1.—(1) In this Act—

“compensation order” has the meaning assigned to it by section 9 (1);

“to damage” includes—

(a) in relation to property other than data (but including a storage medium in which data are kept), to destroy, deface, dismantle or, whether temporarily or otherwise, render inoperable or unfit for use or prevent or impair the operation of,

(b) in relation to data—

(i) to add to, alter, corrupt, erase or move to another storage medium or to a different location in the storage medium in which they are kept (whether or not property other than data is damaged thereby), or

(ii) to do any act that contributes towards causing such addition, alteration, corruption, erasure or movement,

(c) to do any act within the State that damages property outside the State,

(d) to do any act outside the State that damages property within the State, and

(e) to make an omission causing damage,

and cognate words shall be construed accordingly;

“data” means information in a form in which it can be accessed by means of a computer and includes a program;

“property” means—

(a) property of a tangible nature, whether real or personal, including money and animals that are capable of being stolen, and

(b) data.

(2) Property shall be treated for the purposes of this Act as belonging to any person—

(a) having lawful custody or control of it,

(b) having in it any 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.

(3) Where, as respects an offence under section 2, 3 (a) or 4 (a)—

(a) the property concerned is a family home within the meaning of the Family Home Protection Act, 1976, F1[or a dwelling, within the meaning of section 2 (2) of the Family Home Protection Act, 1976, as amended by section 54 (1) (a) of the Family Law Act, 1995, in which a person, who is a party to a marriage that has been dissolved under the Family Law (Divorce) Act, 1996, or under the law of a country or jurisdiction other than the State, being a divorce that is entitled to be recognised as valid in the State, ordinarily resided with his or her former spouse, before the dissolution] and

(b) the person charged—

F2[(i) is the spouse of a person who resides, or is entitled to reside, in the home or is a party to a marriage that has been dissolved under the Family Law (Divorce) Act, 1996, or under the law of a country or jurisdiction other than the State, being a divorce that is entitled to be recognised as valid in the State, and]

(ii) is the subject of a protection order or barring order (within the meaning in each case of the Family Law (Protection of Spouses and Children) Act, 1981) or is excluded from the home pursuant to an order under section 16 (a) of the Judicial Separation and Family Law Reform Act, 1989, or any other order of a court,

sections 2, 3 (a) and 4 (a) shall have effect as if the references therein to any property belonging to another, however expressed, were references to the home.

F3[(3A) A reference to any property belonging to another, however expressed, shall be construed as a reference to a shared home as respects an offence under section 2, 3(a) or 4(a) if—

(a) the property is either a shared home or a dwelling, within the meaning of section 27 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, in which a person who was a civil partner in a civil partnership that has been dissolved under that Act ordinarily resided with his or her former civil partner before the dissolution, and

(b) the person charged—

(i) is the civil partner, or was the civil partner until the dissolution of their civil partnership, of a person who resides, or is entitled to reside, in the home, and

(ii) is the subject of a protection order or barring order or is excluded from the home pursuant to an order under the Domestic Violence Act 1996 as amended by Part 9 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 or another order of a court. ]

(4) Where property is subject to a trust, the persons to whom the property belongs shall be treated for the purposes of this Act as including any person having a right to enforce the trust.

(5) Property of a corporation sole shall be treated for the purposes of this Act as belonging to the corporation notwithstanding a vacancy in it.

(6) In this Act—

(a) a reference to any enactment shall, unless the context otherwise requires, be construed as a reference to that enactment as amended or extended by or under any subsequent enactment including this Act,

(b) a reference to a section is a reference to a section of this Act unless it is indicated that reference to some other enactment is intended,

(c) a reference to a subsection, paragraph or subparagraph is a reference to the subsection, paragraph or subparagraph of the provision in which the reference occurs unless it is indicated that reference to some other provision is intended.

2.—(1) 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.

(2) A person who without lawful excuse damages any property, whether belonging to himself or another—

(a) intending to damage any property or being reckless as to whether any property would be damaged, and

(b) intending by the damage to endanger the life of another or being reckless as to whether the life of another would be thereby endangered,

shall be guilty of an offence.

(3) A person who damages any property, whether belonging to himself or another, with intent to defraud shall be guilty of an offence.

(4) An offence committed under this section by damaging property by fire shall be charged as arson.

(5) A person guilty of an offence under this section shall be liable—

(a) on summary conviction, to a fine not exceeding £1,000 or imprisonment for a term not exceeding 12 months or both, and

(b) on conviction on indictment—

(i) in case the person is guilty of arson under subsection (1) or (3) or of an offence under subsection (2) (whether arson or not), to a fine or imprisonment for life or both, and

(ii) in case the person is guilty of any other offence under this section, to a fine not exceeding £10,000 or imprisonment for a term not exceeding 10 years or both.

(6) For the purposes of this section a person is reckless if he has foreseen that the particular kind of damage that in fact was done might be done and yet has gone on to take the risk of it.

3.—A person who without lawful excuse makes to another a threat, intending that that other would fear it would be carried out—

(a) to damage any property belonging to that other or a third person, or

(b) to damage his own property in a way which he knows is likely to endanger the life of that other or a third person,

shall be guilty of an offence and shall be liable—

(i) on summary conviction, to a fine not exceeding £1,000 or imprisonment for a term not exceeding 12 months or both, and

(ii) on conviction on indictment, to a fine not exceeding £10,000 or imprisonment for a term not exceeding 10 years or both.

4.—A person (in this section referred to as the possessor) who has any thing in his custody or under his control intending without lawful excuse to use it or cause or permit another to use it—

(a) to damage any property belonging to some other person, or

(b) to damage his own or the intended user’s property—

(i) in a way which he knows is likely to endanger the life of a person other than the possessor, or

(ii) with intent to defraud,

shall be guilty of an offence and shall be liable—

(A) on summary conviction, to a fine not exceeding £1,000 or imprisonment for a term not exceeding 12 months or both, and

(B) on conviction on indictment, to a fine not exceeding £10,000 or imprisonment for a term not exceeding 10 years or both.

5.—(1) A person who without lawful excuse operates a computer—

(a) within the State with intent to access any data kept either within or outside 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 and shall be liable on summary conviction to a fine not exceeding £500 or imprisonment for a term not exceeding 3 months or both.

(2) 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.

6.—(1) This section applies to—

(a) any offence under section 2 (1) or 5,

(b) any offence under section 3 other than one involving a threat by the person charged to damage property in a way which he knows is likely to endanger the life of another, and

(c) any offence under section 4 other than one involving an intent by the person charged to use, or cause or permit the use of, something in his custody or under his control to damage property in such a way as aforesaid.

(2) A person charged with an offence to which this section applies shall, whether or not he would be treated for the purposes of this Act as having a lawful excuse apart from this subsection, be treated for those purposes as having a lawful excuse—

(a) if at the time of the act or acts alleged to constitute the offence he believed that the person or persons whom he believed to be entitled to consent to or authorise the damage to (or, in the case of an offence under section 5, the accessing of) the property in question had consented, or would have consented to or authorised it if he or they had known of the damage or the accessing and its circumstances,

(b) in the case of an offence under section 5, if he is himself the person entitled to consent to or authorise accessing of the data concerned, or

F4[(c) if he damaged or threatened to damage the property in question or, in the case of an offence under section 4, intended to use or cause or permit the use of something to damage it, in order to protect himself or another or property belonging to himself or another or a right or interest in property which was or which he believed to be vested in himself or another and the act or acts alleged to constitute the offence were reasonable in the circumstances as he believed them to be.]

(3) For the purposes of this section it is immaterial whether a belief is justified or not if it is honestly held.

(4) For the purposes of subsection (2) a right or interest in property includes any right or privilege in or over land, whether created by grant, licence or otherwise.

(5) This section shall not be construed as casting doubt on any defence recognised by law as a defence to criminal charges.

7.—(1) Proceedings for an offence under section 2 or 5 alleged to have been committed by a person outside the State in relation to data kept within the State or other property so situate may be taken, and the offence may for all incidental purposes be treated as having been committed, in any place in the State.

(2) (a) Where a person is charged with an offence under section 2, 3 or 4 in relation to property belonging to another—

(i) it shall not be necessary to name the person to whom the property belongs, and

(ii) it shall be presumed, until the contrary is shown, that the property belongs to another.

(b) Where a person is charged with an offence under section 2 in relation to such property as aforesaid, it shall also be presumed, until the contrary is shown, that the person entitled to consent to or authorise the damage concerned had not consented to or authorised it, unless the property concerned is data and the person charged is an employee or agent of the person keeping the data.

(c) Paragraph (b) shall apply in relation to a person charged with an offence under section 5 as if the reference to damage were a reference to access and with any necessary modifications.

(3) A person charged with an offence under section 2 in relation to data or an attempt to commit such an offence may, if the evidence does not warrant a conviction for the offence charged but warrants a conviction for an offence under section 5, be found guilty of that offence.

8.—No rule of law ousting the jurisdiction of the District Court to try offences where a dispute of title to property is involved shall preclude that court from trying offences under this Act.

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12.—(1) This section applies to an offence under this Act other than section 5 or 13 (4).

(2) Any person may arrest without warrant anyone who is or whom he, with reasonable cause, suspects to be in the act of committing an offence to which this section applies.

(3) Where an offence to which this section applies has been committed, any person may arrest without warrant anyone who is or whom he, with reasonable cause, suspects to be guilty of the offence.

(4) Where a member of the Garda Síochána, with reasonable cause, suspects that an offence to which this section applies or an offence under section 13 (4) has been committed, he may arrest without warrant anyone whom he, with reasonable cause, suspects to be guilty of the offence.

(5) A member of the Garda Síochána may arrest without warrant anyone who is or whom he, with reasonable cause, suspects to be about to commit an offence to which this section applies.

(6) For the purpose of arresting a person under any power conferred by this section a member of the Garda Síochána may enter (if need be, by force) and search any place where that person is or where the member, with reasonable cause, suspects him to be.

(7) This section shall apply to an attempt to commit an offence as it applies to the commission of that offence.

(8) This section shall not prejudice any power of arrest conferred by law apart from this section.

13.—(1) If a judge of the District Court is satisfied by information on oath of a member of the Garda Síochána that there is reasonable cause to believe that any person has in his custody or under his control or on his premises any thing and that it has been used, or is intended for use, without lawful excuse—

(a) to damage property belonging to another,

(b) to damage any property in a way likely to endanger the life of another or with intent to defraud, or

(c) to access, or with intent to access, data,

the judge may issue a search warrant mentioned in subsection (2).

(2) A search warrant issued under this section shall be expressed and operate to authorise a named member of the Garda Síochána, accompanied by such other members of the Garda Síochána as may be necessary, at any time or times within one month of the date of issue of the warrant, to enter if need be by force the premises named in the warrant, to search the premises and any persons found therein, to seize and detain anything which he believes to have been used or to be intended for use as aforesaid and, if the property concerned is data or the search warrant has been issued on a ground referred to in subsection (1) (c), to operate, or cause to be operated by a person accompanying him for that purpose, any equipment in the premises for processing data, inspect any data found there and extract information therefrom, whether by the operation of such equipment or otherwise.

(3) The Police (Property) Act, 1897, shall apply to property which has come into the possession of the Garda Síochána under this section as it applies to property which has come into the possession of the Garda Síochána in the circumstances mentioned in that Act.

(4) A person who—

(a) obstructs or impedes a member of the Garda Síochána acting under the authority of a search warrant issued under this section, or

(b) is found on or at the premises specified in the warrant by a member of the Garda Síochána acting as aforesaid and who fails or refuses to give the member his name and address when required by the member to do so or gives him a name or address that is false or misleading,

shall be guilty of an offence and shall be liable on summary conviction—

(i) in the case of an offence under paragraph (a), to a fine not exceeding £1,000 or imprisonment not exceeding 12 months or both, and

(ii) in the case of an offence under paragraph (b), to a fine not exceeding £500.

14.—(1) The common law offence of arson is hereby abolished.

(2) The Malicious Damage Act, 1861, is hereby amended—

(a) by the substitution in section 37, for “Electric or Magnetic Telegraph”, of “telegraph (within the meaning of the Telegraph Acts, 1863 to 1916)”, and

(b) by the substitution—

(i) in section 40, for the words from “shall be liable” to the end of the section, and

(ii) in section 41, for the words from “shall, on conviction thereof” to the end of the section,

(3) The abolition by subsection (1) of the common law offence of arson shall not affect the operation of section 2 of, and paragraph 3 of the Schedule to, the Criminal Law (Jurisdiction) Act, 1976, and the repeal by section 15 of sections 1 to 7 of the Malicious Damage Act, 1861, shall not affect the operation of those sections for the purposes of the said section 2 and paragraph 6 of the said Schedule; and accordingly the said section 2 and the said Schedule shall have effect as if subsection (1) and section 15 had not been enacted.

(4) On the commencement of this subsection—

(a) subsection (3) shall cease to have effect,

(b) section 21 (2) of, and paragraph 3 of the Schedule to, the Criminal Law (Jurisdiction) Act, 1976, shall be repealed, and

(c) the following paragraphs shall be substituted for paragraph 6 of the said Schedule:—

15.—The Malicious Damage Act, 1861 (except sections 35 to 38, 40, 41, 47, 48, 58 and 72), is hereby repealed.

16.—(1) This Act may be cited as the Criminal Damage Act, 1991.

(2) This Act (except section 14 (4)) shall come into operation one month after the date of its passing.

(3) Section 14 (4) shall come into operation on such day as may be fixed therefor by order made by the Minister for Justice.