Dáil Éireann - Volume 412 - 06 November, 1991

Criminal Damage Bill, 1990: Committee Stage (Resumed).


Debate resumed on amendment No. 10:

In page 8, subsection (4), line 22, to delete “shall” and substitute “may”.

——Deputy S. Barrett.

An Ceann Comhairle: Deputy Briscoe [486] was in possession and reported progress. Perhaps some Deputy present would wish to resume the debate.

Mr. S. Barrett: Perhaps the Minister would like to contribute at this stage.

An Ceann Comhairle: The Minister of State may wish to intervene at this juncture.

Minister of State at the Department of Justice (Mr. N. Treacy): I thought Deputies had not concluded on this amendment. Amendment No. 10 would give the Criminal Court a discretion as to whether it would have regard to the convicted person's means when it is deciding whether to make a compensation order or deciding on the amount to be paid under it. I would not agree with this. The section does not intend that the criminal court compensation order should be made on the same basis as an order for damages in a civil case: that is, that it should be made for the correct amount of the damages ascertained by the court after hearing all the parties in respect of the dependent's capacity to pay. The criminal court is not or, at any rate, should not be in that position. It is true that subsection (2) requires the court to have regard to any representations by or on behalf of the convicted person or the prosecutor as to the appropriate amount to be payable under the compensation order. This does not mean that sufficient information will be made available to it to determine the correct amount of compensation. Indeed, the convicted person may say nothing on the issue and the owner of the damaged property may not be present. If any information is available to the court to indicate that the convicted person's means are such that realistically he or she cannot be expected to pay any compensation, for example, whether he or she is being sentenced to a long term of imprisonment or only a limited amount, then the court should be bound to have regard to these relevant facts. For this reason I regret I will not be able to accept this amendment.

[487] Mr. S. Barrett: With respect to the Minister, I think he keeps missing the point of the total debate we had this morning and presumably will have this afternoon. To repeat what I have said: I am asking that a compensation order be made in cases where somebody is convicted of a malicious damage offence. The Bill outlines certain alternatives to the court. It states that if somebody is convicted the court may impose a prison sentence or it may impose a fine in lieu of prison. It gives the court discretion as to whether a fine up to a maximum of £1,000, in one set of circumstances, may be imposed. In cases of offences of malicious damage it is a pointless exercise from the point of view of the victim of crime that somebody is put into prison at a cost of £900 a week minimum to the taxpayer and perhaps released after two or three weeks because of over-crowding in our prisons. If the court can have discretion as to the amount of a fine they impose, the same will apply in relation to the compensation order. The court should have the discretion. If the Minister is prepared to give discretion as to the amount of the fine to be imposed surely the court should also have discretion in relation to the compensation order it may make.

I do not accept that because somebody happens to be in receipt of, say, unemployment assistance, or of a particular income, who is engaged in malicious damage, which is prevalent, unfortunately, in Ireland at present, that that person should walk away scot free after serving a short prison sentence or having a small fine imposed on him. What about the victim of the crime? It is no good to me or to anybody else if a fine is imposed, which is paid to the State, and my car has been wrapped around a pole or has crashed into a wall, or if it has been stolen, and I have to replace that car. It is no compensation to me if the State is collecting a miserable fine of £50 or £100.

My next amendment relates to the period during which a compensation order should be completed. If you want to have a deterrent to people damaging other people's property then, in certain [488] circumstances, they should be made compensate the victim of crime.

As Deputy Briscoe, the Minister of State's colleague, pointed out this morning we either have deterrents or we do not. The present solutions to our problems are not working. It has been proved time and time again that it is not a deterrent to put people into prison for a short period for offences like this. A real deterrent would be to make a criminal repay society in some way. If somebody happens to be in receipt of a particular income it is not a reason why he should not be made to repay the victim, even if it takes over 20 years to repay. Every time the Minister replies to an amendment like this I feel he is missing the point I am making: that we have an opportunity here to do something about what is happening on the streets. It is not any use threatening prison for a fortnight or three weeks on someone who has burned five, six or seven cars or who has smashed up somebody's car by joyriding it. It has been proved that that does not stop them. There is a greater chance that such vandalism will stop if the penalty hits the criminal where it really hurts — in his pocket.

We learned from the police report that £36 million worth of goods were stolen in this country in 1990 and that £3 million was recouped by the Garda. Some people are enjoying £33 million worth of other people's property. The threat of prison has not reduced the number of robberies. It is big business. The only way to stop it is to make sure that, in addition to perhaps a prison sentence, the criminal's assets which have been clearly derived from crime are confiscated. If a person serves a prison sentence, probably a reduced prison sentence, and comes out to find that there are not any pickings to enjoy, criminality is less attractive. Society has to move towards deterrents alternative to prison.

The Minister is missing a golden opportunity in this legislation to give courts alternatives to custody. The hands of the court should not be tied by saying that the court shall have regard to a person's [489] income. If we remove the word “shall” and replace it by “may” then the court may have regard to a person's income. What is a judge to read into this? The word “shall” directs the court to consider a person's means and to perhaps not make a compensation order. That is wrong. The court should have discretion. The court may take into account the means of a person, but they would not be obliged to. I am not trying to make criminal law into civil law. I am saying that criminal law should include deterrents that are effective. If a judge commits a person to prison because he knows a fine will not be paid and that person is released in a short time, nothing has been achieved. The person who has suffered has not achieved anything, society has not achieved anything and the criminal is probably back out on the streets having served a short sentence. There are just over 2,000 places in our prisons and over 7,000 people are going through them every year. We are just letting people out to let somebody else in, and prison policy means nothing. If those people had to pay compensation to the victim of the crime and knew that they might have to pay compensation for a very long time, it might be a deterrent and the unwonted vandalism might stop.

There is not any justification for the unwonted vandalism which is occurring every day resulting in malicious damage claims. One might perhaps understand why people become involved in other types of crime, perhaps because of their circumstances which may drive them into it, but it is incomprehensible why people just damage property, why they go into for instance a local authority housing estate and burn the cars of people who are struggling to pay their bills, to pay their rent, to mind their own business and to look after their families. I cannot understand why some young hooligan would come along and set fire to such cars. The people who own the cars are not wealthy. The chances are that such people have loans from the credit unions or the banks to pay for the cars; and when the young hooligan has burned the cars out, the owner must continue to pay the [490] loan for it. The owners have to find the money. They cannot appeal to the courts for relief of the liability entered into to get the car. Such people are not relieved of their responsibility. They have to work and continue to pay for the car that has been burned out by some vandal. Yet we are saying in our legislation that, before the court makes a compensation order, it shall take into account the means of the person who perpetrated that vandalism. What about the unfortunate person left without a car and with a loan to repay? We must take into account the means of the person who burned it before we can make a compensation order. Why should we say that a compensation order can be made only for a certain period? If a person causes £5,000 or £10,000 worth of damage, that liability should rest with him, if necessary until the day he dies. There is not any justification for not doing this. If we are really talking about protecting the victims of crime we should not put legislation through which will cause difficulties for the courts.

Mr. Byrne: It is always time consuming and interesting to try to dissect the difference in meaning between the word “shall” and “may”. Having listened to Deputy Barrett, I agree with him. We all sympathise with the victim of crime and would like legislation to address the plight of the victim evenhandedly. There is nothing as sad as seeing people who are up to their eyes in borrowings trying to pay for cars which have been burned, or for extensions to houses which have been subsequently vandalised and so on. If our position is that prison is not working as a deterrent, we have to look at the question of crime and vandalism in a different light. I question whether changing the word “shall” to “may” will substantially alter the difficulty in the streets. Deputy Barrett instanced the fellow who has burned four or five cars and who is on unemployment assistance. Why should he get off? There are sound economic reasons for not levelling a compensation order against a person of such limited income as someone on social welfare. One just cannot reclaim the cost of [491] three or four stolen cars from such a person. The only people one could claw back some compensation from are those criminals involved in low level burglaries where the cost of what they stole and the damage they did is so low as to make a compensation order practicable.

The problem of criminals on social welfare doing tremendous damage cannot be addressed by way of compensation orders. If prisons are not working it is up to us here in the Dáil to address the question of why they are not working. I would be interested in the Minister's response to whether a compensation order can only be applicable in real terms to someone who has a disposable income, such as the drug pusher, the drug importer or the professional criminal who has made a success of crime.

However, when we speak of vandalism we are not speaking of people who have gathered large sums of money into their own personal coffers. We are talking about mindless vandalism which is costing the community and costing the victim. There are two different areas — the area of mindless vandalism and what it costs the victim and there is the question of applying compensation orders to those who have been successful in crime and have accrued assets or cash into their own private coffers.

Minister of State at the Department of Justice (Mr. N. Treacy): Subsection (4) requires the court to have regard to the convicted person's means as far as they appear or are known to the court. The object is to ensure that the compensation order can be realistically enforced. The subsection makes special provision for the case where the convicted person is under 17 and where the court is empowered under section 99 of the Children Act, 1908, to order the fine, damages or costs 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.

Section 99 provides that such an order may be made if the offender is between 15 and 17 years old and that it must be [492] made if the offender is under 15 unless in either case the court is satisfied that the parent or guardian cannot be found or that he has contributed to the commission of the offence by neglecting to exercise due care of the juvenile.

Deputy Barrett says that a person on the dole should not get away scot free if he or she has damaged property. I agree completely with that. There is nothing in subsection (4) that says he must get away scot free. All the subsection says is that a court must have due regard to his or her means, that is, that it does not make an order for such an amount that he or she cannot reasonably be expected to meet.

To avoid any misunderstanding, under the section the court can order compensation up to the full amount of the offender's assets or income. What it does not do is allow the court to place an order for £60 a week against a person whose income is £50 a week. It would not be possible to enforce such an order.

If we change “shall” to “may” there must be an implication that there would be cases where a court should have regard to the offender's means in fixing compensation, but that could lead to a situation where orders that could not be enforced would be made. What we are saying is that the court must take into account the means of the defendant and must make an order commensurate with those means that can be realistically enforced. That is a logical and practical approach to ensuring that those who commit crimes can be made to pay.

On Deputy Byrne's point, there is nothing to stop the court from making an instalment order over a reasonable period of time. That is something that might be done on the basis of all the information available and we will be dealing with that on the next amendment.

Mr. S. Barrett: I do not know why the Minister put in subsection (7) if he is adopting that attitude to my question. Subsection (7) gives the court power after it has made an order to reconsider that order and to reduce it or to suspend it altogether. I doubt very much if a judge [493] would make a compensation order for somebody who is getting £50 a week to repay £60 a week. In using the word “shall” as distinct from the word “may” the Minister is putting a greater onus on the judge to take into account the means of the individual. People's circumstances change. When this compensation order legislation comes into effect some bright boy who is earning money and who appears in court six months later convicted of malicious damage might decide to give up his job and say in court that he is on the dole. That would suit him because the court would then make a compensation order for, say, £5 a week or it may not make a compensation order at all. The Minister is now trying to restrict this to a period of 12 months. A month later that individual could be earning £250 or £300 a week. There are a lot of bright people around this country and many who are a step ahead of the posse all the time.

It is silly to tie the court's hands. Putting in the word “may” does not weaken the legislation in any way; it makes it more flexible. I am all for giving the courts flexibility so that a judge can assess the evidence and the character of the person before him. He has all the advantages that we legislators would not have here. It is right that we should allow the court discretion to sum up the circumstances of a case and decide whether or not to make a compensation order. It could be that it is the person's first offence. He may have been dragged into it, he may be on the periphery and in such circumstances the judge may decide not to make a compensation order but to impose a fine or apply the Probation Act.

But there may be other circumstances. A person may be before the court who has a criminal record, who ignores the law consistently, who is living quite well and who claims that he or she is in receipt of unemployment assistance. I recall reading about drugs cases where some drug baron who is now in prison was a tenant of the local authority. At the same time he had a nice big house in a very wealthy part of Dublin in his wife's name. He was in receipt of unemployment [494] assistance and everybody knew that that person had a considerable amount of money. The problem was to prove it. Is the Minister trying to tell me that the court's hands should be tied if that type of individual came before it? Of course, it should not. We should use our basic commonsense and allow our judges to use their commonsense. We should not tie their hands or worry that they may go overboard in some cases. They will not go overboard while a person has the right of appeal. In addition, under subsection (7) the courts are being given the further power to suspend or reduce the compensation order. Therefore a person will have the right to go back into the court. What I am saying is that we should not weaken the legislation or send out signals to the courts through the wording used. We should give them discretion.

Mr. N. Treacy: I am satisfied that the courts would want clearly defined legislation. What Deputy Barrett has proposed differs only slightly from what we have proposed, that the courts should use their better judgment in making a decision based on all the facts before them. I rest my case.

Question, “That the words proposed to be deleted stand”, put and declared carried.

Mr. S. Barrett: I move amendment No. 11:

In page 8, subsection (5), line 30, to delete “during a period not exceeding 12 months”.

I am attempting here to amend subsection (5) which states that “a compensation order may provide for payment of compensation by instalments during a period not exceeding 12 months”. I wish to delete the words “during a period not exceeding 12 months” so that the subsection would read “a compensation order may provide for payment of compensation by instalments”. Again, I fail to see why the hands of the court should be tied in this regard and it relates to the point we have just been discussing. If we [495] say the payment must be made within 12 months then obviously income would be a factor. Suppose £5,000 or £10,000 worth of damage is done and a person is in receipt of £50 to £100 per week, if an order stipulating £20 per week should be repaid is made, the maximum that would be collected, if the legislation is approved, would be £1,000 approximately.

What is the logic behind the proposal that we impose a limit of 12 months? Again, we are talking here about using compensation orders as a deterrent to prevent mindless vandalism or damage to people's property. I do not understand the logic behind the suggestion that it should be paid within 12 months. If I damage someone's property there is no reason why I should be relieved of my obligation to that person and society after a period of 12 months. If we decide not to send a person to prison but rather to impose a fine, then why should it not be paid over five years or ten years if a person can pay £10 or £15 a week? It should be a deterrent. The victim should also have the opportunity to recover the loss incurred. Perhaps the Minister of State will convince me there is a necessity for this, but I cannot for the life of me understand the reason we should lay down a maximum period of 12 months.

Mr. Bell: I support the sentiments expressed by Deputy Barrett because from what the Minister of State said on a previous amendment the subsection appears to be contradictory. On the one hand, we are saying to the court that they should take into consideration a person's means but on the other, in subsection (5), we are saying conpensation should be paid within a period not exceeding 12 months. If the sum involved is a large one, as it will be very often, the judge would have to come to the conclusion that it would not be possible for the person concerned to pay it back if they are on a low income or in receipt of some benefit.

If the Minister of State is not prepared to agree to the amendment proposed by [496] Deputy Barrett, which is a reasonable one, he should bring forward an amendment which would allow the court, having taken a person's means into consideration, to decide on what the period of time should be. If the words “during a period not exceeding 12 months” are deleted it would be paid by instalments. I do not know if it would be necessary to extend the amendment to read that the court should decide on the length of time over which the payment should be made but I suggest if the Minister of State is not prepared to accept the amendment which, as I said, I support, he should bring forward an amendment to meet the point. It is contradictory as listed at present.

Mr. N. Treacy: This amendment gives effect to the views expressed on Second Stage that it would be better to leave it to the court to decide the period over which the compensation should be paid. In his reply to the debate the Minister for Justice said that there was no particular sanctity about the period and that the point could be teased out further on Committee Stage. That is what we are doing at present.

The object of imposing a limit of 12 months on the period of payment by instalment was to ensure that the payment could not be so prolonged as to be oppressive or unrealistic. It would be better that these orders should be sharp in their effect and not for a protracted period of time. On the other hand, I can see that there would be circumstances where payment under a compensation order could reasonably be made to extend over a period in excess of 12 months. The only difficulty I have with the amendment proposed by Deputy Barrett is that it imposes no upper limit on the period of payment. I think some guideline has to be given to the court in this regard.

Mr. S. Barrett: Why should the court be given some guideline as to the period and what is the logic behind the suggestion that we impose a limit of 12 months? I could suggest that it be six months, 24 [497] months, or 30 months. There is no logic behind it and it is like picking a number out of the sky. I cannot say that we should impose a limit of 24 months. What I am saying is that the court should have discretion. They may say that they are making a compensation order with the compensation to be paid over six, nine, 12 or 24 months or five years. We should leave it to the courts to decide. Why should we worry about it and why should the court be given this sort of direction?

I thought about this matter when tabling amendments and I said to myself that if I suggest a period of 24 or 36 months the Minister of State might reasonably say to me, why pick 24 or 36 months? The point I am trying to make is that there is no logic behind it. Perhaps we are looking at this legislation from different points of view. I consider this part of the legislation presents the Dail with an opportunity for the first time to introduce a new form of deterrent to prevent people engaging in mindless vandalism and damaging other people's property, by hurting them in their pocket as distinct from imposing a liability on the taxpayer all the time by putting them into institutions which, as we can prove, is not working.

I am not saying that people should not go to prison; of course they should for certain offences, but while they are in prison it is better to try to rehabilitate them so that they will not reoffend. However, when somebody damages property putting them in prison will not make up a person's loss. The punishment should be to pay for some of the damage they caused and in addition the court may decide that they should do community service. I hate to see legislation being destroyed by unnecessary restrictions. We argued about the word “shall” as against “may” and we are now arguing about the period of 12 months. In my previous amendment we had an argument in relation to subsection (3) where the onus was put on the victim to produce all sorts of evidence and so on. However, that argument is over.

We seem to be destroying something for which people are looking but we are [498] all afraid because there seems to be a hang-up about established court practices. This is 1991 and many established court practices should be done away with. We should start thinking about what is happening in today's world and what will happen in the world of tomorrow. We should consider people's feelings and their resentment in relation to crime. We should take note of vigilante groups and concerned parents organised, in many cases, by the Provos, who will try to fill a vacuum because they see our courts system is not working.

The Minister must be aware of the survey carried out by the Sunday Press in which only 9 per cent of the public said they had confidence in our courts. Are the alarm bells not ringing in the Department of Justice as a result? The lack of confidence in the system is the reason vigilante groups are gaining momentum. The Provos tell people that they will sort it out and not to mind the Garda. Our laws are seen to be ineffective and the Minister consistently argues against logic. I was astonished — I am sure my colleagues have heard the same stories — by the case of a man who came to me as a result of his car being damaged outside his door. He is an ordinary person earning a weekly wage and living in a local authority house which he is buying. After his car had been damaged he went to his local for a pint, he was approached by a man who said he had heard his car had been damaged and his house broken into. When the victim told him what happened the man said he could get the property back for him and that he could break the culprit's arm for £50. He said he would sort out those involved. We all know this is going on, that you can hire people for a small amount of money.

Putting all these restrictions into legislation because it is established court practice is the greatest load of nonsense of all time. There is no reason for a court not making a compensation order without any restrictions on the period during which the compensation will be paid. The judge may stipulate that it may be paid in one year, five years or ten years. The judge should make a decision of that kind [499] and we should enable the courts to make compensation orders in respect of damage to property, take into account the means of the individual and decide over what period the compensation should be paid.

It is up to the court to decide on the level of compensation because it is not good enough to say that the amount should not exceed the value of the property. What about the pain and suffering involved? What about the nervousness in people which makes them afraid to open their door? All these factors are taken into account in every other aspect of law, the laws in relation to libel are a typical example. The same applies to insurance claims and, before we abolished compensation for personal injuries arising from criminal assault and so on, there was always provision for pain and suffering. There is no point in saying that a victim of crime can take a civil action. We all know that the vast majority of people to whom we speak every day do not have the money to take civil actions. Even if they manage to bring a civil action and win, most of the money is swallowed up in legal costs. The criminal courts should be able to help the victim and the penalties they impose on the individual should be a real deterrent so that people will not engage in crime of this nature in future.

Mr. Bell: My comments are designed to try to improve the situation and not to make life awkward for the Minister. However, if a court awards £50,000 compensation to someone whose house was burned down can it ensure that it will be paid? How many people would be able to pay back a sum of £50,000 in one year? It would not be practical. The person who committed the crime would inevitably come to the conclusion that he had no alternative to jail. It would be nonsensical for a court to say that someone earning £100 per week would have to pay £50,000 in a year. It would be self-defeating and would tie the hands of the court. I am sure the judge would take into consideration the amount of the award and [500] the person's means and, therefore, would obviously come to the conclusion that it would be unreasonable to demand £10,000 from someone in the space of six months who would not have an income of that kind in six months. I would much prefer to see a person paying the amount over a period of three years instead of spending six or 12 months in jail for non-payment. When a criminal is in jail the person whose property was damaged does not get any compensation and the State — the taxpayer — has to pay for the person in jail. If he is married and has a family the State also has to support them.

I appeal to the Minister to agree to the amendment and, if not, to put a much more flexible provision in place to strengthen the section.

Mr. Byrne: I would ask the Minister to explain the position whereby a person appears in court as a result of causing malicious damage. Presumably the court is compelled on conviction to decide on that day whether the person has the means to meet the compensation order. Is the person's house deemed as an asset and is the court empowered to compel the person to dispose of his house, for example, in order to meet the requirements of the compensation order? When the judge finds the person guilty is he or she compelled to consider the circumstances of the individual on that day? If the sentence imposed is a compensation order plus a fine of £10,000 and the judge defers that sentence beyond the 12 month period the person may then be in a position to make payments in instalments.

We might be heading down a dangerous path in assuming that this new form of financial penalty is a substitute to a prison sentence, which has been the accepted means of punishing the wrongdoer. Already financial penalties are, to a large degree, imposed by the courts. Much of our legislation gives courts the option of imposing a fine or imprisonment or both. The system of imposing financial penalties has been in operation for a long time. It is not the case that we [501] have recently discovered a new method of imposing penalties on people convicted for all sorts of offences.

Mr. N. Treacy: These guidelines are not laid down in section 9 so as to comply with established practices but because they are justified on practical and common-sense grounds and in the interests of securing a measure of uniformity of treatment of offenders by different judges. What we want is a reasonable solution. Reference was made in the House this morning to persons on unemployment assistance paying £5 a week for the rest of their lives. That would probably be unconstitutional and would be certainly unenforceable.

In answer to Deputy Byrne's point, the judge would take all the facts into account, what assets a person has, be it a house or otherwise, and whether or not that house is mortgaged. The decision would then be taken regarding compensation and it would be up to the defendant to fulfil the order made. The purpose of giving a guideline of 12 months is to make sure that the measure is effective, that the person can pay the penalty imposed on him and that it will not be easy for him to perpetrate crime in the future. We want an effective measure and we want to ensure that the amount due by the defendant is paid.

There is a precedent for this in section 17 of the Environment of Court Orders Act, 1926, which authorises a District Court to order payment of a debt by instalments. It provides that payment may be ordered “by such instalments and at such times as a justice shall in all the circumstances consider reasonable”. In deference to what has been said by the three Deputies present and in response to Deputy Bell's earlier request, I am prepared to take this matter on board and to come back with a further amendment on Report Stage.

Acting Chairman (Mr. Jacob): Is Deputy Barrett happy with that?

[502] Mr. S. Barrett: Given that the amendment will be resubmitted for Report Stage I withdraw the amendment.

Amendment, by leave, withdrawn.

Acting Chairman: Amendment No. 13 is an alternative to amendment No. 12 and therefore I suggest that amendments Nos. 12 and 13 be taken together. Is that agreed?

Mr. S. Barrett: No, I do not agree if I cannot move amendment No. 12.

Acting Chairman: The Deputy may move his amendment.

Mr. S. Barrett: Is there not some restriction by taking two amendments together? Could the Chair explain the position to me before I agree to it?

Acting Chairman: Deputy Barrett may move his amendment.

Mr. S. Barrett: I move amendment No. 12:

In page 8, subsection (7), to delete lines 43 to 48 and in page 9, to delete lines 1 to 13 and substitute “of the convicted person or the owner concerned, reconsider the compensation order already made.”.

The only connection between amendments Nos. 12 and 13 is that amendment No. 12 proposes to delete the part of the subsection that amendment No. 13 proposes to amend. If amendment No. 12 is agreed there will be no need for amendment No. 13. If my amendment is passed amendment No. 13 falls because that part of the subsection will have been deleted.

Acting Chairman: It is an alternative.

Mr. S. Barrett: Perhaps I sound boring and repetitive but the compensation order is a very good concept. In reply to what Deputy Byrne said earlier, I do not see compensation orders as the new way of dealing with certain forms of crime. It [503] is an alternative method and will be a further deterrent to some forms of crime, particularly in relation to malicious damage which is what this Bill is about. We should bear in mind that we are talking solely about malicious damage, mindless vandalism, people abusing other people's property without any justification whatsoever. Nobody would try to justify that kind of crime. There was a spate of joyriding in this country and we spent some time looking for solutions to the problem. The position is the same in Britain. This is one way in which we might put a stop to such a crime. If a person steals a car for joyriding purposes, crashes it and finds he has to pay the owner the cost of the car over a five year period, he might not commit the crime again. That might be a deterrent.

I am proposing that in subsection 7 we delete lines 43 to 48 and in page 9 that we delete lines 1 to 13. The provision would then read: “At any time after a compensation order has ceased to be suspended by virtue of section 10 (1) and before it has been complied with, or fully complied with, the District Court may, on the application of the convicted person or the owner concerned, reconsider the compensation order already made”. That would simplify the whole subsection. This subsection refers to reducing the amount of the penalty if the means of the convicted person are insufficient to satisfy the order in full and also to obligations on the victims of crime, but I see no necessity for this subsection.

Section 10 allows for the normal right of appeal. The compensation order cannot come into force until the period of appeal has elapsed. That is understandable and is in accordance with normal practices and principles of law. However it is acceptable to provide that the convicted person or the victim should have the right to go back to court. We said earlier that the court shall have due regard to the means of the person who is being convicted. At that time the person may have a particular income, be it social welfare benefit or from work. The person [504] may have a job at the time the compensation order is made but may subsequently lose that job. He should be entitled to go back to court to have his position reviewed since the order was made when he was receiving perhaps £200 or £300 per week. The person may have been ordered to pay back £50 per week over a 12 months priod.

In response to the person's appeal the court may decide to amend the order by reducing the amount and extending the period of repayment or by making a new order. I have no problem with that provision. Equally, however, the person who suffered the loss should have the right to go to the court and ask that the order be amended. For example, if the convicted person had been in receipt of social welfare but there is evidence that he now has a well paid job, the order should be amended to take account of the changed circumstances. Both sides should get a fair deal. At present it is all one-sided. I believe that either the convicted person or the person who suffered the loss should have the right to go back to the court to have the compensation order amended. This is perfectly reasonable, it satisfies what the Minister is seeking in section 9 (7) that the convicted person has the right to go back into court. However, I say that the victim should have the right to go back to the court if circumstances change. My amendment does not in any way weaken the legislation. It makes it more flexible, which is in the interests of justice.

Mr. N. Treacy: The amendment proposed by Deputy Barrett is to delete the detailed provisions of paragraph () of subsection (7), and simply to authorise the District Court to reconsider the compensation order. Paragraph (a) covers two eventualities that may arise after a compensation order has been made by the Criminal Court. First, the convicted person's means may turn out to be insufficient to satisfy the order in full, or at all, because the person concerned has lost his employment or indeed become disabled as a result of an accident or otherwise. Second, the damage to the [505] property may be less than it was taken to be for the purposes of the compensation order. In either case it would be unjust not to amend or in some cases to revoke the order, because if the full circumstances had been known to the court at the time of conviction the order may not have been made in the same terms or possibly not have been made at all.

I think it is better that the Bill should specify, as it does now, circumstances that would justify the District Court amending a compensation order. That order may have been made by another justice of the District Court or by the Circuit Criminal Court. It should also specify what action the courts should be able to take in those circumstances. Without the guidance given by subsection (7) (a) it is doubtful if the District Court would have power to reduce the amount of compensation where this would be justified. On the other hand some district justices might be inclined, if the circumstances pointed to a substantial improvement in the convicted person's means, to increase the amount payable. This is a very important provision. Again, such an increase would be of doubtful validity and would also be contrary to the policy underlying section 9, which is to enable the owner of damaged property to get a quick redress where the approximate amount of the compensation is readily ascertainable and the convicted person can realistically be expected to pay it one sum or by instalments. This is very clear and for these reasons I regret I will not be able to accept the amendment.

Mr. Bell: The Minister's response is reasonable. We have been talkiing about allowing for a certain amount of flexibility. The Minister's reply indicates that it would be better to leave that part of the section as it stands and to allow for a mechanism of appeal which gives flexibility. As the Minister has said, the Circuit Court might very well decide to increase rather than decrease the payments. I think that flexibility should be maintained in the Bill.

Mr. S. Barrett: Forgive me if I have [506] missed the point, but how would my amendment change the set of circumstances? My amendment gives the convicted person the right to go back to the court, but it gives the injured party also the right to go back to court. I do not understand why the Minister should have a hang up about the method of paying compensation, that is, in one payment or by instalments. Obviously, the thinking behind it was to have the compensation paid in a short period. What is the logic behind paying the compensation in a short period? We are using a new mechanism to compensate the injured party and perhaps to act as a deterrent against a repeat of that type of offence in the future. Why should my amendment endanger this? I have made provision for the convicted person to go back to the court should circumstances change, but the obverse is that the injured party should surely have the right to go back to the court. Suppose it was thought that damage of £5,000 was done but it turned out afterwards that the damage in fact was £7,500, or even £10,000 nobody is too concerned about the victim in those circumstances. However, we are bending over backwards to ensure if it was the other way round, that the damage was less than thought originally, that the money be repaid. That does not seem to be fair.

I suggest that the Minister will achieve what he is seeking to do by accepting my amendment and in addition will extend that right to the injured party. If the Minister can find a new wording that is better than mine, I will accept it. However, I am trying to establish in principle that it should work both ways. I do not see how my amendment is destroying the principle the Minister is trying to establish.

Mr. N. Treacy: We are trying to ensure that what we put into legislation can stand up legally in court and that if the court makes a decision the decision will be binding and can be upheld on appeal to a higher court. We have to enshrine this in the law. It could be very dangerous if the decision taken would not stand up in [507] court and would not be effective. This section is giving validity to the decisions taken by the court, once the power is given to the court to implement those decisions. If the subsection that the Deputy proposes be deleted is deleted, we are taking away the powers that give validity to the decisions taken by the court.

Mr. S. Barrett: I am not.

Mr. N. Treacy: The Deputy's amendment proposes to delete the section. The amendment reads: “In page 8, subsection (7) to delete ...

Mr. S. Barrett: I am not deleting the whole of the subsection.

Mr. N. Treacy: I referred specifically to subsection (7) (a) in my first reply. Under subsection (7) (a) it is doubtful if the District Court would have power to reduce the amount of compensation without that provision. Later on I pointed out — and Deputy Bell picked up on this — that on further consideration of the facts a court could decide to increase a compensation order or the compensation payable. What we are saying to you is that deletion of that would take that power away.

Mr. S. Barrett: No. I am sorry. If my amendment were accepted section 9 (7) would read as follows: “At any time after a compensation order has ceased to be suspended by virtue of section 10 (1)” — which is the appeal period — “and before it has been complied or fully complied with, the District Court may, on the application of the convicted person or the owner concerned, reconsider the compensation order already made”. I am seeking to make it work both ways so that a convicted person can go back — this is what is provided in sections 9 (7) (a) and (b) — and an injured party can also go back if circumstances change. Both parties should be able to go back if their circumstances change.

I may be missing the point that the [508] Minister is making, but as far as I understand it section 9 (7) as it stands would be acceptable if we wanted to provide for the convicted person to be able to go back but we would be ignoring the injured party. However, if we wanted to give the injured party an opporunity to go back if circumstances changed then the provision would need amendment. I am making a suggestion how it could be amended. If the Minister has a different wording he would like to use, that is all right; but I do not understand the principle that he is fearful of.

For example, in relation to a maintenance order in the family courts a judge will make a decision in court to make a maintenance order of a certain amount based on the income of, perhaps, the husband. If the husband's circumstances change then the wife can go back to the court to seek to have a new order made. That does not seem to cause difficulties. That principle can apply both ways. If the husband's income has gone down, if he has lost his job, or if his income goes up the court can amend the maintenance order. Why could a court not amend a compensation order that relates to malicious damage in the same way that it can amend a maintenance order? That provision should be available if somebody's circumstances change; a compensation order should be able to go up or down. I do not recognise the principle that the Minister fears might be destroyed if my amendment were accepted. As I said, if the Minister would prefer to use different words from those I use then by all means I should be prepared to leave the issue to the Report Stage, but I am trying to establish the principle that the injured party should have the right to go back just as much as the convicted person has the right to go back.

Mr. Byrne: I appreciate the point that is being made. There is some confusion. I am not too sure whether the Minister in addressing the amendment and quoting section 9 (7) (a) had clarified the issue. I think that he in fact confused it all the more. Deputy Barrett is right in the case [509] he is making for his amendment. That, by the way, does not mean that I am supporting the amendment. However, I do need to ask the Minister whether he would agree with me that if a justice were to make a compensation order, that part of a penalty was that compensation be paid, the method in which the payment is to be made would be outlined to the culprit. A hearing has been held, a sentence has been passed and a decision taken. It would be impossible to alter the decision or to seek to alter instalments each time the economic staus of the culprit changed, that the court be empowered to alter indefinitely.

I return to what we were debating earlier: the question of whether a compensation order should last 12 months or whether it should be extended beyond 12 months. The Minister has said that he will come back to the House to amend the 12 month provision and perhaps extend it indefinitely, in the sense that Deputy Barrett wanted it open ended. I think the Minister would agree that it would hardly be right that someone who appeared on a given day in a court, who was found guilty and was sentenced to a combination of imprisonment and fine and who had a compensation order levied against him or her on that day, given his or her economic circumstances on that day, could have the case retried again and again, particularly now that it has been argued that the method of paying compensation orders by instalment should be openended. That would mean that a person in court would not know for the rest of his or her life at what stage he or she might be dragged back into court to have instalments increased or decreased.

I certainly should not be happy with people going through the court system under that provision. I would rather that a decision be taken by a court on a particular day and that a penalty was applied there and then. It is dangerous to leave something hanging over a person for the rest of his or her life, depending on whether or not his or her circumstances change, and have that person wondering whether the court would drag him or her [510] in to have instalments under a compensation order adjusted. Before there is a vote on this matter, if there is a vote, I should like the Minister to clarify that point for me. Am I reading the situation correctly?

Mr. S. Barrett: I wish to say to you, through the Ceann Comhairle, that if your agrument were correct then we should not have section 9 (7) at all. You say that on the day a decision is to be taken that should be it. If that logic were to follow through, then if a person's circumstances worsened he or she should not have the right provided in section 7 to go back to court and have the amount of the instalments reduced. You are arguing that a decision is a decision and that is it, that if circumstances change then that would be tough luck.

There is a precedent in all of this. The Bill is saying that the amount of compensation payable should not exceed the value of the property damaged. It is not a position such as that pertaining to a civil action when a court will take circumstances into account when awarding a particular sum of money. What the Bill is saying is that if £5,000 damage were done, basically the compensation order should not exceed £5,000. However, depending on the circumstances, the compensation order could be made for £500 at the time of the sentence. If we were to follow through on what you said, once a decision were taken that would be it and an order could not be altered. However, that is not the case in accordance with section 9 (7). That subsection gives the right to a convicted person to go back to the court to have a compensation order reduced. I am saying that the injured party should also be given the right to go back and have a compensation order amended if circumstances had changed to justify that.

Again, I point out that that position applies in family courts with maintenance orders. Maintenance orders may be changed depending on the circumstances of a spouse at a particular time. If a judge decides to award a specific amount to a wife based on the income of her husband [511] on a particular day, then surely if the husband's income trebles in the following week or the following month she should have the right to go back and have her maintenance order amended — and she has got that right. Why not apply the same principle in this instance? If a compensation order was for, say, £500 because a person had only a certain amount of income, then if that person's income improves dramatically the injured party should be able to go back, give evidence of the dramatic improvement in the convicted person's income, say that he or she is still losing £10,000 and ask that the compensation order be amended in order that more of the loss can be recouped. That is all I am saying. I do not see how my argument goes against any established principles of law. That provision is made in relation to family law cases and surely it should apply for compensation orders as well?

Mr. N. Treacy: Earlier Deputy Barrett mentioned the one-sided nature of the provision which does not allow the compensation to be increased in circumstances in which the person's means improve or in which the amount of the damage is higher than had been thought.

We are dealing with an order of a criminal court which should be as certain as possible so far as the convicted person is concerned. To revert to a point alluded to by Deputy Byrne, under our Constitution, indeed the whole legal principles of law and equity here dictate that on the day a decision is taken the convicted person must or should know the exact decision and its effects; there can be no doubt or ambiguity about that.

In reply to what Deputy Barrett said, the injured party always has the remedy of a civil action if he or she can get more money than that awarded by the criminal court. They can always take a civil action against the defendant, but the criminal court must be absolutely certain, and the convicted person must know the decision taken and its effects. Those are the principles of law here.

[512] Mr. S. Barrett: With respect to the Minister, it is not because the convicted person is being given the right — under the provisions of section 9 (7) — to go back into court and have the order changed. If the Minister is to adhere to his argument then section 9 (7) should not be in the Bill. The Minister is saying that, once a decision is taken, that is final; one may agree or disagree with it but it is final. Here the Minister is going beyond that. He has argued against the very point he is now making. He is saying now that if the circumstances of the convicted person change he or she may go back into the court and have the relevant order changed. That is fine; I do not have any difficulty with that, but I contend that if that is to happen on the one side it should also happen on the other.

I make no apologies for saying that I am more concerned about the rights of the victims of crime than about those of people who go about damaging other people's property, to quote Deputy Byrne, those who engage in mindless vandalism, leaving a trail of destruction behind them. Victims of vandalism have to repay a bank loan on a car that has been destroyed. Nobody seems to worry about them or be concerned about their rights. Many people stand up and talk about the rights of the person who prepetrated such mindless vandalism. Nobody asked them to go out and damage other people's property; there is no excuse for that. One sees it every day of the week. Deputy Bell told us this morning that his office practically went up in flames simply because some fellow walking alongside his office decided to set fire to a rubbish bin. If a building goes up in flames who is the loser? Deputy Bell was the loser but nobody appears to worry about his rights.

We are all concerned about the principles of law which stipulate that we give a convicted person the right to go back into court and plead: please, your Honour, reduce the compensation order you made because my income has decreased. It appears nobody is pleading the cause of the victim who stands to lose X amount of money so that he or she can [513] go back into court and say: your Honour, when you made the compensation order three months ago the circumstances of the convicted person were such, but there is evidence to show that that person is making treble the amount you were told at the time. However, the convicted person can go back into court and say: by the way, your Honour, you made a compensation order for £10,000 and there is proof the damage amounted to £9,000 only. If a mistake is made in the other direction there is nobody to go back into court and say: your Honour, the amount of the damage was assessed at £10,000 and we had assumed it would cost £8,000 to do the repairs but, by the time the builder had finished the rebuilding of the premises, due to bad weather, srikes and so on, the cost turned out to be £15,000 or £20,000. There is nobody to defend that person's rights.

I make no apology for consistently arguing that somebody should speak up for the rights of those who suffer at the hands of criminals who go about damaging people's property without any justification. It is not that they are taking money and putting it into their pockets because they need money, they are hungry or whatever; they just set fire to buildings, damage property and burn cars. It appears we have to look after their rights all the time. I say: for a change let us look after the rights of the people who suffer at the hands of those people.

Mr. Byrne: I shall be very interested to hear the Minister's response to the points made. Due to the position adopted by the Minister in response to the arguments about compensation by instalments, the waters have been blurred all the more because we do not know what form the Minister's amendment will take on Report Stage. For example, we do not know whether he will extend the period to 12 months or some other indefinite timescale. That renders acceptance of Deputy Barrett's amendment all the more complicated.

Before we leave the issue of the compensation order will the Minister explain whether a compensation order can be [514] levied against somebody in receipt of a social welfare payment, a social welfare beneficiary? Given the method of calculating the benefit accruing to a social welfare recipient such as the number of dependent children under the various clauses in the Social Welfare Act, does the Minister envisage the courts having the power — given the family income supplement and all the other layers of social welfare payments geared to ensuring that nobody is in receipt of an income below a certain threshold — to claw back from a social welfare recipient sums of money granted under a compensation order? I should like the Minister to clarify that point. If one assumes that most of the vandalism — I do not know if this is a fair assumption — is being perpetrated by people in receipt of social welfare payments——

Mr. S. Barrett: Oh, no.

Mr. Byrne: The way the arguments were advanced I felt that was implied. Will the Minister clarify whether compensation orders are intended to be applicable to social welfare recipients?

Mr. Bell: In regard to the point made by Deputy Byrne, as far as I am concerned there is no justification for suggesting, whether by implication or innuendo, that social welfare recipients should be treated any differently from anybody else who perpetrates such vandalism. The source of the perpetrator's income should not be in question in relation to criminal damage. For example, many social welfare recipients have more money than the take home pay of many people at work. Indeed, some social welfare recipients may have more income than some people working in the public service on the basis of recent figures I saw. We should not get into that argument.

The fact that a person may be in receipt of social welfare does not justify that person burning or damaging somebody else's care, house or property. In fact if they are in receipt of a low income or of social welfare benefits they should be all [515] the more careful not to commit such offences. If they are in receipt of State benefits they should be more careful about squandering taxpayers' money through damaging property and so on. I want to make that point clearly on behalf of the Labour Party.

The sons and daughters of well-heeled people — certainly not those in lower income housing estates — very often perpetrate more vandalism and cause more damage in city and urban areas than the children of people in receipt of social welfare benefits. I want to put the lie to that implication and stitch it into the record in definite terms. The fact that somebody is in receipt of a low income, high income, or social welfare payments, pension or whatever does not give them the right to damage somebody's property. We should not even go down that road.

The amendment represents about the best balance one can strike. We will have to take into consideration this aspect of income. If a person in receipt of social welfare or on a low income committed an offence for which he or she had to pay a large amount of compensation, we would have to take into consideration innocent parties such as a spouse and children. They should not be penalised because one of the family has been irresponsible enough to damage a car or a building. The provision giving them the right to go back to the court to have the matter re-assessed is fair. One would not want to penalise innocent parties.

Mr. Briscoe: It is important that compensation should be relative to a person's means. That would not exclude somebody in receipt of social welfare. I would challenge Deputy Eric Byrne to say at any public meeting we might attend in the future that he is against levying compensation against people who are in receipt of social welfare. Many such people have children who are out and about causing havoc. The section calls for the court to take into account a person's means. A person who comes from a well-heeled family may burn a £10,000 car but [516] may be able to pay compensation at £100 per month until the total amount is repaid. A person who comes from a home where the income is, perhaps, £100 or £140 a week, would probably pay £10 a month. We cannot legislate for one section of the community but rather for the whole community. If there is not a deterrent, nobody will be able to contain those children. Parents often go before the court and ask the court to take troublesome children off their hands because they simply cannot control them. Many of these parents are totally irresponsible and could not care less what their children are up to. The parents are not held responsible and there is not a deterrent. This is our chance to put the onus of responsibility on parents by making them pay for failure to control their children. If we do so, parents will then be anxious to find out where their children are at night. At 10 or 11 p.m. one can walk down any street of this city and see young children playing to their hearts content. Many children are told by their parents to go out and play because they do not want them in the house. If such parents know it will cost them money if their children cause mischief, they will want to know where they are. People may say we are being Victorian but perhaps people were more civilised then than today.

Perhaps the Cheann Comhairle would tell me whether we have concluded debate on subsection (5).

An Ceann Comhairle: It seems to be gone.

Mr. Briscoe: I am sorry I was absent from the House when that matter was reached. It is important that the payment of compensation should not be limited to a period of 12 months.

Mr. S. Barrett: I hope the Minister and his advisers are listening. Perhaps there are things happening in the Fianna Fáil Party which put people on different sides.

The fears expressed by Deputy Bell are exactly covered in the amendment I am proposing. If that amendment were [517] accepted, subsection (7) would then state as follows:

At any time after a compensation order has ceased to be suspended by virtue of section 10 (1) and before it has been complied with or fully complied with, the District Court may, on the application of the convicted person or the owner concerned, reconsider the compensation order already made.

That is exactly what Deputy Bell is looking for. The Minister is saying that this right should apply only to the convicted person, who could go back to the court claiming that his circumstances had changed and ask the court to reduce the amount of compensation to be paid.

If the convicted person has that right, the owner of the damaged property should also have the right to go to the court and say that the income of the person against whom the order has been made has increased threefold and he should be able to ask the court for more of the compensation due.

Mr. Briscoe: He might have won the lottery.

Mr. S. Barrett: I am not disagreeing with Deputy Bell. I accept his argument that the family may have to be looked after. We should, however, also give the right to the owner of the property to go back to the court.

Mr. Bell: A civil action could be taken.

Mr. S. Barrett: We all know about civil actions. If the loss is £10,000 and the compensation order is made for £1,000 because of the income of the individual convicted of the offence, the owner of the property is still at the loss of £9,000. If circumstances were different and the person convicted had adequate funds, the owner of the property would get the full amount in compensation.

Mr. Byrne: What about the other portion of the penalty? The person convicted might have been imprisoned for six months or might have been fined £1,000.

[518] Mr. S. Barrett: That has nothing to do with the order. Section 9 (1) states:

On conviction of any person of an offence under section 2 of damaging property belonging to another, the court, instead of or in addition to dealing with him in any other way, may, on application or otherwise, make an order (in this Act referred to as a “compensation order”) requiring him to pay compensation in respect of that damage to the owner of the property.

This compensation order is separate from any fine or sentence that may be imposed. The court may imprison a person for six months and in addition make a compensation order. That is not what is being disputed. All I am saying is that if a convicted person has the right to go back to court surely the owner of the property who may be at the loss of £9,000 should have the same right.

I know all about taking a civil action. However, it can take a long time to have a case heard in the civil courts; you have to pay all your legal expenses and the court may award you only £5,000 while your legal costs could be anything up to £10,000. We all know what happens in civil courts. I want to repeat — I am glad Deputy Briscoe is in the House because I know his feelings on this — that last week or the week before The Sunday Press published a survey which showed that only 9 per cent of people have confidence in our courts because they do not believe that justice is being done. A lot of this is perception. It is startling to think that only 9 per cent of people have full confidence in our courts.

Mr. Briscoe: They must be lawyers.

Mr. S. Barrett: This is why I am saying that our laws should be balanced on both sides: We should give the right to both the convicted person and the injured party to go back to court. I again ask the Minister to consider my amendment, which I think is very worthwhile. If he wants to change the wording of the amendment, I would have no problem with that.

[519] Mr. Byrne: I take the point that we, as legislators, want to bring in legislation which is capable of standing up in court. We will be wasting our time if we pass legislation which cannot be enforced. I want to refer to section 9 (1), which has been quoted twice to me, which provides that: “On conviction of any person of an offence under section 2 of damaging property belonging to another, the court, instead of or in addition to dealing with him in any other way, ...”. I want to take as an example the case of a man who is sentenced to six months imprisonment and is fined £100. If the judge knows that he has £10,000 in the bank he may compel him to pay £9,000 in compensation. The malicious damages may amount to £30,000. I am asking the Minister to clarify for the benefit of the House whether a sentence delivered by a court on a certain day can be regarded as a variable sentence over the next 12 monhs or two years on the basis that the economic well-being of an individual may change. If the Minister clarifies this point it will help me understand the amendment.

Deputy Briscoe suggested in a challenging way that I should stand up at public meetings and say all sorts of things. He said this on the basis of a question I asked. Perhaps the Minister will give me an answer to my question this time. There is no point in Deputy Briscoe or I standing up at public meetings and saying that people will be able to get compensation from these thugs if we know full well that the courts cannot impose compensation orders against people on social welfare. Given the legislation applicable in the social welfare arena, the formula used for calculating the minimum income on which a family can survive and that people can get money from community welfare officers on the basis of their inability to pay bills, etc., can the Minister say whether it is constitutional, legal or possible for a court to make a compensation order against someone who is on social welfare?

Mr. N. Treacy: In response to Deputy Byrne, a compensation order can be made against a person on social welafre [520] but it must be relevant, reasonable and enforceable. That is the reality of this situation.

In response to Deputy Barrett, our Constitution requires that the criminal system could be conducted on the basis of fair procedures so far as the accused or convicted person is concerned. An essential element of fairness is that the convicted person should know, when convicted, the full amount of the penalty imposed. The law has always allowed the Minister for Justice to reduce a penalty, whether it is a fine or imprisonment, in relation to decisions made by a criminal court. It is only fair that we should do the same in this Bill. If fresh evidence shows that the compensation order is too high the court, which will take all the relevant facts into account, will have the power to reduce the amount. When new information in criminal cases is submitted to the Minister for Justice he has the right to consider this and reduce the fine or term of imprisonment. The only difference is that we are giving this power to the courts. It would not be much more difficult to go to the District Court in a civil action case to recover more compensation as it would be to go to the District Court under the Deputy's proposal. There is a limit of up to £5,000. The injured party or plaintiff has the right to do this. Under criminal law as it stands, our duty is to make sure that this right is clear, fair and equitable and that the convicted person knows exactly what the penalty is and where he stands on the day the decision is taken. If an injured party feels he has not been fairly dealt with by the court he has the right to take an action in the civil court against the convicted person in order to recoup further damages.

Mr. S. Barrett: If I have to stand alone on this issue I will because it is time we faced up to it. I do not disagree with everything the Minister has said. The convicted person should have the right to go back to court. Deputy Bell also argued that point. However, I equally say that the victim should have the right to go [521] back to court. I do not care what principles operated up to 1991. I think only 9 per cent of our population have confidence in our courts because the ordinary members of the public cannot associate themselves with these outmoded and outdated institutions. People know that they cannot go into the civil courts because of the costs and risks involved. They know that the judges are operating under ancient laws which were established when circumstances were entirely different. The Minister referred earlier to a 1926 Act. I was not around 65 years ago but from what I have read I know that the sort of mindless vandalism which occurs today did not occur then. Twenty or 25 years ago when there was no such thing as free second level education people in poor parts of Dublin could leave the keys in their doors, visit their neighbours and come back a few hours later in the knowledge that nobody would have the cheek to turn the key in the door, walk into their house and take their property. At that time people could park their vehicles in the street and know that vandals would not suddenly decide to burn an entire row of cars. That did not happen 25 years ago but it is happening today.

The public are fed up with this and they are asking what we as legislators are doing about it. They also call us to public meetings. If you are in Government you defend the Minister and if you are in Opposition you berate the Government and say there is not this, that or the other thing, but the problems remain and the public go away saying they are all the same, they give us promises. When we get a chance to put legislation through here, the public expect us to pass legislation that means something to the ordinary individual. I do not give two fiddlers what established practices are in the courts based on 65 years' experience. I do not care about what happened in 1926, 1936 or 1956; I want laws that will deal with the problems of 1991 and the 21st century and which will deal with people who have taken it upon themselves to engage in activities which are totally and utterly unacceptable to normal society. I want deterrents that will be seen to be [522] working to stop this sort of thing. I do not want to see the taxpayer wasting £900 a week; £75 million of taxpayers' money has been spent on our prisons this year. What are we getting for it? We are getting people who laugh at us and are walking out having served one tenth of their sentence and who are complaining about this, that and the other thing, having achieved nothing, I, along with all the other taxpayers, am paying for the great privilege. This has to stop. The way to stop it is to hurt people where it matters, whether or not they are in receipt of social welfare.

If I see a fellow who has damaged my car sitting in the local pub drinking his pint the day after, laughing at me, I will have no confidence in our courts or in our system of justice. That is exactly what is happening. We must wake up to this. I repeat, that is where the Provos and the vigilante groups are gaining ground. They love this and say: “Do not mind the Garda Síochána, we will sort it out for you, we will make our own laws and we will start to complain when the public go along to these meetings”. We will lose the democratic control that everybody fought for simply because we are afraid to face up to the world of today and the world of tomorrow.

I would ask the Minister of State not to continue quoting established court practices to me because, as far as I am concerned, established court practices have done nothing to sort out this problem. All I am asking is that the Minister leave the right for the convicted person there — which I am doing — but also give the unfortunate victim the right to go back into court if the circumstances change. I do not see that affecting any established principles. There will be some purists who will not like it, there will be people who will write books and say it is not fair play. It may not be fair play depending on how you look at it. I have tried to look at things from both sides and I want to see fair play on both sides. I want to see the person before the courts having a fair trial, proper representation and having their case heard. Equally I want the victims' rights protected. They do not have the money to [523] be trotting off to civil courts and we are all aware of that. We are not asking that they should get what is properly associated with our civil courts — compensation. All they are doing is asking to be put back in the same position after the event as they were before it. They are not asking for a new car if it was a secondhand car that was burnt. They are not asking for a new wall if an old wall was knocked down but rather they are seeking the money to replace the wall.

Who is concerned about the widow, about whom I spoke this morning, who has come out of hospital. That woman asked me whether her insurance would cover it and I said I doubted it. This woman has come straight out of hospital. She asked whether the county council would accept responsibility for the wall because of the laneway beside it. I said “I am sorry, madam, yours is private property”. She said they put a hose in through her letter box while she was in hospital and flooded her house and to add insult to injury they knocked down her wall. Here we are worried about the rights of people who carry out such offences. Does the Minister of State mean to tell me that that comes from a deprived background? That woman asked me whether she would have to pay her hospital bills because she did not have the money and the neighbours were complaining that the wall was dangerous and they wanted her to fix it. She asked whether, if she had been living in a county council house, they would repair the wall, I said “yes, because it is their property”. She said: “I did not damage my wall, other people damaged my wall”. You have to try to convince people they are not being hard done by. If I was to tell her to take her case to the civil court and claim compensation, she would run me from the door. Those people should be brought into court and told to: “Replace that wall. If you have to work after coming home in the evenings or at the weekends, you must rebuild that wall or pay that woman the cost of rebuilding it and sort out the mess in that woman's house either by going in yourself or [524] paying the woman for sorting it out. If it takes five years to pay her back, you will pay her back, because we are not going to tolerate this”.

What we are saying here is that if Mrs. So-and-So was awarded £5,000 and it turned out subsequently that she should have got £4,700, the convicted person has the right to go back into court and that woman would have to pay back the £300 or he would have the right to go back and say: “things are tough, can I have my compensation order reduced?” We are giving all those rights but we will not give the woman the right to go back in and say: “they are now at work, they were students when this happened, why can I not get some of my compensation”. There I rest my case. I am merely arguing that that right should be there in today's world. Maybe it should have been there 50 years ago but it should certainly be there today as far as I am concerned.

An Ceann Comhairle: May I ask how the Deputy's amendment now stands?

Mr. S. Barrett: I am pressing it.

Mr. Briscoe: I go along with Deputy Barrett so far as we have an opportunity in this Bill to speak about the victims of crime. It seems to me that the person who is being considered over and over again is the criminal. There are certain limitations being put on our judges. If I were a judge in a case, having all the circumstances put before me of the person's income, I would like to be able to say: “It is obvious that you are not in a position to pay this person the compensation to which they are entitled. On the basis of your income, and to prevent you starving, or whatever, you can only pay £10 per month but I would like you to know that if it is brought to my attention by the victim of this crime that your financial circmstances have changed, I will increase that amount”. The Minister dealt with this point earlier but he did not say anything about the possibility of a judge being able to say to the victim that [525] if the person's circumstances changed the compensation would be increased.

For too long we lived with the philosophy which one famous Supreme Court judge in America once said: “Justice is a splendid thing but do not expect it in this life”. That is not much consolation for somebody who is left with huge bills to pay to put their car in order, to replace their car or to redecorate their house. Under community service orders I would not mind if some of these fellows were to repair houses, not necessarily the house they vandalised, but other people's houses that have been vandalised by others. It would go some way towards part of the compensation.

I would like to ask the Minister of State if there is any reason we cannot give judges the authority to award the victims of crime a larger amount of compensation. I am aware that the law states you have to tell the person what their sentence is for a particular crime but I still think it is not unfair to say the amount is only X amount per month subject to no great increase in your pay. If a person who had been convicted of a crime won the lottery and become a millionaire it would be great if we could bring him in and present him with the remaining bill. It is not probable, but it could happen. We should go as far as we can to let the people know that we are on their side and not on the side of the criminal. I hope I do not hear people saying at various meetings that it is right that the parents of vandals should be made to pay compensation and then see them coming in here to vote against it. If that happens I will make it quite clear to the people in my area that it has happened.

Mr. Byrne: Are you asking us to support your Bill?

Mr. Briscoe: Yes.

Mr. Byrne: You make the legislation.

Mr. Briscoe: I remember some years ago debating with a judge of the High Court. I said that the law should be subservient to justice and the judge replied [526] that I was incorrect, that justice must always be subservient to the law and that it is up to the legislators to give us the laws. We have an opportunity to provide the laws; how judges implement them is a separate matter. It would be nice to be able to write to the Minister to tell him that a person who had committed a crime against one of my constituents had had a change of fortune, was driving around in a BMW which was his own for a change, that he had put energies formerly used for crime to work to do well for himself and that he was now in a position to compensate the victim of earlier crimes. That is an aspiration. The people are disillusioned with the way the law is implemented. We have to hurt the criminals.

I go along with what Deputy Barrett has said in relation to the terror of subversive organisations. Many of us would like to take the law into our own hands when young vandals strike. That is a natural human emotion, but we should not give in to the impulse. The elders in a community should not be influenced by subversive organisations who will offer to kneecap the vandals provided the people support them in an election and provided the people do not contact the Garda Síochána or public representatives. That is not a society in which I would want to live. We must ensure that people are not forced to take those remedies. This is a serious possibility. I am not exaggerating. Deputy Byrne will agree with me that vandalism has never been as bad as it is now in our constituency.

Mr. Byrne: You made a citizen's arrest the other night.

Mr. Briscoe: I did. Where were you when I needed you?

Mr. Byrne: That is not fair.

Mr. Briscoe: I looked around for help and he was gone.

Mr. Byrne: That is not fair. I had the superintendent in the car.

[527] Mr. Briscoe: You could have brought him up a bit quicker. It is not right that people are put in this position every night of the week.

The Minister should reconsider this before the Bill comes back for Report Stage. He should have another chat with the Assistant Commissioner in Dublin in charge of the Dublin Metropolitan area to find out how he sees things. We are very troubled at the moment and things are not getting any better. Here we have a chance to tighten up the laws. If the judges do not want to implement them, that is something else; and, if they are unconstitutional, we can deal with that problem then. We cannot put this amendment in because it is unconstitutional, but let us be seen to be working for the victim and not for the criminal.

Mr. Bell: Deputy Barrett has made a very strong point. I would not disagree with the principle of what he is trying to achieve, but I am not sure whether or not it would be a practical thing to build into legislation. The Deputy is basically saying that the same right should apply to the person whose property is damaged, or who is injured, as applies to the person who is convicted. If somebody is convicted and fined and compensation is awarded to the victim, so far as I can see from my reading of the amendment, it does not say over what period the compensation should run. If the award is made over a six month period and someone later on wins the lottery or gets a better job or inherits money, the victim would have the right to say that he had not been awarded the full amount and that he should get more money. There will have to be some restriction or time limit on that. I assume the Deputy is saying that if the award is granted over a period of 12 months a victim could not apply for more compensation after the 12 month period, that it should not be a never ending claim — in other words, that the victim could not claim further compensation five years later in the event of the convicted person winning the pools or something like that.

[528] Mr. S. Barrett: I am sorry to interrupt, but it says “before it has been complied with, or fully complied with”.

Mr. Bell: The Deputy is referring to within the compensation period.

At the moment even without reference to the industrial dispute the courts are bogged down and the delays in getting into and out of court are fairly substantial. We will perhaps deal with that in the Solicitors Bill. I am concerned that this legislation will put a substantially greater load on the courts. I do not know whether or not cases taken under this heading will ever be finished. They will continue for a substantial period of time. I am not sure that it would be a good thing to further load the courts. On balance I would prefer to see the decision being taken and being upheld except if the person concerned wishes to appeal to a higher court. If a person is not satisfied with the compensation he can take civil action. On that basis I accept the section as it stands, while agreeing with Deputy Barrett's sentiments.

Mr. N. Treacy: In the cases to which Deputy Briscoe referred the victim could take a civil action fortified with the evidence that the offender had been convicted of causing the damage. Section 9 provides fully for compensation in the case mentioned by Deputy Barrett, so far as it is practicable to get compensation from the offender concerned. With regard to getting extra compensation in the case where the women's house was flooded, the wall knocked down and so on, the women would have to go to court under the Deputy's proposal or under the law as it stands. Deputy Barrett proposes that the injured party could go back to the District Court and get an increase in the compensation. I do not see any difference between that and the owner's present right to go to the same court and achieve the same result. The only difference is that the district justice is wearing his civil hat in the second case where the injured party is not satisfied with the decision of the Criminal Court. [529] He takes a civil action in the District Court and the same district judge takes the decision wearing his civil hat. Of course, the district judge can only award up to £5,000 but that would cover 95 per cent of cases involved. After that it would be a matter for the Circuit Court.

In regard to the points made by Deputies Bell and Briscoe about somebody winning the lotto and the injured party wanting to take the case to a higher court, they have up to three years to do so up to a limit of £30,000. There are several legal avenues open to all our citizens and we must take that into account.

The district court is a different court to the higher courts. The higher courts are there by virtue of the Constitution and have very wideranging powers. The District Court is a creature of statute and we must give it guidelines and parameters within which it must operate. Consequently in this case, taking into account the criminal law, the rights of the individual and of the defendants, I regret I will not be able to accept the amendments as proposed by Deputy Barrett. This amendment would be asking the court to reconsider a compensation order already made. That is totally vague. In what context would it reconsider?

Mr. S. Barrett: The Minister is dealing with it on one side already.

Mr. N. Treacy: The convicted person has the right to appeal. We are dealing with it there. We are giving guidelines. There is no point in asking the District Court to reconsider something unless we say on what basis. Taking everything into account I regret that I will not be able to accept this amendment.

Mr. Byrne: I appreciate the Minister is now saying he cannot accept the amendment. Perhaps the debate is now over. I asked him earlier — and this will help us decide on the position we will take if there is a vote on this — if he viewed a compensation order as part of the penalty for the crime. If the defendant had been given a six months' jail [530] sentence, fined £100 and had a compensation order levied against him, would that be deemed to be the sentence of the court? If we were to accept the amendment could the sentence be varied? Is there such a thing as a variable sentence? Could the court decide on the nature of the compensation order, that it is sentencing the defendant to six months because it knows the defendant can only pay so much compensation amounting to a small portion of the damage caused to some unfortunate person? Is it possible then to retry the case in a sense by adopting the amendment as proposed and levelling a further penalty against the defendant after he has served his sentence when his economic circumstances might have changed? The judge would view the case on a particular day and the defendant would be sentenced to six months because the judge knows the compensation order will bring in only £1,000 out of a total in damages of £10,000. Is it possible to vary the compensation order later?

Mr. N. Treacy: The penalty would be decided by the court — the fine, prison sentence and compensation order. There could be no such thing as varying that decision. The court would take its decision based on the evidence before it. Under the Bill as proposed the defendant would have the right to appeal to the court to have that reduced. The Minister for Justice will have the right, based on the information available to him, to reduce the fine or the prison sentence. Here we are giving the power to the court to do so. The defendant would have a right of appeal to the court directly or to a higher court. The injured party would have the right to take a case to a civil court and look for adequate compensation if he was not satisfied with the decision taken in the District Court. There would be no such thing as a variable decision that could be changed six months or a year later. The law does not allow for that and it could not. It must be equitable and fair. The decision must be taken based on the information available on the day.

[531] Mr. McCartan: Deputy Byrne has raised an important point. I am not too sure whether the Minister has succeeded in clarifying it. I would tend towards the idea of finality and clarity with regard to court proceedings on the criminal side because it is one of the proper and fair principles that should be applied when dealing with criminal prosecutions. Nevertheless, subsection 7 (a) allows for a variation being introduced by the court at the motion of the defendant. It is not just a variation by reducing the amount to be paid per week; it allows for the reduction of the overall amount. It would seem that if the defendant can move on that motion there is no reason an agreed victim could not as well. If that is all right for one side I do not see why it cannot be for the other.

If there are problems that the Minister has in answering Deputy Byrne's point then he should look again at the entirety of paragraph (a) of subsection (7) to see whether or not it is in order. I know the intention here is to be reasonable and fair towards the defendant and I see no harm in that whatsoever. Earlier in the debate I thought at times that all sense of balance was being lost.

I would be concerned at one aspect of Deputy Barrett's proposal. In seeking alternatives to putting people in prison we should seek to introduce a regime that is also rehabilitative, that will do something to encourage people away from crime by training, education, supervision or counselling so that these people will be more law abiding and better behaved. If the amount of compensation could be increased should the convicted person, for example, find a job or get some kind of bonus? The question of the lotto does not appeal to me because it is so improbable. There would be a disincentive for a convicted person to better him or herself by working longer hours, overtime or seeking a job because he or she would be concerned that an improvement in their lot in that regard might mean they would be brought back into the court and an extra order placed on them for an increase in the rate of compensation to be paid.

[532] Once a court has determined that an accused person should pay a certain amount by way of compensation I would be concerned that the court might be asked on a subsequent date to increase the amount of the weekly payment. I do not believe that is constitutionally possible. What might be allowable would be for a court to order an increase in the rate to be paid on the instalment so that the compensation is paid sooner rather than later. I am aware Deputy Barrett is not inclined to stand by established practices or principles of the courts but the Constitution is something we cannot run away from all too easily. Under the Constitution once an order is made on the criminal side it stands and cannot be altered after that day. Once the court has risen on the particular day the orders of that court stand and cannot be interfered with other than on appeal to or review by a higher court.

What Deputy Barrett suggested would give rise to practical difficulties. The better approach would be to allow a victim to go back to court to seek a variation of the way the amount is to be paid but I do not think the victim would be entitled to seek, on the criminal side, a variation of the overall amount to be paid. For this reason I ask Deputy Barrett to review the matter. We could discuss it further on Report Stage.

I do not accept the Minister's view that there can be no variation. If a variation can be made on one side then clearly an application could be made for a variation on the other. I am worried that there is a constitutional problem about increasing a penalty, which is what compensation amounts to beyond what was originally ordered by the court on the day in question.

Mr. S. Barrett: The constitutional points made by Deputy McCartan are open to interpretation and discussion. We would not be allowing the penalty imposed to be altered because in this instance we are talking about compensation. The same principle applies in the family courts where, depending on circumstances of the time, a judge may [533] decide to make a maintenance order based on income and circumstances. If those circumstances change the spouse, the wife in most cases, has the right to go back to court and say that her husband's income has increased and she was seeking a new maintenance order made and the courts will do so. That is perfectly sensible and reasonable.

I respect the Constitution but I believe the men and women who drew up the Constitution did so for the benefit of and in the interests of the vast majority of the people. The Constitution should not be abused to protect a small minority who are making life hell for the vast majority. The Constitution sets out to protect the rights of the individual which in this case are not being protected.

We are talking here about compensation orders and not about a judge saying: “I imposed a sentence of six months but on second thoughts I should have given you nine months” or “I imposed a fine of £500 but on second thoughts I am going to increase the fine to £750”. This would be a new concept in criminal law but the same principle applies in the civil court. It would allow us say to people that in addition to sending them to prison or imposing a fine on them they must compensate the person they injured. That would be a very sensible move forward. I am not worried about the constitutional position in that respect because I know what I am suggesting does not run contrary to the spirit of the Constitution.

The Minister said a convicted person has the right to go back to court to have the compensation order altered and that is fine as circumstances may change but if that applies to the convicted person it should apply also to the victim. That is only reasonable. Anyone drawing up a constitution in today's world, given the circumstances in which we live, in their right mind would say it is fair and reasonable that if one side can do that then the other side should also be able to do so. Here is a chance for us, as legislators, to express our view on what is happening in the big bad world and to restore confidence in our courts system.

[534] Deputy McCartan was not present in the House when I made the point that it was frightening that, according to a recent survey the findings of which were published in the Sunday Press, only 9 per cent of the public have confidence in our courts. The Deputy knows as well as I do that there has been an alarming increase in the number of subversives, those who are organising the vigilantes and public meetings and say, “Do not mind the Garda Síochána, we will sort the matter out for you”. We are all well aware of this as we have to deal with this problem in our constituencies, particularly in the Dublin area. This shows that there is a lack of confidence in our courts system and that our justice system is not striking a chord with the public.

I may be accused from time to time of getting too emotional or going overboard about this matter. Indeed I have been accused of being right wing about this.

Mr. Byrne: Who said that?

Mr. McCartan: Perish the thought.

Mr. S. Barrett: I make no apology for the fact that I have always defended, and will continue to defend, a person's right to a fair trial and representation but, equally, I defend the rights of those who are being kicked left, right and centre around this country who are perceived to have no rights. The Minister time and again says they have always the option of going to the civil courts. Of course they have that option but why do they not go there? The Minister knows as well as I the reason they do not do so is that they would have to go through a new procedure which costs money, could drag on and on and leave the person with nothing after deducting legal costs from the compensation. That is the reason they do not go to the civil courts. If the civil courts were so great they would go there every day of the week in large numbers.

I have no hang-ups about mixing civil law with criminal law because this is 1991. I have no problem either with saying that in addition to a person serving a sentence they should also pay compensation which [535] is what they would be asked to pay in a civil court. In this case we are saying compensation should match the cost of damage. If the Minister said the wording is wrong and I should come back with a new wording on Report Stage I would accept that but he is not accepting the principle. We must march through the lobbies and establish a principle that we want laws which state that if we are fair on one side we have to be fair on the other, that if a convicted person can go back to the court the injured party should also have that right. It is for that reason that I am pressing my amendment. If the wording is wrong I will listen to a new wording but the Minister has not said that; he said he is not accepting that principle. Those who agree with the principle should vote for it.

Mr. N. Treacy: I am sure I am entitled to reply to Deputy Barrett. I would not regard him as emotional or right wing. Like his colleagues, I regard him as a man who is good at making a fair case. I respect that. Strictly speaking, a compensation order is not a penal order but it is intimately involved in the decision of the court as to what penalty it will impose. For example, subsection (6) deals with a case where a convicted person can pay an appropriate fine and appropriate compensation. In such a case the court must give preference to making a compensation order; and I am sure Deputy Barrett, and indeed the House, will be pleased with that. This would mean a serious risk of challenge inasmuch as it could be contrary to the principle that a penalty should be certain and not capable of being increased. Deputy Barrett said that the family courts are a relevant precedent and that maintenance orders can be revised upwards and downwards. However, the family court is a civil court and different considerations apply to orders by a criminal court.

Mr. S. Barrett: It is the principle.

Mr. N. Treacy: However, I assure the House that I do not have any hang-ups [536] about this situation. I want to make sure, as I have often said, that we enact the best legislation possible to achieve the best decisions in our courts, to ensure that equity prevails before the courts and through the laws for all our citizens, the aggressors and the aggrieved. In view of all that has been said I am prepared to refer this matter to the Attorney General for his advice. If he recommends that a change should be made and that the injured party should have the right to go to a court, I am prepared to bring in a suitable amendment on Report Stage, if it is acceptable to Deputy Barrett and the House. I hope it will.

Mr. Byrne: I welcome the Minister's decision but I do not think he can bring this to the Attorney General in isolation. The Minister has also agreed to table an amendment in respect of the period of 12 months and that must be considered in the context of the Minister's discussion with the Attorney General.

Mr. Briscoe: I am delighted that the Minister intends to look at this matter. Deputy Barrett said that 65 years ago you could leave the key in your door and go out——

Mr. S. Barrett: I said 20 years ago.

Mr. N. Treacy: Twenty five years ago, when I was very young.

Mr. Briscoe: The reason was that we did not have a consumer society; 65 years ago there probably were not more than 10,000 cars in the whole country. People had nothing and, therefore, there was nothing to steal. Everybody was poor together. It is different today and that is why legislation must be different.

Mr. Byrne: We were too poor to be robbed.

Mr. Briscoe: That is what I said, there was nothing to rob. The staple diet then was bread and cheese and indeed they [537] cost enough now, nearly as much as a down payment on a new car.

Mr. Bell: We had blackberry jam.

Mr. McCartan: I am moved to tears.

Mr. Briscoe: I am delighted that Deputy McCartan has become my defence counsel. The Acting Chairman represents a constituency which is subjected night after night to crime and he knows that most people do not even bother to report it. Years ago, when malicious damages were paid, people reported that the window of their car was smashed in order to qualify for payment; but now they merely ring the Garda to say that a gang of hooligans are throwing rocks at houses.

I welcome the provisions of compensation in the Bill as it is very important to make people pay for their crimes. As the Minister said, there is no need to confuse compensation with sentencing. Hardened offenders do not mind going to jail for three months. We saw recently in the newspapers where a youth who had been sentenced to 12 months for 60 handbag snatchings was out after three months and reverted to his life of crime. You read about handbag snatching but you do not always appreciate the suffering, indeed terror, of the people whose privacy has been invaded by smashing the window of a car and grabbing the handbag even when it is under the seat. These criminals should also have to pay the cost of treatment by a doctor because many victims have at least to go to the hospital for a check-up. Last night a man whom I helped to arrest a youth was bitten on the hand, the victim had to go to the hospital have a blood check and a tetanus injection. The minimum cost would be £10. I am sure that the youth in question is a hardened criminal and when the judge is sentencing him he should order him to pay his victim the sum of £10. I do not care where it comes from; perhaps his parents will pay for it. A monetary punishment is the greatest deterrent, because these criminals only laugh at jail. I remarked to the man I [538] helped to arrest last night that it did not seem to bother him that he would spend the rest of his life in and out of prison until he became a toothless old lag. The inspector who was escorting him said that the man did not mind about that; it was the way he chose to live his life. However, when they have to pay compensation they do not like it. Sometimes when a person is convicted for a crime the court is told that he is already paying £10 per month compensation in respect of a previous crime and that the court cannot impose a further £10 per month. We have consecutive sentences and we must also have consecutive compensation. The State has a chance to be strong in this regard. For years I have been insulted for being a law and order man. I am not a right wing person; I am concerend for the victims of crime.

I am very pleased that this legislation has been introduced. Let us hope it works because, if it does not, the measures will have to become stronger and stronger. We must give the judges the kind of legislation which they can use at their discretion. I have always said that these people understand being hit in their pockets and perhaps it will teach them a lesson.

Mr. Bell: I do not disagree with the principle which Deputy Barrett is trying to achieve but I am not certain it is practical. As the Minister has agreed to take a further look at this, to consult the Attorney General and to come back on Report Stage, we will not press this to a vote.

Mr. S. Barrett: If I have moved a small step forward as far as the Minister is concerned, I am prepared to see what comes out of the discussions. I sincerely hope that a genuine effort will be made to establish this principle, particularly in relation to compensation. I accept that a prison sentence cannot be changed half way through the sentence. The principle the Minister is talking about is based on the fact that it would be unreasonable to impose a prison sentence of 12 months and after six months decide to impose an [539] extra six months sentence. That would be unreasonable. However, in relation to compensation there should always be flexibility. A judgment can only be made given the circumstances of the time. If circumstances change within the compensation payment period, consideration should be given to that. It would not effect any genuine pinciples that may be held by people.

I accept that when a sentence is imposed on somebody that sentence cannot be changed, but we are entering a new era in criminal law when we are introducing for the first time in Statute the whole concept of compensation orders. In layman's language, it is civil law mixed with criminal law. It is new in our Statute and the Minister, in making his submissions to the Attorney General, should make that point. I will wait and see what happens and if I am given the right to re-enter this amendment for discussion on Report Stage I will do so.

Amendment, by leave, withdrawn.

Mr. N. Treacy: I move amendment No. 13:

In page 9, subsection (7) (a) (ii), line 4, after “by”, to insert “him”.

This is purely a drafting amendment which corrects the omission of the word “him”.

Amendment agreed to.

Acting Chairman: Amendment No. 14a is an alternative to amendment No. 14 and therefore I suggest that both amendments be discussed together. Is that agreed? Agreed.

Mr. N. Treacy: I move amendment No. 14:

In page 9, lines 14 to 17, to delete subsection (8) and substitute the following:

“(8) A compensation order and an order under subsection (7) (b) shall be [540] treated for the purposes of enforcement as if they were orders made by the court concerned in civil proceedings and, without prejudice to the provisions of subsection (7), a compensation order shall be treated for those purposes as if it were an instalment order within the meaning of Part I of the Enforcement of Court Orders Act, 1940.”.

The main object of this amendment is to facilitate the enforcement of compensation orders. As the subsection stands, compensation orders are enforceable as if they were orders made in civil proceedings. This means, in effect, that where the convicted person defaults in making payment under the compensation order, the owner of the damaged property goes to the District Court and asks for an order that the convicted person be examined by the court as to his means and that a statement of means be lodged with the clerk of the court at least one week before the examination. After the examination the court may make an order for payment of the whole sum or, as the case may be, of the balance either in one sum or in instalments. That order is called an instalment order even though, as I have said, it may require payment in one sum.

What the amendment proposes is to skip the first stage of the procedure, that is, the initial step of getting an examination order from the court and having the convicted person examined as to his means. There should be no need for the court to inquire into means because under subsection (4) of section 9 the court which made the compensation order had regard to the convicted person's means before deciding to make an order. So in such a case it is proposed that the owner would be able to go to the court straight away and ask it to enforce the order.

The convicted person is not prejudiced by the amendment because if, as the amendment proposes, the compensation order is treated as an instalment order, then, whether the order was for payment of the compensation in one sum or by instalments, it can be varied by the court [541] on the application of the convicted person, as the circumstances of the case may require.

It is necessary that the revised provision should be without prejudice to the power of the District Court under subsection (7) of section 9 to vary the compensation order because under that subsection the court can effectively reduce the compensation payable or remit it altogether if the convicted person's means are insufficient.

The redraft of subsection (8) also drops the reference to an order under section 11 (b) (ii) as being unnecessary. It is clear from the context of section 11 that an order under that section has been made in civil proceedings. I hope the House can agree to this amendment.

Mr. McCartan: I propose to add to subsection (8) “save that no committal to imprisonment or detention shall be ordered where the court is satisfied that non-payment of a compensation order arises from the inability of the person affected to pay”. The Minister is arguing that where there is failure to pay a compensation order, there should be enforcement in the same way as with a civil debt.

Recently a man was taken to a Garda station in a town near Dublin for failure to pay a very small debt, and he died there. That man was needlessly in the Garda station. That highlights a fundamentally objectionable feature of our civil proceedings, that a person can be committed to prison for failure to pay a civil debt. That is grossly wrong and such a provision should not be allowed exist in our law. That is a matter that should be amended in our court rules.

In this provision the Minister is proposing to enshrine that principle in this area of the law, but that is fundamentally wrong. That is why I have tabled an amendment, and I did so in advance of the unfortunate circumstances which led to the death of the man in the Garda station. I propose that no person in the context of civil debt generally, and particularly in the context of compensation orders, should be committed to prison on [542] the grounds of inability to pay. Consequently when a person comes back before the court on the motion of the victim or indeed of the Garda, it would be grossly inequitable and wrong that that person be sentenced to prison because of inability to pay due to poverty.

This points to a major issue that we have to address in the context of this legislation, that is the issue of poverty. I do not want to take from many of the remarks that have been made in the debate on all of the amendments about the rights of the victim. As I pointed out earlier, the position of the victim has been very substantially addressed in this legislation. For the first time a conviction for malicious damage can be secured without the victim having the harrowing experience of going to court and giving testimony. Equally, compensation will be provided. However, there is another side to this debate, that of the person who ends up in the dock through their own fault, who is answerable to the criminal law but is in the same position as 90 per cent or more people who appear in District Courts, that is in a state of poverty. These people have not the means and genuinely will not be able to pay.

This is particularly important in that compensation orders as alluded to in subsection (4) (b) can and will be made against the parents of young people who commit crime and are ordered to pay compensation. It is conceivable that, under this legislation as it stands, an order for compensation could be made against one or both parents of the young person who committed the crime and they might not be in a position to pay for whatever reason, in particular through poverty. The parent may be committed to imprisonment for the wrongdoings of the child because of inability to pay. That is potentially possible under the provisions of section 9 as it stands. I would not welcome that proposition. I believe it is unduly draconian and unnecessarily unfair.

On another level, which was alluded to by Members earlier on, we have to throw into the balance the effectiveness of getting a return for the taxpayers' money [543] spent in locking people up in prison. As long ago as 1987, the Minister for Justice indicated in response to questions that I had tabled, that the average amount of money was recovered from people who were committed to prison for non-payment of a civil debt was something of the order of £200. However, on average, a person was spending in excess of four weeks in prison and consequently, the taxpayer was spending up to £3,500 keeping a person in custody to draw out of them something of the order of £200 to pay back to a credit company or someone who was due the money on the civil side. To my mind that is fundamentally wrong in principle but equally it is very poor value for money and it is a waste of taxpayers' money. That information which I got in 1987 was in respect of the year 1986. I do not believe the position has changed, although I cannot advise the House of that.

Earlier this year I put down the same question as I put down in 1987 to the Minister for Justice in order to bring my figures up to date and to see if the pattern had changed; if fewer people were going to prison for the non-payment of debt and if they were in a position to pay more money, in effect to see if we were getting better value for money. However, in reply the Minister said he was not in a position to give me the information because he did not have the personnel available to correlate all the information. That was a very poor day for the working of this House. The information could be readily assembled in 1987 setting out and forming the basis of analysis of an important area of penal policy but in 1991, the Minister by using a very spurious device refused to give us this information. I do not believe the pattern has changed. In that context the Minister is asking us to extend that very unworkable system which gives a poor return for taxpayers' money to the area of compensation. In effect, in the event of non-payment or inability to pay the compensation the civil debt process would be imposed. The Minister has talked about the examination order, the instalment order but [544] was not terribly expansive about the end sanction in this area, and that is the committal order for non-payment of the instalment order. That is what is proposed here.

As I said, responsibility to pay can rest on entirely innocent people in the criminal law context, namely the parents of a juvenile offender. Are we to consider the prospect down the line that we would ask the courts to commit to prison the parent or guardian — the provisions of the Childrens' Act, 1908 are not confined to parents — because of their inability through poverty to pay the compensation arising from acts of their miscreant children. In effect, that is, to use a clapped out expression which nevertheless is worth employing here, “something of an appalling vista”. I urge the Minister to think again about the extent to which he wants this system to apply. I have no difficulty if the procedure goes as far as the examination order, where the court looks into the means of the accused. I have no difficulty if the court then makes a further instalment order demanding payment, but I have a fundamental objection to the concept that having looked at the means of the accused and establishing his or her inability to pay the court, nevertheless make an instalment order an ultimately, perhaps, asked to make a commital order.

This is wrong in principle and I ask the Minister to accept as an addendum to his own amendment my proposition in amendment No. 14 (a) which is not an alternative but a way of de-limiting the operation of the new provision of subsection (8) which allows us to use the device of the civil debt process but not to the point where someone is put in custody simply because he is too poor and not able to pay at the time he is being examined. I hope this is acceptable to the Minister.

Mr. S. Barrett: It is very interesting to note that the Minister is establishing the principle that I expounded, and that is that there are some civil law principles in this Criminal Damage Bill. The Minister should remember this when he talks to [545] the Attorney General about my last amendment. I agree with a good deal of what Deputy McCartan said but I disagree with him on this point because section 9 (7) gives an opportunity to a convicted person to go back to court to have the compensation order amended, so the fears expressed by Deputy McCartan in relation to compensation orders will not be realised if this subsection — and my amendment would also cover it — operate properly. People who have a genuine case can go back to the court and say that they cannot afford to pay at present.

The law should be more flexible. We should not send people to prison because they have not paid the compensation within the 12 months period. In the light of the change of circumstances the judge should be able to extend the period of payment or suspend it for six months and then reintroduce it. The more flexible we are the fewer problems will be created. That is why I have argued all day that it is in the interest of the legislation to give the courts a measure of flexibility so that they can deal with individual cases as they arise. Most of the amendments that I have tabled set out to achieve that.

I think it is a pointless exercise to commit someone to prison for the non-payment of a fine or the instalment of the compensation order. However, that is not to say that they should walk away scot-free. The old thinking is that the only way to punish people is to impose a fine or put them in prison and that is creeping into this legislation. It is like a bad habit that we cannot get rid of. We are now making provision for compensation orders but we are afraid to go the whole way. It is a new idea and we seem to be very cautious. The concept of a community service order is all right and in some cases the order works out well. I have made the point before on radio, but unfortunately the Minister was not present to discuss our prison policy. For the life of me, I cannot see the point of sending a person to prison for a minor offence when he is taking up a place that should be occupied by a hardened criminal. We have to release somebody [546] who is in prison for a serious offence so that we can make room for a person who has failed to pay his fine. He will stay only a fortnight or three weeks and then he is let go to make room for somebody else. It just does not make sense. As Deputy McCartan said, it cost us in excess of £3,500 to keep the person in prison. The fine still has not been repaid and in this case the victim of crime will not get the compensation. The taxpayer however, is being asked to pay £3,500 to keep him in prison. That is not to say that when someone who is convicted of an offence says after the court has decided to impose a fine that he or she will not pay that person they should walk and have nothing happen. However, we can say that if that person will not pay the money then he or she will still have to contribute something back to society and that he or she will have to carry out specific duties within the community, be it under service order or something else.

At the moment we are thinking in terms of either a fine or imprisonment — that runs through all our legislation. If one looks at our legislation it is all either “and” or “and/or” imprisonment. I believe that we have a mental block when we are talking about fines in particular or compensation orders and we cannot realise that in this day and age we should be telling people that if they do not pay fines then they will not walk free but will contribute something to society as distinct from costing the taxpayer money.

If people do not adhere to a compensation order — given all other provisions contained in the Bill that permit them to go back to court and have it reduced and all the rest of it — they should not be put into prison because that would defeat the whole purpose of what we are trying to achieve. Instead, we should make certain that there is some other punishment, that they would have to do community service or make some other kind of contribution back to society, which is a real penalty. We would defeat the whole purpose of the Bill if a court were to impose a compensation order, it is not met and as a result of that a person went to prison. What would [547] happen to the person who has been in prison in addition to having to pay a compensation order? Would he or she have to go back to prison a second time for the same offence? That just does not add up.

I am saying here again that it is a time for new thinking. We should not be thinking only about prisons and fines. We should be thinking that the taxpayer cannot afford that measure, that we have only 2,000 places in our prisons and we have 7,000 people going through them, that there is no point in letting hardened prisoners out of prison so that some fellow can go into prison for not paying a fine when he will come out two weeks later. To me such thinking is just an incredible waste of time. However, I also recognise that if a court has made a decision then the person convicted cannot walk away scot free if the fine imposed is not paid or if the compensation order is not met. Here in this amendment we should change whatever has to be changed in order to provide that in lieu of imprisonment the court would be able to say that if a fine was not paid then the convicted person should carry out, for example, six months of community service doing specific duties. We should start thinking that way and we should change the law to give that flexibility rather than putting such people into prison. It is quite absurd and ridiculous, as Deputy McCartan says, particularly in relation to a civil offence, that when a fine is imposed but is not paid the taxpayer should fund somebody to go to prison for two or three weeks. That is not a punishment at all. That person should be made to pay.

I come back to what I was talking about earlier, where does it really hurt? It is when we hit the pocket; that is when people stop committing crime. The 1990 Garda report contains one startling illustration that proves a point. It reports that £36 million worth of goods were stolen in 1990 while £3 million worth were recovered. That means that crime pays. There is £33 million worth of people's goods out there somewhere. Putting the people [548] who commit those crimes into prison will not stop theft; in addition to prison, confiscation of assets derived from crime may stop it. Likewise in relation to malicious damage: compensation in lieu of imprisonment may stop it.

What I am saying is that the Minister should accept the principle of what Deputy McCartan is saying. He is right; putting people into prison will not solve the problem. However, I should go a little further than what Deputy McCartan is saying. I would say not to put those people in prison but to let them do something else such as community service work. But they should not be allowed to walk free without doing anything. It is time that we wised up to the situation and, again to make this very good legislation, made the other changes necessary to follow it through.

Mr. Briscoe: I think we should be very careful not to confuse compensation with fines, they are two completely different concepts. A person is fined for a particular offence such as having an untaxed car or no insurance. That is a punishment. Compensation is giving a person back what was his or hers. We must not ever confuse the two.

I agree completely with Deputy McCartan when he says that there are people who, unable to pay fines because of financial reasons, have to be gathered under the civil law by a certain date and taken down to prison and that that is wrong in certain instances. I have seen that myself. That is where the Minister can step in, if he is satisfied that a person is genuine. One old man of 60 years who came to me had nothing, but he had endeavoured to pay a fine. The man was a silent partner in his son's business and, unfortunately, his son had knocked down someone while he was driving a bus that was insured but not taxed. The man, as a director of the company, was also fined. He just did not have the money, he was on welfare. He came to me, worried about being taken off, and said that all he wanted was to be allowed to go home each day. I assured that man that there was no way he would be taken to prison. [549] He was a very genuine case. We must not confuse compensation. Compensation must be levied only relative to people's income.

I do recognise that when a judge levies compensation against someone that will not be deducted from the source of that person's income. I am suddenly becoming aware of that issue. Will this compensation be levied in the same way that a fine is imposed? Will people have to pay up so much a month or else? If the compensation is to be levied in that way then it will not work. In my view it would have to be deducted from source. If a person is employed then the employer would have to be directed by the court that a certain amount each month or whatever has to be paid in. In the case of a person being in receipt of welfare then the Department of Social Welfare should be notified that a certain percentage of that person's benefit is to be deduced. Collection of the compensation would not work in any other way and the situation would be very confused. When the Minister comes to deal with the problem I should like him to develop on that point. If the collection of compensation is to be carried out in the same way that fines are collected then some of the gurriers I am thinking about and their families will in no way be paying on a regular basis. There is no doubt about that in my mind. In relation to this legislation the people about whom I am thinking in the main are the vandals, the people who are guilty of malicious damage. Deputy McCartan quoted the 1987 figures of £3,500 per person. That is a standing charge anyway, I should have thought, whatever the figure is today — for example, the staff still have to be paid. I should have thought that the cost to the State would be for food. Prisons probably have their own laundries — I do not know whether or not the prisons here have laundries.

Mr. McCartan: They do.

Mr. Briscoe: They do have them. In essence, then, the prisoners would be working in the laundries so that would not be an overhead cost as such, it would [550] be provided anyway. The laundries are there, the beds are there, the prison officers are there and so are many other cost factors already there. If the prisons were empty it would still cost the taxpayer more or less the same amount, with the exception of food. That could give a misleading image of the cost to the taxpayer.

It has been spelt out that any compensation ordered by a judge to be paid is being given the same recognition as a civil court measure, if my understanding is correct. When the Minister has a chance to reply I should like him to spell out the way in which compensation will be deducted, whether it will be deducted from source or payable in the same way as a fine.

Progress reported; Committee to sit again.