Dáil Éireann debate -
Wednesday, 1 May 1991

Vol. 407 No. 7

Criminal Damage Bill, 1990: Committee Stage.

SECTION 1.

Mr. McCartan

I move amendment No. 1:

In page 3, subsection (1), line 13, after "destroy," to insert "whether wholly or partly,".

This is a technical amendment but nonetheless it may have implications of substance in the workings of the legislation. I am proposing that the definition of "damage" contained in section 1 should be extended to include the words "whether wholly or partly" so that the definition, contained in paragraph (a) subsection (1) which outlines the different acts covered, would read "to destroy, whether wholly or partly, deface, dismantle or..." The Law Reform Commission use those words in their recommendations. For that reason we should follow suit. The summary of the recommendations of that report states:

2. The legislation should use the word "damage" in the substantive offence; a subsection should provide that this term includes cases where the interference consists wholly or partly of destroying, defacing or dismantling the property or rendering it inoperable or unfit for use:

We should use the same terms, the same words in our definition. As this is the first amendment to the Bill, it is welcome, for closer examination on Committee Stage, that the Minister in drafting the legislation worked extremely closely to and from the report of the Law Reform Commission on this very important subject. It is good that the Government have taken on board almost verbatim the recommendations and amendments the commission made. The Bill when finally passed, will represent a very significant modification and clarification of the general law with regard to malicious damage which, as we were told by the Minister on Second Stage, includes an unbelievable litany of offences under the original Act of 1861. In following closely what the Law Reform Commission recommend and borrowing their wisdom and terminology, I suggest this amendment might be included as a way of ensuring we are precise in the language we use.

The one difficulty I envisage is that where an item of property is damaged, not entirely rendered inoperable or useless, or where it is only partially interfered with or damaged, a case may be made of that, in view of the definite definition in the Bill as drafted. I do not think the words "wholly or partly" in any way take away from or diminish the intention of the legislation. If anything they merely clarify it and ensure that it is as comprehensive as it should be. Therefore, I hope they are acceptable to the Minister.

Minister of State at the Department of Justice (Mr. N. Treacy)

I would like at the outset to thank Deputy McCartan for recognising that we have worked very closely to the commission's report when drafting the Bill. We devoted much time and study to the report. I understand the Deputy's wish to have the definition of "damage" as comprehensive as possible so as to leave no room for doubt. In fact, as the Deputy has mentioned, the Law Reform Commission's report referred specifically to the notion of destruction as an alternative to damage. The report states that one view was that the reference in the British Act to destruction was unnecessary, as property can scarcely be destroyed without being damaged. As against this, it was possible to envisage cases where the interference with the property would more easily be described as destruction than as damage, according to the report.

The report went on to instance the burning down of a haystack where "damage" would not be an appropriate description of what had occurred. To get over any possible uncertainties the commission recommended that damage should be defined as including destroying, defacing, dismantling or rendering inoperable or unfit for use. We have done that in the Bill. Consequently, it is unnecessary to include the words Deputy McCartan desires. The position is clear and other sections clarify it beyond any doubt. I do not propose to accept this amendment.

Mr. McCartan

I am sorry we have got off to what would seem to be a rather poor start. I urge the Minister to reflect a little further on this before we pass from it. I do not have to make a point by asking him why he thinks the Law Reform Commission felt that in their recommendations they should use these words, but let us look a little more closely at the definition in the Bill. I suggest to the Minister that it can arise in two categories. The first category would be of those acts that would amount to an almost complete total destruction of the property involved. The act of destruction is very total in its meaning. One destroys or destructs. Equally, the word "dismantling" involves the concept of taking something apart in its entirety. Rendering something inoperable requires a very final act or almost total destruction of the property rendering it unfit for use and then there is preventing or impairing the operation of it.

On the other hand, the word "defacing" is very specific in itself. It could mean, say, spray painting. I have no doubt that that in some way involves the plastering of slogans or scratching the paintwork of a motor car or of property. On the one hand we have what seems to be concepts of almost total action involving a very definite extent to which the damage is done and, on the other hand, a very specific act, that of defacing. Those are the two categories.

There is room for play here among the legal geniuses who will be asked to interpret this Bill in ease of defendants in courts when charged, by saying that, while they have caused interference with the property they have not gone the distance to constitute its destruction, its dismantling in the total sense of the word, rendering it inoperable or unusable in the total sense of the word. We have to look at the range to which damage can be caused and inconvenience visited upon the owner of property by providing for the partial destruction, partial dismantling or partial rendering inoperable or unusable. For that reason I urge the Minister to look at this. There are halfway stations involved in this that may not be covered in the very specific terms of the definition. I am anxious that this legislation should have the widest possible application. For that reason it is important that we consider this further. Including these words in no way takes from or dilutes the intention of the legislation or the very fine definition that is there. I can see little difficulty about accepting it. The Minister says there are other provisions in the Bill that will make the point clearer. Perhaps, in response he will draw my attention briefly to where in the Bill we can find assistance on this point. I ask the Minister to reconsider this for Report Stage. Why are we not taking up the suggestion the commission made and using the words they used in their recommendations?

Mr. N. Treacy

Deputy McCartan has gone to great lengths to persuade me to reconsider this point. We are talking about a very thin line, something of a grey area. One can damage a motor car by hitting it with a sledge hammer or one can damage it but it can be repaired. One can destroy it by burning it and rendering it absolutely inoperable, totally unusable. It is a very thin area. Complete destruction is already covered in the definition. To damage includes to destroy. Damage in its ordinary meaning covers partial destruction. Deputy McCartan has made the point that this is really a drafting matter. The Bill has been drafted without these words, despite the fact that they were included in the report of the Law Reform Commission. Perhaps there is a good reason for that. To ensure that there is no doubt and to ensure that the legislation is to the maximum satisfaction and without ambiguity, I am prepared to consult with the parliamentary draftsman to see if we should include what Deputy McCartan desires on Report Stage. I hope this is satisfactory. As ever, I should like to be helpful.

Mr. McCartan

Clearly it is acceptable to me. The Minister suggested that "damage" includes partial destruction. We are providing in the Bill for a specific definition of damage. That definition as it stands does not include the word "partial". It should be as all-embracing as possible. I welcome the Minister's decision to consider this matter before Report Stage. In the spirit of co-operation I agree to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. McCartan

I move amendment No. 2:

In page 3, subsection (1), line 16, after "operation of" to insert "and shall include damage caused to property resulting from the driving of a motor vehicle without insurance as required under the Road Traffic Acts".

This is an extremely important amendment. I am proposing that we extend the definition of damage to include damage caused to property resulting from the driving of a motor vehicle without insurance as required by the Road Traffic Acts. Where a person without insurance drives a motor vehicle recklessly or carelessly and causes damage by way of collision, that damage should be considered damage for the purposes of this Bill and, therefore, chargeable as an offence of malicious damage within the terms of the Bill. There is so much so-called joy riding and uninsured driving that it puts the public at huge risk of loss should accident or damage arise. I am suggesting that to damage by this type of driving should be an offence under this Bill. Heretofore damage caused by such driving was not considered to be malicious damage and a person could not recover damages under the 1861 legislation. A typical instance occurred in my constituency recently which prompted me to table the amendment.

Progress reported: Committee to sit again.