I call on Senator Norris to move his amendment.
Criminal Damage Bill, 1990: Report and Final Stages.
Acting Chairman
Before I do so, I understood it was the procedure of the House not to refer to the absence of a Member and it was rather odd the Leader chose to do so. I would like to place on the record of the House that I went out to seek an additional copy of the Bill and I was absent from the House for about one minute. I have been here for the entire afternoon and I anticipated that there would be amendments moved. I would not wish the record of the House to suggest——
Acting Chairman
In fairness, it was an oblique rather than a direct reference.
It was direct.
I made it very clear that whatever good reason the Senator had——
Acting Chairman
In fairness, I wish to defend the Leader's position. All I can suggest is that if the cap fits——
As long as we have the record straight. I move amendment No. 1:
In page 6, between lines 29 and 30 to insert the following:
"( ) In this section the word ‘intend' shall be construed to mean the dominant purpose of the person concerned, and the rule whereby a person shall be presumed to intend the natural or probable consequences of their action is hereby excluded."
The word "intend" in line one should read "intent". The reason for this is a technical, legal one and I hope the Minister will find it in his heart to accept this amendment because, as has been demonstrated by the procedures of the last half hour or so, the Minister has had Government amendments accepted and there should be no reluctance on the part of the Government to accept amendments.
The Minister in what he said yesterday and today appears to understand the word "intent" in the ordinary English language usage of the word. Unfortunately, I have news for the Minister and that is that the word "intent" as legally defined does not mean what the Minister appears to think it means, that is, the motivation of the person. There have been a number of cases which define "intent" legally. The legal definition of "intent" is the natural or probable consequences of their action. I may point out that in computer terms once one switches on and inserts the programme it is not just a question of natural or probable consequences, it is a question of inevitable consequence because there is a mathematical system involved and you just have these consequences. The question of intent requires definition, otherwise you are muddying the water substantially. I look forward to the Minister's reply.
There is a specialised legal meaning to the word "intent". It means the natural probable consequences of the action and has nothing necessarily to do with motivation, whereas the Minister in his explanation throughout the afternoon and yesterday indicated clearly that what he was talking about was the motive, the intention as normally understood, and not intent as defined by case law. This is a legal point and it is one which the Minister should consider.
I listened very carefully to what the Minister said. I believe, as I have said all through this debate, that there is no sinister intent in this, to coin a phrase, that the objective is to deal with the offence of computer hacking but the section as it stands criminalises a lot more.
The Minister made great play of the fact that if somebody, for instance, switched on a computer simply to use a bit of software for one reason or another and that was the end of it, it would not be his intention or the intention of the Bill that such a person would be guilty of an offence. What we have done here is offer an amendment which redefines the word "intent" in terms of what the Minister said was the objective of the Bill. What the Minister means is that the dominant purpose of the person concerned should be the concern of the enforcers of the law, not the normal definition which would mean that anything that would follow from his action would be regarded as the intent.
In this section, the word "intent" shall be construed to mean the dominant purpose of the person concerned, and the rule whereby a person shall be presumed to intend the natural or probable consequences of their action is hereby excluded". Quite simply we are trying to facilitate the legislation and the Minister by making explicit in the legislation what the Minister suggests is implicit. I cannot see any reason not to go through with these three lines. The Bill is going back to the Dáil anyway because of some other minor amendments; this one can go back also and it would clarify an enormous amount if the amendment were accepted.
It was agreed on the Order of Business that we would conclude discussion on this Bill at 6 p.m. and resume again at 8 p.m. but as we have come so far on Report Stage, if the House agrees, I would not oppose a further extension of ten minutes to complete the Bill.
Acting Chairman
Is that agreed? Agreed.
I support this amendment which clarifies some of the difficulties we discussed at length over two days in section 5. It overcomes some of the problems we put to the Minister but to which we did not receive satisfactory replies. On that basis I cannot see why this amendment would not be accepted; it certainly does not change the Bill or the intent the Minister outlined to us. The Bill is going back to the Dáil anyway and it would improve the legislation dramatically if this amendment were accepted. I urge the Minister with regard to the concerns expressed by this side of the House on section 5, to accept this amendment.
In my view an amendment on these lines is not necessary. This legislation is a criminal enactment and must be construed strictly, that is, if two constructions are possible, the construction more favourable to the defendant must be adopted. In the case of the intent of a person accessing data or a computer program the real intent must be established. If the intent is to obtain money, play a game, switch on somebody else's washing machine or whatever, that is the intent that counts and I should not like to be prosecuting anyone in such cases for a breach of section 5. I do not disagree with what the Senators wish to achieve by this amendment but the wording in the section is adequate to cover it as it stands.
It is not adequate——
We can agree to differ.
This is a matter of legal definition and "intent" does not mean what the Minister thinks. He is not Alice in Wonderland or Humpty Dumpty; words do not mean what the Minister wants them to mean; they mean what the courts decide and the courts have decided what "intent" means. Their interpretation is a little different to what Seán Citizen thinks. "Intent" means the probable or natural consequences of an action. In legal terms it has nothing whatever to do with the motivation of the person involved. It is as simple and as clear as that. The Minister can disagree as much as he likes but ultimately, what matters is the view taken by the courts and I have recorded that view here.
Case law in this country and in England has decided what "intent" is — the probable or natural consequences of an action, regardless of motivation. By inserting a programme and switching a computer on, certain consequences are inevitable, not natural or probable but inevitable. I have put it simply and I do not see why the Minister cannot accept it since the Bill is being recommitted to the Dáil anyway. It seems to me that this legislation will get into trouble with the courts because of this badly drafted definition.
The Seanad divided: Tá, 11; Níl, 28.
Tá
- Doyle, Avril.
- Hourigan, Richard V.
- Jackman, Mary.
- McDonald, Charlie.
- Manning, Maurice.
- Neville, Daniel.
- Norris, David.
- Ó Foighil, Pól.
- Raftery, Tom.
- Ross, Shane P. N.
- Ryan, Brendan.
Níl
- Bennett, Olga.
- Byrne, Hugh.
- Byrne, Sean.
- Cassidy, Donie.
- Cullen, Martin.
- Dardis, John.
- Fallon, Sean.
- Farrell, Willie.
- Finneran, Michael.
- Fitzgerald, Tom.
- Foley, Denis.
- Haughey, Seán F.
- Hussey, Thomas.
- Keogh, Helen.
- Kiely, Dan.
- Kiely, Rory.
- Lanigan, Michael.
- Lydon, Don.
- McCarthy, Seán.
- McGowan, Paddy.
- McKenna, Tony.
- Mooney, Paschal.
- Mullooly, Brian.
- O'Brien, Francis.
- Ó Cuív, Éamon.
- O'Keeffe, Batt.
- Ormonde, Donal.
- Wright, G.V.
Tellers: Tá, Senators Norris and B. Ryan; Níl, Senators Wright and Fitzgerald.
Amendment declared lost.
Bill received for final consideration and passed.
Sitting suspended at 6.10 p.m. and resumed at 6.30 p.m.