Malicious Injuries (Amendment) Bill, 1986: Committee Stage (Resumed).

Question proposed: "That section 3 stand part of the Bill."

Mr. O'Leary

I would like to say that section 3 is not good law in that it is putting a responsibility on chief superintendents of the Garda Síochána which is an unfair responsibility. It purports to allow the appropriate chief superintendent to certify that the act was committed maliciously by a person acting on behalf of an unlawful organisation. The Minister, I am sure, will say in reply that a similar provision already exists relative to the necessity for the recoupment of expenses from the State. That is not really comparable because what is at issue there is not whether the person against whom the malicious act is being committed will or will not get his or her money but merely who will ultimately bear the cost, the local authority or the State. As, ultimately, the State had underwritten practically all the costs in any case these certificates were of no practical significance in recent years.

On top of the responsibilities already on them, we are proposing to put an additional responsibility on chief superintendents, because no malicious injuries compensation will be payable except where injury is as a result of the actions of an unlawful organisation, leaving out the question of riot for the moment. Imagine the position in which a chief superintendent of the Garda Síochána will find himself when he is faced with the knowledge that a malicious act has been committed in respect of the property of an individual who had not insurance — and no doubt he would be made aware of that. Local pressure will be brought to bear on him, or he will feel that it is, when deciding whether or not to certify that that act was the result of the activities of an unlawful organisation, because on his decision alone will depend whether or not a person who is not insured will get any compensation. A person who has property which is not insured, or, more frequently, inadequately insured, has to go to the chief superintendent in his area to say that he believes his property was burned down by an unlawful organisation. Unless the chief superintendent so certifies, he will not be able to get malicious injuries compensation. That is subjecting the chief superintendent in his own district to pressure and responsibility which is quite inappropriate to a man in his position. The chief superintendent is dependent for the operation of his office on the goodwill of the local community and the involvement of the chief superintendent in certifications such as this would potentially bring him into conflict with the local community. For that reason I think that the system used is quite inappropriate and is a lazy way of overcoming a problem.

When the 1981 Act was being introduced somebody thought that it would be a good idea if the chief superintendent certified whether the local authority or the State should pay compensation. Because they were two public bodies there was not going to be too much pressure on the chief superintendent. Now he will be certifying between the individual who has lost all his or her possessions bearing the cost or the State bearing the cost. That is not a fair responsibility to be put on chief superintendents.

The system used is quite inappropriate and is a lazy way out of overcoming a problem. When the 1981 legislation was being prepared, somebody thought that it would be a good idea if the chief superintendent certified whether the local authority or the State would pay. Because they were two public bodies, it did not much matter. There would not be that much pressure on the chief superintendent. Now you are talking about a situation where he will be certifying between whether the individual who has lost all his or her possessions will bear the cost, or the State will bear the cost. It is not fair to put on chief superintendents the responsibility in certain cases to decide whether a person will be totally bankrupt. That is an unreasonable provision and some better method should be found by the Minister to determine whether activities were carried on by an unlawful organisation.

The amount of power that is put into the hands of chief superintendents is colossal. Subsection (2) says:

The appropriate chief superintendent shall not be required to disclose in any proceedings the information (or its source) on which a certificate under subsection (1) is based.

It would be absolutely and totally at his discretion. If the chief superintendent says it is as a result of an unlawful organisation the State pays. If he says it is not, or refuses to give such a certificate, the persons themselves pay. That is bad law. I should like to hear what proposals the Minister has to ameliorate the position, which I consider quite unsatisfactory.

Mr. Durcan

This is an interesting section. I do not agree totally with the point made by Senator O'Leary that the powers given to a chief superintendent are inappropriate. It is appropriate that a chief superintendent should have power to certify certain matters in relation to subversion and that is what this section does. It gives an evidential value to the certificate of a chief superintendent for such purposes in relation to the operation of section 2 (1) of this Bill.

I am concerned about the inclusion in section 3 (1) of the word "maliciously". I would not find the section worrisome if the word "maliciously" were excluded. If it were excluded, the value of the chief superintendent's certificate would be simply to confirm the jurisdiction of the court and to confirm that the application came within the much limited malicious injuries code. By including the word "maliciously", it would appear that the section is taking the onus off the applicant to prove that there was malice by the person who committed the act. It would appear that all the applicant has to do, if this Bill is passed, is simply prove the quantum of his or her damages, if the chief superintendent gives a certificate that satisfies all matters other than proof of quantum. That is an unfortunate situation. I have expressed my views on the principle underlying that code already.

If we are to have a limited malicious injuries code — that is what the Bill does — then we should not include the word "maliciously" in section 3 (1) of this Bill, because to do so creates a total departure from the code. If we are going to include that word, we should establish a much simpler procedure for dealing with malicious injuries applications. I would like the Minister to respond as to whether she would be willing to remove the word "maliciously" from section 3 (1) between now and Report Stage. If she can do that, she will be making the operation of subsections (1) (2), (3) and (4) of section 3 clearer and providing that the effect of a chief superintendent's certificate is simply to get the application into court.

Mrs. Fennell

It could be very difficult for lay persons to prove that damage caused to their property was caused maliciously. They would not normally be able to prove in a court that the damage suffered was caused by a person acting on behalf of, or in connection in any way with an organisation in question. Accordingly, so that the provision will have practical meaning the Bill is giving a statutory role to the Garda. The appropriate chief superintendent will issue the certificate to the person who proposes to make an application for compensation if he is satisified, first, that the act was committed by a person acting on behalf of one of the organisations in question and secondly, that it was an act done maliciously, as defined in that section referred to by Senator Durcan. Such a certificate will be admissable as evidence of the facts stated therein. This should simplify matters as far as determining whether an organisation referred to in the new section 5 (1) (a) of the Bill was involved in a particular instance.

The Northern Ireland malicious damages scheme has a similar provision where a certificate is issued by the chief constable. One could ask what happens if a certificate is refused. If a chief superintendent is of the opinion that an unlawful organisation was not involved, or that the act was not malicious, there is nothing to prevent a claimant from seeking other evidence to support his case that such an organisation was involved or that the act was malicious, as the case may be.

Mr. Durcan

I am still not happy with the inclusion of the word "maliciously". If the word "maliciously" is excluded, the intent as indicated in the Minister's Second Stage speech and as indicated in the Dáil, will operate properly, that is that this section should operate merely as a procedural matter, that the chief superintendent's certificate will enable an applicant to get his or her application before the Circuit Court. The chief superintendent will certify that the circumstances specified in the new section 5 (1) (a) (i), (ii) or (iii) will exist. What section 3 proposes is to bring the matter a step further and to provide that the question of establishing malice, which is basic to a malicious injury application, is removed. The necessity for doing that no longer exists. The applicant does not have to establish malice as the chief superintendent's certificate does that. The issue of a certificate under section 3 has the effect of proving the case and virtually winning the case, other than the question of proof of quantum.

Mrs. Fennell

I would like to point out to the Senator that the certificate provided is only evidence. It is still up to the court to decide whether the act was committed maliciously. If a lay person were given a certificate that an act was committed by an unlawful organisation only, it could be very difficult for him or her to provide that it was committed maliciously because of the circumstances involved.

Question put and agreed to.

Sections 4 to 10, inclusive, agreed to.

Title agreed to.

Bill reported without amendment, received for final consideration and passed.

Seanad Éireann debate - Wednesday, 9 Jul 1986