It was Peregrine Worsthorne who said:
A ridiculously oversimplified misreading of history manages to present all human progress in terms of a battle between freedom which is assumed to be good, and prohibition which is assumed to be bad. In fact, of course, civilisation owes quite as much to those who limit freedom, as to those who expand it.
It is in the context of that quotation that I would like to welcome the main provisions of this Bill, the Criminal Damage Bill, 1990, the main purpose of which is to protect the owners of property from damage or destruction of their property. Several centuries ago the only common law offence for damage to property was arson, and arson was confined to the wilful and malicious burning of a dwelling house. A number of statutes imposed criminal liability for the burning of other buildings and things. The law was finally consolidated for both England and Ireland with the passing of the Malicious Damage Act, 1861.
The 1861 Act created specific offences involving damage to real or personal property of a public or private nature caused by acts done "unlawfully and maliciously", and ranging from setting fire to a church or chapel to sending letters threatening to burn or destroy houses or other buildings. The English Law Commission reported on this subject in 1970 in a report entitled "The Report on Offences of Damage to Property". They viewed the 1861 Act as most unsatisfactory because of the multiplicity and overlapping of offences and the variety of penalties. From that report of 1970 flowed the English Criminal Damage Act, 1971. Our own Law Reform Commission, under the chairmanship of Mr. Justice Ronan Keane, a judge of the High Court, reported on the matter in September 1988 in a report entitled "Malicious Damage". Our Law Reform Commission generously, in my view, acknowledged that the United Kingdom Criminal Damage Act, 1971, is a model of simplicity and they considered that the sensible approach was to use the English Act of 1971 as a model for reform while, at the same time, subjecting it to close critical scrutiny.
I believe, however, that it is to be regretted that both the Minister for Justice and the Minister of State have failed to acknowledge the undoubted assistance of the British legislation and the report of the English Law Commission when introducing the Bill both in the Dáil and in the Seanad, even though many of the provisions of this Bill are copied verbatim from the British legislation.
This Bill contains four main offences and two ancilliary offences. The four main offences may be called for short first, the basic offence of causing damage to property belonging to another — section 2 (1); second, the aggravated offence of causing damage to property belonging to another and intending by the damage to endanger the life of another or being reckless as to whether the life of another would be thereby endangered — section 2 (2); third, the offence of causing damage to the property of another with intent to defraud — section 2 (3); and fourth, the offence of arson where the offence is one of causing damage to property belonging to another by fire — section 2 (4). The two subsidiary offences are (1) threats to damage property — section 3; and (2) possessing anything with intent to damage property — section 4.
The basic offence of causing damage to property is defined in section 2 (1). Section 2 (1) provides that
A person who without lawful excuse damages any property belonging to another intending to damage any such property or being reckless as to whether any such property would be damaged shall be guilty of an offence.
To damage is comprehensively defined in section 1 (1) of this Bill and it includes destruction, defacing and dismantling; it also includes the unauthorised modification of automated data. The expression "destroy or damage" was commonly used in the Malicious Damage Act, 1861, and it would seem that previous decisions on the meaning of these words, though no longer binding, will retain a persuasive value. The definition of damage in the Bill clearly contemplates actual damage, that is, some physical harm, impairment or deterioration which can be perceived by the senses. It is for that reason that intangible property is excluded from the definition of property in section 1 (1).
It is not enough to show that what has been done amounts to a civil wrong, as for example in the case of a trespass to land or goods for neither requires proof of actual damage. In Eley v. Lytle in 1885 the court held that the defendant was guilty of no offence when, during a game of football, he ran over the plaintiff's land and the only evidence of actual damage was that he had committed a trespass. It seems that the same result, indeed, would follow from the passage of this legislation.
However, the actual damage itself need only be slight, for example, grass can be damaged by tramping it down as in the case of Gayford v. Choulder in 1898, and it is easily and rapidly damaged by football and other games. A thing may be damaged though nothing is actually broken or deformed. A motor car is damaged just as much by the uncoupling of a brake cable as by cutting it with a pair of pliers. Displacing the parts of a machine in order to render it temporarily useless amounts to damaging it even though the parts themselves are not damaged. In R. v. Fisher in 1865 the defendant plugged up the feed pipe of an engine and interfered with it in such a way as to render it temporarily useless and liable to cause an explosion unless the obstruction was removed. The court in that case unanimously held that the defendant had been properly convicted of damaging the engine with intent to render it useless within the meaning of section 15 of the Malicious Damage Act, 1861. A thing may be damaged though there is no significant interference with its performance if it has been made less valuable.
The releasing of breeding mink from their cages where their value was reduced, although they were recovered and were not physically damaged, was held to cause damage by the Supreme Court in the case of Rexi Irish Mink Ltd. v. Dublin County Council in 1972. Food and drink are damaged if they are spoiled for example, if milk is watered as in the case of Roper v. Knott in 1898. Different things may be damaged in different ways. In Samuels v. Stubbs in 1972 Walters J. stated:
It seems to me that it is difficult to lay down any very general and, at the same time, precise and absolute rule as to what constitutes damage. One must be guided in great extent by the circumstances of each case, the nature of the article and the mode in which it is affected or treated. It is in my view, however, that the word is sufficiently wide in its meaning to embrace injury, mischief or harm done to property, and that in order to constitute damage it is unnecessary to establish such definite and actual damage as renders the property useless, or prevents it from serving its normal function.
In that case the court held that the temporary functional derangement of a policeman's cap resulting from it being jumped upon constituted damage. The use of the word "damage" in the English Criminal Damage Act, 1971 has been the subject of some degree of judicial analysis in the United Kingdom. Thus, "graffiti", for example, has been held capable of constituting damage within the meaning of section 1 of the 1971 Act.
In the case of Roe v. Kingerlee, 1986, the defendant smeared graffiti on the wall of a police cell which cost £7 to clean. The Divisional Court held that the justices had been wrong in taking the view that what occurred could not, as a matter of law, amount to criminal damage. They stated:
What constitutes criminal damage is a matter of fact and degree, and it is for the justices, applying their common sense, to decide whether what occurred was damage or not. It is not necessary that the damage should be permanent before an act can constitute criminal damage. The application of graffiti to a structure will not necessarily amount to causing damage. That must be a question of fact and degree for the tribunal of fact.
However, having regard to the extent of the damage, the Divisional Court in that case considered that no order should be made in respect of the appeal. The difficulty in determining when an interference with property is sufficiently substantial to be designated damage is well illustrated by the Crown Court case by A. (a juvenile) v. R., 1978. In that case it was held that a conviction of criminal damage was improper for lack of proof of damage, where the defendant, the appellant in this case, had spit at the back of a uniformed police sergeant, the spittle landing on his raincoat. When removed with a tissue some time later it left a faint mark.
The court held, per Judge Streeter in that case, that when interpreting the word "damage" the court must consider the use of an ordinary English word. Spitting at a garment could be an act capable of causing damage. However, one had to consider the specific garment which had been allegedly damaged. If someone spat upon a satin wedding dress, for example, any attempt to remove the spittle might in itself leave a mark or stain. The court would find no difficulty in saying that an article had been rendered imperfect if after a reasonable attempt at cleaning a stain remained. An article might also have been rendered inoperative if, as a result of what happened, it had been taken to dry cleaners. However, in the present case no attempt had been made, even with soap and water, to clean the raincoat which was a service raincoat designed to resist the elements. Consequently, there was no likelihood that if wiped with a damp cloth, the first and obvious remedy, there would be any trace or mark remaining on the raincoat requiring further cleaning. Furthermore, the raincoat was not rendered inoperative. If it was inoperative it was solely on account on being kept as an exhibit. Thus, in the view of the court in that particular case nothing occurred which could be described as damage. A charge of assault might well have been appropriate in that case but this was not a point which the court was called upon to decide.
Henderson v. Battley, 1984, is another case which illustrates the difficulties that can arise in this matter. In that case the English Court of Appeal held that:
The unauthorised dumping of waste on a cleared building site constituted damage, because the site's usefulness was impaired, and work and expenditure was required to restore it to its former state.
In relation to that case, Professor Smith in an article in the Criminal Law Review of 1986 states:
If the land had not been intended for use as a building site, it is possible that the result might indeed have been different. In so far as the conclusion that the effect constitutes "damage" depends on the purpose for which the property is to be used, it would seem that the defendant must have known that, or been reckless whether the owner had that purpose in mind; for he must be proved to have intended that, or been reckless whether damage be caused.
Advances in technology can also result in new applications of the concept of damage. In Cox v. Riley, 1986, the erasure of programmes from a plastic circuit card used to operate a computer saw was held to fall within the scope of section 11 of the Criminal Damage Act, 1971 in the UK because the card was undoubtedly “property” of a tangible nature within section 10 (1) of that legislation, and the erasure of the programmes constituted damage.
The Law Reform Commission in their report considered how the notion of property should be defined in the legislation. They considered that the Malicious Damage Act, 1861 marshalled a bewildering array of specific types of property as well as including residual generic provisions. It seemed to them preferable, therefore, to adopt a simple generic definition of "property". Thus, section 11 of this Bill provides that property means:
(a) Property of a tangible nature, whether real or personal, including money and animals that are capable of being stolen, and
(b) data.
While there is a substantial measure of correspondence between the definitions of property for the purpose of the Theft Act and this Bill, there are indeed two significant differences. First, land which in general cannot be stolen may indeed be the subject of criminal damage. Secondly, while intangible property has been brought within the subject of the Theft Act, it is excluded from the definition of "property" for the purposes of the Criminal Damage Act. The provisions of the Bill are confined to "property" belonging to another and do not penalise the anti-social destruction of one's own property; thus, the prosecution must in each case establish that the property belonged to another.
In R. v. Denton, 1981 the Court of Appeal in the United Kingdom allowed the defendant's appeal against conviction under section 1 (1) of the Criminal Damage Act, 1971 holding that:
It is not an offence under the Criminal Damage Act, 1971 for a person to damage, injure or destroy or set fire to his own premises.
Section 1 (2) of this Bill provides that property shall be treated for the purposes of the Act as belonging to any person:
(a) having lawful custody or control over it,
(b) having in it a proprietary right or interest not being an equitable interest arising only from an agreement to transfer or grant an interest, or
(c) having a charge over it.
Thus, the Bill provides that the custody of another person is equivalent to ownership and so a landlord commits an offence under this Bill if he sets fire to his tenant's house. Several excuses for damaging the property of another are recognised in the general law. For example, a landowner or occupier, and probably a licensee, may eject trespassing property, notwithstanding that this may inevitably involve some damage to the property, as where he demolishes, for example, a shed that has been placed on his land by way of trespass. A person may abate a nuisance by removing any unlawful obstruction to a public or private right of way. Property may be damaged if it is in a situation of necessity and, of course, it may be damaged with the consent of the owner.
In addition, in order to commit an offence of criminal damage under this Bill the defendant's damage to the property of another must be without lawful excuse. Section 6 (2) specifies two particular types of lawful excuse for the purposes of the Bill. They are: (1) a belief in consent governed by section 6 (2) (a) and 6 (2) (b) of the Bill and (2) a belief in defence which is covered by section 6 (2) (c). Section 6 (3) provides that for the purposes of section 6 it is immaterial whether a belief is justified or not, if it is honestly held.
The question of lawful excuse under section 5 (2) (a) of the Criminal Damage Act, 1971 or section 6 (2) (a) of this Bill was considered in two recent cases, which are of some importance both for the legislation in the United Kingdom and for the legislation here.
In the case of Jaggard v. Dickenson in 1980 the defendant had broken a window in a house which belonged to X, under the honest but mistaken belief that the house was that of a friend at which the defendant was staying. The defendant broke the window trying to enter the house while intoxicated. The defendant sought to rely on the statutory defence under section 5 (2) (a) of the 1971 Act.
The significance of this case rests on the point that the defendant's mistaken belief was caused by self-induced intoxication. Since self-induced intoxication is, it is believed, no defence under section 1 (1) of the Criminal Damage Act, 1971, the offence being one of basic intent, the question arose, could the defendant rely on the statutory defence under section 5 (2) (a) of the 1971 Act where his belief was induced by intoxication? The Divisional Court held that the section 5 (2) (a) defence was applicable because the defence was one of honest belief and the origin of such belief was immaterial. Equally, the reasonableness of such a belief is immaterial — section 5 (3) of the 1971 Act and section 6 (3) of this Bill.
The Minister will see that I am making this comparison between the Irish legislation and the English legislation as I move along because the Bill is a verbatim copy in almost 90 per cent of the English legislation.
In R. v. Denton in 1981 the defendant sought to rely upon the defence again embodied in section 5 (2) (a) of the 1971 Act. He had set light to industrial machinery at his place of work upon the request of his employer, who owned the machinery. His employer stood to benefit if the premises were destroyed because the business of the employer was in a difficult financial position which might, of course, be obviated by the use of insurance moneys received for the destruction of the equipment. The court of appeal, however, in this case allowed the defendant's appeal against conviction stating that since the employer was the owner of the property and had, in fact, consented to the property's destruction by the defendant, no offence had been committed by the defendant. Chief Justice Lord Lane observed in that case that:
One had to decide whether an offence was committed at the moment when the acts were done, which were alleged to constitute it. The fact that someone had a dishonest intent which in the end he was going to carry out could turn what was originally not a crime into a crime.
The mental element or mens rea required for an offence under section 2 of this Bill is an intention to cause damage to property belonging to another or being reckless as to whether such damage is caused by one's actions. Professor Cecil Turner of Cambridge University in the revised sixteenth edition of Professor Kenny's book, Kenny's Outlines of Criminal Law, makes the point that so many have been the variations of meaning in which, during the course of centuries, the words “malice” and “maliciously” have been used in the law that it is difficult in the crime of malicious damage to find judicial authority for an exact definition of the word “maliciously”.
Professor Turner observes that in an endeavour to bring clarity into this matter Professor Kenny in the first edition of his book in 1902 propounded a principle which he considers has held its position without successful attack ever since. He was, of course, writing in 1952 but the suggestion is, and the suggestion of the Minister particularly in the other House is, that that definition retains its validity equally today. It is that in any statutory definition of crime, malice must be taken not in the old sense of wickedness in general but as requiring either firstly, an actual intention to do the particular kind of harm that was done or, secondly, recklessness as to whether such harm should occur or not, that is, the accused has foreseen that a particular kind of harm might be done and yet has gone on to risk it.
This principle is well illustrated by the case of R v. Pembleton in 1874. In that particular case the defendant successfully appealed against conviction under section 5 (1) of the Malicious Damage Act, 1861, for unlawfully and maliciously breaking a window. The defendant had been involved in a quarrel in a public house and after the whole party had been ejected, the fight continued in the street. The defendant broke away and from the other side of the street threw a stone at his opponents which missed them and broke a window in the public house. The jury found as a fact that the defendant had not intended to break the window but nevertheless they proceeded to convict him. The Court for Crown cases, however, quashed the conviction and stated:
The jury might have found on this evidence that he was reckless whether he did it or not; but the jury have not so found.
However, so long as the particular kind of harm intended or risked was done, it makes no difference that it fell upon a different object or person than that on which it was expected to fall — R v. Latimer in 1886.
The Irish case of R v. Faulkner in 1877 was decided on the footing that the defendant did not foresee that what he was doing might result in the kind of harm which he brought about. In that case the defendant was a sailor who, while concentrating on a theft of rum, held in his hand a lighted match which ignited the rum and so caused the destruction of the entire ship. The Court for Crown cases reserved in Ireland quashed his conviction and followed the principle as propounded in R. v. Pembleton (1874).
The Irish Law Commission in their report on receiving stolen property recommended that the mens rea for the offence of handling unlawfully obtained property should be based on recklessness but that the recklessness should be specifically defined as subjective recklessness. They proposed that the formulation from the tentative draft of the model penal code approved by Justice Henchy in his judgment in the Murray case in 1977 should be adopted. That briefly is: “A person acts recklessly with respect to a material element of an offence when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the act as conducted in the circumstances known to him, his disregard involves culpability of high degree.” They recommended, therefore, the adoption of the same formula for offences relating to criminal damage. They see an advantage in maintaining a common approach to the question of mens rea in relation to criminal offences generally unless there are special circumstances having regard to the particular offence under consideration which would require that they adopt a different approach.
The Government — and the Minister for Justice clearly indicated this in the Dáil — have taken the view that pending the adoption of a common standard of recklessness under the general common law, it would be better to retain the traditional formula as propounded by Professor Courtney Stanhope Kenny as far back as 1902. This Bill also deals with such important matters as the making of compensation orders, arrest without warrant and search warrants. These are all very important matters and are better teased out on Committee Stage.
Finally, I welcome, in the main, the provisions of the Bill which seek to deal with the problem of computer misuse by what is called hacking, whether this be insider or outsider hacking. After what has been said here today, the Minister and his officials should have a look at this. I know that some of the things that were said by Senators could be described as perhaps rather extravagant but on the other hand, there was a crucial line of argument running through a lot of what was said in regard to the definition of data and so on. I would suggest to the Minister that perhaps the next Stages of this Bill, both Committee Stage and the remaining Stages of the Bill, could be perhaps deferred until after the Christmas recess.
I would like to welcome the Bill. As I said, I was disappointed that neither the Minister of State nor the Minister for Justice in either House took the opportunity to say how helpful they found the British legislation, almost all of which they have copied, but at least the Irish Law Commission, under the chairmanship of Justice Ronan Keane, had acknowledged that this legislation is a model of simplicity and indeed a model for reform. I would like to welcome the main provisions of this Bill and I hope it has a speedy and constructive passage through the House.
