Seanad Éireann - Volume 130 - 12 December, 1991
Criminal Damage Bill, 1990: Second Stage.
Question proposed: “That the Bill be now read a Second Time.”
Minister of State at the Department of Tourism, Transport and Communications (Mr. Lyons) Minister of State at the Department of Tourism, Transport and Communications (Mr. Lyons)
Minister of State at the Department of Tourism, Transport and Communications (Mr. Lyons): The purpose of this Bill is to update and simplify the law relating to criminal damage to property. The current legislation dates back to the Malicious Damage Act, 1861. The need for new legislation in this area is, therefore, clear.
The Bill is based, in the main, on the recommendations of the Law Reform  Commission in their Report on Malicious Damage of September 1988. It represents a significant addition to the Government's ongoing programme for reform of the criminal law. Malicious damage is a crime which can give rise to serious public concern as, unfortunately, events in recent times have shown, but it is a crime which, in the words of the Law Reform Commission, “is prosecuted under archaic and cumbersome Victorian legislation”.
The 1861 Act has survived so far with only minor amendments. It contains a plethora of terms to describe various types of malicious damage offences and it lists over 100 particular kinds of property which may be the objects of damage. The Bill simplifies this legal maze by providing for just three main offences of damage to property in general. First, there is a simple offence of damage to another's property; second, an aggravated offence of damage to any property with intent to endanger the life of another or with recklessness in that regard and, finally, an offence of damage to any property with intent to defraud. These three main offences are provided for in section 2 of the Bill and represent a major overhaul of the 1861 Act.
Offences under these new provisions will be punishable on indictment by a maximum sentence of life imprisonment or a fine or both in the case of arson or the aggravated offence with intent to endanger life, and by a maximum sentence of ten years imprisonment or a fine or both in all other cases.
The Bill also provides for two ancillary offences: one of threatening to cause damage to property as set out in section 3, and another of possessing anything with intent to cause damage with it as set out in section 4. Both offences carry a maximum penalty on indictment of ten years imprisonment or a fine or both.
As I will explain shortly, the Bill makes no change to the mens rea or mental element of the offence of criminal damage. This mental element is provided for in the 1861 Act by a requirement that the defendant must act both “unlawfully”  and “maliciously”. Section 6 of the Bill retains the unlawful element of the offence by providing for the defence of “lawful excuse”. A person who damages property will have a lawful excuse if, at the time of the act, he held an honest belief that it was reasonable to do the damage in order to protect himself or another or any property, or that the person entitled to consent to or authorise the damage had, in fact, done so, or would have done so, in all the circumstances. The defence of lawful excuse applies where the belief was honestly held, even though it may have been erroneously held. I should stress that a section 6 defence does not apply to those offences in the Bill which involve a life endangering element.
I mentioned that for an offence to have been committed under the 1861 Act the defendant must also have acted “maliciously”. “Maliciously” has been interpreted by the courts to mean intentionally or recklessly. Recklessness can be interpreted by reference to either subjective or objective criteria. In malicious damage cases it is the subjective test which has traditionally been applied by the courts. To ensure that only the subjective test should continue to apply, the Bill prescribes a definition of recklessness accordingly in section 2 (6). Without this definition, there could be uncertainty as to how the courts would deal with the issue of recklessness.
The Law Reform Commission were equally anxious that the subjective interpretation of recklessness be maintained, and they proposed a definition based on a tentative draft of the United States Model Penal Code. The commission's proposal was made with a view to adopting a common approach to the question of mens rea in relation to criminal offences generally. Pending the consideration of such a common approach, the Government did not implement the commission's recommendation based on the US model scheme. Instead, as I have already mentioned, section 2 (6) defines recklessness in the sense in which it has been developed by the courts in these cases.
 Another new and important matter covered by the Bill is the unauthorised accessing of automated data or what is more commonly termed “hacking”. The Bill defines the term “damage” to include alteration or erasure of data held in computer systems. It goes a step further, however, by making hacking an offence, irrespective of whether the data are manipulated. This is achieved by the provisions in section 5 and is designed to reflect the modern need for an offence which takes account of the changing technology of crime. Even though hacking may not result in the data or computer programmes being modified, it is, nonetheless, a matter of major concern to users of computer systems. This is understandably so, especially as business must devote a considerable amount of time and resources to countering the problem. The penalty for an offence under section 5 is a fine of £500 or three months imprisonment or both. Of course, if the hacker actually damages the data, he will be liable for the far heavier penalties provided for in section 2.
I turn now to section 9, which gave rise to a particularly useful and fruitful discussion in the other House. Under this section the court is empowered to require the convicted person to pay monetary compensation to the injured party for the damage done. Provision is also made to enable the court to make a compensation order against a parent or guardian of a convicted person under 17 years of age, in cases where section 99 of the Children Act, 1908 applies. The court is obliged to give preference to making a compensation order rather than imposing a fine where it appears to it that the convicted person has insufficient means to pay both. The compensation payable will be based on the approximate cost of making good the damage and may not exceed the amount of damages the injured party concerned would be entitled to recover in a civil action.
Before making a compensation order, the court must have regard to the means of the offender or the parent or guardian, as the case may be. In many cases the convicted person will be unable to pay  the full cost of the damage, so it will be the convicted person's ability to pay, rather than the cost of the damage, which will be the paramount consideration for the court. It was suggested on Committee Stage in the other House that the Bill should include a provision giving the injured party the right to have the amount of the compensation increased if the circumstances of the convicted person improved and it could be shown that he or she could pay more, or pay more quickly. A provision to that effect is now included in section 9 (7).
Senators will be aware that a number of amendments have been made to the Bill as initiated. As I mentioned, many of these relate to improvements in the provisions for payment of compensation to victims of criminal damage. The question of compensating victims in the wider context of criminal cases generally will be considered when other proposals in the Government's recently announced programme have been disposed of.
Finally, I would like to express my appreciation to the Law Reform Commission for their role in the development of this Bill. The Bill represents an important step in the development of a modern criminal justice system. I look forward to its passage into law and I commend it to the House.
Mr. Neville Mr. Neville
Mr. Neville: I would like to welcome the Minister to the House and to welcome the Bill. It is long overdue and I commend the Minister for introducing it at this stage.
The Bill has been around for some time. The Second Stage debate took place in the Dáil in November 1990. I agree with the Minister that there is an urgency to update the law in this area. He has accepted that we should update our antiquated legal framework, too much of which comes from the last century and the earlier part of this century. There is a great urgency to update and consolidate a large amount of such legislation which is totally inadequate for counteracting crime in the later part of the 20th century.
The Bill which we see before us today  is to replace legislation which was introduced over 130 years ago. It is based on the recommendations of the Law Reform Commission. I join with the Minister in complimenting them on the excellent work they do in many areas and for their reports in the past 12 months. I was pleased with the response of the Leader of the House to my request this morning to have a debate on one of the reports and I look forward to that.
The updating of the legislation highlights the many inadequacies in our legal system and Fine Gael have consistently called for reform in this area. I would like to refer to a motion on the Order Paper in this regard and I again call on the Government and the Minister to establish a criminal law reform commission to advise and report on the updating and codification of our criminal law and to advise a change in law, especially in the area of providing the courts with more powers to confiscate assets derived from the proceeds of crime. It is a shame that many criminals, when they have completed their sentences, come out to enjoy their ill-gotten gains. It is high time there was provision for the confiscation of the proceeds of crime. There should also be greater provisions for on-the-spot fines.
There should be greater provision for on-the-spot fines. Prosecutions for minor offences such as traffic offences and so on, clog up our courts system and should be dealt with by on-the-spot fines. The updating of legislation to deal with juvenile crime has been discussed on numerous occasions in this House. However, I again call on the Minister and the Government to deal with this important issue and to introduce a Bill updating the whole area of juvenile crime.
Finally I ask the Minister to consider having fines paid by instalment, by attachment of income, by confiscation of the offender's property, by requiring the offender to attend treatment centres and make restitution to the victims of crime. The Minister has dealt with this to some  extent in the Bill. I would also like to remind him of the undertaking given by the Minister for Justice in this House last week to introduce a Bill before Christmas on the decriminalisation of suicide.
The Bill recognises, at last, that the age of computerisation is here and I welcome the inclusion of the offence of hacking in the Bill. The development of modern technology and the greater use of computers obviously lends itself to the risk of obtaining unauthorised information illegally through the computer system. This legislation examines the possible consequences of interference with computers. This is tantamount to interfering with the postal system or intercepting information being passed in the postal system.
One cannot ban the sale of computers because they are essential nowadays, but the amount of confidential information stored in them and which can be accessed, is growing day by day. We have all heard or read of instances where students, operating from their homes perhaps in a remote area, with a miniature computer were able to gain access to confidential information of a highly sophisticated nature with obvious disastrous consequences for the firms involved. This has happened not only on one or two occasions; it is a regular occurrence especially in the United States.
These instances draw attention to the need for the introduction of legislation to deal with white collar crime. Fine Gael believe it will undermine Ireland's system of justice, if criminals get away with white collar crime while others go to jail. Continuing doubts about Ireland's ability to prosecute white collar crime undermine our democratic system. All who are responsible, at whatever level, must be brought to justice. We should consider the appointment of a continental style examining magistrate with extensive evidence-gathering powers. Such a magistrate should be given the power to grant an amnesty to those involved in minor offences if their evidence brings greater offences to light.
We must reform our law to tackle white collar crime. Fraud should be a criminal  offence whether it is committed by an individual or a group. Provision should be made to require people involved in certain white collar crimes to provide potentially self-incriminating evidence. Since this already exists in respect of many road traffic offences why not apply this concept in the case of multi-million pound frauds? There should be provision for the appointment of examining magistrates separate from the court that will ultimately try the case to gather evidence in a serious fraud case. White collar crime has become extremely sophisticated. A country as small as Ireland cannot afford to have on constant standby the necessary concentration of highly skilled staff resources of the calibre to detect such crimes. There should be a pooling of resources between the European states to combat white collar crime.
In 1980, the Anglo-Irish Intergovernmental Conference was established to promote co-operation between Ireland and Britain on certain projects but they have not been used. They should set up an office to combat white collar crime in Ireland and Britain. This is a project for which there might be support from the European Commission.
Section 2 (6) of the Bill includes the concept of recklessness. This matter was discussed on an earlier Bill dealing with the receipt of stolen goods, and the position has not yet been clarified. Because the definition of “recklessness” is not written down in Irish law, difficulties have arisen with its interpretation. It is important to have clarity when we refer to criminal intent. Has the Minister any plans to deal with the various concepts which cause difficulties, such as recklessness, negligence, the many areas of liability and so on? Until he deals with such problems, the continuing uncertainty, delays in trials and inconsistency in verdicts, will continue.
I congratulate the Minister for incorporating in section 9 that the courts may make an order requiring a person, convicted under section 2 of damaging property belonging to another, to pay compensation in respect of the damage to the injured party. This approach is  welcome and should be extended to all courts to give them power in most cases to order compensation to be paid to the victims of crime and, if necessary, to enforce such order by the attachment of income. This compensation could be paid by way of instalment.
It is Fine Gael policy and the view of the Law Reform Commission that fines may be paid by instalment where the person convicted has not the means to pay the level of fine decided, which can be £200 or £300 for some traffic offences. This is a great deal of money to a person on social welfare or on a low income. The concept of paying fines by instalment should be taken on board.
With regard to the new offence of hacking, from my reading of the Bill this will cover the entire computer virus area and the introduction of such computer viruses into the systems. Will the Minister outline how he proposes to supervise the complex systems which will be needed to track down hackers?
Hacking is a white collar crime. Does the Minister intend going along with the Taoiseach's proposals about the detection of fraud and set up a serious fraud office under the office of the Attorney General? I am concerned that such a proposal to establish yet another body to police fraud would be interpreted as a statement of no confidence in the Garda. There is no need for such a body. If the Garda Síochána are given the legislation, the resources and the expertise, which will have to be given to the new body they will be more than ready and capable to do the job. It is imperative that monitoring be carried out by an independent and impartial agency. Such expertise is necessary if the spirit and detail of the Bill are to be implemented in the area of hacking.
I compliment the Minister. However, it is surprising that it should take more than 12 months to bring this controversial and welcome Bill to the Seanad. I look forward to its speedy passage through the House but Fine Gael will be putting down amendments on Committee Stage and we look forward to a debate on them.
Mr. O'Donovan Mr. O'Donovan
 Mr. O'Donovan: I also welcome the Minister to the House. It is nice to see a Cork Minister, although it is alleged they are scarce on the ground. I compliment my colleague Senator Neville on his speech. To be fair he has been very diligent and has contributed a great deal to this House. It is not often I praise Members on the other side but he has been here on a regular basis and makes worth-while contributions on most matters.
I welcome the Bill. Senator Neville mentioned the ongoing process of law reform and I concur with him that it is problem. There is no specific resolution but I compliment the Minister, Deputy Burke, and his Department for all the legislation that has passed through this House in the past 12 months. If the same momentum can be sustained for the next year or two, a great deal of reforming legislation will have been introduced by the Oireachtas.
When I graduated from UCC in 1975 with a law degree I thought I knew everything about law but as time went by I soon realised that solicitors and lawyers need to keep up to date on revenue matters, changing fields of conveyancing, probate and so on — in some cases this may mean going back to school. One never has an absolute knowledge of any subject. Under the terms of the solicitors Bill which is to come before this House next term it will be compulsory for solicitors to go back to school every year or two to keep pace with the various changes in legislation. This is an important provision and basically means the Law Society are taking professionalism in this area to heart and, are making it compulsory that we keep abreast of all changes.
About 15 or 16 years ago there were approximately 22 or 23 requisitions or queries of title in regard to conveyancing and today there are about 150. When I graduated in 1975 capital gains tax, capital acquisitions tax and inheritance tax were a new concept, but now we deal with them every day.
I concur with what has been said by Senator Neville and Members in the  other House. My colleague, Deputy Jim O'Keeffe, quoted what Professor Brian Hogan said in 1969 on the antiquated and outdated Malicious Damage Bill, 1861. He said:
In retrospect it seems astonishing that Parliament, or rather the lawyers responsible, could have foisted on the public and the profession so inelegant an instrument as the Malicious Damage Act, 1861.
In 1988, the Law Reform Commission issued a report on criminal damage. The Minister and the Department must be congratulated that within three years the Criminal Damage Bill has now come before the Houses of the Oireachtas. The Law Reform Commission do excellent work but in some cases their reports are put on the back burner and it might take ten or 20 years to implement their proposals.
The Criminal Damage Bill simplifies, modernises and updates the law relating to criminal damage to property and broadly gives effect to the recommendations of the Law Reform Commission's 1988 report. However, it goes a step further in criminalising the interference with computerised data and other forms of computer misuse. When the Law Reform Commission discussed this they did not deal with the misuse, tapping into or stealing of computer data. The term for this offence is hacking. Stealing computer data and linking up to computer systems is one of the most potentially devastating white collar crimes as far as damage to the economy and to our security systems, both inside and outside the State, are concerned.
The Minister should be complimented for his foresight as more and more Government, semi-State, private and commercial offices are installing sophisticated computer systems, which are getting cheaper each year. Most children in national schools — indeed my own children of ten and 11 — have a basic knowledge of computer games; they have a greater knowledge of computers than I. I am often fascinated at what can be churned out on the computer in my  office. Material is keyed in and one or two years later, at the press of a couple of buttons it is churned out again. We are becoming accustomed to changing times. When I started in my legal practice in Cork our accounts were simple; we just had ledgers and ordinary typewriters but now everything is computerised and computer-linked. I want to emphasise that the Minister and his Department have taken cognisance not alone of the Law Reform Commission report published in September 1988 but have gone a step further in dealing with the white collar crime of hacking.
The present law in relation to criminal damage came into force under the Malicious Damage Act, 1861 and, with some minor amendments, has survived for well over a century. It is tedious and cumbersome legislation and difficult to implement from a practical point of view. For example, it contains approximately 50 sections which are devoted to specific and various offences of malicious damage carried out in many ways to a wide range of property. That will give Senators an idea of the complexity and cumbersome nature of the Malicious Damage Act.
The Law Reform Commission report, to which we have referred, states that under the Malicious Damage Act there were no fewer than 108 types of property and 62 phrases to express the cause of damage to such property. This Bill proposes to cut through all of that red tape and sets out three new offences of damage to what we call tangible property in general. In other words, the divergent strands which existed under the Malicious Damage Act, 1861, will be compiled into a simple system of three types of offences. There will no longer be 108 or 110 types of property. For the purpose of the Bill, all property, whether it is a book, a Mercedes, a building or whatever will come under the same heading.
The three basic offences dealt with in the Bill are, first, damage to another's property regardless of the type of property; second, aggravated damage to property where the damage is done with the  intent to endanger life or with recklessness in that regard and third, the relatively new offence of damage to property with intent to defraud. In addition, there are two ancillary offences of threatening to cause damage to property or to have custody or control of anything with intent to cause damage. All those offences which relate in general to tangible property are covered under sections 2, 3 and 4 of the Bill.
I welcome the aspect of the Bill which deals with computer misuse. My interpretation of hacking is gaining access to computerised information without the permission of the owner of the computer system or the owner of the information which is stored in the computer or without proper or legal authorisation from such owner or agents. This can be either on the inside or from outside.
By inside hacking I mean the misappropriation or misuse of computer information or data by, for example, an employee of a company or firm. The employee may have legitimate access to the computer but his motives may be devious or malicious with the intention of defrauding his employer or selling information for financial gain. This type of crime is so sophisticated that the insider may be using the terminal to gain access to information which is located 50 or 100 miles away or even outside the State. It is difficult for a lay person to understand that a person using a computer system in, say, a bank in Dublin, if they can gain access to the code in the United States, Britain or anywhere in Europe can steal, distort or erase information. This is a particularly dastardly crime.
I concur with Senator Neville in highlighting this type of white collar crime which is difficult to detect. This is a major problem facing our criminal system and, regrettably, it is becoming more common. Hopefully, the introduction of this Bill will be a major step towards resolving this type of crime. What is most worrying about insider hacking in that generally there is total trust and confidence in one's employees and when a person with whom one deals from day to  day and who has the legitimate use of the computer and data systems abuses this, it is difficult to detect. The last person one will blame is their employee or partner.
The second type of hacking is outsider hacking. This offence is carried out by people who gain access to confidential computerised data without any legitimate right. This can be done by having a home-based computer connected to a telephone system but the person involved would have no authority to link in with the computer to obtain data.
My knowledge of computers is limited and I certainly would not be capable of becoming a hacker, either inside or outside, because I know very little about how they work. However, I understand that hackers, whether from inside or outside, can fiddle around with the computer system and use alternative keys to improperly gain access to such matters as payroll programmes, security systems, confidential client data and so on. The hacker can easily erase, alter or steal huge amounts of confidential data. He can produce false data with the objective of misleading the owner of such information or data base. The crime of hacking causes great fear among the companies who devise or plan computer systems. In modern sophisticated computers methods are being developed to block such access to information and many have been successful. However, from time to time computer geniuses find loopholes in our systems.
Apart from those who gain information to deliberately misuse, mislead or trade the information found on the computer, there is the less serious crime of a young person or student who, for experience and with no ulterior motive, may just mess around with the computer system and gain access without any intent to vary, alter, misuse or steal computer data. Some people would argue that this is an innocent type of activity and should not be criminalised. However, the Bill proposes that any such interference with confidential information, whatever the motive, must be stopped. In any instance,  where hacking, however trivial, mischievious or innocent, is detected it must be investigated by the computer owner or the storer of the information to see if any damage has been caused.
One could compare this, let us call it, innocent linking to computers to somebody's house being broken into without any damage being done, nothing stolen or wrecked. There is this terrible trauma, this feeling that your house was broken into and you must check everywhere to make sure nothing has been tampered with. I must compliment the Minister and his officials for highlighting that, in cases of youngsters or students messing about with computers, innocence is no excuse, that this is being criminalised and that a severe penalty is being imposed on anyone who does this for whatever reason, even though there is no malice or no intent to defraud.
If I were the owner of a computer base copier stored information, possibly confidential information, and were to know that some person or persons through some sophisticated method had gained access to that base improperly without prior consent, I would be seriously concerned and I would welcome the approach by the Minister and his Department in codifying and including this type of situation in the new criminal code envisaged by this Bill. The possible result of such an intrusion might be that you would have to buy a new system, and these systems can be quite expensive. I understand that other countries, such as Britain, Germany, Iceland, Canada, France and the United States, to name but a few, have taken the same view and have made it illegal to make any unauthorised access to any computer system.
Section 5 deals with that situation and makes it an offence to access or attempt to access data or operate a computer with intent to access any data that is kept either in or outside the State. It does not apply merely to the Twenty-six Counties; it could apply to the world for that matter. It should be noticed here that an attempt is sufficient and it will not be a valid excuse to say that no alteration.  misuse or stealing of such data took place. That is no excuse. Section 5 provides for obviously lesser offences to suit the particular type of crime, but it is important to know that the section quite clearly states that there is no such thing as innocent hacking or the simplistic tuning into a computer data system where there is no motive.
Before leaving section 5, my colleague, Senator Neville, and I noted from the reports in the other House there was much debate on maintaining the concept of mens rea, or the mental element attaching to crime which was probably the cornerstone of the Malicious Damage Act, 1861. Under that Act not alone had it to be malicious but also it had to be unlawful. This new Criminal Damage Bill maintains this necessary ingredient, in my view, and it has not been abandoned. The meaning under the new Bill has been specified as “reckless” — in other words, a person would be regarded as reckless only if he had foreseen a particular kind of harm, which was done or might be done, and yet had gone on to take the risk. This would be a subjective test, not an objective one, which would be applied by the court or the judge as the case may be. In short, where this type of crime is done with malice, or with malicious intent, it would be sufficient to prove that it is reckless; and this, as I have already said, incorporates the old concept of mens rea, which is the mental or the devious notion in one's mind when one commits a crime.
The 1861 Act also required that a matter has to be done unlawfully. This element will be retained in the proposed new legislation by the use of the words “without lawful excuse”. Some of the circumstances in which an accused person may have a lawful excuse are set out in section 6, but these special defences are without prejudice to any other lawful defence a person may have under existing law, such as, for example, a defence of necessity. Under section 6 a person who causes damage to property — that is, tangible property — or, in the alternative, modifies data, will have a proper excuse if she or he had an honest belief  that the person entitled to consent or authorise the damage or modification had done so, or indeed would do so if the full or proper circumstances were known.
The Law Reform Commission tried to avoid an element of unreality in requiring the owner of damaged property to identify the property where it patently does not belong to the accused and also to say that he or she gave no one permission to damage the property. Section 7 (2) of the new Bill states that it will not be necessary for the prosecution to name the person to whom the property belongs as there will be a presumption, until the contrary is shown, that the property belongs to some person other than the accused. This presumption can be rebutted, but the onus will clearly be on the defendant or his lawyers to rebut such a presumption. In simple language, what this section is trying to provide is that once property is damaged the person accused before the court would not have the old defence of saying that ownership of the property must be proved. In other words, the ball is put fairly into the court of the accused to actually prove that he is innocent. This would also apply similarly to the modification of data, unless of course the person in charge is an employee or agent of the person keeping the data. My interpretation of this is that the presumption of ownership would apply as far as “outside” hacking is concerned and not “inside” hacking.
Section 9 of the Bill enables a court to require a person who has been convicted of damaging property to pay the owner compensation not exceeding the amount of the damages that in the court's opinion would be recovered in a civil action. This is a simple and very prudent provision to ensure that an offender who can afford to pay will be made pay and that such reimbursement will be done in an efficient and speedy fashion.
My colleague, Senator Neville, mentioned the possibility of paying by instalments. From my experience and knowledge I believe that if the instalment system were introduced it would be abused. Take the normal situation in a  District Court, Circuit Court or whatever. When a fine of, say, £1,000 is imposed the person explains to the district justice or the Circuit Court judge “Look, I am in poor circumstances. I have a large family. I am on long term social welfare” or whatever. Normally, the cloth is cut according to the measure. The judge, from my own experience, will lessen the fine as far as possible to suit the person before him. It is also my experience but perhaps it just applies to rural Ireland that the judge normally gives three, four, five or maybe six months' grace to enable that person to come up with the money. What happens in practice is that the person who has been fined or convicted forgets about the whole thing for the three, four, five or six months and it is only when the garda comes knocking on the door looking for the fine that all of a sudden he says “I have not got the money” despite the fact that he had been given a suitable time to get his act together.
I would feel, by way of constructive criticism of what Senator Neville and others have said, that to introduce a system whereby one would pay by instalments, whether it be a fine or to compensate somebody who has suffered, would not be workable. To take it a step further, if the situation arises six months later when the garda comes knocking at the convicted person's door, you then have the facility to apply to the Minister for Justice at the time for leniency. It is my experience that this is frequently done, which normally gives another three, four or possible six months to come up with the money. I am aware that in most instances the Minister will contact the local Garda and try to ascertain what is the position of the person seeking leniency. If he is satisfied that the person cannot genuinely come up with the money, in most cases either he can waive the fine, if circumstances are such to warrant it, or he can substantially reduce the amount to be paid. He can say, “I will reduce it from £500 to £200 and give another six months to pay”. We have  inbuilt in our system a type of situation that is akin to part payment.
I would concur with what my colleague, Senator Neville, and other Senators have said in relation to other legislation: that it is about time we should introduce this concept that the victim should be compensated by the person who has committed the crime — and rightly so, when one looks at the white collar crime now taking place in our society. Sometimes it is sophisticated, well-off people who launder their money by buying property and so on. There are situations where one could possibly register some sort of a judgment mortgage or try to get at the pockets of these people, where they would feel it most. It is no use giving somebody who has stored up £4 million or £5 million, or stashed it away in some foreign island, two years in jail and then they are out in 12 months. It is worth their while doing this if they can say “I will be out in the street again in 12 months time and I can enjoy my money in leisure”. Senator Neville welcomed this new concept and I would like to endorse his remarks that it is something that we should consider.
Section 9 also requires a court to have regard to the convicted person's means so far as they appear or are known by the court. Again, the objective here is to try to guarantee that the compensation order can be practically enforced without causing severe financial difficulty. There are also provisions relating to the situation where a convicted person is a minor, among other things. This envisages the case where the parents of a minor in certain circumstances may have to foot the bill. The provision of section 9 is sensible, because it is no good imposing an order on an accused person or a convicted person to compensate the victim if it is clear to the court that the person cannot afford to so do. It would be merely a gimmicky exercise.
Section 13 of the Bill provides for the issue by a district justice of a search warrant where it appears there is reasonable cause that any person has any object, tool or implement in his custody or on his premises which may be used or is  intended to be used without lawful excuse to damage property or to gain access to any data. This is an important provision.
Section 14 contains a number of relatively minor and indeed consequential amendments to existing law. For example, subsection (1) is abolishing the common law of offence of arson, which is being replaced by the offence of damaging property by fire. I know some amendments are being proposed and possibly on Committee Stage there will be others to be dealt with by this House.
This Bill must broadly be welcomed. It has been said by most speakers in this House, and practically all speakers in the other House, that it is uncontroversial. Indeed, as I quoted earlier from Professor Brian Hogan, it is not before time that the Malicious Damage Act, 1861, has been brought into the 20th century. Some lawyers and legal experts feel this should have been done 20 or 30 years ago. Now it is being done with the benefit of the Law Reform Commission report of 1988. I must again stress that this was acted upon quite diligently and indeed improved on, because that Law Reform Commission report of 1988 did not envisage the new type of crime of hacking, which is a very important inclusion in this Bill.
I have read the Law Reform Commission report. The Department and the Minister for Justice have broadly accepted the thrust of that report, and in fact they have gone a step further by recognising the relatively new offence of hacking. I have also had the opportunity to study the Minister's speech in the Dáil in November 1990. Indeed, I would concur with my colleague, Senator Neville, in saying that it is hard to accept that 12 or 13 months down the road we are only now introducing that Bill in this House. I hope other legislation will move more quickly.
In 1991 we have passed in both Houses the Child Abduction and Enforcement of Custody Orders Act, the Contractual Obligations (Applicable Law) Act, the Statute of Limitations (Amendment) Act, Courts Act, Courts (No. 2) Act and the Courts (Supplemental) Provisions  (Amendment) Act. I am reasonably happy that in 1991 the Minister and the Department have moved quited swiftly in bringing in reforming legislation. One could argue that it is not swift enough and I certainly would like to see more progress in this area.
As my colleagues across the floor have said, the Law Reform Commission have reported on many issues. One of the matters which Senator Neville has down in the Order Paper, for example, deals with the reform of the law of libel. Many issues have to be dealt with. It is a pity that action is not being taken on these reports by the Law Reform Commission. My colleague, Senator Neville, has said he would like to see a commission set up by both Houses of the Oireachtas to examine these reports and to try to introduce reforming law more speedily and more efficiently. I am, therefore, glad that the Malicious Damage Act, 1861, has been updated and somewhat codified. I commend the Bill to the House.
Mr. Costello Mr. Costello
Mr. Costello: I welcome the Minister to the House but I cannot quite agree with either of the last speakers and welcome this Bill in toto. I regard it as two Bills and I believe it would have been better if they had been separated, the updating of the old British legislation of 1861 in relation to malicious damage and a new Bill in relation to access to computer data. The two are very different and we would have much better legislation if we had two separate Bills.
I welcome the fact that the recommendations of the Law Reform Commission in relation to the 1861 legislation has at last been rationalised, is being tidied up and that the 100 plus offences listed are now being put in a more coherent fashion. There are now three categories of offences: the simple offence of damage to another's property, the aggravated offence of damage to property with intent to endanger life and the offence of damage to any property with intent to defraud. That is a very beneficial improvement in the legislation and is to be welcomed. It is high time we updated all the Victorian legislation still on our  Statute Book, which is unsuited and inadequate to deal with the demands of the end of the 20th century in terms of criminal law and the statement of offences in modern society.
It is virtually impossible for the lay person to get a copy of this legislation because it is not available in Ireland. This is British legislation, available only from Northern Ireland or from the United Kingdom. We are operating under not only antiquated legislation but legislation which is not printed, produced or sold in this State. From that point of view I would welcome this as another step in the right direction.
We are rather belated in updating the legislation and I would like to see a lot more reports of the Law Reform Commission speedily introduced into law. This Bill was introduced as a result of their 1988 report on malicious damage, which reached the Dáil in 1990; the Law Reform Commission had received a number of submissions from the public. It was a thoroughly researched report and had been fairly well prepared before it reached this House. Therefore, I welcome its provisions in relation to how it intends to deal with the offence of criminal damage.
The huge amount of damage to property, vandalism, arson and fraud now taking place is a major problem in our society. One reads in the newspapers daily of the reckless or wilful damage caused in various areas of the city, from the suburbs to the inner city areas, and not just in the capital but in the other cities and towns. The amount of mindless vandalism that takes place constantly amazes me, where a person's property is damaged or a person threatened, intimidated or assaulted. It is an area that any good living citizen cannot but feel has not been adequately dealt with in our society. Legislation is the way we deal with the final manifestation of lawlessness. We impose punishment on the offenders, but there are other ways of dealing with the symptoms. This is getting back to the quality of life, improving that quality of life, and the present criminal legislation  is a very inadequate tool to deal with that. The amount of damage being done, unnecessarily and recklessly, to property reflects a considerable breakdown, not just in law and order but in the basic infrastructural framework that makes up the quality of any society.
That is also reflected in how we prioritise our resources and how a Government decide where the resources within their compass are to be allocated. Will they be allocated in the area of education, or social services? Will they allocate to areas where tax incentives or industrial incentives are given by the Government, because of the ability to make large profits? Or are they going to be introduced in areas where they are of maximum benefit, that is to building up the infrastructure of a country.
I think the basic infrastructure of any country must be the youth of the country. The quality of education and the development and assistance that can be given at an early stage will bear fruit in years to come. I believe that many of the problems we experience at present are due to inadequate resources to bolster and assist those who are in need, particularly in the area of education and training. I know there is a tremendous lack in the educational sector. The capitation grant given to primary schools is totally inadequate. The other night I was at a meeting in a primary school, not in an impoverished area, but the board of management had a debt of £17,000, simply because the funding given to them by the Department of Education, was not adequate to provide a proper educational service and the aids and assistance necessary for the school. For example, they could not paint the school or buy equipment.
Education is one of the most important areas. We must compare this with the European experience. We are bottom of the league in educational input and we have not exercised our influence to try to bring existing Structural Funds into that important infrastructural area. Instead, we have put this finding into infrastructure like roads and agriculture. These are extremely important but we  have failed to improve the quality of life for many of our people by providing good quality education. As I said, resources in this area have been lacking. The same applies to youth facilities, recreation facilities, leisure facilities, and so on. The provision of these facilities would go a long way towards averting the circumstances that would lead to criminal damages taking place at a later stage. Side by side with introducing or updating legislation, we must provide the means to eliminate the circumstances which lead to vandalism and crime.
I am particularly pleased to see the new departure in section 9. I appreciate the fact that the emphasis is on compensation, fines, parental and guardian responsibility, allowing compensation to be paid by instalments and that there is room for appeal and suspension. This is, to my knowledge, the first time we have had such a complex and comprehensive statement on the application of a sanction in relation to criminal justice legislation.
I have always thought that our sanctions were very blunt and limited. What was specified in virtually all criminal legislation was a period of imprisonment or a quantifiable fine. It is much more appropriate that we do not say there will be a maximum and a minimum fine but that we relate the sanction to the offender's ability to pay; that is an extremely important element in the sanction. Once that is done, we can be much more effective in ensuring that the sanction fits the requirement and that we do not end up — as is happening at present — with many prisoners failing to pay fines due to financial circumstances or because there is not an adequate mechanism for paying by instalments.
It is important to try to relate the sanction as flexibly as possible to the offernder's means and ability to pay while, at the same time, taking into consideration the seriousness of the offence. It would be a considerable improvement to see the principle contained in section 9 extended right across the board to other criminal legislation. It would reduce, at the stroke of a pen, about 15 per cent to 20 per cent  of our prison population. It places an onus on parents and guardians in relation to youngsters under the age of 17 who commit an offence. That is an admirable development. We must explore the area of parental responsibility in relation to the actions of youngsters under the age of 17.
Section 5, which is probably the most serious section in the Bill, states:
A person who without lawful excuse operates a computer—
(a) within the State with intent to access any data kept either within or without the State, or (b) outside the State with intent to access any data kept within the State shall, whether or not he accesses any data, be guilty of an offence....
Subsection (2) states:
Subsection (1) applies whether or not the person intended to access any particular data or any particular category of data or data kept by any particular person.
That is too much of a catch-all phrase. The legislation is not sufficiently specific in relation to offences. It is not good enough simply to say that everything is an offence.
Computerisation is a very complex business. It does not just operate in the world of big business; it operates at every level of our lives. Our watches are computerised. Microwave ovens, washing machines and many modern pieces of equipment which we deal with on a day-to-day basis are computerised. Let us not forget that the definition applies not just to the data but to the programme also. One simply cannot operate any form of computerised technology without using the programme. For example, one could use a digital watch belonging to someone else to time a race. One would have to operate the programme that is built into the watch to do so but if a person does it without lawful excuse he or she could be guilty of an offence because one is expected to have received the permission  of the person before any action is taken in relation to accessing any data.
I have a problem with that aspect of the legislation. There should be the presumption of lawful excuse rather than immediately placing the onus on anybody who uses a computer. It is too broad and does not attempt to define the areas where problems and offences can arise in computer technology. That is a very dangerous way for us to address what is a very fresh, welcome and immensely useful piece of new technology. We may end up with legislation which is unworkable and unenforceable because it is so broad.
Let us look for a moment at the definition of data. It is, “information in a form in which it can be accessed by means of a computer and includes a programme”. Nothing is omitted there. No attempt is made to be specific. We simply say that piece of equipment is out of bounds. It simply cannot be because it is used in every area of society. We must have a much more cautious approach to defining the offence of computer hacking or access to computer information. We should not immediately have a presumption of guilt — one must have a lawful excuse before one operates a computer. There is much ordinary, non-criminal accessing of programmes whether it is a data sheet, word processing or writing a letter. If I am an employee how can I write a personal letter? Must I first have my employer's permission because I have to access the programme? It is this type of carelessness which will make the Bill impossible to operate.
How will we enforce this legislation? How can we pass legislation and say that all access to computer programmes or computer data is on the presumption that one has the permission of the owner? Section 6 states that it is the owner who must give consent. What kind of police network would we need to enforce this? We would need a trained, properly equipped and resourced police force to deal with white collar fraud. How can we say there is the presumption of an offence unless there is prior consent of payment?  We do not have the resources or the skilled personnel to monitor this complicated area of technology.
It would be quite proper to state in the legislation that employers can make rules for their employees. That is the way we should go. Employers who have sensitive information in computer programmes or data files could make regulations and the guidelines for those regulations could be stated. We are going down a very dangerous road if we have a presumption of guilt before anything actually takes place. There is nothing positive in terms of the operation of this worthwhile and wonderfully beneficial technology.
It seems this section has been rushed as it does not tie in with the 1988 report of the Law Reform Commission which dealt specifically with the Criminal Damage Bill in terms of updating the 1861 Malicious Damage Act. The Law Reform Commission thoroughly researched this and sought public submissions. They completed their report in 1988 and the Government took it on board. Obviously the commission did not envisage that their report would be incorporated into another body of legislation which would include this new offence of computer hacking. It is quite proper that we should deal with it but it is such an important, complex, technical and new area that this is not the way to deal with it.
We are updating legislation 100 to 140 years old, but to incorporate as an afterthought in the same Bill the offence of computer hacking makes the mind boggle. It seems as though somebody, somewhere, suddenly decided this was an opportunity, whether by stealth or otherwise, to get legislation on the Statute Book to deal with an obvious and real problem. That is a very bad way to produce legislation and I regret this offence has been included in this Bill.
I ask the Minister to separate the two crimes. We have one Bill, which is quite adequate and I welcome it which contains some innovative and worth-while sections dealing with criminal damage. We should pass this Bill quickly. However, I ask the Minister to withdraw sections 5 and 6,  but particularly section 5, send them to the Law Reform Commission and ask them for a report which would be incorporated into new legislation.
I am not just saying that because I think it is cumbersome but because I know it will be unworkable. We have not defined specific offences; this is a grandiose, catch-all approach to deal with a major, complex problem. We do not have a section within the police force capable of dealing with the intricate, technical demands of monitoring computer hacking and we should set it in place straightaway. There is not a hope of the Garda being able to do that effectively unless we define specifically what offences are involved. As the Bill stands virtually anything to do with computers is an offence. There is no attempt to define the good, the bad or the ugly. All new computer technology is suspect unless a person has a lawful excuse. I do not know why this section was put in. I ask the Minister to delete the two sections from the Bill.
We have one good Bill; we have one very bad Bill, and the Minister should look at this again. In the Dáil, very little reference was made to the section. It is almost as if the implications of the new elements that were introduced were not noticed. I ask the Minister to take this back to the parliamentary draftsman and tell him that, while it would be extremely desirable to put in place, as early as possible, legislation to cover unauthorised accessing of computer data to prevent fraud, we must be far more specific and define the offence. The Bill would then get a very welcome and speedy passage through the House. We are unhappy with the two elements being put through in this Bill.
Mr. Mullooly Mr. Mullooly
Mr. Mullooly: I welcome the Minister of State to the House and congratulate him on his recent appointment. I wish him a long, happy and successful term of office. Deputy Kitt is a former Member of this House and it is nice to see a former Member return when his talents have been recognised and he has received the promotion he deserves.
 I am pleased to have the opportunity to make a contribution to the debate on this Bill and to welcome its provisions. The purpose of the Criminal Damage Bill is to simplify and modernise the law in relation to criminal damage to property. It does this very efficiently. The present law in this area, which is contained in the Malicious Damage Act, 1861, was in urgent need of reform and updating. The Law Reform Commission published a report on this matter in September 1988 and many of the recommendations of that report are enshrined in this Bill. The Bill also deals with the relatively modern but growing problem of computer crime. It would appear that unauthorised accessing of computerised information or hacking is becoming more common. I cannot agree with the objections raised by Senator Costello to the inclusion of this Bill of the sections which deal with this matter.
I compliment the Minister on having included in this Bill measures to deal with offences of this nature. The Malicious Damage Act, 1861, was very complicated and cumbersome legislation. It went into great detail in specifying numerous different kinds of property and kinds of malicious damage which could be inflicted on that range of property. According to the Law Reform Commission report there are over 100 kinds of property referred to in the 1861 Act and there are more than 60 different words used to describe the offences or the kinds of damage covered by the Act. This complex approach to the problem of criminal damage to property is replaced in this Bill by the simple provision of just three offences of damage to property in general. The terms “to damage” and “property” are clearly defined in section 1.
Section 2 covers the three offences of general damage to property: first, the simple offence of damaging property belonging to another; secondly, the aggravated offence of damaging any property where the damage is done with intent to endanger life or with recklessness in this regard; thirdly, the  offence of damaging any property where there is an intent to defraud.
Section 3 makes it an offence to threaten to cause damage to property. Section 4 provides that it will be an offence to have custody or control of anything with intent to damage property. These three sections, together with section 5 which makes the unauthorised accessing of data an offence, are clear, simple and straightforward. Prosecution will be easier and persons guilty of any of these offences will be much more likely to be convicted than was the case under the 1861 Act.
I welcome the concept of compensation orders in section 9 of the Bill. This section provides that a person convicted of damaging property belonging to another may be ordered to pay compensation to the injured party. This order can be made instead of or in addition to any fine or other penalty imposed by the court. This is a very welcome provision in the Bill as is the fact that in the case of a convicted juvenile the compensation order may be made against the parent or guardian of the young person involved. I agree with Senator Costello that this will place a new emphasis on the responsibilities of parents and guardians in relation to the conduct and supervision of their children.
When the Bill was debated in the other House this section received detailed examination and during Committee and Report Stage various amendments were put forward and discussed at length. The Minister displayed a commendable openness and willingness to be convinced of the desirability of amending the original section. A number of amendments were agreed and the amended section is a considerable improvement on the original.
Section 9 as it now appears in the Bill deals very flexibly with the issue of compensation. The amount payable in any case shall not exceed the amount which the court considers the injured party would be entitled to recover in a civil action. Also, when a compensation order is being made, the court shall have regard to the means of the person or the parent  or guardian against whom the compensation order is being considered. In addition, the section further provides that a compensation order may provide for payment of the compensation by such instalments and at such times as the court shall in all circumstances consider reasonable. Procedures are provided in the Bill which will enable compensation orders to be reviewed, varied or suspended.
The compensation order provision contained in the Bill will, in time, become an effective deterrent particularly in the case of those who might be inclined to become involved in deliberate acts of wanton vandalism. The only concern I have in respect of this section is how it will operate in the case of a person who may be entitled to recover compensation from an insurance company for the loss or damage caused. I assume the question of double compensation will not arise, that is, compensation from an insurance company and compensation from the person convicted of causing the damage. Will the fact that the loss or damage is covered by insurance be a factor which the court will take into account when considering whether to make a compensation order? If the court proceeds to make a compensation order, will the fact that the court has done so be used as an excuse by an insurance company for not paying on an insurance claim? Will the fact that a compensation order may be made by a court be used as an excuse by an insurance company to delay payment in the case of a claim? If this is the case, will situations arise where it might not be considered prudent for the injured party to assist in identifying the culprit in order that compensation for the loss or damage in question may be more easily recovered from an insurance company?
These are points which need to be clarified in respect of section 9. I do not think anybody would dispute that in many cases compensation orders will be long drawn-out affairs and in some cases, will be extremely difficult to enforce. Therefore, it will always be in the interest of the injured party, whenever possible, to be able to recover compensation from his or her insurance company rather than by  means of a compensation order made by a court. In such cases could the court make the compensation order in favour of an insurance company as the insurance company, in having paid out in respect of damage in any particular case, will be the body which has suffered the loss?
What effect will this legislation have on the cost of insurance? Have any discussions in this regard taken place with the insurance industry? These are the main questions which need to be clarified for the general public in relation to section 9 of the Bill.
I want to refer briefly to section 3. This is a very important section which provides that it will be an offence to threaten to damage property. It is a well-known fact that many business persons in this city and in many towns throughout the country are paying protection money to ruthless thugs who issue all kinds of threats to the individuals concerned if protection money is not paid promptly and regularly. It is also a well-known fact that similar threats are used by unscrupulous illegal moneylenders to recover payment from their victims. We also read frequently of robberies where vulnerable elderly persons are intimidated and threatened with all kinds of injury to themselves and to their property if they do not co-operate with the young hooligans involved. Any measures which will make it easier to secure convictions against persons involved in despicable activities are to be welcomed.
This reforming Bill is long overdue and I look forward to its provisions coming into operation at an early date.
Mr. B. Ryan Mr. B. Ryan
Mr. B. Ryan: Cuirim fáilte roimh an Aire. Is é mo thuairim gurb í seo an chéad uair dom bheith ina theannta sa Teach seo. Cé go bhféadfainn rudaí a rá faoin mbealach inar thit sé amach go raibh “vacancy” i measc na nAirí Stáit, tá an post tuillte aige. Tá mé cinnte gur duine é a dhéanfaidh jab maith.
There are two or three points I want to make briefly about this Bill. First, the updating aspect of the Bill is most welcome. My legal friends tell me that an  extraordinary mixture of confusing legislation extends back to an era when the relative rights of the citizen vis-à-vis property were quite different from what they are today. Then, the average citizen as against those who owned property was placed in a subordinate and vulnerable position.
This Bill raises interesting questions about updating law in this State. We used to have a legislation committee drawn from both Houses of the Oireachtas worked on areas of legislative innovation. Certain legislation, often non-controversial such as the updating of old-fashioned law, the codification of law that has been put together in a piecemeal fashion over the years, measures to make the law more rational and accessible, does not need to originate with Government. It should be possible for the Oireachtas to initiate non-controversial legislation to bring our laws up-to-date. It would be worth setting up a special committee to bring forward proposals for the attention of the Oireachtas and which could be dealt with in the intelligent and uncontroversial fashion in which Senator Manning described the Seanad of 1935, high-minded, well spoken and polite. It is a pity that the important process of updating legislation has to pass through the bottleneck of the Cabinet table; this means that necessary but not high priority and urgent law reform can be delayed.
I understand that malicious damage to property is a scheduled offence under the Offences Against the State Act. I am intrigued as to what the status of offences under this present Bill will be vis-à-vis that Act. I have always felt that the insertion of malicious damage to property into that measure was itself somewhat malicious; the offences in many cases were of a kind that had no connection with the intent of that Act. Given that large sections of ancient legislation are now being repealed, I am intrigued to know the status of this legislation vis-àvis the Offences Against the State Act. My only thought on that if by any chance somebody forgot, I have now reminded  them and it will definitely be covered now.
I do not think any sane person would question the worth of the proposal to introduce compensation orders. It may have been pointless many years ago when most people had no property, but it is more than rational — it is desirable — that where feasible the person who commits an offence should have to pay compensation to the person against whom the offence was committed. This measure is similar to other obvious things that become obvious once we see them; one could wonder and speculate why it was never done before. I suspect it was partly because the bourgeois middle-class dominated all parliaments and never imagined themselves committing offences of any significance and assumed that classes inferior to themselves did not have money to compensate those they offended against. This is a most worth-while and necessary reform. Let us not forget that crime and poverty are, unfortunately, inexorably linked; the capacity of people to cope with life becomes less and less as their material circumstances deteriorate. If many of the good people who populate both Houses of the Oireachtas were as poor as many who live in this city, they, too, would end up in a career of crime. We are fortunate but that is not a virtue.
There are many people who cope heroically with poverty and deprivation and whose families or they never come into contact with the law. Statistical evidence exists, however, that people have different abilities to cope and, as pressures increase, things begin to give at the edges. I read a survey recently of a small, midlands town where up to 60 per cent of the population of local authority estates said they find it difficult to prepare their children for First Communion; 30 per cent find it difficult to provide food every week. Some people find themselves under extraordinary pressure and anybody who imagines that this legislation is going to achieve a dramatic drop in our  crime rate is fooling themselves. Nevertheless, it is most welcome, but that is where my welcome for the Bill ends.
While I would enthusiastically endorse the principle and the aspiration contained in what is supposed to be a prohibition on the offence of computer hacking, the section, as drafted, is ludicrous and, indeed, if it were not such a serious matter, would be laughable. That was my first response. It refers to “A person who, without lawful excuse, operates a computer” — there is no qualification here although the next piece contains a long section setting out what is a lawful excuse. I have a computer in my office and I now have to convince myself before I switch it on that I have a lawful excuse. That is what the legislation says.
Let me give two examples from the regional technical college where I work. There are perhaps 250 micro-computers in Cork Regional Technical College. Our students are not supposed to play games on them, for instance; we have a disciplinary procedure about that. Under this legislation, if one of our students operates a computer to play a game on it, which means doing so without a lawful excuse, he is guilty of a criminal offence. In the name of God, have we gone mad? That instance has nothing to do with computer hacking.
Let me explain for the benefit of the Minister and the House what computer hacking is generally understood to be — it means the use of a remote terminal, usually, micro-computer via the telecommunications system usually, to gain access to main frame computers. The problem is that one can use a home computer via the telecommunications network to gain access to, say, the main frame computer of the Bank of Ireland or Allied Irish Banks or the one used by universities and in the United States to the one used by the CIA or the Defence Department. That is what computer hacking means. It does not mean operating a computer; it means using one computer to gain access to another and the trick, of course, is that however complicated the passwords one can run up a simple computer programme which can  keep on generating different combinations of letters. If left to run for a couple of days, it will, by a process of elimination and reorganisation of the alphabet, inevitably generate any password and as it does it will access one computer after another and a couple of days later the records will contain the passwords for half the computers in the country. This Bill does not address this matter.
This Bill contains the ludicrous suggestion that any person who, without lawful excuse, operates a computer is guilty of an offence. Two days ago one of my students was desperately stuck for access to a computer containing a particular piece of information at 6 o'clock in the evening. He improperly came into my office and ran my computer. Under this Bill he is guilty of a criminal offence because, without lawful excuse, he operated a computer. Let me give an example using a different piece of equipment. Any person who without lawful excuse operates a printing press could be found guilty of libel or defamation.
Senator Costello is right. According to this Bill every time one operates a computer one may be suspected of a criminal offence and charged for operating it. In court one would have to prove one had a lawful excuse. The section says that unless you have a lawful excuse... A lawful excuse is not something that a person enforcing the law can adjudicate on. Half our student number could find themselves in court because somebody said they were operating computers without a lawful excuse. The objective here is to penalise a person who by illegal means gains access to data in a computer to which he or she has not legal access. The problem is access to data not the operation of computers. It is not beyond the wit of the parliamentary draftsman's office to make a distinction between operating a computer and accessing data that is not legally one's right. It is a sloppy, shameful lazy and ludicrous provision. I do not care whether it exists in other countries, which is the usual excuse. If used about a printing press it would place us back in the dark ages.
 The Leas-Chathaoirleach is going to suggest that this matter is more appropriate for Committee Stage. That may be, but this section should go back immediately to the drawing board of the parliamentary draftsman. We could postpone further discussion of this Bill until they had time to look at it because it is ludicrous as it stands. I have illustrated the matter sufficiently.
The real offence is the improper accessing of data, and on that we are all at one. It is not and should never be an offence to turn on a computer. Offences to do with breaches of privacy, trespass and the security of buildings can be dealt with under this legislation but to create an offence for operating a computer without an excuse is ludicrous and has nothing to do with the issue.
Let me put it a different way. If I switch on the small computer at home, a cheap thing that cost £200, plug in the modum to the telephone line and play around I can readily gain access to a number of computers. I might have no excuse for doing that; I might just be nosey. It is perfectly legitimate that accessible computers should be free but I still have no excuse. I am just being lazy or nosey. If I go looking at bulletin boards because I am lazy or nosey, is that a lawful excuse? That is what this section says.
I know a list of lawful excuses is given further down, but the section is daft. If I write a programme to go searching through passwords to gain access to the Bank of Ireland computer, that is a different matter. Furthermore, if the computer is operated and all I do is access that computer, the only one I am operating is my own desk top computer at home. Does this provision mean that because I operate my computer to run a small programme that accesses but does not run another computer already running, I am guilty of an offence for switching on my computer?
I do not want to be offensive, but let us get somebody who understands computers to look at those sections. I do not claim to be the world's number one  expert. Let us abide by what is internationally understood by computer hacking, which is the use of a home or office computer using the telecommunications system or some other network to gain improper access to the data on a main frame computer. Otherwise, every student of a third level institution and half the second level students who play games without permission on the school or college computer is guilty of a criminal offence. What could be more ridiculous than that? It is a pity that otherwise welcome legislation contains something as nonsensical as that.
Mr. Farrell Mr. Farrell
Mr. Farrell: At the outset I congratulate the Minister and welcome him to the House on his first occasion. I am delighted to see a man from the west here with us today as Minister of State at the Department of Justice. We wish him many long years of happiness in his new job. I have no doubt but that he will give it the same careful dedication and hard work that characterised him as a Dáil Deputy.
Tapping into computers is a serious business and we must do everything in our power to ensure that it is prohibited because we hear so much today about white collar crime. I am not an expert but, as Senator Ryan said, it is important to hear from experts in this field. I am sure the Government have experts to deal with the points raised because the big serious crime today takes place in the computer world.
We have much more crime today compared to 40 or 50 years ago. I wonder why? It is good to bring in laws to prevent crime but why is there so much crime? We react to situations without digging deep to find out why people in a reasonably affluent society are so criminally minded. Why are people with good jobs, earning good money, tempted to destroy not only themselves and their careers but also their families' careers, by a crime which can range from petty to serious crime?
I wonder why so much viciousness attends crime today? In years gone by  people would commit crimes when houses were vacant, but now it seems to be the in thing to go into a house, attack, mug or abuse somebody or kill them, sometimes for a paltry few pounds. This is serious and there must be a reason anybody would get into crime. Is it drink, drugs, or maladjustment? Only a small percentage of people commit crimes but they cause problems for many people. We should conduct more research into why crime is committed. I would like to see something done about that. It is a very serious matter and, although several laws have tried to do something in that regard, we still do not have an answer.
I sometimes think that lack of discipline in the home or schools contributes to crime. There used to be an old Irish saying — “Spare the rod and spoil the child”. Maybe if there was more discipline in the homes and schools and if people realised how necessary it was we might have fewer heartbroken mothers, parents and families before the courts whose children are involved in crime.
All crime starts with something like taking a pencil in school. When we were growing up we were told “It is a sin to steal a pin, much more to steal a greater thing”. Where have those days gone? The principle was good. You were taught not to interfere with or abuse other people's property. Why is society so abusive today? That is the big question and we need more research into the causes of crime.
It is sad to see children as young as eight, ten and 11 years involved in crime, breaking into cars and engaged in hooliganism of all sorts. What will they be like when they are 20 or 21? I heard a story about a top criminal — they were all Americans in those days — he could raid any place, break in anywhere and he was an expert pickpocket. When he decided to get married he wanted to meet someone as good as himself. He eventually did and when their first child was being born they engaged the most expensive maternity nurse available and she had some valuable gold rings. When the child was born its right hand was closed and could not be opened. He was taken to  hospital, had his hand opened and one of the rings from the midwife's finger was found in it. That may be a far-fetched story but we are not too far from that situation here today. So many young children are committing so much serious crime that we will have to get to grips with this pathetic situation.
A few years ago one could do one's shopping around the streets of this city, every window was lit up and nobody heeded you. Now every window is sealed with shutters and it is not safe to walk down the street. Why in about 20 or 25 years has this change taken place? We must try to put an end to this. No laws will solve this crime problem because the criminal always seems to be ahead. We seem to react to situations rather than ask the causes. All our laws are formulated in reaction to events. One is only following the criminal and we must ensure that the criminal does not get too far ahead.
We need to research causes in order to put an end to crime. It is said that it would be preferable to open more nurseries and put children into school at a younger age in order to train them. The implications there is that the home environment is not adequate and that if children were in school at a young age it might be possible to educate them towards a realisation of their social obligations.
The other evening I saw a garda put two boys of about eight or ten years into a car and another young fellow came up and said: “You think you are a hard man, garda,” — I will not finish what he said after that. There was a garda in my town at one time, and I know the medicine he would have given them and they would not have come back for more. Perhaps we are getting too soft. We have had a serious case in which boats were slashed and many lives lost. A report in the newspaper the other day said that the man who slashed the boats acts irresponsibly when drunk. Are we getting too soft? Is it time the Isle of Man regulations were brought into this country? They might save us a lot of money and make for a  better society. Something needs to be done because we are now arriving at a situation where people become criminals in the cradle. Any society where young people get on the criminal bandwagon at the ages of seven and eight, is heading for a situation which no law will be able to contain in another ten or 20 years time. While I welcome this Bill, I ask the Minister to take on board what Senator Ryan has said.
Computer crime seems to be the crime of the day, the in thing at the moment and we must enact rules, regulations and deterrents to stop that. It is far too easy now. Huge amounts of money are transferred in and out of accounts by computer; no money ever changes hands. Companies can become bankrupt as a result of this. That serious crime must be stopped. Crime starts with simple things, like taking a pencil in school; goes from one thing to another and eventually we have expert hardened criminals. When I hear people talking about a lack of education, I wonder if these people are unintelligent. They might not have book knowledge, but young lads or girls of ten and 11 years who can pick a car lock, get in, drive it and ram a Garda car are not unintelligent.
They are not uneducated. Perhaps we misinterpret education when we take it to be the capacity to read the paper, write an address on an envelope or write a letter. There is another side to it. Perhaps these children are very intelligent and we should direct that intelligence into something progressive which would be an addition and an advantage to our society. Some initiative of that nature is necessary if we are to get the country back to what it was before we had to bring in all these laws, which are just a reaction to a bad situation. I ask the Minister to see what can be done in that regard.
Sitting suspended at 1.5 p.m. and resumed at 2 p.m.
Mr. Kennedy Mr. Kennedy
 Mr. Kennedy: It was Peregrine Worsthorne who said:
A ridiculously oversimplified misreading of history manages to present all human progress in terms of a battle between freedom which is assumed to be good, and prohibition which is assumed to be bad. In fact, of course, civilisation owes quite as much to those who limit freedom, as to those who expand it.
It is in the context of that quotation that I would like to welcome the main provisions of this Bill, the Criminal Damage Bill, 1990, the main purpose of which is to protect the owners of property from damage or destruction of their property. Several centuries ago the only common law offence for damage to property was arson, and arson was confined to the wilful and malicious burning of a dwelling house. A number of statutes imposed criminal liability for the burning of other buildings and things. The law was finally consolidated for both England and Ireland with the passing of the Malicious Damage Act, 1861.
The 1861 Act created specific offences involving damage to real or personal property of a public or private nature caused by acts done “unlawfully and maliciously”, and ranging from setting fire to a church or chapel to sending letters threatening to burn or destroy houses or other buildings. The English Law Commission reported on this subject in 1970 in a report entitled “The Report on Offences of Damage to Property”. They viewed the 1861 Act as most unsatisfactory because of the multiplicity and overlapping of offences and the variety of penalties. From that report of 1970 flowed the English Criminal Damage Act, 1971. Our own Law Reform Commission, under the chairmanship of Mr. Justice Ronan Keane, a judge of the High Court, reported on the matter in September 1988 in a report entitled “Malicious Damage”. Our Law Reform Commission generously, in my view, acknowledged that the United Kingdom Criminal Damage Act, 1971, is a model of simplicity and they considered that the  sensible approach was to use the English Act of 1971 as a model for reform while, at the same time, subjecting it to close critical scrutiny.
I believe, however, that it is to be regretted that both the Minister for Justice and the Minister of State have failed to acknowledge the undoubted assistance of the British legislation and the report of the English Law Commission when introducing the Bill both in the Dáil and in the Seanad, even though many of the provisions of this Bill are copied verbatim from the British legislation.
This Bill contains four main offences and two ancilliary offences. The four main offences may be called for short first, the basic offence of causing damage to property belonging to another — section 2 (1); second, the aggravated offence of causing damage to property belonging to another and intending by the damage to endanger the life of another or being reckless as to whether the life of another would be thereby endangered — section 2 (2); third, the offence of causing damage to the property of another with intent to defraud — section 2 (3); and fourth, the offence of arson where the offence is one of causing damage to property belonging to another by fire — section 2 (4). The two subsidiary offences are (1) threats to damage property — section 3; and (2) possessing anything with intent to damage property — section 4.
The basic offence of causing damage to property is defined in section 2 (1). Section 2 (1) provides that
A person who without lawful excuse damages any property belonging to another intending to damage any such property or being reckless as to whether any such property would be damaged shall be guilty of an offence.
To damage is comprehensively defined in section 1 (1) of this Bill and it includes destruction, defacing and dismantling; it also includes the unauthorised modification of automated data. The  expression “destroy or damage” was commonly used in the Malicious Damage Act, 1861, and it would seem that previous decisions on the meaning of these words, though no longer binding, will retain a persuasive value. The definition of damage in the Bill clearly contemplates actual damage, that is, some physical harm, impairment or deterioration which can be perceived by the senses. It is for that reason that intangible property is excluded from the definition of property in section 1 (1).
It is not enough to show that what has been done amounts to a civil wrong, as for example in the case of a trespass to land or goods for neither requires proof of actual damage. In Eley v. Lytle in 1885 the court held that the defendant was guilty of no offence when, during a game of football, he ran over the plaintiff's land and the only evidence of actual damage was that he had committed a trespass. It seems that the same result, indeed, would follow from the passage of this legislation.
However, the actual damage itself need only be slight, for example, grass can be damaged by tramping it down as in the case of Gayford v. Choulder in 1898, and it is easily and rapidly damaged by football and other games. A thing may be damaged though nothing is actually broken or deformed. A motor car is damaged just as much by the uncoupling of a brake cable as by cutting it with a pair of pliers. Displacing the parts of a machine in order to render it temporarily useless amounts to damaging it even though the parts themselves are not damaged. In R. v. Fisher in 1865 the defendant plugged up the feed pipe of an engine and interfered with it in such a way as to render it temporarily useless and liable to cause an explosion unless the obstruction was removed. The court in that case unanimously held that the defendant had been properly convicted of damaging the engine with intent to render it useless within the meaning of section 15 of the Malicious Damage Act, 1861. A thing  may be damaged though there is no significant interference with its performance if it has been made less valuable.
The releasing of breeding mink from their cages where their value was reduced, although they were recovered and were not physically damaged, was held to cause damage by the Supreme Court in the case of Rexi Irish Mink Ltd. v. Dublin County Council in 1972. Food and drink are damaged if they are spoiled for example, if milk is watered as in the case of Roper v. Knott in 1898. Different things may be damaged in different ways. In Samuels v. Stubbs in 1972 Walters J. stated:
It seems to me that it is difficult to lay down any very general and, at the same time, precise and absolute rule as to what constitutes damage. One must be guided in great extent by the circumstances of each case, the nature of the article and the mode in which it is affected or treated. It is in my view, however, that the word is sufficiently wide in its meaning to embrace injury, mischief or harm done to property, and that in order to constitute damage it is unnecessary to establish such definite and actual damage as renders the property useless, or prevents it from serving its normal function.
In that case the court held that the temporary functional derangement of a policeman's cap resulting from it being jumped upon constituted damage. The use of the word “damage” in the English Criminal Damage Act, 1971 has been the subject of some degree of judicial analysis in the United Kingdom. Thus, “graffiti”, for example, has been held capable of constituting damage within the meaning of section 1 of the 1971 Act.
In the case of Roe v. Kingerlee, 1986, the defendant smeared graffiti on the wall of a police cell which cost £7 to clean. The Divisional Court held that the justices had been wrong in taking the view that what occurred could not, as a matter  of law, amount to criminal damage. They stated:
What constitutes criminal damage is a matter of fact and degree, and it is for the justices, applying their common sense, to decide whether what occurred was damage or not. It is not necessary that the damage should be permanent before an act can constitute criminal damage. The application of graffiti to a structure will not necessarily amount to causing damage. That must be a question of fact and degree for the tribunal of fact.
However, having regard to the extent of the damage, the Divisional Court in that case considered that no order should be made in respect of the appeal. The difficulty in determining when an interference with property is sufficiently substantial to be designated damage is well illustrated by the Crown Court case by A. (a juvenile) v. R., 1978. In that case it was held that a conviction of criminal damage was improper for lack of proof of damage, where the defendant, the appellant in this case, had spit at the back of a uniformed police sergeant, the spittle landing on his raincoat. When removed with a tissue some time later it left a faint mark.
The court held, per Judge Streeter in that case, that when interpreting the word “damage” the court must consider the use of an ordinary English word. Spitting at a garment could be an act capable of causing damage. However, one had to consider the specific garment which had been allegedly damaged. If someone spat upon a satin wedding dress, for example, any attempt to remove the spittle might in itself leave a mark or stain. The court would find no difficulty in saying that an article had been rendered imperfect if after a reasonable attempt at cleaning a stain remained. An article might also have been rendered inoperative if, as a result of what happened, it had been taken to dry cleaners. However, in the  present case no attempt had been made, even with soap and water, to clean the raincoat which was a service raincoat designed to resist the elements. Consequently, there was no likelihood that if wiped with a damp cloth, the first and obvious remedy, there would be any trace or mark remaining on the raincoat requiring further cleaning. Furthermore, the raincoat was not rendered inoperative. If it was inoperative it was solely on account on being kept as an exhibit. Thus, in the view of the court in that particular case nothing occurred which could be described as damage. A charge of assault might well have been appropriate in that case but this was not a point which the court was called upon to decide.
Henderson v. Battley, 1984, is another case which illustrates the difficulties that can arise in this matter. In that case the English Court of Appeal held that:
The unauthorised dumping of waste on a cleared building site constituted damage, because the site's usefulness was impaired, and work and expenditure was required to restore it to its former state.
In relation to that case, Professor Smith in an article in the Criminal Law Review of 1986 states:
If the land had not been intended for use as a building site, it is possible that the result might indeed have been different. In so far as the conclusion that the effect constitutes “damage” depends on the purpose for which the property is to be used, it would seem that the defendant must have known that, or been reckless whether the owner had that purpose in mind; for he must be proved to have intended that, or been reckless whether damage be caused.
Advances in technology can also result in new applications of the concept of damage. In Cox v. Riley, 1986, the erasure of programmes from a plastic circuit  card used to operate a computer saw was held to fall within the scope of section 11 of the Criminal Damage Act, 1971 in the UK because the card was undoubtedly “property” of a tangible nature within section 10 (1) of that legislation, and the erasure of the programmes constituted damage.
The Law Reform Commission in their report considered how the notion of property should be defined in the legislation. They considered that the Malicious Damage Act, 1861 marshalled a bewildering array of specific types of property as well as including residual generic provisions. It seemed to them preferable, therefore, to adopt a simple generic definition of “property”. Thus, section 11 of this Bill provides that property means:
(a) Property of a tangible nature, whether real or personal, including money and animals that are capable of being stolen, and
While there is a substantial measure of correspondence between the definitions of property for the purpose of the Theft Act and this Bill, there are indeed two significant differences. First, land which in general cannot be stolen may indeed be the subject of criminal damage. Secondly, while intangible property has been brought within the subject of the Theft Act, it is excluded from the definition of “property” for the purposes of the Criminal Damage Act. The provisions of the Bill are confined to “property” belonging to another and do not penalise the anti-social destruction of one's own property; thus, the prosecution must in each case establish that the property belonged to another.
In R. v. Denton, 1981 the Court of Appeal in the United Kingdom allowed the defendant's appeal against conviction under section 1 (1) of the Criminal Damage Act, 1971 holding that:
 It is not an offence under the Criminal Damage Act, 1971 for a person to damage, injure or destroy or set fire to his own premises.
Section 1 (2) of this Bill provides that property shall be treated for the purposes of the Act as belonging to any person:
(a) having lawful custody or control over it,
(b) having in it a proprietary right or interest not being an equitable interest arising only from an agreement to transfer or grant an interest, or
(c) having a charge over it.
Thus, the Bill provides that the custody of another person is equivalent to ownership and so a landlord commits an offence under this Bill if he sets fire to his tenant's house. Several excuses for damaging the property of another are recognised in the general law. For example, a landowner or occupier, and probably a licensee, may eject trespassing property, notwithstanding that this may inevitably involve some damage to the property, as where he demolishes, for example, a shed that has been placed on his land by way of trespass. A person may abate a nuisance by removing any unlawful obstruction to a public or private right of way. Property may be damaged if it is in a situation of necessity and, of course, it may be damaged with the consent of the owner.
In addition, in order to commit an offence of criminal damage under this Bill the defendant's damage to the property of another must be without lawful excuse. Section 6 (2) specifies two particular types of lawful excuse for the purposes of the Bill. They are: (1) a belief in consent governed by section 6 (2) (a) and 6 (2) (b) of the Bill and (2) a belief in defence which is covered by section 6 (2) (c). Section 6 (3) provides that for the purposes of section 6 it is immaterial whether a belief is justified or not, if it is honestly held.
The question of lawful excuse under  section 5 (2) (a) of the Criminal Damage Act, 1971 or section 6 (2) (a) of this Bill was considered in two recent cases, which are of some importance both for the legislation in the United Kingdom and for the legislation here.
In the case of Jaggard v. Dickenson in 1980 the defendant had broken a window in a house which belonged to X, under the honest but mistaken belief that the house was that of a friend at which the defendant was staying. The defendant broke the window trying to enter the house while intoxicated. The defendant sought to rely on the statutory defence under section 5 (2) (a) of the 1971 Act.
The significance of this case rests on the point that the defendant's mistaken belief was caused by self-induced intoxication. Since self-induced intoxication is, it is believed, no defence under section 1 (1) of the Criminal Damage Act, 1971, the offence being one of basic intent, the question arose, could the defendant rely on the statutory defence under section 5 (2) (a) of the 1971 Act where his belief was induced by intoxication? The Divisional Court held that the section 5 (2) (a) defence was applicable because the defence was one of honest belief and the origin of such belief was immaterial. Equally, the reasonableness of such a belief is immaterial — section 5 (3) of the 1971 Act and section 6 (3) of this Bill.
The Minister will see that I am making this comparison between the Irish legislation and the English legislation as I move along because the Bill is a verbatim copy in almost 90 per cent of the English legislation.
In R. v. Denton in 1981 the defendant sought to rely upon the defence again embodied in section 5 (2) (a) of the 1971 Act. He had set light to industrial machinery at his place of work upon the request of his employer, who owned the machinery. His employer stood to benefit if the premises were destroyed because the business of the employer was in a difficult financial position which might,  of course, be obviated by the use of insurance moneys received for the destruction of the equipment. The court of appeal, however, in this case allowed the defendant's appeal against conviction stating that since the employer was the owner of the property and had, in fact, consented to the property's destruction by the defendant, no offence had been committed by the defendant. Chief Justice Lord Lane observed in that case that:
One had to decide whether an offence was committed at the moment when the acts were done, which were alleged to constitute it. The fact that someone had a dishonest intent which in the end he was going to carry out could turn what was originally not a crime into a crime.
The mental element or mens rea required for an offence under section 2 of this Bill is an intention to cause damage to property belonging to another or being reckless as to whether such damage is caused by one's actions. Professor Cecil Turner of Cambridge University in the revised sixteenth edition of Professor Kenny's book, Kenny's Outlines of Criminal Law, makes the point that so many have been the variations of meaning in which, during the course of centuries, the words “malice” and “maliciously” have been used in the law that it is difficult in the crime of malicious damage to find judicial authority for an exact definition of the word “maliciously”.
Professor Turner observes that in an endeavour to bring clarity into this matter Professor Kenny in the first edition of his book in 1902 propounded a principle which he considers has held its position without successful attack ever since. He was, of course, writing in 1952 but the suggestion is, and the suggestion of the Minister particularly in the other House is, that that definition retains its validity equally today. It is that in any statutory definition of crime, malice must be taken not in the old sense of wickedness in  general but as requiring either firstly, an actual intention to do the particular kind of harm that was done or, secondly, recklessness as to whether such harm should occur or not, that is, the accused has foreseen that a particular kind of harm might be done and yet has gone on to risk it.
This principle is well illustrated by the case of R v. Pembleton in 1874. In that particular case the defendant successfully appealed against conviction under section 5 (1) of the Malicious Damage Act, 1861, for unlawfully and maliciously breaking a window. The defendant had been involved in a quarrel in a public house and after the whole party had been ejected, the fight continued in the street. The defendant broke away and from the other side of the street threw a stone at his opponents which missed them and broke a window in the public house. The jury found as a fact that the defendant had not intended to break the window but nevertheless they proceeded to convict him. The Court for Crown cases, however, quashed the conviction and stated:
The jury might have found on this evidence that he was reckless whether he did it or not; but the jury have not so found.
However, so long as the particular kind of harm intended or risked was done, it makes no difference that it fell upon a different object or person than that on which it was expected to fall — R v. Latimer in 1886.
The Irish case of R v. Faulkner in 1877 was decided on the footing that the defendant did not foresee that what he was doing might result in the kind of harm which he brought about. In that case the defendant was a sailor who, while concentrating on a theft of rum, held in his hand a lighted match which ignited the rum and so caused the destruction of the entire ship. The Court for Crown cases reserved in Ireland quashed his conviction and followed the  principle as propounded in R. v. Pembleton (1874).
The Irish Law Commission in their report on receiving stolen property recommended that the mens rea for the offence of handling unlawfully obtained property should be based on recklessness but that the recklessness should be specifically defined as subjective recklessness. They proposed that the formulation from the tentative draft of the model penal code approved by Justice Henchy in his judgment in the Murray case in 1977 should be adopted. That briefly is: “A person acts recklessly with respect to a material element of an offence when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the act as conducted in the circumstances known to him, his disregard involves culpability of high degree.” They recommended, therefore, the adoption of the same formula for offences relating to criminal damage. They see an advantage in maintaining a common approach to the question of mens rea in relation to criminal offences generally unless there are special circumstances having regard to the particular offence under consideration which would require that they adopt a different approach.
The Government — and the Minister for Justice clearly indicated this in the Dáil — have taken the view that pending the adoption of a common standard of recklessness under the general common law, it would be better to retain the traditional formula as propounded by Professor Courtney Stanhope Kenny as far back as 1902. This Bill also deals with such important matters as the making of compensation orders, arrest without warrant and search warrants. These are all very important matters and are better teased out on Committee Stage.
Finally, I welcome, in the main, the provisions of the Bill which seek to deal  with the problem of computer misuse by what is called hacking, whether this be insider or outsider hacking. After what has been said here today, the Minister and his officials should have a look at this. I know that some of the things that were said by Senators could be described as perhaps rather extravagant but on the other hand, there was a crucial line of argument running through a lot of what was said in regard to the definition of data and so on. I would suggest to the Minister that perhaps the next Stages of this Bill, both Committee Stage and the remaining Stages of the Bill, could be perhaps deferred until after the Christmas recess.
I would like to welcome the Bill. As I said, I was disappointed that neither the Minister of State nor the Minister for Justice in either House took the opportunity to say how helpful they found the British legislation, almost all of which they have copied, but at least the Irish Law Commission, under the chairmanship of Justice Ronan Keane, had acknowledged that this legislation is a model of simplicity and indeed a model for reform. I would like to welcome the main provisions of this Bill and I hope it has a speedy and constructive passage through the House.
Mr. Cosgrave Mr. Cosgrave
Mr. Cosgrave: First, I welcome the opportunity to contribute briefly on this Bill. I would like also to welcome the Minister to the House. I compliment the previous speaker on a very detailed and well researched contribution. There is no doubt that, if any tribunal is appointed in the not too distant future in relation to this area, Senator Kennedy will be in demand at such a tribunal.
Obviously, this new legislation is long overdue. The Minister himself acknowledged that. I suppose there must be something wrong with how we do our business here when we are reviewing Acts that are 130 years in existence. It has long been my contention that legislation  should come up for periodic review on a much more frequent basis, that it should be a matter of course for legislation to be examined, reviewed and, where necessary, changed. Be that as it may, I am glad that we now have this Bill before the House.
There are certain provisions I especially welcome, particularly those dealing with the whole question of compensation. Any crime concerning damage to property affects someone to some extent: it costs people, whether it is in relation to their welfare, to lives being put at risk or in simple monetary terms in relation to loss. That is why it is important that the message should go out that we care about the victims of crime. Although there may be a reaction by Ministers and others of us here in relation to the rights of victims, not enough is done to ensure that those who are the victims of crime are compensated.
This Bill comes to us on the basis of the Law Reform Commission's report. We should all be grateful to the Law Reform Commission for their many reports and the work they have done. It is important that this new legislation, which provides for three new offences in relation to property, be adequately discussed here and, if necessary, amendments made. However, I think the legislation could have gone further in relation to compensation for damage caused to property. The State owes compensation to those who suffer damage. While I very much welcome the sections dealing with compensation where the courts can make orders, I would like the Minister, when replying, to confirm that there will be attachment, whether it is people on unemployment assistance or people in employment, that no matter how small the amount or how long the period, that money will have to be paid back over time and that a compensation order can be made.
Far too often it is the innocent people who suffer and who are not compensated. I know many members of the Judiciary  are now looking more and more to try to compensate people who have suffered in relation to crimes and to criminal damage. It should be made a mandatory procedure by members of the Judiciary, because our first duty should be to try to protect citizens, protect their property, and to try as far as possible to restore the damage done. We should try to compensate in some monetary way, even if only by part payment, because often the reality is that the people who carry out these deeds and damage are not a good mark. In other words, you are only throwing good money after bad if you institute proceedings. However, if a court made it mandatory that a person would have some money back, whether it is over 20, 30 or 40 years or whether it is a couple of pounds a week or month, at least it would be known that those who wilfully damage property will be punished.
I welcome the terms of the legislation. I am somewhat disappointed that the Minister has not been able to come up with some form of compensation in relation to damage to property. It was a mistake to do away with malicious damages and with the criminal injuries compensation fund because there are people who have suffered, whether personally or because of damage to their property, and who have never been compensated. For far too long the rights of criminals have been given top billing while there has been no reaction to the rights of victims. I welcome in general terms the thrust of the Bill. It is long overdue. I hope we can further discuss it on Committee Stage.
Minister of State at the Department of Tourism, Transport and Communications (Mr. Lyons) Minister of State at the Department of Tourism, Transport and Communications (Mr. Lyons)
Minister of State at the Department of Tourism, Transport and Communications (Mr. Lyons): Ar an gcéad dul síos ní mór dom mo bhuíochas a ghabháil leis na Seanadóirí a labhair ar an Dara Céim don Bhille seo.
I want to especially thank the Members in the House for the thoughtful and constructive approach they have adopted to this Bill. I should say at the beginning  that the suggestions that have been made will be given careful consideration before Committee Stage so far as they relate to this Bill and in the law division of the Department of Justice in so far as they relate to other matters not relevant to this Bill but nevertheless raised by the Members. It is only fair that when such points are made they get the consideration they deserve. I will ensure that will be done.
I want to thank Senator Neville for the welcome he gave to the Bill. He would like the compensation provisions to be extended to all offences and I fully agree with him. The victims of larceny, for example, deserve the same treatment in the matter of compensation as that provided by the Bill for victims of vandalism. Of course at present the courts in practice try to ensure that compensation is paid by postponing a decision until compensation is paid, but this is no substitute for having a statutory procedure that ensures that the courts have specific and adequate powers in this regard. This is one of a number of items that will be taken up when the legislation set out in the Government's programme has been passed into law. I refer to the projected legislation on the confiscation of proceeds of crime and the legislation updating our system of juvenile justice.
With regard to white collar crime, mentioned in the debate, the Minister for Justice will be circulating very shortly a criminal evidence Bill which will make all business or administrative documents admissible in evidence subject to safeguards. These documents include computer printouts. Enactment of this Bill will fill a gap in our law of evidence that is long overdue.
It is not correct to suggest that the definition of recklessness in section 2 (6) leads to uncertainty. The definition fully accords with the interpretation our courts have put on the concept of recklessness over the years. That is the subjective interpretation. In other words, a person will not be regarded as reckless until he  or she has forseen that the damage in question might be done and yet has gone on to take the risk of it. It will be for the court or the jury to decide whether to believe what the accused person says. If he or she is of normal intelligence, it will be hard to persuade them that he or she did not foresee the risks of damage.
I would like particularly to compliment Senators O'Donovan and Kennedy for their careful analyses of the various provisions of the Bill and of the implications they see in the Bill. I am prompted to use an old phrase that I use fairly often “Experience bought is better than experience taught”. We have the benefit of these two professional people and I welcome their contributions and analyses.
Senator Costello advocated the repeal and updating of the criminal statutes which preceded the foundation of the State. We would all agree. However, it will be a formidable task, but that is no reason it should not be undertaken. I regard this Bill as a step along that road and I look forward to more Bills of this nature emanating from the Law Reform Commission.
The Government share the view that the problem of vandalism can only be tackled in a comprehensive manner. This is evidenced from their response in the recent incidents of vandalism that attracted a great deal of attention.
Senator Brendan Ryan and Senator Costello suggested that the Bill made anything to do with computers an offence, that switching on a computer was an offence unless there was an lawful excuse and so on. I respect their views, but I think they went a little overboard in that respect. The best time to tease out the implications of section 5 is on Committee Stage. However, I should like to make a few comments now.
Hacking is an anti-social activity and has to be described as such. It puts at risk the integrity of the computer systems and makes it necessary for organisations to spend large sums of money improving the  security of their systems and protecting the confidentiality of the information they contain. While it may be engaged in as a diversion by young people, who find it a challenge to penetrate computers and the computer system, it can cause damage and there is always the possible risk to life. There is no disagreement about the need to criminalise hacking and to change the climate of opinion by removing the present aura of harmless fun and intellectual ingenuity that surrounds it.
As regards the wording of the provisions themselves, we can come back to this aspect in detail on Committee and remaining Stages. However, I want to make a few points clear now. We are only concerned here with the unauthorised access to data. Also excluded is unauthorised but accidental access to data, as could happen, say, where an employee misunderstands the level of his authority to access particular data. There is no presumption in the Bill that an employee who operates a computer has not got the proper authority to do so from his employer. There is such a presumption in the Bill, but it is specifically excluded in the case of an employee or an agent. It will only apply where a person accessing the data has no legitimate connection with the firm whose data he is accessing. If an employer wants to prosecute an employee for unauthorised accessing, he must establish to the satisfaction of the court that the employee did not have the necessary authority. Of course, the investigation of unauthorised accessing of data will give rise to certain special features, and detection and prosecution may be difficult, but that is no reason to desist from the legislation. It is an unfortunate fact of life that the same can be said of any types of crime.
I have dealt briefly in my response to the Second Stage debate with some of the points raised. However, I do not know whether Committee Stage will be taken this session or the next; that will be subject to the agreement of the Whips —  and they do not always agree — but we will have an opportunity on the remaining Stages to tease out, line by line, some of the aspects members have mentioned on Second Stage. That is why I have dealt with only some of the points made in the debate.
However, I want again to assure the House that all the points made and suggestions put forward will be carefully considered between now and Committee Stage.
Question put and agreed to.
Committee Stage ordered for Tuesday, 17 December 1991, subject to agreement by the Whips.
An Leas-Chathaoirleach An Leas-Chathaoirleach
An Leas-Chathaoirleach: When is it proposed to sit again?
Mr. Fitzgerald Mr. Fitzgerald
Mr. Fitzgerald: We are adjourning until 2.30 p.m. on Tuesday, 17 December 1991.
Seanad Éireann 130 Criminal Damage Bill, 1990: Second Stage.