I move: "That the Bill be now read a Second Time."
I propose to share time with my colleagues, Deputies Kenny, Deenihan and Crawford.
Vol. 622 No. 3
I move: "That the Bill be now read a Second Time."
I propose to share time with my colleagues, Deputies Kenny, Deenihan and Crawford.
Is that agreed? Agreed.
I am delighted to introduce the Criminal Law (Home Defence) Bill on behalf of Fine Gael as the next step in a series of policies on law and order that we have begun rolling out. Article 40.5 of the Constitution states: "The dwelling of every citizen is inviolable and shall not be freely entered forcibly save in accordance with law." This article provides the constitutional basis for the Fine Gael Bill.
Through this Bill, Fine Gael wants to promote its strongly held view that it should be the victim and not the criminal whose rights should be most protected by law. This Bill covers those who are the victims of intrusion into their homes. It does not cover those who experience others trespassing on their land. While Fine Gael does not promote the excessive use of violence, we believe that an innocent person who is intruded upon in his or her own home, often in the dead of night, should not have the law weighted against him or her in his or her quest to prove that he or she acted reasonably.
The change proposed in the Bill to the law will, in effect, attempt to vindicate the rights of ordinary people who attempt to protect their homes and families in the face of knife or gun-wielding intruders who come upon them in their homes with intent to steal or injure the occupants. Once we implement this change in the law perhaps intruders will think twice before they embark on stealing sprees in innocent people's homes, often maiming and destroying lives in the process. We are not talking about an academic principle here. We are talking about a situation where, on average, we have approximately 500 burglaries every week, three quarters of them into people's homes.
Apart from the criminal aspects, we also propose to get rid of the ridiculous anomaly which exists in Irish civil law whereby a person who is an intruder into a person's dwelling can sue the owner of the dwelling for injuries incurred while illegally on the premises. The law at present is capable of rewarding the lawbreakers and punishing those who abide by the law. This situation cannot continue.
This Bill is a considered and reasonable proposal to amend the law in regard to the protection of home occupiers who confront intruders to their homes. It creates, in section 3, a rebuttable presumption that any force used by an occupier to protect his home or family is reasonable. This will clearly and significantly shift the burden in favour of the householder and will send out a clear message that the law is not on the side of burglars and thieves.
The Bill also removes, in section 6(c), any compulsion on occupiers to retreat from confronting intruders, by amendment to section 20(4) of the Non-Fatal Offences Against the Person Act 1997. This provision was designed with street disturbances in mind and is meant to encourage brawlers to walk away from potential confrontations. It has no place where a person disturbs a burglar in his living room while his wife and children are asleep upstairs.
In section 7, the Bill lays out the factors that must be considered by a jury if the prosecution decides to rebut the presumption of reasonableness. These extraneous factors include consideration of whether the householders had, at the time of the break-in, family members in the house, whether the householder only had a split second to decide what to do, or the fact that he or she may have had very few options to defend the home or family, or whether he or she honestly believed such.
The Bill specifically precludes providing a defence to murder or unlawful killing in section 5. This cannot therefore be described as a murderer's charter or anything of the sort. The protections in this Bill will have no effect in a case where a householder kills an intruder in cold blood and the Bill does not seek in any way to justify actions that are over the top or premeditated.
Further to what the leader of Fine Gael, Deputy Kenny, said in the recent Ard-Fheis, this Bill will provide protection from civil liability to people who could potentially be sued by a burglar. A householder will now have no liability for an intruder who trips or injures himself in that person's house, even if he is injured by the defensive actions of the householder.
A major factor in whether the Fine Gael Bill will pass into law is where the Fianna Fáil-Progressive Democrats Government stands on the protection of householders. Last March, in a debate on the Criminal Justice Bill, Deputy Andrews of Fianna Fáil asked what had happened to the Fine Gael plan to introduce a Private Members' Bill to amend the Non-Fatal Offences Against the Persons Act 1997. Having alleged, incorrectly, that it had been forgotten about, he then claimed that it was a "hare-brained, crackpot idea".
Deputies will also be aware that a member of the Progressive Democrats, Senator Morrissey, published a Private Members' Bill in the Seanad a few weeks ago "to provide a full defence in criminal and civil law in cases where force is reasonably used by occupiers in dwellings to defend life or property against persons trespassing with criminal intent". That is not 100 miles away from my Bill.
There has been some uncertainty as to the status of that Bill. At first, it appeared that it was a Government Bill but when probed on it on the Order of Business, the Minister for Finance, Deputy Cowen, told us that it was a Progressive Democrats Bill and that, "It is important that small parties keep their identities." More recently, when the Tánaiste, Deputy Harney, was asked about the Bill last week, it was further downgraded from being a Progressive Democrats Bill to being "an initiative by Senator Morrissey".
While the Progressive Democrats Bill has the same thrust as the Fine Gael Bill, it fails to deal with the broad spectrum of issues that are at hand. It would be helpful at this stage to have a clear statement from the Minister for Justice, Equality and Law Reform, Deputy McDowell, as to his position in regard to that Bill. Does he not accept that the Fine Gael Private Members' Bill is sensible and reasonable and has the potential to deal effectively with this issue of so much concern to so many householders? Does he not also accept that it deals with the civil liability aspect which is also referred to in the Progressive Democrats Bill, or whatever it should be called? The Bill also deals with the issue of not holding against a householder his or her failure to retreat.
What is the Fianna Fáil position? On 8 June, the Minister for Finance, Deputy Cowen, claimed he supported the Progressive Democrats initiative. Are we to understand from that statement that Fianna Fáil will support this Bill? Is it, perhaps for the first time ever, going to put party politics to one side and follow the right course of action?
One of the problems I have with the "Government-Progressive Democrats-Senator Morrissey-Deputy McDowell" Bill, or whatever the label should be, is that it allows a defence to murder. The Fine Gael Bill has been most carefully drafted and we have been conscious of the many different scenarios that could arise under this legislation. For that reason, we have put a number of important provisos into the Bill.
In our Bill, the actions must take place strictly within the home. If a person follows an intruder into the garden and assaults him there, no protection is afforded under this Bill, but a home can be anything from a caravan to a shed as long as someone is living there. That is the essential criterion. The rebuttable presumption can, as its name suggests, be rebutted, so actions that are not necessarily reasonable can be held against a householder if they can be shown to have been excessive. If such is the case, no protection is provided under this Bill. The difference is that now it is the prosecution, rather than the person whose house was broken into, who must show this. The Bill also provides that a person who knowingly assaults a garda is not protected by its provisions. Nor does it provide protection for a person who murders an intruder. However, the ordinary protections of the common law in this area will apply in such instances. Although it is not covered in this Bill, such a person may claim his or her actions were in self-defence because that protection already exists.
The raison d’être of the Bill is to provide clear protection to those who find themselves in the unfortunate situation of confronting a criminal in their home. It is designed to protect such persons from prosecutions that would be considered by any reasonable standard to be unjust and unfair. The rainbow Government enacted the main legislation governing this general area, the Non-Fatal Offences Against the Person Act 1997. This fine legislation is applied universally and is widely praised by legal practitioners, but it is not perfect in affording protection to home owners. This Bill will update the Act to deal with those factors that were not in the mind of drafters in 1997.
In previous debates on this subject, the argument was made that there is no need for this legislation given that there have never been cases of householders being convicted for actions that would be seen by most people as reasonable. While it may be the case that there have not been any major miscarriages of justice in this area, one must consider the situation in other jurisdictions, where there have been many such instances. It is also entirely incorrect to suggest that the DPP does not bring actions in cases such as those envisaged by this Bill. There are examples of people who have been charged with offences connected to their actions to protect home or family. This Bill will legislate in a more comprehensive and fairer way for those circumstances.
I am aware of a case some years ago where a father sought to protect his young son who was chased down the street by an adult and followed into his home. The father, in an effort to protect his son, grabbed an ornamental sword that was hanging on the wall in the hallway and wielded it as a threat to the intruder, telling him to leave the house. The intruder then grabbed the sword by the blade and suffered some injuries. A prosecution for assault followed and the father was convicted, though for a lesser offence. This man now has a criminal record as a consequence of taking what most of us would agree was the correct and understandable action of a parent protecting his child in his own home.
This Bill will remedy that lacuna and allow the courts to dispense justice rather than law. This is the important point. Are we here to establish justice or to support an existing law which is clearly deficient in protecting the position of home owners? Even if one accepts the argument that there have been no cases where someone was unfairly prosecuted — I have shown that is not the case — a change of the law in this area sends an important message to the public, and particularly to potential intruders, that the constitutional inviolability of the dwelling will now be statutorily protected in practice as well as in theory and that people's homes are a no-go area as far as the law is concerned.
Through this Bill, we must send a message to criminal communities that we will not tolerate them breaking into other people's homes. We will not continue to allow the law to be inequitable in this area. It must respect the inviolability of the dwelling, protect home owners and side with civilised, law-abiding members of society.
This is not an issue that is relevant only in this State. In researching the Bill, I found it has given rise to major debate and changes to the law in many other countries. It has been tackled in different ways in various jurisdictions but the central thrust of the approach to reform is always the same, to provide greater protection to home owners. In the United Kingdom, for example, the civil liability aspect of the relevant legislation was changed following the furore arising from a case where a burglar issued civil proceedings. Discussion in that country currently relates to a change in the criminal aspect of the legislation relating to the expression "grossly disproportionate force". Other examples of legislative endeavours to address this issue include Article 122-5 of the French criminal code, the Crime (Self-Defence) Amendment Bill in New Zealand and the relevant changes in New South Wales. We are not ahead of the posse in trying to establish the situation in regard to this matter clearly and fairly. Rather, we are taking into account changes that have taken place in other parts of the world in trying to ensure, as far as we can, that home owners will enjoy the protections they are entitled to under the law and the Constitution.
I referred in my earlier remarks to the views of different factions within the Government. Shortly before this debate commenced I was handed a notification of the Government's get-out approach — the stroke it intends to pull to ensure it will not have to face a decision on this issue. I understand the Government will try to get the Bill kicked to touch. If this is the reasoned response of an allegedly reasoned Government, God help the home owners of this State. This is a Government incapable of making a decision about anything. It is only in agreement on the question of not making a decision and in doing anything to cling on to power. Rather than hanging separately, Government Members will hang together for as long as possible.
I remind the Minister for Justice, Equality and Law Reform it was he who made a virtue of being radical rather than redundant. He is clearly on the road to redundancy if he has the gall to place before the House an amendment to have this Bill sidelined for an indeterminate period. I urge all Members to support this Bill. It will give home owners the protection to which they are entitled, ensure that the civil liability to which they are currently exposed will be obliterated and cannot arise in future, and establish in law the reasonable presumptions to which they are entitled in confronting intruders in their home.
All this week we have seen from the Government what Mrs. Thatcher described as "treachery with a smile on its face". This treachery has not been directed at the Opposition but has taken place between the various factions, federations and pretenders, seen and unseen, within the Government ranks. We have seen the Fianna Fáil backbenchers, the not-so-sweet 16, who had their sudden conversion not on the road to Damascus but on the road to democratic devastation. It goes to show that it is ultimately the simple issues that matter. There is nothing quite like a doorstep and a ballot box to induce an outbreak of panic, or perhaps I should say "resolve", in the various ranks of what has become a compromised, fractured and fractious coalition.
These are interesting times in Irish politics. Three weeks ago, the alarm bells rang to signal a Government in crisis. We know now that this could well be a terminal crisis and we know the reasons for it. The only good in any of this savage, ridiculous and embarrassing saga is that the Government parties were forced to come clean. The various factions that have surfaced to date were forced to expose their true colours. Crucially, the people got a chance to see for themselves what is really going on at the heart of the Government.
The Opposition could simply sit back and enjoy this crisis but we do not intend to do so. This is a time for reflection on our future direction and on the need for leadership. There has been no Government action in this regard for some time and the fissures are growing and festering.
That is why Fine Gael and the Labour Party set a precedent by writing to the Director of Public Prosecutions seeking information that the Government, on seven successive occasions, did not provide, in the interests of the public regarding persons who may have been charged under two, now redundant, sections of the 1935 Act and who are still in the system. We are not sure what will happen to those people.
The Government amendment states that Dáil Éireann declines to give the Bill a Second Reading in order that consideration may be given to the issues raised in this Bill and in another Private Members' Bill recently introduced in the Seanad. The story around the House is that the Minister for Justice, Equality and Law Reform wrote the Bill that is in the Seanad in the name of Senator Morrissey. It is further alleged that the Department of Justice, Equality and Law Reform offered assistance to Senator Morrissey in the drafting of his Bill. If that is the case, it is very different from the treatment meted out to my party which produced a Private Members' Bill and, out of courtesy, sent it to the Department for its information, only for it to be leaked to the press.
The Taoiseach and the Tánaiste confirmed today that the Bill before the Seanad in the name of a Member is not a Government Bill, nor a Progressive Democrats Bill, but a Bill in the name of Progressive Democrat Senators, allegedly written by the Minister for Justice, Equality and Law Reform. I would have thought that if the Government was serious about the issues raised in the Minister for Justice, Equality and Law Reform-Senator Morrissey Bill, it would accept the Bill before the House this evening and allow it to be debated in Committee. It could then deal with the content of the Government amendment and allow time for examination, reflection and debate on the matters therein. The Government should accept the Bill, send it to Committee for consideration and discuss the issues raised therein and in the Senator Morrissey/Minister for Justice, Equality and Law Reform Bill.
It is time for politics and the law to come out of denial and see what the public sees, namely, the enormous gap between what people expect from the law of the country and what they get in its place. Such people are the silent majority who work hard and play by the rules. They are the very people who are fed up with a legal system that seems to obsess over the rights of the accused, the tiny minority, at the expense of the rights of the rest of the people, the law-abiding majority.
If this country is to have a mature debate on the nature of liberty and what it means in our lives, we must ensure that we balance rights with responsibilities — the right of the individual to a fair trial and the inalienable right to be held innocent until proven guilty, while not forgetting the responsibilities of the State to the rest of society. Justice cannot be for one side alone. It must be done, and seen to be done, for both sides. That is not as much about granting the rights of the majority as about publicly recognising those rights and making sure they are protected in the working and application of the law.
An old saying holds that the foundation of law is good faith. If we are honest we will admit that considerable work will have to be done to restore public confidence and faith in our criminal justice system. It is the spirit and not just the form of the law that keeps justice alive. In too many cases, the people see justice and the law as two distinctly different entities. Home defence is a clear case, from the people's perspective, where justice and the law could be a lot closer.
In addressing home defence through the Bill introduced by Deputy Jim O'Keeffe, we are focusing on an issue that could potentially face many house owners and parents, namely their right to protect and defend themselves, their families and homes in a reasonable manner against an intruder. For Fine Gael, "reasonable" must include the removal of the issue of retreat. Retreating in one's own home is not a reasonable option.
Imagine if one has heard a burglar. One might be willing to retreat but a myriad of what-if scenarios present themselves, those of elderly relatives, school children coming home during the day, teenagers returning home late after a night out, small children waking from a nightmare, babies waking to be fed. What happens then, in the thousands of houses that empty out at 6.30 a.m. and remain empty all day, which have become a burglar's paradise? Does one expose one's wife, son or toddler to the danger posed by a stranger in one's home? Does one deny them the right to protection in order to guarantee the rights of a person who has already broken the law by breaking into one's home in the first place?
This is not a question of doing what is acceptable but of doing what is right. It is utterly ridiculous and ludicrous that, as it stands, if a person does not retreat but defends his or her home and family against an intruder, that intruder might sue that person. A burglar breaks into a person's home, he or she defends him or herself, his or her children and property and the burglar could take that person to court. Where is the balance of justice in that? According to the Constitution, a person's home is inviolable and where a person acts reasonably in its defence, the balance of the law should be re-struck in the home owner's favour and against the intruder.
We want to create a presumption that the force used in defending one's home is reasonable and that proving otherwise should fall to the prosecution. I know many people who, on finding an intruder in their house in the middle of the night, would not go down to the kitchen and say, "Carry on, take the television, the CD player and the keys of the cars." Most people would react very differently when in their own home. That is why the balance should be re-tilted to express the priority of the law-abiding citizen as against somebody who has already broken the law by breaking into a person's house.
Some people may claim this Bill is a charter arising from the recent case in my county involving Mr. Pádraig Nally but it has nothing to do with that. This Bill only applies in the case of an intruder breaking into the home.
I do not know if the Minister has ever been attacked. I was mugged once by two people, high on drugs, with a knife, which was a pretty daunting prospect. Until the day I die, I will remember the rasping sound of a knife being pulled from a leather scabbard and the impression that leaves on one's mind. For me, it was not a case of fear but of being prepared to fight for my life, literally. One can imagine the hundreds of thousands of people who have been absolutely terrified, given that there are 500 burglaries per week, happening at all times of the day and night. Public representatives from both sides of the House have heard stories of women waking up to find an intruder in their bedroom, knife in hand. What are people to do? Most would probably retreat, hide and hope the intruder goes away. Others who want to defend their castle, wife, property and children might take a very different view.
My party's approach to home defence is part of a broader rebalancing of the law which we would like to see applied throughout the criminal justice system involving sentencing and bail. Too often, people see the criminal justice system as a kind of no-man's land, with no obvious correlation between the crime and the sentence. It often appears that criminals are simply getting away with it. When it comes to sentencing, the people should have a voice. Every time a guilty verdict is handed down in a serious case, the prosecution should be able to propose, in open court, a sentence that reflects the people's view.
I would like the Oireachtas, whose Members are elected by people of all shades of opinion, to approve the sentencing tariffs for serious crimes, from minimum to maximum. The Judiciary would maintain its independence in setting a sentence but if that sentence does not match up to the view of the people, the judge should be required to explain his or her sentencing decision in open court. The process would retain and protect judicial independence, make the system more transparent and the Judiciary more accountable.
We should be very clear and tougher regarding bail. In the last two years, 11,000 crimes were committed by offenders on bail. We need new legislation to make it tougher to obtain bail in the case of a serious crime. Where bail is granted, electronic tagging should be introduced as an extra facility, if the court so decides, so that gardaí can know where offenders are on a 24-hour, seven days a week basis. There is no doubt that in the past ten years this country has become a far less civilised place in which to live. I want to restore civility to public life and public space. We want to create strong and binding ties in our society. There is plenty of outrage among the public that crime has reached such a critical state in this country. The political challenge for Deputies is to transform that, and building a better society and a safer Ireland is the task entrusted to politicians. This Bill, in the name of Deputy Jim O'Keeffe and other Fine Gael Members, will contribute to that.
I hope that, when the Government responds, instead of tabling a holding amendment for its own sake, it will have the courage to accept the Fine Gael Bill and prove on Committee Stage that it has a different point of view. We can take the Seanad Bill in the name of Senator Morrissey and others, with the watermark of the Minister for Justice, Equality and Law Reform if that be the case, and argue in committee the issues in that Bill and this Bill, in an open, thorough and comprehensive fashion, perhaps seeking to amend it.
The Government should not have a holding arrangement. We will be gone from here in two weeks, not returning until the end of September, by which time we will be involved in all sorts of preparations for Estimates and politicking so that this will not appear on the Order Paper between September and Christmas. Thereafter, if the Government is still around, it will be hell for leather to the white tape.
I am delighted to see Senator Morrissey in the Visitors Gallery. No doubt he is taking a deep interest in this Bill, which is very similar to his.
Burglary has reached epidemic levels in Ireland, with an average of 3.5 such robberies an hour. A property is burgled almost every 15 minutes in this country. Every year, 30,000 properties, nearly 21,000 of which are homes, are raided, often while their owners sleep. Some householders have been murdered for their possessions, women have been raped and children have been terrified beyond reason, leaving them psychologically scarred for life, suffering from interrupted sleep and nightmares and always wondering whether there is an intruder in their homes. The trauma of a burglary continues for life, as Deputy Kenny said.
Between September 2003 and September 2005, 50,000 house owners and business people reported a burglary to gardaí. In 2003 alone, more than 16,000 residential raids were reported, but the real number of burglaries from homes is a third higher, since data from the Central Statistics Office reveal that fewer than 70% of people will report a break-in. The main problem with our statistics is that people simply do not report break-ins, and they should be encouraged to do so, allowing us to get the statistics right. No matter what is taken from their house, it should be reported.
Every day in this country, almost 60 home owners will experience the horror of an intruder in their homes. If householders fight back using any means possible, they leave themselves open to prosecution and jail sentences. We know that approximately €59 million was stolen from homes between June 2004 and June 2005. As I said, under present law, if householders fight back, they can be prosecuted and jailed. A garda told me two weeks ago that an intruder had complained to the local officer that he had been assaulted by someone protecting his house.
We have heard of horrific cases over the years, for example, that of the farmer Patrick Skehan, who was found hanging upside down in his home at Killaloe in County Clare in 1998. He was confronted by four intruders, beaten about the head, stripped to his shirt and pants and left hanging. He died a few weeks later in hospital. That is the type of burglary we are talking about.
The Non-Fatal Offences Against the Person Act 1997 allows someone to use reasonable force to defend his or her home, but it is often left to juries to decide whether an individual used undue force or stepped over the line when dealing with an intruder. In a very good paper, Homicide and the Plea of Self-Defence, Mr. Pádraig Dwyer stated that the Irish law of self-defence needed review for the following reasons. It requires a jury to engage in a complicated reasoning process to determine whether an accused acted in self-defence. In so far as it provides for a manslaughter verdict in respect of an accused who acts honestly although unreasonably, it is out-dated in the light of developments in the doctrine of mens rea.
This legislation, similar to that which the Minister has drafted for his colleague, Senator Morrissey, at least affords the householder protection, which is what people want. I commend the Bill to the House and compliment Deputy Jim O'Keeffe on its introduction. It provides an excellent solution to an issue very much taken to heart by rural and urban Ireland.
I welcome the opportunity to speak on this important legislation. Figures have been given regarding the number of crimes that it covers, but the Minister is well aware of the facts. As he said, people no longer report crimes because in many cases it is not worth their while. I came across a case not long ago where someone went to the barracks in Clones only to find it empty. When the gardaí were called, those on duty did their best, but they did not know the countryside, with the result that it took them a long time to arrive and act.
The purpose of the Bill is to provide for the protection of home occupiers who confront intruders or trespassers within a dwelling. It creates a rebuttal presumption that any force used by an occupier to protect his home or family is reasonable and comprises protection from several liabilities for such actions in all circumstances. Deputy Jim O'Keeffe has attempted to introduce this in a simple form to ensure that it has the desired effect. It will remove any question of home owners having to retreat if they come across an intruder. It will prevent intruders suing a home owner who acts reasonably and will create the presumption that any force used in defending his home is reasonable, with the onus on the prosecution to show otherwise. It is awful that at present a person is supposed to retreat, yet if the intruder is harmed in any way, he can legally sue the home owner.
The Bill confines such protection to actions taken within the home and is in line with the Constitution, which states that a person's home is inviolable. It shifts the legal balance in favour of the home owner in a considered and reasonable manner. It is vital that the victim rather than the criminal comes first. The law must support those who support the State rather than those who wish to destroy it. Old people especially live in fear and must have rights, knowing that they can be supported. I will never forget the story of a close friend of my late mother who was lying in his bed one night when intruders struck him with a hammer, leaving him for dead. Had it not been for the telephone beside his bed, of which they were unaware, he would have been dead. He put up no defence but his case is an example of how these intruders treat people and life. They simply do not care.
I had hoped the Government would have supported this Bill. At the time we introduced the Bill to attach fines to earnings or social welfare payments, the Government promised that a Bill dealing with each of those areas would be introduced shortly. However, the Garda is still chasing fines rather than dealing with other crimes.
The gang of 16 or so Fianna Fáil backbenchers upstairs are trying to decide which way they will deal with the current crisis in Government. They make out that they are members of both the Opposition and the Government but it will be interesting to witness them following the Minister to vote down this simple Bill. I ask the Minister at this late stage to change his decision on this Bill and, for once, do what is proper. A few minutes ago, we voted with the Government because we saw it was the correct course of action. The Minister knows what Deputy Jim O'Keeffe is doing is right so I ask him to change his mind and do the right thing.
I move amendment No. 1:
To delete all words after "That" and substitute the following:
"Dáil Éireann declines to give a second reading to the Bill in order that consideration be given to the issues raised in this Bill and another Private Members Bill recently introduced in the Seanad on the same issue, and to allow time for examination, reflection and debate of the matters therein with a view to drawing up proposals on the issues, if such be considered necessary, for inclusion in the proposed Criminal Justice (Miscellaneous Provisions) Bill.".
In recent years, cases where intruders and people who have tried to tackle them have been either injured or killed have fuelled the debate whether the law as it stands strikes the right balance between the rights of occupier and those of the trespasser. There is a genuinely held belief in some quarters that the law does not give sufficient protection to a person who finds intruders in his or her home. I recognise the understandable public concern which exists in respect of this matter and I have no doubt that Deputy Jim O'Keeffe's motivation in bringing forward this Bill arises from a similar appreciation on his part of that public concern.
Article 40.3.2° of the Constitution imposes a duty on the State to protect by its laws, as best it may, its citizens from unjust attack and, in the case of injustice done, to vindicate the person of every citizen. The legislative method we have employed in this jurisdiction relating to assault and self-defence in respect of someone who fears they may be the victim of an assault is the Non-Fatal Offences Against the Person Act 1997.
What is to be considered in the context of the Private Members' Bill before the House is the efficacy of the current legislation in dealing with the kinds of situations which arise from the incidents involving occupiers and intruders, which have received a great deal of attention both in this jurisdiction and neighbouring ones in recent years. Deputy Kenny described the current law as utterly ridiculous and ludicrous. However, this law was introduced in 1997 by my illustrious predecessor, Nora Owen, at a time when Deputy Kenny sat at the Cabinet table and must have approved its content. A law that he describes as ridiculous and ludicrous in 2006 did not appear so in 1997.
As Deputy Jim O'Keeffe is aware, this is the second Private Member's Bill in recent weeks to focus on the use of reasonable force in respect of the protection of a person's property and defence against attack in one's home. My colleague, Senator Morrissey, published a Bill in the Seanad on 8 June 2006 entitled the Defence of Life and Property Bill, which broadly deals with one of the issues in the Deputy's Bill. Deputy Jim O'Keeffe tabled a parliamentary question in November 2005 seeking my views on whether the law as it stands is sufficiently balanced in terms of a person's right to defend his or her home. He also asked if I had plans to put measures in place to address the concerns of home owners on the issue. I draw the Deputy's attention to my reply to that question. I will not read it into the record. In it, I stated that if Opposition Deputies had proposals for changes to the law in this area, I would examine them.
The purpose of Deputy Jim O'Keeffe's Bill is to provide for the protection of home occupiers who confront intruders or trespassers within a dwelling. It proposes to create a rebuttable presumption that any force used by an occupier in such circumstances to protect his or her home or family is reasonable and comprises protection from civil liability for the actions of a home owner in all circumstances. This Bill would remove any compulsion on occupiers to retreat from confronting intruders and would provide a mechanism whereby a jury could consider the person's specific circumstances when coming to a decision on the reasonableness or otherwise of the person's actions — so far, so good.
The effect of section 3 of the Bill is that where the occupier uses force against a trespasser, there is a rebuttable presumption that the force was reasonable and, under section 4, no civil liability on the part of the occupier should arise in respect of any harm, whether serious or not, arising from actions referred to in section 3, namely, the use of force in one's own home. The difficulty is that while section 3 purports to allow the trespasser to rebut the presumption in favour of the actions of the occupier, section 4 appears to have the effect of disallowing the trespasser's right of rebuttal.
Yes. This is intentional.
If this is the case, it means that in an action for damages, a trespasser cannot rebut the fact that massive and excessive force was used against him or her, for example, if his or her legs were broken or he or she was beaten to a pulp, because he or she refused to leave someone's home.
Moreover, section 7 requires the court, in determining whether the actions were reasonable, to take into account the particular circumstances described in the section but the section fails to make any reference to section 4, which I believe is a mistake. The distinctive feature of the Occupiers' Liability Act of 1995, which is the principal legislation in this area, is that it reduced the extent of the occupier's obligations to trespassers. That Act broadly followed the recommendations contained in a report published by the Law Reform Commission in 1994. This report was preceded by a consultation paper published in 1993.
The 1995 Act provides that an occupier owes a duty not to injure a trespasser intentionally and not to act with reckless disregard. However, section 4(3)(a) states that where a person enters onto a premises for the purpose of committing an offence or, while present thereon, commits an offence, the occupier is not liable for a breach of the duty imposed generally on trespassers unless a court determines otherwise in the interests of justice. An overall saver in section 8(a) is the occupier’s entitlement to use proportionate force for his or her self-defence, the defence of others or the defence of the property.
Undoubtedly, the 1995 Act cured some serious shortcomings in the law created by the Supreme Court judgment in the McNamara v. ESB in 1975. The facts of this case are fairly well known. The plaintiff, who was a young boy, climbed over a wire fence which surrounded a transformer station and was injured when he came in contact with a high tension cable. The High Court ruled that the plaintiff had not been guilty of contributory negligence in awarding damages in his favour. However, on hearing an appeal against the judgment, the Supreme Court held that the plaintiff was guilty of contributory negligence. The effect of this judgment, nevertheless, set out that the duty owed to trespassers was the duty to take reasonable care.
The 1995 Act helped to restore the pre-McNamara v. ESB common law standard that the duty owed to trespassers is not to injure them intentionally and not to act with reckless disregard to their person or property. The occupier is not required to discharge the same standard of reasonable care which visitors can insist on by virtue of section 3 of the Act. In determining whether an occupier has acted with reckless disregard for a trespasser on his or her property, a court must have regard to all the circumstances of the case, including nine factors specified in section 4(2) of the 1995 Act. These include the conduct of the person and the nature of any warning given by the occupier. It is also important to bear in mind that section 57(1) of the Civil Liability Act 1961 provides that it shall not be a defence in an action of tort to show that the plaintiff is in breach of the civil or criminal law.
Some commentators believe that the 1995 Act was quite radical in the changes it brought about in overhauling the law on occupiers' liability. The passage of time since then indicates that at the time, there was a need for a response from the Oireachtas in this important area of the law.
In so far as trespassers in general on property are concerned, the Bill now does two things on the civil side. It assumes reasonableness in difficult circumstances on the part of the occupier and places the onus of disproving that presumption on the trespasser. In attempting this, there are drafting difficulties with the Bill and questions to be answered about the extent to which section 4 gives occupiers exemption from all civil liability. These matters will require careful examination by me in consultation with the Attorney General.
Section 3 of Deputy Jim O'Keeffe's Bill creates a rebuttable presumption that defensive force used by an occupier of a dwelling in respect of a trespasser who has unlawfully gained entry to and remains within the dwelling is reasonable force. In section 2, an occupier is defined as any person who could reasonably be considered to be resident in the dwelling or any person present in the dwelling with the consent and approval of an occupier. If a person gate-crashed a party held in a house, all the guests would be exempt from civil liability, irrespective of the force they used to throw the gate-crasher out. If they beat him or her black and blue and left him or her hospitalised, Deputy Jim O'Keeffe has told us that his Bill intends to leave that person with no protection whatsoever. That person would have gained entry as a trespasser and the guests who set upon him or her would be considered occupiers for the Deputy's purposes. Deputy Jim O'Keeffe is saying that if the person's bones were broken and he or she was beaten to a pulp, no civil liability should attach to any of the guests in those circumstances. That is a very far-reaching proposition——
The Minister is misreading the situation.
——and one that most people would consider unreasonable, however tabloid the appeal the Deputy may consider it to have.
The Minister is deliberately misreading the situation.
This is what the Deputy told us. He was clear. He intervened in my speech to say that——
I will deal with the Minister.
——no civil liability would attach.
He is splitting hairs to try to find a way out of his predicament.
The Minister without interruption.
The Deputy is huffing and puffing. A dwelling is defined as including any building or part of a building used as a dwelling, including caravans. Funnily enough, Deputy Jim O'Keeffe would not allow this force to be used in the curtilage of a dwelling. Unlike Senator Morrissey's Bill, in which a person would have the same rights in his or her garden if someone was setting about that house or if the person was protecting his or her car from being vandalised, the Deputy says "No", it is of no interest to him. He just wants to refer to the house itself. I do not know why.
Is it because the Minister prefers his own ideas?
We must consider why this Bill is being cast in these terms. In contrast with section 18 of the Non-Fatal Offences Against the Person Act, section 3 does not set out the purposes for which force could be lawfully used. This would significantly widen the circumstances in which force could be used. For example, it is not stated that force must be in the defence of life or property or to prevent serious injury. In this case, the Bill would allow guests at a party to use massive force, to reduce someone to smithereens and fling him or her out on the road in a bloody mess.
Section 5 of the Criminal Law (Home Defence) Bill 2006 provides that provisions therein shall not be used as a defence against murder or manslaughter. Why? If I shove a burglar down the stairs, his or her head hits a sharp object at the bottom and the burglar dies, is it the case that I should not enjoy the protection of the law?
That scenario is already covered by self-defence.
Manslaughter is committed by any unlawful use of force resulting in the death of the victim. The Deputy is saying that in those circumstances, none of the protections in this Bill would apply.
In this Bill.
One is already protected by the law.
In those circumstances, this Bill is of no use to anyone. If one shoves a person out of one's house and the person bangs his or her head and dies from the injury, this Bill is of no use. It has been consciously designed in that way, which occurs when there is hasty drafting, unlike the case of Senator Morrissey's considered drafting.
Listen to the Minister. He is looking for the title of joker of the year.
Pots and kettles. There are more than 400 amendments to the Minister's Bill.
Section 6 would amend section 13 of the 1997 Act by excluding a person from an offence of endangerment where the conduct takes place within a dwelling. The objective of Senator Morrissey's Bill is to amend the civil and criminal law to allow the use of justifiable force by occupiers of domestic dwellings against trespassers who have criminal intent. This is another extraordinary aspect of the Deputy's Bill. Crashing a party is not a crime, but the Deputy's Bill technically renders the gate-crasher a trespasser on the premises. In contrast, Senator Morrissey's Bill provides that this force and immunity should only apply where people have entered for the purpose of committing a crime. Which is the appropriate measure? I suggest that Senator Morrissey's approach is far more intelligent and reasonable than the approach presented here.
The Minister obviously was not able to convince the Tánaiste in that respect.
The Bill proposes that where a householder uses force to repel or prevent trespass on the house or surrounding areas by persons who appear to be intent on committing a serious criminal offence, the entitlement to use justified force shall not be judged by reference to the opportunity to retreat. I have considerable sympathy for the proposition that the obligation to retreat within one's house should be the subject of a reconsideration by the House. However, that measure was introduced by a Cabinet in which Deputy Kenny sat. For him to describe it in the House as an "utterly ludicrous" and ridiculous rule of law stretches political credibility a long way.
The provisions of this Bill do not apply to murder and manslaughter, but they should apply to the most serious offences. If one uses force in the defence of one's home, life or whatever, the Bill should apply to the most serious offences just as it applies to less serious offences. The House must consider this issue. Deputies Kenny and Jim O'Keeffe said that proving force to be reasonable should be a matter for the prosecution. That is already the case. In a criminal prosecution in respect of the use of force in defence of one's home, it is for the prosecution to prove beyond reasonable doubt that the amount of force used was unreasonable.
The issue of reasonableness has always dogged lawyers. In a case in the 1920s, the American jurist Oliver Wendell Holmes stated: "Detached reflection cannot be demanded in the presence of an uplifted knife." The 1997 Act ensures that juries are given the option of rejecting a plea of legitimate defence where they are satisfied that it was unreasonable not to retreat. Removing the issue of retreat in the context of someone who commits an act of criminal trespass with the intent to commit a serious offence, as Senator Morrissey's Bill proposes, is one matter, but doing what the Deputy is suggesting would leave us with another problem on our hands.
I believe the Labour Party will not support this Bill.
Will we not?
It will probably agree with me that in the drafting of the Bill, children fall within the definition of "trespassers". Therefore, adults would be allowed to use any force in beating a child trespasser out of their house.
That is ridiculous.
No matter how brutal or savage the force unleashed, any injury perpetrated on that child could not be the subject of a civil action because the child was a trespasser. Is that reasonable or fair? I say it is not.
Instead of disregarding Senator Morrissey's Bill, Fine Gael would have been wiser to adopt it. It could have embarrassed me more by taking the Senator's reasonable text and tabling it before me instead of developing an unreasonable text.
Is the Minister admitting his authorship at this stage?
No. I assisted Senator Morrissey with that Bill just as I assisted——
The Minister did not speak to the Tánaiste about it.
——Senator Norris with his Bill on civil partnerships. On a number of occasions people from other parties have approached me and asked me for my advice and assistance on Private Members' legislation. I have always been willing to do so. For example, Senator Leyden approached me with his draft proposals on the registration of wills and I gave him every assistance I could in that respect. My time has almost concluded.
It surely has.
Actually, I have a few minutes remaining. My concern is that the emotive nature of an encounter with a trespasser or an intruder with what might be perceived by the occupier as a criminal intent would have the effect of rendering a person incapable of properly assessing the reasonableness of his or her response and a tragedy of serious proportions might then ensue. We must consider whether the law as it stands in the form of the 1997 and 1964 Acts is sufficient to protect the occupiers or whether change is required along the lines suggested by Deputy Jim O'Keeffe or those suggested by Senator Morrissey.
I have concerns about situations that may not be as clear as the types of scenarios I have outlined, namely, cases of persons visiting a premises where their status is unclear. Perhaps someone is an uninvited guest to a house during a social occasion, such as a gate-crasher at a party. Under the Deputy's Bill, that person is considered a trespasser, as he or she has unlawfully gained access to the premises. To allow other guests who have been invited to the party to do extreme violence to that person and to deny him or her any civil remedy, no matter what their age, is unconscionable. This Bill has not been well thought through in that regard.
The issues raised by the Deputy's Bill are worthy of further consideration. It must be remembered that provisions in this area contained in the 1997 Act were drafted as a result of the recommendations of the Law Reform Commission and generally have served us well. We must be careful in considering changes in this law, which is why I favour the reasonable approach taken by Senator Morrissey. I am very unhappy with some of the implications of the Fine Gael Bill, because I do not think they are reasonable. If Members bring forward Private Members' Bills in either House of this Parliament they should think through all the implications of what they suggest. This legislation provides that a child trespasser can be the victim of extreme violence but will have no right of redress whatsoever against a group of people who happen to be present in a house and gain the consent of the owner of the house. I do not think that is reasonable.
The Government's amendment proposes postponing the legislation for six months to allow it to be thought through. I assure Deputy Jim O'Keeffe that this is not evasion. The issue is important and there will be a criminal law (miscellaneous provisions) Bill in the autumn, as I have told him on a number of occasions. The Government will consider whether the issue should be addressed in that Bill. It will also consider whether the approach suggested by Senator Morrissey is the right one to pursue. It will consider fully the Fine Gael Bill presented today but, as I have already said, it will not be very attracted to the areas in which it departs from Senator Morrissey's, wherein it is careless and excessive. I promised in this House that I would carefully consider any proposals brought forward in this House.
Deputy Kenny asked whether I had personal experience of an incident of this kind. Yes, I did. When I was 19 years of age, a burglar broke into the upper floor of the house in which I lived with my parents.
Was the Minister wearing his FCA uniform?
No. I had to hold him at bay with a poker while my parents summoned the police.
The Minister should be careful. Anything he says might be taken down and used in evidence if he does not allow the Fine Gael Bill through.
I would have used force to prevent him doing further damage to the house — he had already done some damage — and to apprehend him.
I bet the Minister would.
When the gardaí arrived he made a run at them and me and was dealt with appropriately by the gardaí. I understand exactly the position of a householder in such circumstances. The incident took place long before the Non-Fatal Offences Against the Person Act 1997, but I certainly did not believe I was under any obligation to retreat and leave my parents exposed to that individual's attentions.
Is the Government right to say that this Bill is excessive, and would allow a group of guests in a house to beat a child trespasser or a gatecrasher to a pulp, leaving that child or gatecrasher with no protection whatsoever no matter how extreme the violence? Most people would not think so. Would people think it reasonable to afford the protection in this Bill to somebody who hospitalises another but to afford none to a person who shoves another down the stairs and causes their death? I do not think that is a reasonable distinction.
I said I would consider any reasonable proposals but, regrettably, this Bill contains unreasonable proposals.
The Minister is splitting hairs to get himself off a very big hook.
I am not splitting any hairs but pointing out to the Deputy that his Bill does not even protect a child from being mutilated by guests in a house.
Let the Bill progress to Committee Stage and we will iron out any difficulties with it then.
The Deputy admitted as much when challenged in the House. He said he was giving blanket immunity in respect of any civil action in those circumstances.
We must live in the real world and Senator Morrissey's approach is far better. He said the kind of trespassers with whom he was concerned were those who broke into a house to commit a crime, not just those who crashed a party, whom most people would consider to be a reasonable category of people to protect. Who is it more reasonable to divest of all civil law protections — a gatecrasher or somebody who enters a house as a criminal? Senator Morrissey's Bill deals with somebody who sees their car being vandalised or set alight and goes out to stop it, but the Fine Gael Bill abandons that person, ordering them to stay in their house. They must retreat and allow their car to be vandalised because outside their house a different standard applies. That is not reasonable.
Thinking Members of this House listening to the speeches delivered this evening, referring to difficulties and differences among the Government parties, might conclude there was a lot of opportunism in the way this Bill was presented. They might think it a tabloid, over-the-top effort to create a fuss, without the issue being thought through properly. I gave an undertaking that I would consider reasonable proposals but I have not received reasonable proposals. I deeply regret the fact that Deputy O'Keeffe, to whom plenty of expert legal advice is available, came up with unreasonable proposals in order to cut a dash with the fringes of public opinion who he thought might be excited by a crude and blunt instrument of the kind he is now moving in this House.
What a sad, pathetic defence by the Minister.
I know that the Labour Party, which has a slightly better grasp on reality and the rights of people, will not support this legislation. I would bet that the Green Party will not support it. I do not know what Sinn Féin will do. The great majority of the Independent Members will not support this legislation because they will see it for what it is, namely an unreasonable, excessive and headline-grabbing stunt, rather than a serious proposal to reform the law. When the Government parties come to consider what should be in the criminal law miscellaneous provisions Bill, which will be tendered in the autumn, they will be a lot more impressed by the approach taken by Senator Morrissey than that taken by the Fine Gael Party.
A sad, pathetic defence of the Minister's position.
The more I think about this Bill, the more convinced I am that it is a tactic, a device and a stunt which has backfired. The more I think about it, the more the words used by Deputy Kenny about the obligation set out in the 1997 Act, put through when he sat at the Cabinet table, appear utterly ridiculous. The more considered and reasonable people think about it the more it will become apparent that what happened here tonight was not a demonstration of concern for homeowners but an attempt to throw shapes in public and to capitalise on Deputy Kenny's Ard-Fheis speech in which he asked people to trust him to be cruder, rougher and tougher than anybody else in the fight against crime. It will not work in any arrangement where the parties to the Mullingar accord run this Bill under the microscope. Two pieces of legislation have been put forward. One is measured, reasonable and sensible, but the other is not. The Government will consider both over the next few months. It will also consider whether it is necessary to qualify the law by removing the obligation that one should retreat when defending one's home, garden, the curtilage of one's house and things such as one's car parked outside the door, from criminal acts. I believe the Government will give sympathetic consideration to an amendment of the law of this kind, but I cannot speak on behalf of my colleagues——
That is very obvious.
——unless they see——
The rug is being pulled from under the Minister.
——a proposal in black and white.
The Minister will be kept on a leash from now on. That is obvious, too.
They will certainly not be accepting Deputy Jim O'Keeffe's legislation because to do so would be——
The Minister is a lame duck now.
Daffy Duck calling me a lame duck is a new one.
I seek the permission of the House to share time with Deputy Wall.
Is that agreed? Agreed.
I apologise for having been distracted during the Minister's speech. I was practising on the new gizmos that we are supposed to be experts in.
I was very impressed.
It was a distraction from the Minister's contribution.
Public safety and security in the home are real and important issues for people up and down the country. It is hard to take some of the Minister's comments when he pours scorn on my colleague, the Fine Gael spokesman on justice. It would be impossible to find somebody cruder or rougher on criminal justice matters than the Minister. I regret he cannot stay in the Chamber for my few comments. Perhaps somebody will stay. Is it the turn of the Minister of State, Deputy Tim O'Malley?
Which cap is the Minister of State wearing?
It is quite clear that one would not find anybody cruder and rougher on all these matters than the Minister for Justice, Equality and Law Reform. One would not have to go further than the Tánaiste to find out just how crude and rough the man can be on these matters.
As I said, public safety is an important issue. There is a growing feeling of vulnerability and insecurity across the country. My constituency is not particularly lawless but in the last few weeks I have been called to meetings in Wexford, Enniscorthy and Bunclody to discuss that issue. Therefore, urban and rural areas are experiencing pressures and vulnerability. We would do a grave injustice to people's sense of hurt to treat this matter with anything less than full seriousness. One must respond when a rural community like Bunclody musters a packed house to express to public representatives, including myself, and senior Garda officers, its great sense of vulnerability due to the number of break-ins in the area.
Last Thursday, the assistant Garda commissioner in charge of the south-east division was asked to attend a meeting in Enniscorthy with the elected representatives of the Wexford constituency and the local town council because of the vulnerability people feel on the streets of that town. I know from discussions on my local radio station that similar feelings are held in my home town of Wexford following a number of break-ins in settled housing estates there. These are real issues and while there may not be a complete solution to them, one can certainly have more effective policing. With that in mind, the Labour Party last week produced an updated, comprehensive set of proposals to deal with effective policing for the 21st century. Ireland is now very different from the country whose legislation shaped An Garda Síochána in 1928. We are no longer a rural, homogenous society. We have greater wealth, mobility and social interaction than ever before. The structure of An Garda Síochána should be based on the needs of a different Ireland in the 21st century. The most important component to make policing effective is to have police in, and of, the community. The police must be known to, and knowing of, the community. We do not have that now so it needs to be done, although it is not a simple matter.
For years, lip service has been paid to the notion of community gardaí. There are about 400 in the country but none of them has any long-term requirement to remain in and know the community, nor do most of them see a career path in being involved in community policing. If we continue on the path of separating policing from the community we will never solve the issue of increasing criminality. Our police force is structured like a fire brigade — it reacts to crime. It calls in the expertise and visits the burgled house or the assaulted individual. We must change the mind-set of policing so that it is part of the community rather than being a response to communal problems. Community policing should be active, knowing the pressure points and being alert to strangers and ne'er do wells. It would nip problems in the bud, providing a trusted ear for the community for sharing intelligence and knowledge. In many ways, that sounds like an old-fashioned idea but it is a fundamental one. Ironically, it is the idea at the heart of the most comprehensive analysis of policing in a developed western country, namely, the Patten report's proposals. Those proposals set out to put community policing at the core of every police station and every police officer's job.
We do not value or reward community policing. I suggest that in order to get people to commit themselves to a long-term career path in community policing we must value it which, in our system, means providing monetary rewards. For that reason, we suggested the creation of a new rank of community garda. The idea would be to refocus the work of every garda to be a focused part of their own community.
In a policy document published six years ago, I proposed a structure that was rejected out of hand by the then Minister for Justice, Equality and Law Reform, Deputy O'Donoghue. Belatedly, some sections of that document have now been implemented. What I described six years ago as local policing liaison committees were modelled on my experiences in the Department of the Environment. Under the programme entitled Better Local Government, I established the idea of strategic policy committees, bringing together community and elected councillors to focus on issues. In that way, one could have joined-up thinking that was not exclusive to councillors, so that people who were knowledgeable about the community would have direct policy inputs. Apparently, those policing liaison committees are going to happen six years on. They are a feature of the Garda Síochána Act but will be called joint policing committees. I welcome the fact that they will be piloted in a number of local authority areas in the coming months. I hope we will have not only local policing committees but also the public policing fora that were envisaged in those proposals, whereby the community at large would be able to tailor its policing needs. Each community is unique and different. The policing needs of rural Bunclody are different from those of Wexford town, and far different from inner city Dublin or suburban Limerick. We need to be alert to specific pressure points in communities and policing plans must be flexible enough to cater for such requirements on a long-term basis.
The notion that one can have strategic national plans becomes farcical when one considers some of the Garda Síochána's plans. One such plan aims to increase explosive detections by 3% but it is meaningless to set such a target. Policing is not about setting targets. That is the mistake made in the United Kingdom, namely, that it is all about ticking boxes. When the PULSE system can measure one district against another, it will be seen that detection rates in one area are lower than in another area, so gardaí must gather a few speeders so their records are as good as those in the other area. That does not amount to good policing. We must change our mindset on these matters.
The Bill is well motivated and well intentioned. It seeks to address the real and genuine concern of people throughout the country who feel vulnerable. If the Minister is in any way complacent or frivolous about the genuine sense of fear, he should look no further than the CSO figures published today, which give comfort to nobody. Detection rates last year for crimes such as murder, fraud, burglary and sexual offences were 35.4% down on the last recorded rates. However, 54 murders were recorded last year, which is of particular concern and indicates the cheapening of life throughout the country. The most worrying statistic is that there were 75 murders with guns between 1998 and 2004 but proceedings were initiated in just 26 cases, or 35%, and convictions were recorded in just 12 cases, or 16%.
We must come to terms with these issues because they feed not only into the perception but the reality of fear. The Bill is an effort to do something in this regard. In as much as the Minister for Justice, Equality and Law Reform is prescient, I do not subscribe to the analysis that the Bill is a solution. There is a hierarchy of rights in which the most fundamental right is the right to one's bodily integrity and well-being. In the Constitution and natural law, that right is superior to the protection of property. That does not mean a person does not have the right to protect his home, property and family, he certainly does, but under current law, if an individual was to be prosecuted for defending his home, property or family, or his life, the onus is on the prosecution to prove that the individual committed a criminal offence, and there are wide defences available to an individual in this regard. That is why we do not often have prosecutions on the sort of issue that is at the core of the Bill.
We need further debate on these matters. We need to have joined-up thinking on providing a reconnection between community and policing so that communities are properly policed and secure, with a visible police force. That would allay many of the fears that cause the elderly, the vulnerable and those living alone throughout this land to be fearful. It is a state of affairs we all have a responsibility to address.
I have listened to the debate since it commenced and the main point that comes across is that there is a presumption in the Bill that all the persons involved are able persons and have the ability to defend themselves. However, in urban and rural Ireland, many of the cases which are too often portrayed in the national media involve intrusions and assaults carried out against the less well-off in our society, including the incapacitated, the wheelchair bound and senior citizens who are not in a position to defend themselves against an intruder.
I argued in the House last week about the protection of the home in the context of the Health (Nursing Homes) Amendment Bill. The same factor applies in this case, namely, everyone is entitled to the protection of his or her home and to reside in peace in that home. The Bill does not go far enough because it only deals with one section of the community, those who are capable of defending themselves. It does not include the need to further advance the community aspect that is necessary to protect people in their own homes. In moving forward, this debate, which has rightly been commenced by Deputy Jim O'Keeffe and Fine Gael, must encompass a wider area that will link together neighbourhood watch schemes, community alert schemes and other schemes to create the situation outlined by Deputy Howlin with regard to community policing. Senior citizens who are handicapped or not in a position to defend themselves will feel safe in their homes if they know a mechanism is in place to protect them at any time.
I recently attended a meeting of the Committee on Arts, Sport, Tourism, Community, Rural and Gaeltacht Affairs at which the Minister of State, Deputy Noel Ahern, made an announcement with regard to aspects of home security, which should always be considered. We must ensure account is taken of everyone. The Minister in this debate referred repeatedly to a person going out to defend a car or protect the outside of a home, and Senator Morrissey's Bill covers similar ground. That is not the key point. In my experience, the most important aspect is to defend those who cannot defend themselves in their own homes.
This problem arises regularly. Deputy Howlin referred to community policing, which is now an extinct part of Irish policing. In rural Ireland, the only time one will see a garda is when he passes in a car, perhaps when travelling to the scene of an accident or to another town for a court case. There is no police presence in rural Ireland — I stand over this statement. One will see gardaí operating traffic controls and speed cameras but one will not see them visiting senior citizens in any part of the country to find out whether they are all right.
Rural life is slowly but surely ebbing away. With both husband and wife working, the community aspect of life is disappearing. In its disappearance, we are creating major fears for the senior citizens left behind, who do not know what will happen during the day because there is no police presence, which there should be. The Labour Party stated in recent weeks that we should have community policing, increased community involvement and a greater emphasis on defending those who are unable to defend themselves.
The Bill must deal with this situation. It should seek far greater protection of senior citizens who are not able to defend themselves. The Minister referred to defending a car. What hope would a person in a wheelchair have of defending against a person who would steal a car? The torment caused by such robberies means that people cannot feel happy in their own homes. We have not developed the mechanisms necessary to ensure community involvement in neighbourhood watch schemes, community alert schemes and other schemes, which should all be linked into the community policing system.
We should develop further the idea of community. The Government has allowed the desecration of community life, which has disappeared from the scene. I note Macra na Feirme will hold seminars around the country next week entitled, "Know your Neighbour". It is unbelievable that an association finds this necessary and that people do not know their neighbours. If one does not know one's neighbours, one does not know what is happening in the locality. Many of the issues Deputies have raised must be addressed in legislation and I hope they will be.