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CIA/E T N
JANUARY/FEBRUARY 1982
Criminal Injury
to Property
Impact of New Malicious Injuries Act
by
Professor Richard Woulfe, M.A., LL.B.,
Director of Education, Incorporated Law Society of Ireland
A
criminal injury application or malicious damage
application is a claim for money compensation
brought by the 'owner' of property which has been
damaged or destroyed, against the Council of the
County or the Corporation of the County Borough in
which the damage or destruction occurred. 'Owner' in
this context means a person having an insurable interest
in property and being responsible for making good that
property. 'Property' includes incorporeal hereditaments
and wild animals in captivity. The previous law has
been amended by and consolidated in the Malicious
Injuries Act 1981 which came into force on 6th
November, 1981.
Section 5 of the Act reads:-
(1) Where damage, the aggregate amount of which
exceeds one hundred pounds, is maliciously
caused to property, the person who suffers the
damage shall be entitled to obtain compensation
from the local authority in accordance with the
Act.
(2) For the purpose of subsection (i) damage shall be
taken to be maliciously caused only if caused:-
(a) by a wrongful act done intentionally without just
cause or excuse, or
(b) wantonly, or
(c) unlawfully by three or more persons unlawfully,
riotously or tumultuously assembled together, or
(d) in the course of, whether or not for the purpose of
the committing of a crime against the property
damaged
(3) Subsection (i) shall extend to damage to property
which is within any harbour or within one mile
beyond the coastal boundary of a local authority
area or which, having been unlawfully taken, is
removed from within any harbour or such one
mile.
(4) The right to compensation given by this section
shall be limited to compensation for the actual
damage caused and shall not extend to
compensation for any loss consequential on such
actual damage and, in particular, shall not extend
to compensation for the loss of the use of the
property damaged
DAMAGE:
'Damage' includes the total or partial destruction of
the property and any injury thereto. Save where the
unlawful taking of property during a riot comes within
the ambit of section 6, there is no compensation for
property stolen and found damaged
(Irwin
v
S/igo Co
Council
[1957] Irish Jurist Reports). Consequential loss
is not compensatable under section 5 (4) which restates
the previous law as exemplified in
Mogul of Ireland
v
Tipperary Co. Council
[1976] I.R. 260).
MALICE, CRIME, CAUSATION:
Section 5(2)(a) adopts the language of Bayley J
Bromage
v.
Prosser:"
Malice, in the common
acceptance of the term, means ill-will against a person;
but in its legal sense it means a wrongful act done
intentionally without just cause or excuse".
Kennedy C. J. in the
Artifical Coal Company and
Hamon
v.
Minister for Finance
[1928] I.R. quotes this
passage with approval and, at page 242, goes on:
"The applicant is somewhat in the position of a
prosecutor. He must prove that a crime has been
committed by some person or persons known or
unkown, for which the community is to be made liable
-that is to say, he must adduce such evidence as will
satisfy and convince the mind and conscience of the
judge, acting in the capacity of a jury, of the fact of the
alleged crime having been committed, though he is not
required to bring it home to any particular individual or
individuals.... The ratepayers can only be mulcted when
crime is established."
Normally the causing of the damage itself constitutes
the crime: here the Malicious Damage Act 1861 retains
its importance (especially the generic section 51) but
section 5(2)(d) of the new Act must be seen as a
significant widening of the compensation net.
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