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Dáil Éireann debate -
Thursday, 5 Oct 2000

Vol. 523 No. 3

Written Answers. - Right of Occupation.

Olivia Mitchell

Question:

18 Ms O. Mitchell asked the Minister for Justice, Equality and Law Reform the plans he has to bring forward legislation which would make trespassers, rather than land owners, responsible for establishing the right of occupation in view of the fact the current situation is unfair and very onerous for private land owners as in most cases the criminal law is neither applicable nor effective. [19270/00]

The present legal position in relation to trespass on land is that it is a civil wrong and, for the most part, falls to be addressed by means of civil remedy. In broad terms, that civil wrong may be defined as consisting of intentionally or negligently entering or remaining on, or directly causing anything to come into contact with, land in the possession of another without lawful justification. All of the elements I have just itemised are important in terms of establishing that the civil wrong has been committed.

I am aware from a parliamentary question which the Deputy asked earlier this week that she would like to see the cost and responsibility of establishing a right of occupation falling on the trespasser rather than on the landowner. However, within the civil code, there is a general principle that there are matters which a plaintiff must establish if he or she is to be successful in any court action and I think we would need to think very seriously before we depart from that principle, other than in the most exceptional of cases. With regard to costs, while it is the case that the award of costs is always within the court's discretion, there is also a general principle that costs follow the event and this would leave the way open for costs to be awarded to a litigant who was successful in obtaining an injunction directed towards securing the departure of those who might be trespassing upon his or her land.

The criminal law provisions dealing with trespass include a range of offences under the Prohibition of Forcible Entry and Occupation Act, 1971, and the Criminal Justice (Public Order) Act, 1994. The 1971 Act makes it an offence for a person to forcibly enter land, to remain in forcible occupation or to encourage or advocate the commission of an offence of forcible entry or occupation. The 1994 Act makes it an offence for a person to enter any building or part of it, includ ing its vicinity, with intent to commit an offence. It is also an offence for any person to trespass on any such place in such manner as causes or is likely to cause fear in another person, and the gardaí have power to direct a person to desist from acting in such a manner and-or to leave immediately the vicinity of the place concerned in a peaceable or orderly manner. It is an offence for any person to fail to comply with such a direction from the gardaí.
While I have no proposals to change the law in this area, my Department will continue to keep it under review.
Question No. 19 taken with Question No. 7.
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