I intend to share time with Deputies O'Connor and Grealish.
There is considerable public concern as to whether current legislation is correctly balanced between the home owner and a person who trespasses into his or her home. This issue has generated considerable debate both in this jurisdiction and elsewhere. I understand that the public concern surrounding this issue provides the background to Deputy Jim O'Keeffe's Bill and the interventions of Deputies.
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 bedrock of our law in regard to assault and the issue of self defence in respect of a person who fears he or she may be the victim of an assault is the Non-Fatal Offences against the Person Act 1997. Sections 18 and 20 of the 1997 Act make statutory provision in regard to the justifiable use of force to protect a person or property or to prevent a crime.
Section 18 sets out the various purposes for which justifiable force may be lawfully used which does not constitute an offence. These purposes include the protection of the person or his or her family or another person from injury, assault or detention caused by a criminal act, protection of his or her property or property belonging to another from appropriation, destruction or damage caused by a criminal act or from trespass or infringement and prevention of crime or a breach of the peace. The force used must be reasonable by reference to the circumstances believed by the person to exist.
Section 20 defines the meaning of "use of force" for the purposes of section 18, and subsection (4) provides that the fact that a person had an opportunity to retreat before using force shall be taken into account in conjunction with other relevant evidence, in determining whether the use of force was reasonable.
Section 1(2) provides that for the purposes of section 18, it is immaterial whether a belief is justified or not, if it is honestly held. The presence or absence of reasonable grounds for the belief is a matter to which the court or jury is to have regard, in conjunction with any other relevant matters, in considering whether the person honestly held the belief.
The current law clearly states that use of force is justifiable in certain circumstances and also clearly states what constitutes reasonable "use of force". It also provides that a belief in the need to protect does not have to be justified if honestly held and leaves this as a matter for the courts to decide. Current legislation provides protection for the home owner who find himself or herself in the onerous position of discovering an intruder in his or her home. This legislation has served us well. It provides an appropriate balance between the need to be able to protect ourselves, our families and our property from potential danger and the need for us to be accountable for the actions we take in such a situation if we go too far.
The purpose of Deputy Jim O'Keeffe's Bill is to provide protection for home occupiers who confront intruders and-or trespassers in their homes. It proposes to create a rebuttable presumption that any force used by an occupier in such circumstances to protect his home or family is reasonable and comprises protection from civil liability for the actions of a home occupier in all circumstances.
The Bill would get rid of any obligation on occupiers to retreat from confronting intruders in their homes. Where an occupier uses force against an intruder the Bill would allow a jury to consider certain extraneous factors when coming to a decision on the reasonableness or otherwise of the occupier's actions. These factors include such matters as whether the occupier had family members in the dwelling, whether there was sufficient time to decide on a course of action and whether the options for defence against a trespasser were limited.
Section 3 creates the rebuttable presumption that the force used was reasonable, where the occupier uses force against a trespasser who has unlawfully gained entry to and remains within his or her home. Under section 4, no civil liability on the part of the occupier shall arise in respect of any harm, whether serious or not, caused by the actions referred to in section 3. While section 3 allows for the trespasser to rebut the presumption in favour of the actions of the occupier, section 4 appears to have the effect of nullifying the trespasser's right of rebuttal. Moreover, section 7 requires the court, in determining whether the occupier's actions were reasonable, to take into account the factors described in the section, but the section fails to make any reference to section 4.
Our primary legislation in the area of occupiers' liability is the Occupiers' Liability Act 1995. That Act reduces the extent of the occupier's obligations to trespassers. It provides that an occupier owes a duty not to injure a trespasser intentionally and not to act with reckless disregard. The Act also provides that where a person enters on to premises for the purpose of committing an offence or, while there, commits an offence, the occupier is not liable for a breach of the duty imposed generally on trespassers unless a court decides otherwise in the interests of justice. In addition, section 8(a) gives the occupier an entitlement to use proportionate force for his or her self defence, the defence of others or the defence of property.
The occupier is not required to discharge the standard of reasonable care which visitors can insist on under the 1995 Act. When considering 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. These include the behaviour of the person and the nature of any warning given by the occupier. It is also worth remembering 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.
Deputy Jim O'Keeffe's Bill assumes reasonableness in potentially dangerous situations on the part of the occupier and places the burden of disproving that presumption on the trespasser. In attempting this, there are drafting difficulties with the Bill and there are questions to be answered about the extent to which section 4 gives occupiers exemption from all civil liability. These matters will require careful consideration.