a right or interest in property which was, or which he believed to be, vested in himself or another. In that case there must also be an honest belief in the immediate necessity of protection and in the reasonableness of the means of protection adopted or proposed to be adopted. Neither of these defences applies if there is a life endangering element in the damaging of the property. Accordingly, the operation of the section does not extend to the aggravated offence of damage under section 2 (2), to threats to cause damage or to possession of something with intent to cause damage with it, where the threat or intention relates to damaging property in a way which the offender knows is likely to endanger the life of another.

Section 7 (2) introduces a procedure aimed at avoiding what the Law Reform Commission describe as an element of unreality in requiring the owner of damaged property to identify the property as his in cases where it patently does not belong to the accused and also to say that he gave no one permission to damage the property. Under this provision, in prosecutions in relation to damage to property belonging to another, it will not be necessary for the prosecution to name the person to whom the property belongs and it will be presumed, until the contrary is shown, that the property belongs to another. It will also be presumed, again until the contrary is shown, that the person entitled to consent to or authorise the damage concerned had not done so. The latter presumption will also apply to modifications of data but only where the person charged is not an employee or agent of the person keeping the data.

It would be unreasonable to have such a presumption for employees because there can often be genuine misunderstandings about the extent of an employee's authorisation to access and modify data. So, if an employee is charged with modifying data without authorisation it will be up to the prosecution to prove the absence of authorisation in the normal way. The presumption will apply to unauthorised modifications of data only where the person charged has no connection with the person or firm whose data are being hacked.

Section 9 enables a court to require a person who has been convicted of damaging property to pay the owner compensation not exceeding the amount of the damages that in the court's opinion would be recovered in a civil action. The object is to ensure as far as possible that offenders who can afford to pay for the damage are made to do so, or to start doing so, as quickly as possible. But, as a practical matter, it will not be always possible for the convicting court to establish who the owner of the damaged property is and the exact extent of the damage and the cost of making it good. So it will be utilised only where the owner is identified and where the approximate cost of making good the damage is readily ascertainable.

The section also requires the court to have regard to the convicted person's means so far as they appear or are known to the court. Again, the object here is to try to ensure that the compensation order can be realistically enforced without causing hardship. Special provision is made where the convicted person is under 17 and the court is empowered under section 99 of the Children Act, 1908, to order the fine, damages or costs awarded to be paid by the parent or guardian instead of by the child or young person. In such a case the court must have regard to the means of the parent or guardian. Payment of the compensation may be made by instalments so long as the period of payment does not extend beyond 12 months. The object of imposing a maximum limit on the repayment period is to ensure that payment cannot be so prolonged as to be oppressive or indeed unrealistic.

The section, in effect, allows the court to give preference to making a compensation order rather than imposing a fine where it seems to it that the means of the offender are insufficient to pay both an appropriate fine and appropriate compensation, though in such a case it may impose a fine as well if the offender can afford to pay it.

The Law Reform Commission also recommended that criminal damage offences should cease to be scheduled under the Offences Against the State Act, 1939. Scheduling these offences means that a person may be arrested under section 30 of that Act for a malicious damage offence and be detained for up to 48 hours, during which period he may be questioned about other offences. The commission concluded that the scheduling of malicious damage offences could not be justified as being necessary to investigate other offences and that it led to unnecessary confusion and expense.

This recommendation of the commission is not relevant to the proposed Bill as the scheduling, or descheduling, of an offence is a matter to be effected by a Government order under section 36 of the 1939 Act. Section 36 (3) provides that, whenever the Government are satisfied that the effective administration of justice and the preservation of public peace and order can be secured through the medium of the ordinary courts in relation to offences of any particular class or kind or under any particular enactment, it may by order declare that those offences shall cease to be scheduled offences. The need to continue scheduling particular offences is reviewed periodically but at this juncture I do not propose asking the Government to deschedule malicious damage offences. In any event, the matter will come up for review by the Government when the Bill becomes law, as that will necessitate a consequential amendment of the scheduling order, which, as it stands, refers to provisions of the 1861 Act which are now proposed for repeal.

The repeals effected by the Bill make it necessary to make a consequential amendment to the Criminal Law (Jurisdiction) Act, 1976. The 1976 Act extended the State's criminal jurisdiction to certain acts done in Northern Ireland that, if done in the State, would constitute one of the offences specified in the Schedule to that Act. Corresponding legislation was enacted in the UK. These offences include the common law offence of arson, which the Bill proposes to abolish, and sections 1 to 7 of the 1861 Act dealing with arson offences, which sections are being repealed.

When the 1976 Act was passed, the 1861 Act applied both here and in Northern Ireland, but in 1977 the provisions of the English 1971 Criminal Damage Act were extended by order to Northern Ireland, resulting in the abolition of the common law offence of arson and the repeal of sections 1 to 7 of the 1861 Act. However, in order to maintain the necessary correspondence between the offences specified in the 1976 Act and those applying in Northern Ireland, the order provided that, for the purposes of the UK legislation, the abolition of the common law offence of arson would not have effect in Northern Ireland and that sections 1 to 7 of the 1861 Act would continue to apply there.

I believe that the criminal law jurisdiction legislation here and in the UK should reflect the changes that have been made in UK criminal damage law and those we are now proposing to make in Irish law. Section 14 (4) proposes, therefore, to update the Schedule of offences in the 1976 Act to take account of the changes being made by the Bill and to bring this provision into operation when a reciprocal amendment has been made in the corresponding UK legislation. In the meantime the necessary correspondence with Northern Ireland law is being preserved by section 14 (3).

In conclusion, I think it is fair to say that the Bill is a useful and practical measure of law reform. On behalf of the Government I wish to express thanks and appreciation to the chairman and members of the Law Reform Commission for their excellent report, which has greatly facilitated the preparation of this much needed amendment of the law. The Bill is, I think, non-controversial and I commend it to the House.

Mr. J. O'Keeffe

I acknowledge that this Bill is non-controversial and I have no difficulty in accepting it in principle. I am convinced that our antiquated, largely Victorian criminal laws are totally inadequate as a legal framework within which the fight against crime in the late 20th century can be conducted. Essentially, loopholes in our legislation have not been closed and, because we have been so slow in updating our criminal laws, many an accused has been able to escape his just desserts. The Malicious Damage Act, 1861, which we are now replacing clearly falls into this category of outdated legislation. I would agree with Professor Brian Hogan's assessment of the Act when he wrote in 1969 that "In retrospect it seems astonishing that Parliament, or rather the lawyers responsible, could have foisted on the public and the profession so inelegant an instrument as the Malicious Damage Act, 1861".

That Act has survived for almost 130 years but it has run into many problems, particularly with interpretation. The problems associated with the Malicious Damage Act, 1861, were never so clearly highlighted in recent times as when the prosecution was brought in 1986 for the malicious damage to the famous moving statue in Ballinspittle, County Cork, not far from where I live. Great public concern was voiced following the acquittal in that instance and the case clearly provided further corroboration, if that was necessary, for the updating and simplification of legislation dealing with criminal liability for damaged property.

The Bill before us is largely based on the recommendations of the Law Reform Commission report. Since I accept the recommendations of that report, I have no difficulty in accepting in principle the Criminal Damage Bill, 1990, but there are few aspects of it I want to refer to in more detail later. However, in principle, it is a good Bill. The updating of this aspect of our laws highlights the glaring inadequacies in other areas. The Government committed themselves in the Joint Programme for Government to the process of codifying and updating the criminal law in general but no great progress has been made on this front. While the present Minister for Justice has produced occasional items of worthy legislation he will stand indicted unless he tackles the problem in a comprehensive manner.

Mr. Burke

We are in this House every day of the week, and we have more legislation going through——

Mr. J. O'Keeffe

This is ad hocery at its best.

Mr. Burke

Where is the generosity——

Mr. J. O'Keeffe

I am a very fair man and I accept that a few Bills have been produced — in the main good Bills — but that is not the way we are going to provide the comprehensive, modern, updated legal framework within which to conduct the fight against crime. I have consistently praised the Law Reform Commission for their work while at the same time I have highlighted the fact that such a commission as at present constituted, dealing with everything from debt collection to the death penalty, do not have the resources to undertake the comprehensive examination of our criminal justice system which is a necessary base to the process. I will raise again with the Minister the desirability of establishing a separate criminal law reform commission to undertake this work. This is an absolutely necessary part of the process of codifying and updating our entire criminal law.

In relation to the Criminal Damage Bill, the Minister has been wise in this instance in largely following the recommendations to the Law Reform Commission. The commission pointed out that the UK Criminal Damage Act, 1971, was a model of simplicity, and decided to use that Act as a model for reform. This led to the conclusion that the long list of specific offences established by the Malicious Damage Act, 1861, should be replaced by a more general offence in respect of criminal damage to another person's property. I like the broader definition of property proposed in the Bill and the fact that computer hacking is also covered. Making unauthorised accession to automated data an offence is another worthy inclusion.

In case the Minister might think I am praising him too much, I will now raise a few issues on which I am not in total agreement, and the principal one relates to criminal intent. The Law Reform Commission saw an advantage in establishing a common approach to the question of mens rea in relation to criminal offences generally.

The Minister pointed out in his speech that the Bill incorporates the subjective definition of "reckless" in section 2 (6) to make it clear that there is no intention of making any change in the traditional interpretation of the "malicious" element in the offence of criminal damage. He mentioned that the Law Reform Commission had a somewhat different approach and proposed a formulation taken from the tentative draft of the US model penal code which I have seen referred to, in another document, as the best criminal code of the 20th century. The Law Reform Commission consider that there should be a common approach to the mental element in criminal offences generally. We talked about this when debating the Bill dealing with handling stolen goods but the Minister shied away from this issue. In that Bill, he did not follow the proposals of the Law Reform Commission and the same is true in relation to this Bill. The Minister merely said that the Government took the view, pending the adoption of a common standard of recklessness under the general criminal law, that it would be better to retain the traditional form. Quite frankly, that is not good enough because there is a whole area of uncertainty on this very point.

The first thing anybody learns in studying criminal law is that no person commits a criminal offence unless he commits it in fact and in mind. The prosecution must prove that the criminal knew what he was doing at the time of the alleged crime. That is the most fundamental concept in the criminal justice system. The trouble is that criminal law generally refers to certain fundamental concepts in varying orders of grievousness ranging from "intention", "recklessness", "criminal negligence", "negligence", "strict liability" and "absolute liability". The difficulty is that nobody knows exactly what these concepts are because they are not written down anywhere in Irish law. There is, therefore, much argument in our courts interpreting these concepts, argument largely based on case precedent in the English, Australian and American courts. There has been endless argument in our courts, huge delays in trials and an inconsistency in verdicts in some instances.

Even in the United Kingdom they have problems in that regard because, in recent years, there have been a number of prominent cases where the House of Lords reversed itself three different times in the space of a couple of years. It is important to have clarity when we are talking about criminal intent and we are merely adding another but to the patchwork quilt in this Bill with the proposal of the Minister. While I accept that the Law Reform Commission have suggested a common approach, when will we have it? The Minister said he refused to accept the recommendation of the Law Reform Commission in relation to the offence of receiving and he is doing the same in relation to this Bill. Does he intend to have a general criminal justice Bill which will deal with this point? If so, when? Pending all this, will we just sit and wait while the present state of uncertainty in our laws prevails. The Minister is shying away from a very serious — although admittedly rather difficult — problem but the longer he continues to do so the longer he will continue to do a disservice to our criminal justice system.

I should like to hear the Minister's views on another issue touched on in the report of the Law Reform Commission, whether legislation should introduce an offence of "causing or risking a catastrophe". Such an offence has been created in a number of American states. The principle on which this offence is based is that fires, explosions, floods, and so on, are properly the subject of criminal law where they are intentionally or recklessly created by human agencies. I accept that the concept of causing or risking a catastrophe is of a somewhat uncertain scope and that our criminal law already covers much of the range of conduct embraced by this type of activity. This area was delved into by the Law Reform Commission's report and this would be an appropriate occasion to hear the Minister's views.

The Minister accepted the view that I — and indeed many others — expressed in relation to enabling the court require the person who has been convicted of damaging property to pay compensation to the owner. I am very glad that this approach has been adopted because victims of crime are too often the forgotten people in our criminal justice system. I favour a much broader approach in relation to general criminal law whereby the courts would be given power in virtually all cases to order compensation to be paid to the victim of the crime and, if necessary, to enforce such orders by way of confiscation of property or attachment of income.

While the detailed provisions of the compensation section will need to be teased out on Committee Stage, I am very much in favour of the principle. However, I should like the Minister to deal with one point in his closing remarks at the end of Second Stage. I refer to the question of parental responsibility which is touched on in section 9. I appreciate that in the case of a person under 17 years of age, there is an existing power under the Children Act, 1908, to require the parent or guardian to pay any fine, damages or costs imposed on the child or young person but as far as I can see, the Minister has not clarified the point in relation to a compensation order. It is not clear from the Bill that it is included and the Minister skirted carefully over that point in his speech.

I accept that under the Bill the court shall have regard to the means of the parent or guardian in determing the amount to be paid by a young offender but the Bill does not appear to extend power to require such parent or guardian to pay compensation. The whole question of parental responsibility needs to be explored further. This must be recognised by the Minister and I invite him to give his views on that matter. Should there be parental responsibility in relation to the payment of compensation?

There is one further point in relation to compensation provisions on which I am slightly at odds with the Minister. He provided that payment of compensation may be made by instalments as long as the period of payments does not exceed 12 months. He explains his approach on the basis that the object of imposing a maximum limit on the repayment period is to ensure that payment cannot be so prolonged as to be oppressive or unrealistic. That will not wash. Why tie the hands of a court in such circumstances? In some cases it might be quite oppressive to have an instalment order which would be limited to 12 months but in others it might be quite oppressive no matter how long the period was. Surely this is a matter for the court and the court should decide, taking all of the circumstances of the individual case into account.

I urge the Minister to have another look at this proposal. I agree in principle that there should be an arrangement for the payment of fines by instalment. Part of our problem relates to people living on social welfare or who have poor means and may be unable to pay straight off, for instance, a fine of a few hundred pounds for a road traffic offence. The instalment approach would be very beneficial in such cases. I am not against the introduction of the instalment arrangement but I oppose the limitation of the period to 12 months. The hands of the courts should not be tied by an unnecessary statutory restriction. The court might find it sensible in many instances to order an instalment period of 24 months, or a couple of years.

The Bill on the whole is satisfactory. Some points will need to be clarified by the Minister and some issues will have to be teased out on Committee Stage, but the Second Stage of the Bill can be approved.

I accept that some of the issues I have raised might more appropriately be raised in a Dáil committee on crime. It is quite outrageous that the Government have not seen fit to allow this Dáil committee on crime to be set up. We in the Opposition are not party to any sweetheart deals with the Progressive Democrats and we do not accept that precedent should be broken in relation to the chairmanship of such a committee. The last such committee had as chairman Deputy Michael Woods who was then the shadow spokesman on Justice. It is outrageous that Fianna Fáil now in Government are holding up the establishment of this committee with their unprecedented demand that the chairman of it should be a member of one of the Government parties. I understand that this is one of the sweetheart deals between the two partners in Government. We want to see the committee on crime established on the same basis as heretofore, with an Opposition chairman. I do not see any justification for the approach adopted by the Government and I challenge the Minister to provide such justification if he can.

The Bill before us can be approved on Second Stage and I look forward to teasing out some of its provisions in more detail on Committee Stage.

Mr. McCartan

I agree with the Minister's observations that this Bill is, by and large, uncontentious, and it will no doubt get the support of all parties. The Workers' Party will support the Bill on Second Stage but will seek to raise with the Minister a number of matters concerning provisions of the Bill and the recommendations of the Law Reform Commission.

I welcome the fact that we are putting aside legislation that has been on our Statute Books for upwards of 130 years. It is an incredible illustration of the ineffectiveness of this House and successive Governments that in an area of such importance — to the extent that it is referred to in the Law Reform Commission report and in the Minister's explanatory memorandum as an area of crime of extraordinary prevalence — we have taken so long to reform the law.

I thank the Minister's officials for counting out the incredible statistics and for outlining that there are 108 kinds of property mentioned in the Act. I tried to do that in preparing for this debate. I got some way down the line and gave up in exasperation. There are 62 expressions of the kinds of damage that can be done. Whoever worked on this legislation so long ago has to be applauded for ingenuity. One can imagine the kind of game that was played as that legislation was being prepared. The unworkability of the legislation is well illustrated by the moving statue case. The defendant in that case, when asked for a comment said, "if it moves again I will be back". That case outraged people generally and made us wonder exactly what our laws mean. I commend the judge in that case for his courage in ruling in favour of the defendant. As it transpired the indictment was specifically laid, alleging that the area was a place of sanctity. There was under the legislation many other opportunities to lay different indictments. The State picked one and did not prove their case, and that was it. It was the complexity thrown up and the opportunities to draft any number of indictments that drew the legislation into question.

The previous Attorney General, Mr. Rogers requested the Law Reform Commission to look at this area of the law and he is to be commended for that. The Law Reform Commission deserve the praise of this House. I am glad that we are modifying our law. Look how simply it can be done? This is very modest legislation reducing many decades of sections to four basic sections in the Bill. The Minister is to be congratulated on bringing it forward.

I would like an explanation for the fact that it is two years since the Law Reform Commission report was published and the Minister circulated the Bill. Is two years not too long a period to wait if we are responding quickly to the work of the Law Reform Commission? There may be an explanation in the area which the Minister has added with regard to computer hacking and interference. It is not satisfactory that it should take two years to circulate legislation on foot of a comprehensive and succinct report from the Law Reform Commission in an important and urgent area. That is my only reservation. I welcome the Bill in principle and also the actions of the Minister in bringing it forward.

The work of the Law Reform Commission makes our job easier. It must be noted from the Order of Business that we have immediately after this a further Bill arising directly from the work of the Law Reform Commission. This signals a new departure to the extent that we are now working directly in partnership with the Law Reform Commission. The Minister is adopting in principle the general thrust and the content of those reports.

The legislation before us contains some very important issues that should be looked at. I welcome the Minister's decision to include the whole issue of computer hacking and interference with computer programming, etc. It is important that our legislation is keeping abreast of modern technological developments. It is a good feature of this legislation that we have provided so comprehensively in its definition and workability, the protection of the computer as a concept and of the computer content as an item of ownership. I will be supporting those provisions on Committee Stage.

I am also concerned, as is Deputy O'Keeffe, with the Minister's departure from the recommendations of the Law Reform Commission regarding criminal intent in this area. I am surprised the Minister has not gone along with the provisions in the Law Reform Commission Report. He also disagreed with the Law Reform Commission in the area of criminal intent in the handlers Bill, in which we dealt with the question of intent by those receiving and handling stolen property. It is curious that the Minister is at variance so often with the commission on this point. They have argued for a universal formula. It is important that this line of consistency should exist in our legislation. The idea of introducing into various Bills various offences for different criminal concepts of intent, is not a good one. The incredible complexities that that will develop in terms of judicial precedent will be a minefield for the courts and for the prosecuting authorities. In his concluding remarks the Minister should tell us when he expects to be in a position to introduce the universal test for one common standard that has been argued for and which is maintained by the Law Reform Commission in this and in previous reports. How does the Minister see this now because I am a little confused about the offences of arson. Will it remain a separate offence as recommended or is it intended, by implication in this legislation, that the offence will no longer be known in our law? I cannot find the answer clearly set out in the legislation or in the memorandum. I believe the offence of arson should be retained as a separate offence — we argued that the concept of rape, as an offence, should be retained and developed. It is a particular heinous and unacceptable form of criminal activity. Since its consequences are horrendus, it is important that we retain the offence of arson, irrespective of the universality of the provisions of this Bill in the area of criminal damage.

I support the conclusions of the Law Reform Commission in regard to the suggestion that we should introduce an offence of causing or attempting to cause a catastrophe. I do not believe we should introduce such an offence into our code. Circumstances are, perhaps, somewhat different in other jurisdictions, particularly in America, where they have introduced it. It is an unnecessary concept of crime in our jurisprudence. I welcome the fact that the Minister accepts the recommendation of the commission on that point.

Some points of the more technical aspects of the legislation worry me. I welcome the way the universal definition of "property" has been laid out. I welcome also the concept of a universal definition of "damage" as set out in the legislation, but I am concerned about the Minister's refusal to accept the recommendation that malicious damage should be descheduled for the purposes of the Offences Against the State Act, 1939. This is not a small matter. The use of malicious damage as a vehicle to detain people under section 30 of the Offences Against the State Act is an abuse of the legislation.

This is best illustrated by the famous case of Timothy Bowes who was arrested on the suspicion that he had committed murder, which is not a scheduled offence for the purposes of the 1939 Act. Since the gardaí who arrested him were anxious to detain him as long as possible for the purposes of questioning, he was detained for the offence of malicious damage to the knife that was used as a weapon. Apparently a kitchen knife had been used to kill the unfortunate victim and in the process the blade has been bent. The Gardaí alleged that that amounted to malicious damage of the knife and on that basis Mr. Bowes was arrested and detained. The High Court, the President and current Chief Justice of the Supreme Court, had no difficulty in decrying that as a device and saying that it was an abuse of the use of the scheduling of malicious damage under the Act. Mr. Bowes was cleared of the offence on the basis that his detention was unlawful and that a device of abuse had been employed by the gardaí to detain him.

Malicious damage, as a scheduled offence, is used daily to detain people of all ages — as young as 14 years and under — in Garda stations for questioning at their ease over 24 hours or 48 hours, as provided by the 1939 Act, and is used in a way that was never intended by the Legislature. The Title of the 1939 Act says it is an Act designed to suppress offences against the State and other serious crimes. Because, since 1973, malicious damage is now a scheduled offence within the workings of the 1939 Act, anyone alleged or accused of having committed the offence of malicious damage can be detained by the gardaí for up to 48 hours. Unfortunately, it is used wholesale in circumstances which were never intended by the Legislature but is technically within the parameters of the legislation. The Law Reform Commission do not shy away from this point; they made this point. The Commission recommended that, because we are now providing a comprehensive provision in regard to malicious damage, the time was opportune to take it out of the scheduling of the 1939 Act.

The Minister's suggestion that this is not the appropriate legislation or time to do that is regrettable. The Minister suggested that, because we are amending the law and fundamentally repealing it in this legislation, that the issue of rescheduling, scheduling or amending of the scheduling will have to come back before him and the Government for consideration. Can he tell this House the position with regard to the recommendation of the Law Reform Commission? When it comes back for consideration in the context of this legislation, once passed, will the Minister recommend to Cabinet that the Law Reform Commission's recommendations be complied with, and that this recommendation should lead to the descheduling of malicious damage. This is the vehicle under which people can be brought before the Special Criminal Court. It is necessary for the Director of Public Prosecutions to actively certify that the ordinary courts are sufficient to deal with malicious damage on indictment before the case can be left to the ordinary courts.

The Office of the Director of Public Prosecutions, under the law, must actively intervene in prosecutions of malicious damage to ensure that they remain before the ordinary courts and are not sent to the Special Criminal Court, irrespective of the circumstances of how minor or non-organised terrorist or otherwise the crimes. That is not a healthy situation. The Law Reform Commission made this point. I ask the Minister to indicate the position clearly to us.

Another worrying aspect of the legislation is the restriction on the right to election to trial. The legislation provides that the right to jury trial will now be reposited entirely in the hands of the Director of Public Prosecutions and he will be the only one who can decide. That is a regrettable step.

The right to a jury trial is a right of the accused and should always be so. It has been a trend in recent criminal amending legislation to introduce the formula that the right will only reposit with the Director of Public Prosecutions who may decide that the facts are so serious, or taking other matters into consideration, that the proper location is for a trial before a jury. That is a serious curtailment of the right to a jury trial and it is repeated in this legislation. I do not think this provision should be included. I accept that the Law Reform Commission recommended its inclusion but they are fundamentally wrong in their suggestion. I shall pursue this matter as vigorously as possible on Committee Stage.

The right to a jury trial is the right of the accused and our legislation should always provide that it is the accused who can make that choice. One could argue that there should be a limit. The Malicious Damage Act, 1861, provides that damage of £50 and under, as provided by the Criminal Procedure Act, 1851 is of necessity summary and an accused can only be tried summarily but an accused who causes damage of £50 and over has the right to trial by jury on election.

Some formula like that should be included in this legislation because, irrespective of how minor an offence, a conviction can have catastrophic consequences for an accused. Under the law, if a person is accused of stealing goods worth 1p from a shop, for example, a toffee bar or a sweet, he has the right to a trial by jury. That is correct and it should be that way. It is because a conviction can have horrendous consequences in some circumstances for an accused — for example, it might mean the end of a person's career, he may lose his job and it might have consequences far beyond the immediate apparency of the minor nature of the charge — a person should have the absolute right to say, "I want this issue decided by a jury of my peers because I believe that is the best way I can protect my innocence and my future". To take that right away is not a good precedent. I ask the Minister to look at this issue before Committee Stage and not to persist with the proposition contained in the legislation that the right to decide should reposit only with the Director of Public Prosecutions. I ask him to consider bringing forward a formula which would ensure that offences of a minor nature would be necessarily summary and after that the right to a trial by a jury would be a choice and right of the accused.

I very much welcome the provision in relation to barring orders and that the concept of ownership should rest with the person who has obtained the barring order. In 80 per cent of cases, and perhaps more, which come before our courts in which a barring is made the person barred, usually the man, turns up on the doorstep late at night with drink on board demanding entry to the house and often forcing his way in by breaking a door or window or causing some other damage. It has been a major problem in the prosecution of that type of offence to prove ownership beyond that of the woman in the house who has obtained the barring order. That prosecution has not been available to the Garda because a defendant can say, "It is my house, I am merely barred from it and I can damage my own property in whatever way I desire". The provision in relation to barring orders is a very good development.

I welcome the removal of the issue of ownership. This will make the prosecution of this type of offence very easy in the future. Over the decades it was very difficult for many gardaí to lay a good case before the courts where damage had clearly been caused because they were not able to produce the owner in court. Those people involved in terrorist and organised crime gangs also used this device to bring pressure to bear on those whose property had been damaged, bombed or burned not to turn up in court. That will not happen in future because the whole issue of ownership has been removed. In those circumstances people can be prosecuted where it can be clearly shown that they were not the owners and were not entitled to damage the property.

I am very concerned about the provision for civilian arrests and I should like the Minister to look at it again before Committee Stage. Section 12 provides that a person can be arrested by a Garda or a civilian if they think an offence has been committed. Section 12 (2) provides that:

Any person may arrest without warrant anyone who is or whom he, with reasonable cause, suspects to be in the act of commiting an offence to which this section applies.

If I understand that subsection correctly, it will be a very substantial extension of the common law right of a civilian to arrest. My understanding of the common law right of a civilian to arrest — by civilian I mean a person who is not a member of the Garda Síochána — is that a civilian who observes a crime being committed can apprehend an offender at the place of the crime. This provision will give a civilian comparable powers to a member of the Garda Síochána and will allow a civilian who suspects with reasonable cause, not having witnessed the crime being committed, to arrest a person. That is a very worrying extension of the powers of a civilian in this area. It means that a person walking innocently down the road, far removed from the scene of a crime, could be set upon by a civilian on the basis that the civilian thought he had caused damage to property three or four streets away. That is an incredible and very worrying extension of the powers of common law arrest by a civilian.

One can imagine the rows which will take place, and the problems which will arise, when a do-gooder decides he is going to clean up a locality and haul off people to the nearest police station on reasonable cause of suspicion. It is only right that members of the Garda Síochána should have the power to arrest people on reasonable suspicion. They are trained, are aware of their rights, are fully accountable, are subject to a line of authority within the force and must explain all of their actions. We as a community give to them the power to arrest for reasonable cause and suspicion, but if we give that power to civilians it will be dangerous in the extreme and will rebound greatly on this legislation and the integrity and reputation of the Minister if he persists with it.

I was amazed that the Law Reform Commission made this recommendation and I do not accept the tenuous grounds they advanced in their report for its inclusion in the Bill. The Minister should reflect further on this provision before the legislation passes through both Houses.

The final issue of concern to me is the provision in relation to parental compensation. I want to state clearly that it is not a good proposition. I accept that this provision exists in the 1908 Act but the Minister will have to concede that by and large it is not employed by courts at all because it is unworkable. The concept of penalising parents who have a truculent and difficult child is not the way to deal with such issues. It is interesting to note that we are providing this draconian provision in the context of compensation to the victims of damage to property only. It is curious that in all our legislation it is the victim of the damage to property who is provided for. Of course, they are a particular class of people. They are not the majority, but those who in this society do not have a great deal of property. There is no provision in our legislation whereby the victims of personal attack and assault are compensated or which obliges the parents of children who attack others to pay compensation. This is a curious imbalance in our legislation, if one is committed to this concept of compensation as a universal principle. The position is even worse because for many years the State provided a tribunal to compensate the victims of personal injury and loss. That Criminal Injuries Compensation Tribunal was abolished by the Fine Gael-Labour Coalition Government, to their disgrace. Fianna Fáil, then in Opposition, created a hue and cry about it but since they have come back into Government they have not re-established the tribunal. Consequently when we talk in this House about concern for the victims of crime, we are talking about the victims of the very specific crime of damage to property.

The motivation in all this comes from the insurance companies who cream the market of insurance cover on property but are happy when courts can extract from defendants, often hapless, the means of repaying the loss to the injured person. Where a person recovers in the courts, the insurance company is exonerated and relieved of meeting any obligations under the certificate of insurance. This is where the pressure is coming from for the idea of tying in parents. That is why it is being repeated in this legislation. It is not a good principle to penalise parents for the acts of children over whom they often do not have control. Consequently it is a provision I will certainly oppose.

I welcome in principle the provisions with regard to compensation but I should like to see them extended to cover all crimes or perhaps see the reintroduction of the Criminal Injuries Compensation Tribunal. It is all the more welcome if it results in fewer people being sent to prison. The Minister, in explaining this legislation to judges in any memorandum, should advise them of the importance of the compensation provisions and ask them to work the legislation on the basis that it should lead to fewer people being locked up in prison and being doubly penalised. It would be a far better system if defendants who could afford it were forced to pay in compensation for their crime. This should be done together with work in the community, probation or a suspended sentence rather than imprisonment.

I welcome the Bill. There will be points to be thrashed out with the Minister on Committee Stage, but it is legislation which, in principle, deserves support.

Mr. Bell

The Labour Party welcome the introduction of this Bill which has been awaited for many years, particularly since the elimination of compensation for malicious injuries. There are many points in the Bill that would be better dealt with on Committee Stage and it will be interesting to hear the Minister's explanations.

The Bill is designed to protect the interests of the general public and is a welcome addition to legislation under that heading. One must ask how this is to be done. Many Bills are introduced but unless we give the necessary resources, in this case to the Garda, the legislation will be useless. I am particularly interested in the new dimension of hacking. This word has a new meaning and most of us would have understood it in an entirely different way. It will be interesting to get more detailed information under this heading.

The Bill does not indicate who is to supervise this complex operation. Will it mean that new technology will be introduced at Garda headquarters or at divisional headquarters? What will happen in regard to the training and education which will be required in respect of updated technology within the Garda? Will there be a special section dealing with this matter? What equipment or finance will be given to update technology and the means of supervising it? If it is at divisional headquarters level, will there be special units there to cope with this very complex matter? One would not expect the Bill to spell out that type of detail but it would be important to indicate how the complex operation of supervising and tracking down defaulters will be done. I can find no reference to it in the explanatory memorandum and I assume it will be done by regulations issued under the legislation.

Those of us who were and still are involved in local authorities remember the very serious position that developed with the previous method of compensating people for criminal damage. This was eventually eliminated and rightly so. At that stage the local authorities paid the bill and were given a rebate by the Department of 90 per cent of the total cost. It took at least two years before people were compensated for the alleged offences. It reached the stage where the operation of the system got out of control and it was well known that in many cases people were committing offences themselves with a view to being compensated. The logical question is, who compensates the person whose property is damaged and in what way? Unfortunately, many people who might commit this type of crime are not in a position to pay anything. Even if one places the onus and responsibility on parents of young offenders — the Minister will know this better than anybody — very often one discovers that they, in turn, may be in receipt of unemployment assistance, or some social welfare benefit and are not in a position to make any contribution by way of compensation.

Therefore, the question must be posed: who pays the bill; who compensates the person whose property has been damaged and in what manner will that be done? It is all very fine to commit somebody to prison for having committed an offence under the provisions of this Bill. Even if a person serves an amount of time in prison, at the end of the day, if they or their family do not have the resources to pay the cost of that damage, that is not much good to the person whose property has been damaged.

Like Deputy McCartan, I contend that the whole aspect of insurance companies' involvement in this operation must be teased out. We are aware that, under the Malicious Damage Act and the regulations pertaining thereto, very often insurance companies were let off the hook. If such an offender was caught and convicted, then the question of compensation did not apply at all; the victims were not entitled to any. The Minister should spell out this aspect more clearly for the information of the general public. Let us say I have my home covered comprehensively for insurance purposes and that a person of no means, for whatever reason, burns down my home, is caught, convicted and sent to prison, does that mean that the insurance company get off the hook and pay nothing? That is what used happen under the previous system of compensation under the Malicious Damage Act. Indeed, people found it very difficult to understand the real operations of that system. Usually, at the end of the day, it transpired that it was simpler for people to cause the damage themselves, ensuring that the offender would not be caught, thereby passing the bill to the relevant local authority.

From my perusal of the Bill, and the explanatory memorandum, I am not clear whether an attempt is being made to come to grips with the circumstances I have just outlined.

I might refer briefly to the question of barring orders. I am sure all Members could cite examples of such incidents in their constituencies. For example, I learned recently of an individual in my constituency who, because his wife had been granted a barring order against him, burned the house down. The net result of that event was that the woman and her family were left without a home. Of course, the man was convicted and duly dealt with by the courts in accordance with the legislation obtaining. That case involved complex legal questions as to who owned the house, who was entitled to be compensated and so on. Of course the offender concerned did not have any means of rebuilding the house, nor did he have any cover for insurance purposes and so was not entitled to claim any money from an insurance company. Nonetheless, at the end of the day, it was the wife and children who suffered most. In those circumstances the question which must be posed is: in what way will the provisions of the Bill apply to cases or circumstances where barring orders have been granted, against either husband or wife? Who will be deemed to be responsible for the payment of damage caused and in what way will that provision operate? I shall be interested to know whether the Minister can offer the House any further enlightenment or explanation in that regard.

All Members are very conscious of the severe pressures on the Garda Síochána at present. The provisions of this Bill will place additional pressures on them in the matter of detection and prosecution under the terms of what is a very technical Bill, particularly with regard to the new offence of computer hacking. For example, will the Garda be given the necessary resources to undertake the requisite supervision under its provisions. I should like to know what plans the Minister has in this regard. The Labour Party welcome the Bill and look forward to teasing out its details on Committee Stage.

Mr. Cosgrave

I am glad to have this opportunity to comment on legislation which has long been necessary in our increasingly technological society. Computer crime has grown alarmingly in recent years because of the increase in potential targets, that is strategic information stored in the form of computer data. Computer hacking incidents in international computer networks — so-called computer viruses — and the passing of the Data Protection Act all have served to focus the attention of Irish computer users on data security since the mid eighties. In fact the proliferation of computer security companies, and computer security divisions within major financial firms are further proof of an ongoing serious problem in the area of automated data.

A recent report of Coopers & Lybrand states that losses arising from computer security breaches suggest that this type of crime has risen by approximately 18 per cent per annum. It was reported to me recently by an employee of a large Dublin computer firm — connected to a worldwide network — that that firm's computer has an average of four attempted unauthorised entries each day, some of which have been traced to as far away as Connecticut in the United States. In addition, the increased usage of communications networks to transmit data legally greatly expands the computer criminals' illegal theatre of operations. Constant innovation and improvement in computer technology brings with it a bewildering array of devices and processes which can be very profitable to a criminal but, worse, lethal in the hands of a potential sabateur or terrorist — witness the increasing dependence on computers in such strategic areas as air traffic control and within military systems. Such trends last year prompted 28 major firms, including Allied Irish Banks, Telecom Éireann and DIGITAL to establish the European Security Forum in a move to block the growth of computer crime.

Although welcoming the sentiments of the Bill I must voice certain reservations about its potential effectiveness in dealing with the very real problems facing computer technology here. Because of the intangible nature of automated data I can forsee several instances in which difficulties will arise, both in the detection of offences and in the enforcement of the law in relation thereto.

From my scrutiny of section 5 (1) (a) it would appear to me that attempted unauthorised accessing of automated data, not involving their modification, shall be deemed to be an offence. How does the Minister propose that this provision be implemented? I am given to understand that automated data may be accessed on a grand scale with no fear of detection, due to the existence of computer networks which allow remote connection to a computer. How will the Minister address that? Given the logistics involved in attempting to monitor computer users, has the Minister any concrete notion how the Garda or others will go about apprehending the many thousands of computer users who, viciously or otherwise, access privileged data? I believe they do this on a day to day basis.

Regarding the provision which covers unauthorised accessing of data from outside the State, how does the Minister propose to levy the quite insignificant £500 fine on a perpetrator of such crime who may be resident in any other country? There are many Irish companies in the forefront of technology whose computers store information worth more than £500. A person convicted of such an offence would have data worth more than £500.

Section I now includes data as property and defines how damage may occur in relation to data. Although all forms of damage which occur in relation to data are comprehensively covered, we must look at the mechanisms by which damage may occur before the shortcomings of the Bill can be seen. I am informed by persons knowledgeable in the field that damage to data may occur from the following areas. A computer virus is a programme introduced into a computer system, usually surreptitiously and usually maliciously, and masquerades as a normal computer programme, it then sets about destroying or corrupting the data leaving the computer useless and in need of extensive overhaul. Computer hacking is the popular term for gaining unauthorised entry to a computer's data files and is usually practiced at a remote location. Why risk detection at source when it is usually a simple matter to contact the computer over a leased communications line or on the public telephone network? These are the main methods by which automated data may be damaged. In the case of a computer virus, a seemingly innocuous disc about three and a half inches in diameter can be passed from person to person and loaded on to many computers in the guise of a video game, for example. This is how the computer virus gets its name; it spreads from computer to computer until detected, usually too late.

The increased use of local area networks which can connect all a company's personal computers together serves to make the job of the computer virus even simpler and the detection of the perpetrator more difficult. Severe damage may be caused to many computers' data banks by innocent parties acting in good faith. It would seem impossible to trace the virus to its original source, yet a saboteur could quite easily introduce it to a computer network simply by leaving the disc, entitled, say, "Space Invaders" on someone's desk.

The subject of computer hacking in recent years has had extensive media coverage, especially in the US where embarrassing lessons have been learned about the ease with which confidential or strategic data have been accessed. A lesson learned in other countries is that computer hackers operating from remote locations are very difficult to trace and thus to apprehend. Only those hackers who make no attempt to conceal the origin of their operations can be caught, yet in the hands of a knowledgeable computer enthusiast such a device as a personal computer or a telephone modum — which I believe is the term — which allows computers to communicate with each other over the public telephone network can be the tools of sabotage and extortion. I ask the Minister to expand on how the law relating to these offences can be enforced.

Given the sophisticated concepts involved and the degree of new, changing technology in the area of computers, I suggest that, although the Garda Síochána perform the essential role in the prevention of crime and the apprehension of criminals, surely there is a need for a specially trained unit within the Garda to be able to deal with this area of crime effectively. Surely there is also a need for an authority to monitor the trends in computer crime and new developments. With every new breakthrough in the area of computer technology a criminal mind will find a way to put it to illegal use. Assuming a special unit were set up to deal with this problem, how does the Minister propose to apprehend computer hackers resident outside the State?

With regard to establishing a special unit to deal with the problem, in Singapore a task force has been set up with the right to search premises and they can deal with the problem of softwear piracy and copyright breach. However, if we can overcome the obstacles to apprehending criminals, the next step will be to bring the case to the court where I fear similar problems will exist. Taking into account the bewildering technologies covered by the Bill, is it safe to assume our Judiciary have the wherewithal to deal with cases of computer crime? Can we prosecute the perpetrator of such a crime without first becoming au fait with the concepts involved? This area is fraught with ambiguity and grey areas concerning privilege to data, and the Bill does not appear to be tailored to these eventualities.

The Minister should examine the present climate for computer crime. Since the introduction of the Data Protection Act and the post of data protection commissioner little has changed to alter the climate for computer criminals. The office of the data protection commissioner, I believe, is severely understaffed. So far no codes of practice enforceable by law have been established, and that can only serve to promote apathy regarding security. In France the insurance industry provides strong incentives to companies which prove they have sufficient data protection mechanisms in place. Have we to wait for a widely publicised breach of security, say in our strategic services, before we get more effective legislation? The hackneyed expression "prevention is better than cure" is true, nonetheless and we should bear it in mind when deciding our strategy for dealing with computer crime. One area of business which realised the wisdom of this saying is the banking sector and for the past decade, they spent the bulk of their expenditure on data protection.

In summary it can be said the Bill will adequately protect my computer from the attentions of a hammer wielding villain. However, the protection ends there. Most criminals in pursuit of my data will doubtless use a more subtle approach. As I have stated, the gathering of evidence related to something as intangible as automated data will require extensive training. Although the problem must be addressed, I propose we examine more closely means by which we can stem the growth of computer related crime. Let me quote at this stage the head of an Irish computer security firm. He said: "If there are fewer opportunities for computer crime in other countries, this country might be seen as a place with easy pickings". Is Ireland getting a reputation as a soft target? I can only conclude that this Bill does not go far enough, as enforcement of its provisions seems to be very difficult. On Committee Stage I hope this can be addressed.

Mr. Allen

Like most other speakers I welcome the Bill with a few reservations. It is a very technical Bill and as a non-lawyer it took me a long time to "hack" through it — hacking is in the air today I was known as a pitch and putt hacker in Cork, and that is the new term today in computer technology. As a layman, having gone through the Bill as best I could, I have some comments to make because I believe the whole area of legal reform must not be left in the domain of the legal profession alone. As Members of this House we have the responsibility to push ahead with law reform. We should take the initiative because there is a certain opposition from the legal profession to changes. There are lawyers in every party in this House and I know there is inbuilt opposition to change although it may not always be obvious. I admire the Minister for the way he has taken on certain issues since becoming Minister. Any criticisms I have today are not personal; the Minister is a victim of circumstances.

I believe there should be a Minister for legal reform, that the Ministry of Justice should be split into areas of responsibility. For example, there is the area of security, the Garda and prisons, and there are all these fire brigade actions that have to be taken from time to time. The result has been that no Minister has had the time to take on the complicated issue of law reform. Because of that we have one of the most complicated legal systems in the world that can be manipulated by experts, and the public are the ultimate victims. I had hoped that we would have a splitting up of the Ministry of Justice. Instead the Minister for Justice got the extra job of Minister for Communications leaving matters in a far worse situation. We have a legal jungle full of inefficiencies and abuses with the public open to exploitation by the systems, and being exploited almost on a daily basis.

We have a law society which is becoming more conscious of its public image. Up to recent times they did not give a damn; their arrogance was unbelievable when questioned about the possibilities of law reform. Their attitude was that it should be left to them, that we knew nothing about it. It is only in recent times that they have become more conscious of public relations. Recently in Cork a man was jailed for one month for owing Bank of Ireland Finance £1,000. When questioned those representing the legal profession in Cork said that they checked with the bank and with their solicitors to find out the facts. They never bothered to check with the man himself who would have given them a different story. That is just an example of the arrogance of the profession when questioned showing very little respect for the rights of the individual or the rights of a public representative to represent an individual.

The dispensing of justice should be done for the good of the public and not for the profit of the dispensers, and profit seems to be a priority with many practitioners in the legal area at present. Access to the law should be available to all, irrespective of class or ability to pay, and that is not the case. On the Order of Business this morning there was a question as to when the most recent report of the Law Reform Commission will be acted upon by the Ministers for Industry and Commerce and Energy, and I am sure the Minister for Justice would have an input into this. There is no sign of any legislation coming forward.

There have been many statements about commitment to reform but very little real reform. What we had is movement towards reform in family law and marriage laws but, let us not be fooled, these areas are a gold mine for the profession. There is no mention of reform of the relationship between the legal profession and the public and reform of the courts. It is about time we took the initiative in this House, took it out of the hands of the people who stall things, let things drift on in the hope that people will get tired of talking.

It is important to have real legal reform because our programme of employment creation and economic development depends on it. The present legal jungle results in high litigation costs which leads to higher insurance costs. Insurance costs are so high today that there is almost no point in going into business. In regard to motor insurance, we have high costs because of the inefficiencies in our court system and in the whole legal profession. Economic development and legal reform go hand in hand. One is dependent on the other. Until such time as we have an efficient legal system here, our job creation programme will never reach its full potential.

The Bill itself is very complicated which I welcome, with some reservations. As stated in the Explanatory Memorandum it seeks to simplify and modernise the law in respect of criminal damage to property by replacing the large number of offences contained in the Malicious Damage Act, 1861, with three offences: damage to another property; the aggravated offence of damage to any property where the damage is done with intent to endanger the life of another or was reckless in that regard; and the aggravated offence of damage to any property where there is an intention to defraud. There are also the new offences of threatening to damage property, and property has been extended to include data, and unauthorised accessing or attempted accessing of data. There is, further, a scheme empowering the courts to pay compensation to owners of damaged property.

As indicated in the Explanatory Memorandum the draft Bill follows the recommendations set out in the Law Reform Commission's report of 1988 on malicious damage. The law in relation to malicious damage heretofore is contained in the Malicious Damage Act, 1861, which lists in a number of different sections specific offences of damage to specific property, including a catch-all section of damage to property not specifically covered in another section. The difficulty from the prosecution's point of view under this Act was that the correct section had to be specified in the indictment or charge. Deputy McCartan referred earlier to the famous Ballinspittle case where persons were charged with damaging the moving statue and were charged, contrary to section 37 of the Malicious Damage Act, under an indictment which described Ballinspittle as a place of divine worship. Notwithstanding the fact that the section specifically refers to damage to "any statue or monument exposed to public view", the Circuit Court judge decided that as there had been a misdescription on the charge sheet of the article damaged, the charge would have to fail, and the accused walked free.

I recall cases where persons charged with malicious damage to sheep were indicted under section 40, which refers to damage to cattle. Although the term cattle has been defined in law to include horses and pigs the judge held that the defendant ought to have been charged under section 44 with damage to animals other than cattle, and directed an acquittal. Clearly such results are gratifying to the lawyers representing the defendant but those decisions do not necessarily add to the common good. Hence the need for a simplification and codification of the law.

The Irish Bill and the report of the Law Reform Commission follows in the main on the principles established by the English Law Commission in their report in 1970, which led to the English Criminal Damage Act, 1971. The principle therein established, which is adopted here, is that "distinctions based upon the nature of the property or its situation or upon the means used to destroy or damage it or upon the circumstances in which it is destroyed or damaged should not affect the basic nature of the offence". It goes on to say: "such features as the means used or their consequences or subsidiary matters relevant if at all, in regard to sentence". The general approach of the Law Reform commission was that the provision for a long list of specific offences should be replaced by one based on a general offence in respect of criminal damage to another person's property and that that general offence should be supplemented by a small number of other offences dealing with liability in specific instances.

The Bill should be welcomed in general. The area in which it departs from the Law Reform Commission report is in relation to the inclusion of data under the heading of property. That has been referred to by a number of speakers. This is not mentioned in the Law Reform Commission report but, as I have said, it is desirable. My criticism of the Bill relates to the scheme providing for compensation to victims of maliciously damaged property.

I would like to deal with some of the sections at this stage. Section 1 is a definition section which defines damage as including the destruction of the object. This is important as the Irish Bill states the offence as being to "damaged property" whereas the English Act which does not define "damage" as including the destruction of property states the offence as being "destroy or damage". It is necessary to include destruction as an offence in order to obviate the possibility that somebody who, for example, burned down a hayshed could be said to have destroyed but not damaged the object. In England the objective is achieved by the creation of an offence of destroying or damaging. In Ireland the offence created is only "damaging" but "damaging" is defined in section 1 as including destroying. That, I admit, is probably a neater way of achieving the same results as the English law.

Data is defined in section 1 (1) (b) as meaning information in a form that can be accessed by a computer including a programme. Section 1 (1) (c) provides that "to do any act within the State that damages property outside the State" is also to damage within the meaning of the Bill. Under section 1 (1) (d) today any act outside the State that damages property within the State is also to damage within the meaning of the Bill.

Under section 1 (3) where a spouse is subject to a barring order under the Family Law Act, 1981, or is otherwise excluded from the family home by an order, the property is treated as the property of another person rather than that of the spouse. Accordingly, somebody barred from home who damages that home may be treated as damaging the property of another and liable to prosecution. Were the provisio not to be inserted in the Bill, somebody damaging his home, unless it could be established that he was doing so either to endanger the life of another or with intent to defraud somebody, would not be guilty of an offence.

Section 2 creates the various offences which are proposed to replace the large number of offences under the Malicious Damage Act, 1861. Under section 2 (1) there is the offence of damaging another person's property. Under section 2 (2) there is the aggravated offence of damaging any property, whether belonging to that person or another, with intent to do so and to endanger the life of another or being reckless in that regard. A person who damages any property with intent to defraud is guilty of an offence. The need for this offence arises from the loopholes open to a party charged with, for example, setting fire to his own property, who has not made any claim under his insurance because he is apprehended before such a claim could be made. Were he to process a claim against his insurance company he could be charged with fraud. Any man is entitled to burn down his property under the present law but under the proposed Bill, it is an offence to do so, or to otherwise damage the property if it can be established that there was an intent to defraud.

It can be pointed out, however, that to prove an intent to defraud in the absence of any claim made to an insurance company may well be difficult, and the powers of this section may in practice be very limited. If somebody burns down a property it will still be necessary to prove the intent to defraud and the obvious way to do this is to establish that he claimed against the insurance company. In the absence of such a claim it is doubtful whether a court would draw an inference in a criminal trial that an accused person intended to defraud. It must be said also, however, that it is doubtful whether any formulation of words would achieve the desired effect in this regard, and there would always be room for argument in any case. The rest of section 2 is straightforward enough.

Section 3 creates the new offence of threathening to damage property. Section 4 creates the offence of possessing objects with intent to damage property. Section 5 creates the offence of unlawful accessing of data, or hacking. It should be pointed out that this section in relation to data in the criminal code is new and it remains to be seen what way the courts will treat prosecutions brought under it. It should be pointed out that the Department of Justice may not be equipped with sufficient personnel trained in computers to deal with computer fraud and in particular, under section 5, to prove somebody operated a computer outside the State with intent to access data kept within the State. As as I have said, "data" is defined in section 1 as being information in a form in which it can be accessed by means of computer and includes a programme, but "access" in relation to data is not defined. How the State could prove that any person operated either within the State or outside the State a computer with intent to access data is unclear. Deputy Cosgrave dealt with this matter in detail and I will not duplicate it, but I would like the Minister to clarify it in his closing statement.

A case can be made that section 5, in particular, is badly drafted, that the authorities are not equipped to deal with it and that convictions will be difficult — if not impossible — to obtain under it even if "accessing" could be detected. In this regard a case can be made for improving facilities in the Department of Justice, and the Garda, dealing with computer fraud generally. I have very strong reservations about the ability of the Garda, the Fraud Squad and the specialised sections to deal with modern day — white collar — crime.

The inconclusive investigations so far by the Garda Fraud Squad in relation to Aer Lingus Holidays is lamentable and I do not expect very conclusive findings from their investigations. The best way to investigate the crime against the taxpayers in relation to Aer Lingus Holidays is to have inspectors from the Department of Tourism and Transport examine the matter. It should not be left to Aer Lingus Holidays, the executives or management of Aer Lingus and the Fraud Squad to investigate a crime in Aer Lingus. The Garda, through no fault of their own, because of lack of resources and expertise, cannot deal with highly sophisticated white collar crime at present.

Section 6 deals with the lawful excuse in relation to damage to property. As stated in paragraph 7 of the Law Reform Commission Report, the general principle is that no one may be convicted of a crime unless, in addition to having brought about the harm which the law forbids, he also had, at the time a "guilty mind". In relation to malicious damage, this means that the accused must either have intended to cause the damage or been reckless as to whether he caused it. I cite a case of the People v. Hayes who successfully appealed a conviction for setting fire to a church in Tullamore. The evidence was that he broke into the church searching for money and, as there was no light, he used candles. While searching the confession box for cash the curtain caught fire which spread throughout the church. The appeal was allowed and that says enough.

The present law, as stated in paragraph 27 of the Commission's report, leaves conscientious jurors in a position that, while they suspect an accused is not telling the truth, they are left with only his account of events, proclaiming his inadvertence to the actual risk without any independent evidence suggesting advertence. Successful prosecutions for arson, in the absence of clear evidence regarding petrol or some other commodity being used, will depend on statements of admission by the accused persons that they were reckless in relation to the place catching fire. A case could be made for strengthening section 6 by making the test not just the honesty of the person but also that it was reasonable. In this regard, section 6 (3) is the key. The Law Reform Commission came down in favour of a test of the honest belief but if the subsection was altered to read "for the purpose of this section a belief must be honestly and reasonably held" or, alternatively, that section 6 (2) can be altered by substituting "he believed" to "he reasonably believed" then convictions would be easier. That is the opinion I got in regard to that section.

To adopt such an approach would make convictions considerably easier to obtain but would radically alter the purpose of the Act. It remains to be said, however, that with the defence of "honest belief" giving rise to "lawful excuse" under section 6, juries faced with an accused swearing to the effect that he honestly believed he had one of the excuses mentioned in section 6 might well have little choice but to acquit, notwithstanding their view that this supposed honest belief was entirely unreasonable.

Section 8 is desirable in that the District Court have no general jurisdiction to decide issues of title as to property and if a person charged with maliciously damaging property could say that there was a dispute as to the ownership of it, it could be argued that the District Court had no jurisdiction to hear the matter. Accordingly, this section removes any doubt about the matter and proceedings can be taken in the District Court, if necessary.

The Law Reform Commission in chapter 11 stipulate that a compensation provision for persons who have suffered injury by others in criminal damage should be included in the Act. It is important to note that this scheme for compensation, while similar to it, is distinct from the method whereby some person who is injured — or whose property is damaged — can claim damages in the civil courts for that injury. The scheme proposed under the Bill provides a method where someone who is convicted of an offence can also be ordered to pay compensation to the victim up to the value which the court considers appropriate as a measure of loss the party would have suffered if the court had been a civil court or if the court had been trying a civil claim by the injured party for compensation against the wrongdoer.

This brings in the whole question of vandalism and who pays the injured party. The Minister should state his views in regard to victims of vandalism in urban areas. Too often in urban areas, through lack of Garda manpower, damage is done to property whose owners cannot bear the cost of repairing it. Wrongdoers are getting away with a suspended sentence in most cases although sometimes they get a period of detention. Parents should be responsible for the activities of their children but, in these cases, they do not accept responsibility. In the area of compensation the parents of young offenders should be held responsible for the acts of their children if it can be proved that the parents had been negligent. Any responsible parent should know where his or her child is at midnight or 1 a.m. If parents were held responsible for the activities of their children and had to compensate their victims there would be a dramatic drop in the levels of vandalism and joyriding. The Ministers should take all this into consideration.

The same applies to the question of damage to property by wandering horses which is a problem in Cork city. Small fines are imposed for the damage done but there is no provision for compensation. There should be a strengthening of the Act in relation to wandering animals as irresponsible people bring their horses into urban areas and the animals damage houses and property. This means that we prevent industrialists from setting up in those areas and I strongly call on the Minister to introduce legislation to strengthen the laws dealing with wandering horses in urban areas. This is the only opportunity I have to ask the Minister to look at the issues of parental responsibility and the whole question of owners' responsibility in the case of wandering animals.

Getting back to the proposal in the Bill, the Road Traffic Act, 1961, had a similar scheme where the victims of road traffic accidents could be reimbursed in respect of damages incurred. This scheme did not affect the rights of the injured parties to sue in the civil courts, although any sums that had been paid under the Road Traffic Act would have to be taken into account when assessing damages. Over time little damage resulted to property in road traffic cases. The section was declared to be unconstitutional in Colin v. the Attorney General in 1979 because it gave to the District Court, which has only jurisdiction in summary matters, the power to impose what was in effect punishment which brought the crime out of what was reasonably to be construed as a minor affair. It is with this in mind that section 9 (2) of the Bill provides for a limit of £2,500—the same limit that applies to the District Court in respect of civil claims — to be imposed on compensation orders payable under the Act.

It should be noted that chapter 11 of the Law Reform Commission report does not provide for any specific scheme whereby the compensation is to be assessed. The scheme provided in the Bill is objectionable on a number of counts. At section 9 (1) there is power for the court, instead of or in addition to any other penalty, to make a compensation order requiring the accused to pay compensation in respect of the damage to the owner of the property. This figure is limited to £2,500 in the District Court and must not exceed the amount of damages that, in the opinion of the court, the owner of the property concerned would be entitled to recover in a civil action against the convicted person in respect of the damage concerned. The compensation order may provide for payment of the compensation by instalment during a period not exceeding 12 months.

At subsection (6) where the Court considers it appropriate, the court may, if it is satisfied that the means are sufficient to justify doing so, make a compensation order and impose the fine as well. There is also provision under subsection (7) that after a compensation order has been made but not fully complied with, the District Court may reduce the amounts paid or direct that no further payments may be made if it appears to the court that the means of the convicted person are insufficient to satisfy the order in full or that damages in respect of which the order was made are less than they were taken to be for the purpose of the Order. If the amount paid under the order exceeds the amount appearing to the court to be reasonable, then the court may order the excess to be repaid by the owner to the convicted person.

This procedure under section 9 (7) is cumbersome and will involve a multiplicity of legal proceedings in which orders may be made to the detriment of the injured party under, for example, section 9 (7) (a) (i) without him being represented if he cannot pay for this representation. Generally, a good scheme of compensation allowing for periodic payments over 12 months could well form the basis for constant review by the courts over that period and would probably have the effect of negating the good of section 9 in general. The provisions in allowing for an appeal of a compensation order would be sufficient to allow a higher court to review the making of an order if it is unfair rather than having regular applications to the District Court to do so. The whole process of the law is cumbersome, and here we have a section which will have people running in and out of court with all the attendant expenses. That is good for some people, but not for the general public.

Section 10 provides for the suspension of compensation orders pending appeal and provides for the right of an appellant in court to null or vary any compensation order made. The section by itself would be sufficient to set right any injustices that arise.

Section 11 provides that any damages awarded in civil proceedings must not be more than the amount, if any, by which the damages exceed the amount paid under the compensation order. If the damages assessed are less than any amount paid under the compensation order, the owner of the damaged property may be ordered to repay the difference. It should be pointed out that the court which has power to order the injured party to repay the difference is not specified. The Minister should clarify which court should make the order in this case.

It can clearly be seen that if the District Court order makes a compensation order to somebody whose property has been damaged up to, say, £2,500 and that injured party issues proceedings in the Circuit Court claiming say £5,000 but actually recovers £2,000, then it is not clear which court should order, if any, the compensation to be repaid.

Furthermore it may well seem that if a party has been injured and has been ordered to receive £2,500 in a court and subsequently another court holds that the true measure is £2,000, the injured party actually loses money by taking the case.

I suggest that section 11 (b) (ii) should be excluded from the Bill. The effect of this would be that if someone issued civil proceedings as a result of damage and had been the beneficiary of a compensation order, his net award would take into account any compensation actually paid under a compensation order. There is a serious flaw in the last clause of section 11 which says:

and, upon the award of damages or, as the case may be, the making of the order by the court, the compensation order shall cease to have effect.

The effect of this clause is that once an award for damages is made the compensation order ceases to have any effect.

Under section 11 (b) (i) the award of damages in the civil courts must amount to only the difference between the gross amount considered appropriate in the civil court and what was actually paid under the compensation order but after the award of damages. Then, by virtue of the last clause, the compensation order ceases to have effect and even if some money remains outstanding under the compensation order it cannot be paid. The argument in favour of the clause as drafted is that once the civil award for damages is made, the injured party can proceed to enforce that award in the normal way as a judgment debt.

The potential injustice of the Bill as drafted is illustrated by the following example. If the District Court made a compensation order for £2,500, £2,000 of which had been paid by the time the civil claim for damages came before the Circuit Court which, in turn, awarded £3,000 as being the gross amount of compensation, under section 11 (b) (i) the net amount of the award would have to be reduced by the amount actually paid, that is, £2,000 leaving a net decrease of £1,000.

If the District Court made a compensation order of £2,500, £2,000 of which had been paid by the time the civil claim for damages came before the Circuit Court which in turn awarded £3,000 as being the gross amount of compensation, under section 11 (b) (i) the net amount of the decree would have to be reduced by the amount actually paid, £2,000, leaving a net sum of £1,000. The difficulty lies in that a method of enforcement by, for example, monthly instalments as ordered in the District Court under the compensation order for the balance of the £500 still unpaid would cease to have any effect and the injured party would be forced to rely on civil methods of enforcement in respect of the balance due.

I suggest that objections could be made to section 11 as presently drafted. Section 11 (b) (ii) should be excluded and the last clause should be redrafted to provide that upon the award of damages the compensation order shall continue to have effect but that the total paid to the person in respect of damage to any property under the compensation order and the award of damages should not exceed the greater of the two figures. I put that to the Minister for consideration.

Sections 12, 13 and 14 are straightforward. Despite the criticisms I have made, which I ask the Minister to consider, the Bill is welcome. It is a step along the road of dealing with inefficiencies in the legal system. I have serious reservations in relation to the scheme of compensation which was not specified under the Law Reform Commission's report. Furthermore the portions of the act dealing with data were not specified under the Law Reform Commission report and it remains to be seen whether there are adequate resources available to the Garda to deal with hi-technology or white collar crime or whether the offences created under this section are capable of successful prosecution.

I should like the Minister to respond to the issues I have raised. I hope he does not take the criticisms I made about duplication of his portfolio as personal. They were intended as a general criticism.

Mr. D. Wallace

I welcome this Bill which simplifies and modernises the law in relation to criminal damage to property. Contrary to the criticisms made by my constituency colleague, Deputy Allen, any fair minded Deputy who looks at the record of this Minister and the amount of time he spent in this House dealing with legislation knows of his commitment to legislative reform.

Deputy Allen referred to the problem of wandering horses, and I appeal to the Minister to consult with the Minister for the Environment in this regard. It exists not only in Cork but in many parts of the country. Parents are concerned about the dangers to young people. At present the law does not give local authorities or the Garda power to deal adequately with wandering horses. I ask the Minister to take note of this serious problem and see if it can be resolved satisfactorily.

This Bill is another in a series of measures being taken by the Minister to update and simplify our criminal law. The Criminal Damage Act, 1861, was very complex and detailed legislation. It was out of date. It was so detailed that it was extremely difficult for the Garda to prosecute for damage to property. Unless they found the precise crime involved in a particular section of the Act the case would be thrown out of court. This Bill replaces a large number of offences of damage to specific kinds of property with three offences of damage: a simple offence of damage to another's property; an offence of damaging any property with intent to defraud, and an aggravated offence of damage to property where danger to another's life is involved. This simplifies the whole process and will make the task of the Garda in enforcing the law much easier.

I am glad that the Minister has dealt with the area of compensation. The Bill provides for an important development in the power of the court to pay compensation to the owners of damaged property. This has long been a contentious area. People suffered huge losses but they had no redress to the courts. Frequently the courts are concerned with interpreting Acts governing particular circumstances and the vast amount of legislation has greatly increased the workload of the courts, and they must keep up with legislative change. It must be difficult for citizens to keep up with and know what laws govern them and society. Despite this everyone is supposed to know the law, and ignorance of it is no excuse. Many who practice law would be reluctant to say that they know the law as it pertains to many topics. The list of complex law is extensive: road traffic, road transport, local government, the courts, criminal justice, criminal procedures and finance. Consolidating legislation is beneficial to those who deal with the law.

I was a member of the committee set up to report on crime, lawlessness and vandalism from 1982 to 1987. I was advised that shortcomings in various legislative provisions hampered the Garda in the discharge of their duties. One of the basic anomalies lay in the area of power of arrest. In common law a power of arrest without warrant exists only for felonies and a few other isolated offences. The scheduling of offences into arrestable and non-arrestable is necessary. They should be categorised on the basis of gravity. Irish criminal law incorporates the common law from England together with 700 years of statute law from the Dublin and Westminster Parliaments before Independence and also statutes enacted since 1922. For the most part current Irish criminal law reflects English legal thinking from the mid 19th century, and this can be seen in the 1916 Larceny Act. Generally, Irish law has followed closely, though slowly, rationalisation of English law. For example, 1957 redefined the situation in which capital punishment was applicable and this was a change closely paralleled by the Irish Criminal Justice Act, 1964.

As regards substantive law there are defects in several areas. In one of its reports the committee referred to the fact that it is virtually impossible to prove the offence of receiving stolen goods in the absence of a statement from the suspect. Statutes such as the malicious damage Act were drafted in a tortuous and disjointed fashion and could easily be replaced by the cover-all offence of malicious damage. The Government have changed the law in relation to receiving stolen goods.

I am pleased that the Minister has introduced this Bill. Much of our legislation on criminal matters dates back to the last century. The committee recommended that the task of updating and consolidating criminal law should be undertaken in a structured manner. This Bill will simplify the unnecessarily complicated network of criminal legislation by which the Garda are hampered. I am glad the Minister has taken a keen interest in law reform. He is delivering on an undertaking given to this House earlier this year to increase law reform output in his Department. It is true to say that many areas affect the community. There is no doubt that the legal situation here has got to be looked at. We have become very legal conscious whether in schools or in regard to local authorities. One would almost need a legal adviser for every move one makes. That is the unsatisfactory situation we are heading into in this day and age. Nevertheless, we must face up to the reality that we live in different times and in a different society and we must take on board the need for radical change in our laws as they affect the general public.

I should like again to pay tribute to the Minister and thank him for the interest he has taken in a very complex area. People may be critical of him and it is easy to stand up and point the finger. As I said to my colleague, whom I hope is not trying to take over from Deputy Jim O'Keeffe by his major contribution today, our record, on law reform and that of the Minister, is there for everybody to see. I compliment him on that.

Mr. Allen

I am glad the Deputy called it a major contribution.

Mr. D. Wallace

Changes are coming up and I appreciate the Deputy has to create an impression. I wish him the best of luck. The Minister has taken this issue on board and I hope he will continue to do so on our behalf.

Mr. Burke

How can Kildare and Dublin men interfere with all these Cork men in this debate?

Mr. J. O'Keeffe

We never refuse people from Kildare in Cork.

Mr. Durkan

The people we send down usually give a good account of themselves.

Mr. D. Wallace

Fair play.

Mr. Durkan

I am glad of the opportunity to make a short contribution to the debate on this legislation and I compliment the Minister on introducing it. My only criticism is that the legislation is not nearly capable or competent to deal with the problems that are likely to arise. There is a reference in the Minister's speech to electronic eavesdropping, a subject I have had an interest in for some time and in relation to which I raised questions in the House. The Minister, indeed, responded though not always to my satisfaction.

The development of modern technology, and the greater use of computers, obviously lends itself to the risk of illegal or unauthorised accessing. That is one of the major purposes of this legislation. If one examines the possible consequences one will see it is tantamount to interfering with the postal system. It is tantamount to interfering with a written message being transmitted from one area to another in a sealed container by whatever means and gaining access to it illegally. I am aware that in the world of computers, one cannot ban the use or sale of computers because everybody lives by them nowadays but the amount of confidential information which is stored and can be accessed illegally is growing by the day.

We have all read or heard of instances of students operating from their own home, perhaps in a remote area, a miniature computer and being able to gain access to confidential information of a highly sophisticated nature with obvious disastrous consequences for the firms involved. That has not happened on one but on several occasions.

We also have greater use of mobile or car telephones. We should examine for a moment the potential of those machines. It is possible to gain access to your debit or credit column in your bank account by keying in the appropriate digits on one's mobile telephone. The amazing thing is that on the miniature screen one can see the exact position provided one knows how to operate that system. If it is possible for an individual to obtain this information in relation to his own account I am sure some enterprising individual has worked out how to gain access to somebody else's account. That has happened in relation to confidential information and it is one of the issues this Bill is supposed to tackle.

People will say that the chances of getting worthwhile information by scanning a system might not be all that great but that, of course, is entirely dependent on the sophistication of the devices used and how modern they are. With every passing day a new and more sophisticated device is being developed which will access information more quickly.

One area the Bill does not cover, although reference has been made to electronic eavesdropping, is the use of eavesdropping equipment which is readily available and for sale here. This equipment, which is produced outside the country, has the ability to eavesdrop telephone messages transmitted through radio telephones. It is now generally accepted that useful and confidential information can be gleaned from the use of these scanning devices. They are very small devices, about the size of the palm of a hand, and they are for sale in the city. They are being used by criminal elements to gain useful information and to listen to confidential and classified conversations by the law enforcement agencies.

The Minister is right in saying they are illegal but so long as they are available it is immaterial whether they are illegal or not. The only way they can be eliminated is by banning out of hand their importation and sale. The fines for such importation and sale should be extensive because — and I mentioned this previously in the House — information gleaned in that fashion has been used, in the past, by the criminal fraternity to good advantage particularly if they learn that they are under observation for a particular purpose. The Minister should consider banning those machines and not rely on the legislation which declares illegal the interception of information of a confidential nature to which one has no right.

One must recognise also accidental access to information. If, for instance, one can accidentally gain access to confidential information by the use of a computer the chances of gaining access when one deliberately sets about doing this using cross references and various numbers increase enormously. If one relates that to the unauthorised listening to radio telephone conversations, obviously the information gleaned by the person who sets out deliberately to listen to conversations between Government Departments, business people — either nationally or internationally — and so on will, first, be selective and, second, will be very useful whether that individual intends to use it for extortion purposes, blackmail, business advantage, industrial espionage or whatever the case may be. The Bill does not cover those matters. I fear that with the development of modern technology some of the less law abiding elements in our community will become very nonchalant about the use of such devices. As a result, this practice may become as prevalent as car theft was a few years ago. I do not think this would be either beneficial or useful.

Information is very important — it can even mean power — and once unauthorised persons have access to information they can use it in a way that will not be beneficial either to the agency from which it has been extracted or the country as a whole. Therefore, I ask the Minister to seriously consider banning the importation and sale of scanning devices now used, without authority to intercept radio telephone conservations.

I know that as time goes on devices will be installed in telephone systems which will scramble conversations and thus eliminate that security threat, but nonetheless I believe the simple and short answer to this problem at present is to ban the importation, sale and distribution of these scanning devices. As I mentioned previously in the House, last year weapons and one of these devices was found in a motor vehicle which had been used in a robbery in my constituency. I am sure that that scanning device was not used by the person who owned the car to listen into the telephone conversations of his next door neighbour or somebody's girlfriend: it was bought and used for an illegal purpose. This proves beyond any shadow of doubt the validity of my request for the total banning of such devices.

Many other speakers have made valuable contributions and I do not wish to repeat anything which has already been said by them.

Minister for Justice (Mr. Burke)

I should like to thank the Deputies who have contributed to the debate for the warmth of the welcome they have extended to this reforming measure. My response to many of the points made by them would be more appropriate on Committee Stage. Therefore, I will restrict my remarks to a number of points only.

Deputy O'Keeffe referred to the definition of "reckless" and complained that the Law Reform Commission's proposed definition had not been accepted. He said that the present definition had given rise to uncertainty. That is not so. The definition I have included in the Bill has been accepted in this country for at least 90 years and was included in the definition of "malice" in Kenny's Outlines of Criminal Law of 1902. It is true that uncertainty has been caused in England by not defining the word "reckless" as we have done, but we have avoided the situation which has arisen in England by the manner in which we defined "reckless" here.

Deputy O'Keeffe also referred to section 9 (5) which provides for the authorised payment of compensation by instalment under a compensation order but imposes a limit of 12 months on the period of payment. The object of imposing a maximum limit on the repayment period is to ensure that payment cannot be so prolonged as to be oppressive or indeed unrealistic. There is no particular sanctity about the period specified in section 9 (5) and Deputy McCartan and others argued that it could be a little longer. However, if the convicted offender is a good mark for the damage, the owner of the property will get an order for the full amount in civil proceedings. Maybe we can tease out this point further on Committee Stage. I am not tied to the 12 months period so I would be prepared to hear the comments of the Deputies opposite on this point.

Deputy O'Keeffe referred to the lack of action in updating criminal law. As I have already said by way of interruption, I am in the Dáil and Seanad day in and day out. In fact, another Bill is being handled in the Seanad today on my behalf and on behalf of the Department of Justice. There is a considerable amount of legislation from this Department — when the second stage debate on this Bill is completed we will move to the Statute of Limitations (Amendment) Bill, 1990, and I will be back here again next week to deal with the rape Bill and other legislation. There is a considerable amount of work going on in this area. The Deputy was concerned that criminals could go free because of defects in the law. I am not sure this is as big a problem as the Deputy thinks, and I will be making a statement on this within the next ten days and I look forward to the Deputy's response to my suggestions.

As I said in this House yesterday, I expect to get Government approval shortly for the drafting of a criminal evidence Bill which will include provisions to give effect to the proposals in the Law Reform Commission's report in respect of the giving of evidence by children and mentally handicapped persons. That report was only published last September. There has been no delay and I will deal with it shortly.

Deputy McCartan referred to arson. The position is that the common law offence of arson is being abolished but where property is damaged by fire the offence will be charged as arson. This is provided for in section 2 (4). The word "arson" will continue to be used to describe damage to property by fire even though it is now a statutory offence.

Deputy McCartan also referred to the uncertainty arising from the definition of reckless. I want to emphasise that rather than the position being as outlined by Deputies O'Keeffe and McCartan, the opposite is the case. In fact, the use of any different formula would be liable to cause uncertainly. The courts are familiar with the traditional definition which is again embodied in this Bill. We want to avoid uncertainty as far as possible. The Deputy asked about my position regarding my review of the scheduling of malicious damage offences under the Offences Against the State Act. I will, of course, by guided by the advice of the Garda at all times in relation to this issue.

Deputy McCartan referred to the powers of arrest being given to civilians under section 12. My advice is that the powers of arrest simply restate the common law rules on powers of arrest in relation to felonies. The same powers are set out in section 19 of the Criminal Law (Jurisdiction) Act, 1976. I will have a look at this provision in view of the Deputy's concern and I will come back to him on Committee Stage.

The Deputy also urged that a person should have the right of trial by jury in malicious damage cases if the damage is over £50 or is, in all events, non-minor. The Law Reform Commission recommended that it be left to the discretion of the court to either prosecute summarily or, on indictment, leave it to the Director of Public Prosecutions as it is in many other cases. The Director of Public Prosecutions would not be allowed to prosecute summarily a case that was not a minor offence because the District Court, if satisfied that it was such an offence, would not try the case. This is the advice I got on this matter. A number of other points were raised by Deputy McCartan which I will deal with on Committee Stage.

Deputy Bell made his first contribution as spokesman for Justice on behalf of the Labour Party. I compliment him on his appointment and look forward to working with him. He raised several questions about hacking and talked about interpretation. Hacking relates to the unauthorised penetration of a computer system. The Garda would normally commence to investigate hacking when a complaint was made by the computer owner concerned. I believe they have a fair amount of expertise in this area already, but I have no doubt that they would have no difficulty in getting it from Telecom Éireann or people in the computer industry. I can assure them that facilities will be made available wherever the Garda request them.

It might be of interest to the House to give some examples of incidents of hacking which have occurred world wide. For example, access may be gained to a hospital computer, with a view to amending data on prescribed dosages. Incidents have been reported in Britain of hackers amending computerised data on cancer patients and a computer virus corrupted medical records in Michigan hospitals. Earlier this year, in Britain, a youth calling himself "the mad hacker" caused £25,000 worth of damage to computers at a number of universities. US police allege that a 14 year old boy in California used his home computer in August 1989 to hack into New York's Citibank computer and obtain more than $11,000 of mail order goods and a Visa gold credit card with a limit of $10,000.

A large international system was entered by a hacker who appeared to have acquired a sufficiently high level of privilege to be able to read and collect passwords. The entire system was closed down and the software rebuilt to exclude any possibility of the hacker's having rendered it insecure. The work had to be completed within 72 hours and occupied upwards of 10,000 man-hours of highly skilled staff. The fact that "hacking" can be a transnational activity is illustrated, for example, by the activities of school children at the Dalton School in New York State who infiltrated about 20 Canadian data banks, including the files of public authorities.

Another is the violation of the NATO system in Norway from the United States, the breaking into the NASA worldwide data network or into computers in Japan, all done through the use of the international telephone system.

Deputy Cosgrave asked about the enforcement of provisions against damaging automated data. I accept that it will be difficult to trace hackers who use the public telephone network. This poses a serious technical problem. To a certain extent, the replacement of the existing analog network by a digital system will help. Of course, enforcement will be easier when the hacker is an employee of the firm concerned. Statistics indicate that most computer crime is done by employees. These enforcement difficulties are not peculiar to our country, they apply everywhere and reflect the insidious nature of the activity.

Section 13 gives power to search premises where hacking is supposed to be taking place and the gardaí can seize anything believed to be used for this purpose. Hackers themselves help because they usually have lists of codes and passwords. Even if the hacker is not found in the act of committing the offence, we can get him on that. I am prepared to listen to any suggestions from Deputies opposite to tighten up this area even further.

Deputy Allen made a long and detailed contribution which is more suitable for response by me on Committee Stage. I have taken note of what he said. I totally refute his statement regarding my work in Justice. The record shows the amount of legislation which has been brought through this House and the Seanad in major law reform areas. Matters that have been awaiting action for many years are now being tackled. This is acknowledged day by day by spokespersons opposite who, while they may be critical of the detail of legislation, can sometimes be very generous in their comments on the amount of business being done.

Deputy Wallace referred to the need to update criminal law. This process is ongoing on a daily basis. The work of the Law Reform Commission is very helpful and I pay tribute to that work. Deputy Wallace also mentioned the problem of wandering horses. While it does not come directly under this Bill, it is a problem in Cork, Dublin and many other places and I have provided extra resources to the gardaí. For example, in the Finglas area of Dublin we have secured the use of a horsebox and a jeep for the gardaí which they are using quite effectively. I have taken note of what the Deputy has said. My responsibility is the enforcement of legislation. I have noted his view that there is a need for updating and I will pass on his comments to my colleague, the Minister for the Environment.

Deputy Durkan referred to electronic eavesdropping and I look forward to discussing that matter with him on Committee Stage.

I thank Members for their contributions and the welcome they have extended to this reforming legislation. The current law dates back to 1861 and this Bill cuts away 108 kinds of property and 62 different words to express the causing of damage, reducing it to three. That is a major advance which should be of great benefit to the gardaí in the performance of their duty.

Question put and agreed to.

An Leas-Cheann Comhairle

When is it proposed to take Committee Stage?

Mr. Burke

Next Tuesday, subject to the agreement of the Whips.

Committee Stage ordered for Tuesday, 4 December, 1990.