I move: "That the Bill be now read a Second Time."
I wish to share time with Deputies Joe Carey, Jim O'Keeffe, Creighton, McHugh and O'Mahony.
Vol. 689 No. 2
I move: "That the Bill be now read a Second Time."
I wish to share time with Deputies Joe Carey, Jim O'Keeffe, Creighton, McHugh and O'Mahony.
This straightforward Bill will prevent a trespasser from taking a civil action against a home owner who may injure that trespasser while defending his home. It will mean that a home owner will not be subject to a criminal prosecution in such circumstances. It seeks to set out clearly in law that a home owner is not under an obligation to retreat when faced with an aggressor in his or her dwelling. One might be surprised to learn that one can be sued by a trespasser if one injures him or her while defending one's home. I do not doubt that many people will be surprised to learn that a person who defends his or her home with the use of non-fatal force can face criminal charges at some later stage. Fine Gael believes that the current arrangements need to be changed. The present situation, in effect, tips the balance in favour of the trespasser rather than the home owner. This uncertain position is unsustainable and is giving rise to confusion and a lack of clarity.
Fianna Fáil is strangely resistant to proposals to clarify the situation and restore the rights of the householder. Fine Gael's previous efforts to achieve legislative clarity were rejected. A Progressive Democrats Bill also died a quiet death. In April 2008, the then Minister for Justice, Equality and Law Reform, Deputy Brian Lenihan, claimed the matter would be dealt with in the Government's legislative programme. However, the current schedule of legislation states it is "not possible to indicate at this stage" when the Government might see fit to publish its criminal law (defence of life and property) Bill. It is not clear if such legislation would be new, or would be a rehash of the old Progressive Democrats Bill. Fine Gael is willing to step into the breach by introducing a Private Members' Bill that clarifies the law on home defence. We have taken on board some of the objections to our previous Bill, which I will detail later in this debate. We are willing to accept amendments, within reason, which may be forthcoming from any part of the House.
I am surprised that Fianna Fáil Deputies are according such little priority to the issue of home defence. There are three good reasons this Bill should attract cross-party support. First, the Law Reform Commission has called for greater legal certainty in this area, a call that has been echoed by a Supreme Court judge, Mr. Justice Hardiman. Second, Article 40.5 of the Constitution emphasises the inviolability of the dwelling. Members of the Oireachtas should be guided by that constitutional principle when we frame new laws. Third, from a political point of view rather than a legal one, I am surprised that my colleagues in this House do not want to be in a position to inform their constituents they have played a positive part in ensuring they will not be subject to tortious or criminal liability if they injure a trespasser while defending their homes. It is important to stress the Bill does not have anything to do with using lethal force to defend one's home. As it is concerned exclusively with non-fatal force, it seeks to amend the Non-Fatal Offences Against the Person Act 1997.
I ask Deputies to note that burglaries are on the increase, as the Minister for Justice, Equality and Law Reform can testify. The Central Statistics Office has reported that in the 12-month period that ended in the second quarter of 2009, recorded aggravated burglary offences increased by almost 10%, to 340, when compared with the corresponding period up to 2008. It is accepted that burglaries increase during economic downturns. Accordingly, this Bill is appropriate and timely.
I would like to comment on the common law position. The matter of home defence was considered by the Court of Criminal Appeal in the 2006 case of DPP v. Barnes. While this case dealt with a fatal incident, it is relevant in so far as the court examined issues relating to home defence. The case concerned a horse breeder living in an isolated rural area who interrupted two burglars as they were ransacking his home. One of the burglars claimed that the householder attacked him with a knife, resulting in a struggle in which the householder was killed by multiple stab wounds. The burglar claimed to be acting in self-defence. In its deliberations, the court accepted the legal doctrine known as the “castle doctrine” into Irish common law. This doctrine stipulates that while there is a duty on a person attacked in the street to retreat, this obligation does not exist if the person is in his own home. The court stressed that the castle doctrine is by no means a licence to kill. Instead, it means that a householder can stand his ground and does not need to retreat from an attack to defend his own home. The court held that every burglary is an act of aggression and every burglar is an aggressor. The Law Reform Commission has recommended the acceptance in Irish law of the castle doctrine. In the Barnes case, the court also considered the doctrine of self-generated necessity, which concerns the onus on a person who has provoked an attack to retreat. The court clarified that this defence does not apply to a person who causes conduct or a state of affairs with a view to using force to resist or terminate it. Therefore, it is clear that the courts are attempting to introduce a fairer situation for the householder under common law. In the Barnes case, however, the Court of Criminal Appeal stressed the need for legal certainty, which placed a clear onus on the Members of the Oireachtas to deliver such certainty. Thus far, the Government has failed to provide the certainty needed.
In 2006, my predecessor as Fine Gael justice spokesperson, Deputy Jim O'Keeffe, introduced a Private Members' Bill entitled the Criminal Law (Home Defence) Bill 2006. I commend the Deputy on that initiative. That Bill proposed to amend the law in relation to the protection of home occupiers who confront intruders. Section 5 of the Bill specifically precluded a defence of murder or unlawful killing. Section 3 proposed to create a rebuttable presumption that any force used by an occupier to protect his or her home or family is reasonable. This would shift the balance in favour of the occupier. Section 6(c) proposed to remove the requirement to retreat by amending section 20(4) of the Non-Fatal Offences against the Person Act 1997. Section 7 then set out the factors that must be considered by a jury in order to rebut the presumption of reasonableness. These include whether there were family members in the house at the time; whether it was a split second decision on the part of the defender; consideration of other options that may have been available to a defender; and the presence or absence of an honest belief in the availability of such alternatives.
The Bill before the House today is similar to the 2006 Bill but we have taken on board some of the critiques made of that Bill and produced what I believe is enhanced legislation. Once again, we introduce the notion of a rebuttable presumption that any force used by an occupier to protect his or her home or family is reasonable, which means that if a criminal case is taken against him or her the prosecution must prove that the actions were not reasonable in order to secure a conviction, thereby clearly shifting the burden off the householder and sending out a message that the law is on his or her side. This Bill ensures that if the prosecution decides to try to rebut the presumption of reasonableness, the jury will consider the defendant's specific circumstances at the time of the confrontation. These circumstances, which are set out in section 7 of the Bill, included the following: the presence or absence of family members in the house at the time; the fact that the householder might only have had a split second to decide what to do; the fact that he or she may have had few options for defending home or family; and that he or she may have honestly believed that few such options were available. Anybody who has experienced a burglary will know of the horrendous ordeal it visits upon homeowners and their families.
This Bill places on a legislative footing the notion that the occupier does not have a duty to retreat from confronting intruders. Under section 20 of the Non-Fatal Offences against the Person Act 1997, when deciding if a person's actions were reasonable a jury may consider whether he or she tried to avoid a confrontation by retreating. This provision was designed originally with street disturbances in mind and is meant to encourage potential brawlers to walk away from potential confrontations. It has no place in a situation where a person disturbs a burglar in his own living room while his wife and children are asleep upstairs. This provision places the castle doctrine which was approved in the Barnes case and by the Law Reform Commission on a statutory footing.
The Bill specifically precludes providing a defence to murder or unlawful killing in section 5, again echoing the view of the Court of Criminal Appeal in the Barnes case. I stress to Members, and those in the Labour Party in particular, this provision cannot therefore be described as a murderer's charter or anything of the sort. The protections in this Bill would have had no effect in a case where a householder killed an intruder in cold blood and the Bill does not seek in any way to justify actions that are over the top or premeditated. For that reason, consideration of previous break-ins or intimidation is not outlined as something the jury must consider, although it could go towards the person's perceived lack of options.
The Bill also provides protection from civil liability to people who could potentially be sued by a trespasser. A householder now has no liability for an intruder to trips or injures him or herself in the person's house, even if the injury is caused by the defensive actions of the householder, so long as the force used was reasonable. I believe this is a very important provision which will be welcomed by ordinary and decent people throughout this State. This provision emphatically tips the balance of rights in favour of the homeowner and away from aggressors who would seek to violate the dwelling and commit the act of burglary.
The Bill contains a number of important provisions. The actions must take place within the home and a person who follows an intruder into the garden and assaults him there will not have protection under this Bill. The rebuttable presumption can, as its name suggests, be rebutted, so actions are not necessarily reasonable. If they can be shown to have been excessive, no protection exists under this Bill. The difference is that the prosecution will have to prove that excessive force was used. A person who knowingly assaults a garda is not protected by this Bill.
Fine Gael does not advocate occupiers taking on intruders themselves, and indeed would rather advise avoidance of confrontational situations with criminals who may be armed with knives or guns and who are not afraid to use them on innocent, law abiding citizens. This Bill affords legal justification for personal protection by people who find themselves in unavoidable situations after being confronted by intruders in their own homes. Far from encouraging people to take action, we want to assure them that if they do take action, the law will be on their side and not the criminal's.
This Bill is different in several ways from the 2006 Bill. The definition of "trespasser" has been changed from the definition of the term in the Occupiers' Liability Act 1995 to one which takes into account the objections of the then Minister for Justice that the 2006 Bill did not account for party goers who refused to leave. We took this point on board and the present Bill covers cases where a person enters a house lawfully, either for trade or other purposes, but whose presence becomes unlawful, as well as a person who simply enters the property unlawfully.
The 2009 Bill also addresses a potential contradiction that existed in the 2006 Bill in respect of the conflict between providing a rebuttable presumption that the force used was reasonable and the exemption for liability in civil law for any act done by the home owner or occupier in effecting this reasonable force.
The most significant difference is that the Bill provides that where a criminal offence occurs in a victim's home, the judge must take this into account at sentencing as a serious aggravating factor. This is a significant and meaningful change and one which supports Fine Gael's broader position of defending victim's rights and protecting people in their homes.
I am pleased to introduce this Bill to the House. Following the lead given by Deputy Jim O'Keeffe in 2006, Fine Gael has stepped up to the plate to deliver the legal certainty that has been sought by the Court of Criminal Appeal and the Law Reform Commission in respect of home defence. Most importantly, we are taking steps to protect home occupiers from civil and criminal liability should they injure trespassers who have violated their homes.
I appeal to my colleagues on the Government benches to read this Bill because I have already heard misrepresentations from Fianna Fáil backbenchers. They should consider its contents and ask themselves whether they can justify voting against it. If they have difficulties with the legislation, we can find solutions on Committee Stage. Would opposing this Bill be minor political point scoring at the expense of delivering a genuine improvement in our legal framework? This is an opportunity for us all to stand up for homeowners' rights. I commend the Bill to the House.
I strongly support the Bill and congratulate Deputies Charles Flanagan and Ring on bringing it before the House. Legislation is often introduced in an emotional manner as a hurried response to a recent atrocity. I am pleased this Bill is presented today in a different manner, where emotions are relatively low concerning the subject. It is a Bill which is presented partly in response to historical events but, more importantly, which offers an element of protection to the citizen in response to a violation of his or her home.
The Bill contains recognition of the flaws, inadequacies and potential shortcomings of a similar Bill proposed some time ago. This again reflects potentially sound legislation for the Statute Book. If the then Government had allowed the earlier Bill advance we would not have achingly slow progress on the issue.
This issue has been flagged by Mr. Justice Hardiman of the Supreme Court. The Bill reflects, and attempts to recognise through the law, Article 40.5 of the Constitution, which states:
The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law.
This Fine Gael Bill promotes the protection of homeowners from criminals. It protects the victims of intrusion from the intruder. It seeks to rebalance the law in favour of the victim as opposed to the outrageous current situation where law-breakers are protected.
Over the past number of weeks there has been a marked increase in burglaries throughout my constituency in County Clare. If you take a line from Coose, County Galway through to County Clare and, in particular, Whitegate, Scarriff, Broadford and Quin, roughly the R352 regional road, I can recount four individual incidents. Many homeowners in the east Clare — south-east Galway artery find themselves having to put in place more elaborate security systems. Sheds and storage areas that form part of their curtilage resemble an Irish version of Fort Knox. This is not just a benign natural occurrence. I am convinced that one can link what is happening to the economy with the increase in crime towards property and belongings of the person. No doubt this phenomenon will increase steadily if we, in the Oireachtas, do not do something. This legislation is a small, but effective step to attempt to solve the problem. The law must be seen as an instrument that protects and supports its citizens.
The Government, just like the previous one, will no doubt trot out statistics such as the massive increase in Garda resources both in personnel and finance in the fight against crime. I am sure we will hear this again today. The Minister for Justice, Equality and Law Reform is happy to declare that there are 14,000 gardaí in the country, as if this in itself is an adequate response to the question of protection of citizens from crime. There is something not quite right when almost the only interaction of people with the Garda is on meeting the traffic corps. There has been a conscious decision to develop elements such as the traffic corps, leaving rural stations and community policing to wither and die.
The east Clare area to which I referred in the context of burglary and crime against the person and belongings is a massive geographical area which has been further increased with the redrawing of the operational areas. This is an area served by the part-time Garda station in Scarriff with just one patrol car and a maximum of five gardaí. These gardaí are committed to the concept of community-style policing and do excellent work, both from the point of view of crime prevention and solving. However, just as importantly, they present a proper image of a police force that is part of the fabric of its own community. Today this is an all too rare occurrence.
I hope the Minister will accept this Fine Gael Bill and proceed with its implementation. However, I have my doubts. I can recall Deputy Shatter's effort last year in relation to victims and the manner in which it was dealt with.
This Fine Gael Bill removes the need for homeowners to retreat from confronting intruders. It is a fair Bill that protects the victims of crime. The Minister cannot overlook this unjust situation any longer. I urge him to take on board this Fine Gael Bill and I urge his colleagues to do so as well.
It is important that we have a reasoned debate and that the issues are argued and debated reasonably. The same might be helpful from the point of view of newspaper comment. I recall when we debated this matter on my Bill three years ago some comment in the newspapers that just did not relate to the facts of the Bill and rather seemed to be prejudicial ranting.
The starting point for me on this Bill is the Constitution. Article 40 is quite clear, stating:
The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law.
The problem is that the dwellings of the citizens are being entered every day. In fact, as I understand it, there are approximately 500 burglaries every week.
The question is what type of legal certainty should exist as to the rights of a homeowner in confronting these burglaries. Some of these are aggravated burglaries and some of them have serious consequences. Over the years there have been instances of homeowners who have been killed in their own houses. At the very least, we owe it to homeowners to have certainty in the law as to what they are entitled to do to defend themselves, their families and their property. My appeal to the Minister is that he would look at this Bill in that context.
There may be flaws in the Bill. I made the same case when I introduced my Bill along the same lines three years ago. I indicated that if the Minister had problems with any aspects of it, to refer it to Committee and to tease out those problems.
I am glad that my colleagues, Deputies Charlie Flanagan and Ring, have produced a new updated version of my Bill which deals with some of the questions raised about it three years ago. From that point of view, it is a Bill that should be given the most serious consideration by this House.
Essentially, the Fine Gael approach is to get certainty in the law as far as the rights of the homeowners are concerned and to shift the balance in favour of the homeowner. It is not a question of saying to burglars that they have no rights, but certainly before the law they must have far fewer rights than the homeowner. The homeowner must be entitled to defend himself, his family and property.
As Deputy Flanagan mentions, the homeowner may be wise on occasion not to do that and to run, but fight or flight is a matter on which a homeowner must make up his or her mind in a split second. The natural human reaction is fight or flight, and there may be only seconds in which to decide which to do.
There should be no compulsion on the homeowner to retreat. There should be an understanding of the situation that the homeowner is confronted with and certainty as to his or her rights in the event of whatever decision he or she takes. It seems ludicrous that if in such a situation the householder injures the burglar or trespasser, the trespasser could possibly sue the homeowner. That is outrageous.
I do not intend to go into the detail of the Bill. I want a reasoned debate. I want a response from the Minister that he accepts there is a reasoned case to put forward. If there are technical issues in this Bill to address, as there could have been in my Bill three years ago, let us tease them out in Committee. I suggest that the proper response from the Minister is to let this Bill through, let it go to Committee Stage and tease out any outstanding flaws at that stage. That would be a reasoned response and what homeowners would expect.
I commend this Bill and congratulate Deputy Charlie Flanagan and Deputy Jim O'Keeffe who worked on this Bill for quite a number of years. I acknowledge Deputy O'Keeffe's call for a calm debate. We need a calm debate on this matter because it can raise emotions. Certainly, it is a technical legal matter and when one enters that realm one must try to have reasoned debate. Why are we at this impasse in terms of home security as regards people feeling vulnerable in their homes? That question needs to be asked. The Minister as a Border Deputy can relate to the fact that existing Garda resources do not adequately protect the citizen. I have been calling for extra Garda resources in Border areas for a number of years. Legislation such as this is required because of the degree of vulnerability. People do not feel safe in their homes as was highlighted last spring with the spate of burglaries in north Inishowen that could not be contained because of insufficient Garda resources. I commend the fact the assistant Garda Commissioner acted proactively in deploying extra resources to north Inishowen. This was critical because of the danger that vigilantism would take over, as opposed to effective community policing. This is the crux in which we find ourselves. As the Minister will be aware, the spate of robberies climaxed in the horrific robbery at gunpoint of the postmistress in Carrigans in east Donegal, half a mile from the Border. As of yet the perpetrators are unpunished.
There is nothing in our law to protect the victims of such crimes, as Deputy Charles Flanagan has pointed out, and that is where the anomaly arises. The need for this legislation is particularly pressing in Border areas which are not serviced by sufficient Garda numbers. A comparison can be made with Deputy Jim O'Keeffe's Cork area, although this is not a perfect example, in places such as Glanmire, Carricktwohill, Cobh and Bandon. There is a 24-hour Garda station in Glanmire with 22 gardaí based there and 50 based in Cobh. Taking a similar population distribution in Derry city, there is no legislation that takes into account population numbers to the east of it on the other side of the Border. I am referring to places in east Donegal such as Burnfoot with 16 gardaí, Muff with two, Carrigans with five, Newtowncunningham with four and Carndonagh with five. These stations are only open three hours per day. Therefore, there are anomalies in terms of the whole vulnerability question. If we are not going to provide proper and adequate Garda resources we will not ensure that people are comfortable and safe in their homes.
The Bill has been described as right wing, but it is not. It is not designed for the person who can afford house alarms and guard dogs and who lives in a secure urban area. It is very much designed to protect the person living in isolation in a rural area, and that is its raison d’être. Statistics from the Department of Justice, Equality and Law Reform show that some 29% of crime in Donegal is undetected. That highlights the anomaly in terms of Garda resources. I therefore ask the Minister to consult with the assistant Garda Commissioner as regards the effectiveness of deploying extra Garda resources to Inishowen at a time of increased burglaries. I would look at that pilot model and see how effective it has been and how it combated the vigilantism which was on the increase at the time.
Article 48 of the proposed Lisbon treaty provides for more effective communication between the PSNI and the Garda, so hopefully there will be a positive outcome in relation to that in the referendum. Also, we must examine the Schengen Agreement as regards cross-Border co-operation. I shall leave it to Deputy Crawford to deal with the bureaucratic process involved as regards applications for gun ownership.
I congratulate Deputy Charles Flanagan for bringing forward this Bill. I listened to him as he dealt with the legal and technical reasons why the legislation is needed. I also congratulate his predecessor as party spokesman, Deputy Jim O'Keeffe, who tabled a similar Bill in 2006. Fine Gael does not advocate or encourage force, but defends a person's right to defend himself or herself and the family in the home.
I welcome the opportunity to speak on the Criminal Law (Home Defence) Bill 2009, as it is important that we protect the victim rather than the criminal, especially within people's own homes. This Bill, if passed, would mean that if someone breaks into a house and one must use force against him or her, such force is presumed to be reasonable. It means, in the event, that the person using force could not be prosecuted as a criminal. It would also mean the intruder or criminal could not sue for damage done to him or her.
The Bill also covers one if somebody breaks into one's house against whom one uses force and he or she dies. If the force used is reasonable, there will be no prosecution for murder. However, if force is intentionally used that is likely to kill, the Bill will not protect the user of that force.
The reason this Bill is being brought forward is that concerns as regards the protection of people in their homes remain, as highlighted by the contradiction that a person can be liable in a civil action for any force he or she uses against a trespasser in such an incidence. This issue has not been dealt with the in the programme for Government or by any other party in the current Dáil, even though we were promised it would be addressed when we produced a similar Bill in 2006.
The protection of people in their homes and in their own areas, especially in the Border region, from Donegal right through Cavan-Monaghan and Louth, was never more important. Deputy Joe McHugh dealt with that to some degree a few minutes ago. People are living in fear because of the actions of a small minority who refuse to accept the peace process and for that reason I am pleading that not only should Garda numbers be maintained in the Border region, but if necessary, improved.
As with Deputy McHugh, I want to suggest it is unacceptable that no Garda station is open at night in an area from Ballyconnell to Monaghan town.
Last year there was a case of what seemed to be an isolated incidence of a bomb discovered in the Rosslea area along the Monaghan-Fermanagh section of the Border. Only this week we had another threat in that same area, which as I speak has not been confirmed, although people in the area and those travelling through it on the main Monaghan-Enniskillen road are being inconvenienced and threatened. This scare follows immediately after a real bomb in Donegal town, which it took a bomb disposal group four hours to reach. There was also a 600 pound bomb at the edge of Forkhill, as well as threats to the parents and sisters of a PSNI officer in Derry city. It is sad to think that while Catholics are being encouraged to join the Northern Ireland police force, the PSNI, they are put under threat when they do.
I raise these issues because it is important that people living down the country realise the threats and fears that so many people have to cope with in the Border region. Only last May when I canvassed the Clones region, in what is known as a "no go" area, I found people living in desperate fear.
As Deputy McHugh indicated, I want to mention the issue of gun licences. Many small farmers and others have held gun licences down through the years, for their own protection as well as to shoot vermin. Such a person now has to fill in a nine-page form, which is a move away from the ordinary to the ridiculous. We blame the EU for all the form filling at the agricultural level, yet here we have a situation where our people are being asked to fill in such a form. The Minister might argue that it is simple and all the rest, but for an ordinary uneducated person it is absolutely over the top and we need to ensure that those people do not panic and allow their guns to be taken away from them, because they were useful and offered them some form of protection. I believe the Minister has some role in that regard.
I am glad to have the opportunity to contribute to this debate. I commend Deputies Charles Flanagan, Jim O'Keeffe and other colleagues who, over a long period, have attempted to rebalance the law in respect of what happens in people's homes. The importance of feeling secure in one's own home should be taken for granted in our modern society, but unfortunately this is not the case. While it is not covered in this Bill, we hear much about violence on our streets and public areas. At least in that regard people have the choice to stay away from such streets at certain times of the night. With regard to violence and attacks on the home, break-ins and burglaries are visited upon people and they do not have that choice.
In addition, these issues often threaten the most vulnerable people in our society, the elderly and people who cannot afford to make their homes secure. Let us step back and consider how these people think in the context of what is happening in our modern society. For example, last year's budget withdrew the grants for elderly people living in rural areas to install alarm and lighting systems. The opening hours of some of our Garda stations have been reduced and restricted. The McCarthy report has proposed that half the Garda stations should be closed down. What message does that send out? The court in Ballinrobe in my constituency has been moved to Castlebar. There was an old adage in society that suggested that justice should be seen to be done in their own town. In recent weeks there have been stabbings in Ballinrobe itself. This is the context in which people are thinking. They also see the millions of euro being spent on free legal aid to defend these thugs when they are apprehended. What message does that send out to the people in these areas? A number of weeks ago during an attack on a house in Charlestown in my constituency in which €60 was stolen, a man had his leg broken, resulting in him being hospitalised. What message are we sending out if we do not implement the Bill before us today?
As my colleagues have said, the Bill does not suggest that people in their own homes should be entitled to go on the attack or act in a way that is over the top and murder an intruder in cold blood. If actions are proven to be excessive, there is no protection under the Bill. It does not advocate or encourage confrontation or violence against intruders who may be armed with guns or knives. The key provision of the Bill is to give legal protection to householders who find themselves in unavoidable situations when confronted by intruders. There is an urgent need to tip the balance in favour of people whose houses are broken into.
The feeling on the ground is that law-abiding citizens are not safe in their own homes. Not only are they not allowed to defend themselves, but they also see the thugs who attack them either released on bail or released early if they are caught and prosecuted. I recently met a couple who had been attacked in their own home last year by a gang using iron bars and other implements causing €5,000 worth of damage. Members of the gang eventually got two years imprisonment. The culprits were granted free legal aid and released after spending only a few months in prison. The victims of the attack only became aware that the culprits had been released when they waved to them driving past their house in the village. One can imagine the fear and anger that release caused to that household. One can imagine how the innocent victims in this case will feel when I inform them of the details of a response to a parliamentary question I received from the Minister this week revealing that free legal aid in criminal cases in Mayo cost the taxpayer €103,000 for the eight months from January to August 2008. Ironically the grant that would have allowed this couple get a house alarm was abolished last spring.
There is an urgent need to rebalance the law in favour of the victims of crime in their own homes. The pendulum must swing back towards the law abiding citizens. This Bill is a genuine attempt to do this and I strongly recommend it to the House.
I wish to share time with the Minister of State, Deputy John Moloney.
I agree with the Deputies that we should have a reasoned debate and I compliment them on at least putting this on the agenda at a time when we are not reacting to a recent event. Members on all sides of the House will accept that this is an issue in which we all have a substantial interest and with which the Government has some sympathy. Deputies and the public at large are aware of cases in which persons have entered a house or a property without adequate excuse and with criminal intent with the result that injuries or death have been caused. Such cases have fuelled the debate over whether the law as it stands strikes the right balance between the rights of the occupier and those of the trespasser. I am aware that there is a genuinely held view that while the Non-Fatal Offences against the Person Act 1997 legislates adequately for case of self-defence in most situations, it will not give protection to a person who finds intruders entering his or her home with criminal intent. I am fully aware of the efficacy of the current legislation but I also share the understandable public concern that in protecting the home dwelling we should have the very best legislative resources available to us.
I am a strong believer in tough legislative provisions in combating criminal activity of all kinds. Recent legislative measures which I brought to a conclusion in the last Oireachtas session in respect of a range of criminal law matters are testimony to this and I make no apologies for taking such a stance. However, I do not believe the proposal before the House is adequate, well thought out or robust enough to justify it receiving Government support. I will outline my reasons for that. The strong advice from my officials and the Office of the Attorney General is that does not provide a good base for legislating in this respect.
The Bill is in effect a repeat of the Bill, albeit with minor modifications, that was considered and rejected by the House in June 2006. The Bill contains numerous flaws which in my opinion render it inoperable for the purpose for which it was intended. I will outline some of those flaws in the course of this debate. In response to Deputy Jim O'Keeffe's point that we should allow it to progress to Committee Stage, the strong view was that it contained so many flaws that it does not form the basis for doing so. In addition, we have received confirmation from the Law Reform Commission that it will publish its report and a draft Bill before Christmas. I do not believe it would be appropriate to take up time discussing a Bill now when the Law Reform Commission will produce a Bill.
We have a consultation paper.
We have already accepted that we would postpone consideration of our own Bill in which we published a scheme a number of years ago on the basis that the Law Reform Commission report is now due.
The special status of the home dwelling has always been linked with the dignity of the individual. It is my contention that an attack in the home has unique characteristics, very different from other forms of attack, given the potential emotive nature of such an encounter. I suspect that a great many people share this opinion. Deputies will be aware that Article 40.5 of the Constitution contains a specific provision that "the dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law". This is a constitutional provision of paramount importance to every Irish person. As well as the protection for the home provided for in the Constitution, the special protection afforded to the dwelling house dates back many centuries. It has been expressed in various ways, including a legal case dating back as far as 1604, which stated: "That the house of everyone is to him as his castle and fortress, as well for his defence against injury and violence, as for his repose." This is the origin of the "castle doctrine" which is especially prominent in the law of the United States.
We all recognise the importance of the home as a haven of safety for those who live in it and as a place where the individual's privacy should be sacrosanct. For this reason an uninvited intrusion in the home by someone, with criminal intent, cannot and should not be tolerated. The law recognises that the application of reasonable force, in such circumstances, may be required to repel such an intruder. If the home is inviolable under the Constitution it is arguable that a person should not be required to give up ground and allow his or her home to be violated by an intruder.
Furthermore, our Constitution, in Article 40.3.2°, 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, vindicate the life, person, good name, and property rights of every citizen". The legislation which applies in this jurisdiction with regard to self-defence is the Non-Fatal Offences Against the Person Act 1997, which was drafted following the recommendations of the Law Reform Commission. Self-defence is only one element of the Act. It is a general principle of law that one can act in self-defence against attack or even imminent attack. Sections 18 and 20 of that Act are most relevant to the issues under discussion here today. It is made clear that reasonable force may be applied to protect one's self or a family member or another from injury, assault or detention caused by a criminal act and to protect one's property from appropriation, destruction or damage caused by the criminal act or from trespass or infringement.
Significantly, section 18 of the Act stipulates that the use of force applied by a person for the purposes set out in the Act is "such as is reasonable in the circumstances as he or she believes them to be." In other words, it is a subjective text which allows that the person using force may use the level of reasonable force he or she feels is necessary at the time of the attack. However, the question of whether the use of force in circumstances in which a person is defending himself or herself from attack is justified is fundamentally a question of whether such force is applied reasonably. Clearly, each set of circumstances is likely to be different, and the 1997 Act leaves it for a court and jury to decide whether the use of force was reasonable in the particular circumstances of the case under consideration.
The 1997 Act also provides that juries are given the option of rejecting a plea of legitimate defence where they are satisfied it was unreasonable not to retreat. Section 20(4) of the 1997 Act states 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". The Act therefore retains the principle of conflict avoidance in circumstances where that is possible. It has been argued this particular provision seems to put a question mark over a person's right to defend his or her home or property. I recognise it is not always possible or even desirable to retreat in circumstances where an intruder enters the home, but it should also be borne in mind that a jury, in assessing the reasonableness of a person's actions in such circumstances, would also be likely to appreciate the realities of the dilemma which would face an occupier in that situation.
Most people would agree that an attack or threatened attack from an intruder entering the home is very different from an attack or threat of attack in some other location. In the context of an intrusion into the home, there may be family members present who need protection, or valuable property that a person does not wish to abandon. It may be that the level of fear generated by an unwanted intrusion renders the occupier incapable of retreat. I acknowledge therefore that the situation with regard to the application of self defence in the home may be significantly different from the application of legitimate defence generally. While the 1997 Act is undoubtedly an effective piece of legislation, it deals with the issue of legitimate defence generally and in any location, and not specifically in the context of an attack which takes place in the home.
However, the House is aware that we live in a common law jurisdiction. We are not bound only by statute. The most recent relevant case law in this area is unequivocal with regard to legitimate defence in the context of unwanted entry to the home. In December 2006 the Court of Criminal Appeal issued a significant judgment in the case of DPP v. Barnes, on a burglary during which a fatality had occurred. This lengthy and detailed judgment is worthy of careful consideration by Deputies and by the public in general. In it, the Court of Criminal Appeal drew, inter alia, the following legal conclusions:
Every burglary in a dwellinghouse is an act of aggression. The circumstances may make this element of aggression more or less patent but the violation of a citizen's dwellinghouse is just that, a violation and an act of aggression no matter what the other circumstances.
The judgment goes on to say: "Although [the burglar] is not liable to be killed by the householder simply for being a burglar, he is an aggressor and may expect to be lawfully met with retaliatory force to drive him off or to immobilise or detain him and end the threat which he offers to the personal rights of the householder. . .".
With regard to the issue of retreat in the face of an intruder, the Court of Criminal Appeal was no less emphatic. The judgment stated:
It is . . . quite inconsistent with the constitutional doctrine of the inviolability of a dwellinghouse that a householder or other lawful occupant could be ever be under a legal obligation to flee the dwellinghouse or, as it might be put in more contemporary language, to retreat from it. It follows from this ... that such a person can never be in a worse position in point of law because he has decided to stand his ground in his house.
That is the common law position in this jurisdiction as of 2006. It has been clarified and has gone a long way towards addressing the concerns that have been voiced on this subject. After reading the entire judgment, I find myself fully in agreement with it. It is important to note that the Court of Criminal Appeal makes a distinction in respect of homicide. The court expressed the view that a person cannot lawfully lose his life simply because he trespasses in the dwelling house of another with intent to steal. Where homicide occurs, whether of the burglar or the occupier of the dwelling, the common law must still be applied.
I reiterate that the Government is opposed to this Bill, although sympathetic to the idea behind it. We are opposed to it not for any narrow political reasons but simply because it contains some serious defects.
None that cannot be dealt with on Committee Stage.
I am fully in agreement with the sentiments of the Bill, but if we are to address these issues we should do it correctly.
I will point out some of the flaws. Section 3 of this Bill, for example, provides for a presumption that any force used by an occupier on a trespasser within the dwelling is reasonable in all circumstances. This presumably applies even if the trespasser is on the premises innocently — for example, a child who may wander into the dwelling from a neighbouring house. The section does not expand on the circumstances in which force could be used. For example, it does not state that force must only be used in the protection of life and property. This leaves open the possibility of force being used in the dwelling house in circumstances which are entirely non-threatening. To retain such a provision in a statute would cause immense problems for the future.
The Bill has nothing to do with wandering children.
Section 3(2) states that the presumption does not apply if the person entering is a member of An Garda Síochána acting in the course of his or her duty. This provision reflects a similar one contained in section 18 of the 1997 Act, but there may be a need for a reference to other persons who legitimately enter a house in the course of their duty, such as members of the emergency services or medical personnel.
A simple amendment will deal with that.
Section 4 of the Bill purports to exonerate an occupier from any liability in tort for any harm done, whether serious or not, to a trespasser when the factors set out in section 7 apply. Such a provision would affect the delicate balance in the existing law on the liability of occupiers in respect of the duties owed to those entering their property. This would constitute a significant amendment to the provisions of the Occupiers' Liability Act 1995.
It would appear from section 5 that a defence of reasonable force in respect of the death of an intruder, which can be invoked where self-defence is pleaded, would not apply in the case of a person who killed an intruder in the home dwelling. This would put an accused person in those circumstances at a distinct disadvantage with respect to an accused who may have killed an assailant when attacked at a location other than the home dwelling. This is an extraordinary failure which underlines the many failures in this piece of legislation.
Section 6(b) would mean that an occupier who intentionally or recklessly engaged in conduct which created a substantial risk of death to any person, whether that person was a trespasser or not, would not be liable to prosecution for endangerment under section 13 of the Non-Fatal Offences Against the Person Act if the conduct took place within the dwelling. Such a measure would represent a significant change in the law from that which obtains at present, which is regarded as a fair and balanced legislative position. This is a remarkable proposal by any standards. What is being proposed is that an occupier may engage in reckless conduct even against someone who is not a trespasser — perhaps a guest at a party in the house or some other innocent person. If the reckless and dangerous conduct takes place in the dwelling and the person who engages in it is the occupier, that would appear to be sufficient to allow this conduct to be undertaken with impunity.
Section 7 sets out the matters which are to be taken into account when determining whether the force used was reasonable. All but one of the four considerations are on the objective standard. The law, as it stands, in relation to the use of force as a method of self-defence is on the subjective standard. I am of the view that the present state of the law in this regard may be better for a person who might use force against an intruder as the test is currently subjective. That is to say that a person can use force which he or she feels is necessary in light of the level of danger that person believes himself or herself to be in at the time. In light of the current provisions of section 18 of the 1997 Act, the presumption proposed in this Bill is, in my view, unnecessary. As the presumption is unnecessary, other provisions which regulate the application of the presumption are consequently also unnecessary.
One of the major flaws in the Bill is in regard to the issue of curtilage. I note it does not deal with the issue of what is defined as the curtilage of the dwelling house, that is the area immediately surrounding the dwelling. In some respects I can understand the reasons for avoiding this issue as it is too complex for this legislative effort. However, we cannot ignore the fact that trespass can also occur and an occupier could be in danger from a trespasser in a garden or in a place on the occupier's property immediately adjacent to the dwelling house. The difficulty is defining and limiting the extent of the curtilage of a property. This is a matter that may have to be given further careful consideration. I would like to think that the Law Reform Commission will come up with some view in that regard and I understand it will. The danger of an abuse of the concept of curtilage is always possible, particularly if an incident took place on the property of the occupier but if the property in question contained a parcel of land that was a considerable distance from the home. In the context of the castle doctrine, which is a significant feature of the US legal system, the case law has tended to be inconsistent. In one case, Beard v. United States in 1903, the court held that a defender was not obliged to retreat from an attack carried out in a field some 50 or 60 yards from his dwelling house. Faced with a similar case some years later the Florida Supreme Court in 1907 held that a defender was obliged to retreat notwithstanding that he was working in his field about 200 to 300 yards from his house. This is a matter which has yet to be addressed by Irish law. However, it cannot be ignored that it is necessary to deal with this issue in the Bill. For example, if a conflict between an intruder and an occupier moved from the house to the garden, it would appear that the occupier would lose the protection which is being offered to him or her under this Bill because the conflict is no longer taking place in the dwelling house. That is a fundamental flaw in this Bill. That is why the issue of curtilage needs to be addressed.
Fundamentally what has to be considered by the House in the context of this issue is how effectively the current legislation works and the need, if any, for legislative change to address particular aspects relating to situations which arise involving occupiers and intruders.
No situation involving assault is ever normal. In the context of an assault in the home, regard must be had to the unique circumstances which prevail when an intruder is being dealt with in the place where we all have a right to consider to be a place of safety.
The Law Reform Commission published a consultation paper in 2006 on the subject of legitimate defence. This publication was part of a series which is being undertaken by the commission into aspects of the law on homicide in this jurisdiction. It is worth bearing in mind that the consultation paper made a clear distinction between the application of defence in connection with attack on the home dwelling and the use of self-defence in the context of an attack in other circumstances. The Law Reform Commission recommends that "a defender should not be required to retreat from an attack in their dwelling house even if they could do so with complete safety". The commission's consultation paper is a useful document and it is currently finalising its report. On checking with the commission yesterday, we learned that its report will be published before the end of this year. I understand its report will contain specific recommendations on the issue of the application of legitimate defence in the context of an intruder in the dwelling home and also in the curtilage of it. In line with the practice of the Law Reform Commission, it will produce a draft Bill on the issues contained in its report.
While it is opportune to discuss this issue in a dispassionate way, I genuinely believe we should await the Law Reform Commission report, which will issue before the end of the year, and on receipt of its draft Bill, which will be accompanied by that report, we can examine it as the grounding legislation on this matter, which the Oireachtas can discuss and hopefully pass.
There is understandable public concern as to whether current legislation, namely, the Non-Fatal Offences Against the Person Act 1997, is correctly balanced between rights of the homeowner and someone who trespasses into his or her home with criminal intent. This issue has generated considerable debate both in this jurisdiction and elsewhere in recent years.
The Fine Gael Party does not have a monopoly on concern over this issue. The Government has also taken a constructive and considered approach to the issue and it will continue to do so. However, we should bear in mind that the citizen currently has the protection of the law if he or she defends himself or herself against attack in the home or elsewhere. Self-defence is a long held legal principle and it is provided for in the 1997 Act.
Our 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 relation to assault and the issue of self-defence in respect of someone who fears that he or she may be the victim of an assault is, as I said, the Non-Fatal Offences Against the Person Act 1997. I would like to place on the record of the House that this is effective and sound legislation and although it does not specifically deal with attacks which take place in the home, it deals with the issue of the use of force for the purposes of self-defence generally including incidents which might occur in the home. As the Minister, Deputy Dermot Ahern, has pointed out, sections 18 and 20 of the 1997 Act make statutory provision in relation 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) of the Act provides that for the purposes of section 18, it is immaterial whether a belief is justified or not, if it is honestly held. This is a very important provision. It means that if an individual is defending himself or herself from attack, he or she may apply the force he or she feels is reasonable to defend himself or herself effectively. 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, when 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 is reasonable "use of force". It also provides that a belief of the need to protect does not have to be justified if honestly held and leaves this as a matter for the courts to decide. The 1997 Act provides protection for the homeowner who finds himself or herself in the very stressful and difficult position of discovering an intruder in his or her home. This legislation has served us well to date. It provides a very well thought out 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 Flanagan'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 or her 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 factors set out in section 7 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 gained unlawful 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. Moreover, section 7 requires the court, in determining whether the occupier's actions were reasonable, to take into account the particular factors described in the section.
Our primary legislation in the area of occupier's 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 onto a 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. Additionally, 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 Charles Flanagan's Bill appears to assume 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, drafting difficulties arise with the Bill and questions remain to be answered about the extent to which section 4 gives occupiers' exemption from all civil liability. These matters would in my view upset the delicate legal balance which is contained in the Occupiers' Liability Act 1995 and it would be most unwise to interfere with this legislation without the most careful consideration.
Section 18(1) of the Non-Fatal Offences Against the Person Act 1997 clearly states the purposes for which force could be lawfully used. Deputy Charles Flanagan's Bill fails to do that. This Bill appears to significantly widen the circumstances in which force could be lawfully used. There is no mention in it of the protection of life or the protection of property. The Bill would also significantly reduce the ability of the court or jury to decide upon the reasonableness of the actions of the accused.
Section 5 confines the provisions of the Criminal Law (Home Defence) Bill 2009 to non-fatal offences. Section 6 would amend the Non-Fatal Offences Against the Person Act 1997 by adding new definitions and providing that no occupier has a duty to retreat before using force within his or her home. I have some sympathy with the provision on the issue of retreat. The Minister has already outlined some of the difficulties that can arise if a person is required to retreat from his or her own home in the face of an intruder. If further legislation is required on this matter the Government will not hesitate to provide it. We would be well advised to consider the matter again in light of the Law Reform Commission's work.
I wish to share time with Deputies Joanna Tuffy and Aengus Ó Snodaigh.
Listening to the debate so far one cannot but be struck by the realisation that there is a serious clash between what the law provides, in particular the common law, and the view of the ordinary citizen who is confronted by an intruder with criminal intent in the family home. There is no doubt at all but that there is considerable fear about the extent of intrusions that we have read about and experienced in recent years. In that regard it is very helpful that Fine Gael has put this issue on the agenda because while reference has been made to Border counties and rural areas the fact of the matter is that the phenomenon of people feeling vulnerable in their own homes is not restricted to those areas alone. Many people have experienced burglaries with intent or worse. There was a particularly gruesome case in a block of apartments on the north side of Dublin recently. It highlights the extent to which people are fearful for their personal safety and cannot enjoy their homes in such circumstances. That perception clashes to some degree with the law, which is very detailed and which has stood the test of time in this regard.
The fact that in rural areas in particular we have seen such gruesome incidents in recent years where people living in isolated and vulnerable circumstances have been attacked in their own homes, usually for the purpose of burglary and where violence has been inflicted on helpless people in those circumstances, is something that we in this House have a duty to discuss. In so doing we must examine whether the law is defective in any way. The Minister has conceded as much and has admitted that he understands that this is the reality. I interpret what he has said as a commitment to the extent that if the Law Reform Commission completes its business before the year is out and produces a draft Bill that it will be introduced in this House without undue delay. Otherwise, I am satisfied for the Fine Gael Bill to proceed to Committee Stage in this House. The Labour Party has reservations about some of the provisions in the Bill and agrees with some of the points raised by the Minister. We often shoot down — if that is not an inappropriate term in this case — Private Members' Bills advanced in this House when they could easily be improved upon or amended in committee to deal with existing social problems. The consultation paper published by the Law Reform Commission indicates to me that the Law Reform Commission itself acknowledges that there may be a necessity to update the law in this regard.
In regard to the section on which the Minister concentrated, it appears to me that the Law Reform Commission, in its consultation paper, makes a distinction between the application of defence in connection with attack on the home dwelling and the use of self defence in the context of any other circumstance. It states that a defender should not be required to retreat from an attack in their dwelling house even if they could do so with complete safety. The provisional recommendation also states that the dwelling house should be defined as including the curtilage or area immediately surrounding the home.
It is some time since I read the Law Reform Commission report on legitimate defence. However, there is an awareness of the problem that we are seeking to highlight here. If the Law Reform Commission continues its practice of recent times of accompanying its report with a draft Bill, I believe it should be introduced in this House without undue delay. Fear in the countryside in particular is greatly exacerbated by the absence of policing in the traditional manner. So many rural Garda stations have been closed or are essentially inoperable. The Minister for Justice, Equality and Law Reform, Deputy Dermot Ahern, has not set out his views today in regard to how he views the recommendations in the report of an bord snip nua in the particular matter of Garda stations. Traditional community-style policing and the patrolling of neighbourhoods and so on has virtually vanished from our cities. It is difficult for remote communities to feel assured in terms of the closure of Garda stations in their areas in recent years. This is adding to the real fear that exists in rural communities.
It is appropriate that we are discussing this legislation in a calmer environment than was the case when it was last discussed by the House a few years ago. We should not in any way play down the real fear among people, in particular senior citizens living in isolated conditions, for their personal safety. Whether this is a matter of adequate policing, the introduction of other measures or for refurbishment of the criminal law, this House should be prepared to do its duty in that regard.
I am reminded that when Rumpole of the Bailey went to court to defend his clients he would always resort to a passage about the golden thread that runs through the criminal justice system, quoting from the famous Woolmington case of 1935:
Throughout the web of English criminal law one golden thread is always to be seen — that it is the duty of the prosecution to prove the prisoner's guilt...If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.
This is also the case in Irish law deriving from common law and reinforced by our Constitution. However, there are exceptions to the golden thread rule, namely, insanity and expressed statutory exceptions. There is nothing preventing this House, based on professional advice from the Law Reform Commission, examining this point. There is no doubt but that this Bill is highlighting a real and serious fear in the community, in particular among our senior citizens, especially those living alone.
Deputy Flanagan, when introducing this legislation, said that it did not encourage occupiers to take action and it was intended to reassure occupiers of homes that the law is on their side. However, I am concerned that the legislation as drafted might encourage occupiers to take action and use force. It sends out a signal that the use of force in itself is a reasonable response. I am concerned this would normalise the use of force by occupiers on intruders.
I accept the legislation does not go as far as that which supports the type of view that is held in this regard in the United States. The Minister referred to the Castle doctrine. We know from what we learn about the United States that there appears to be a widespread view that one should protect one's home and in this regard many people there keep guns in their home for personal protection. While I am not suggesting the Bill promotes this type of approach, it might encourage some people here to keep weapons, presumably legally, such as guns or knives in their home. When one goes down this route there is a much greater danger that people other than trespassers will be injured by those weapons. A Fine Gael Member previously referred in this House to a person who kept an ornamental sword in the home.
Another issue of concern for me is the definition of "trespasser", which is very broad. Deputy Flanagan stated that Fine Gael has amended the definition of "trespasser" since 2006. However, I am concerned about the manner in which it has been amended. In this Bill, "trespasser" is defined in the broadest sense. The amendment states that a trespasser includes a person who enters a property with a lawful licence and whose presence becomes unlawful by violation of the express or implied terms of that licence. This, in effect, allows the occupier to decide at some point that the person is a trespasser, which could be an unreasonable decision on the part of the occupier or a misunderstanding on his or her part. However, such a person would be protected by the provisions of this Bill. I believe the amendment of the definition of "trespasser" has made the definition broader. It means that a unilateral decision can be taken at any time by the occupier of the House that a person is a trespasser against whom he or she can use force.
The Minister mentioned — this was also mentioned by former Minister for Justice, Equality and Law Reform, Deputy Michael McDowell — that a trespasser could be a child. A child might not realise or understand he or she is a trespasser and is unlawfully on another's premises. There are also many other types of people who may not view themselves as trespassers. There is nothing in the Bill that requires that a trespasser need have any criminal intent. In other words, it might not necessarily be a burglar or a person who intends to cause injury or damage that will be covered under the definition of "trespasser" in this Bill. For example, the former Minister, Mr. Michael McDowell, referred in 2006 to the possibility that a party gate-crasher might be defined as a trespasser. Newspaper reports regularly refer to incidents arising out of the gate-crashing of parties.
Similarly, I have a difficulty with the definition of "occupier" in the legislation. This might apply to persons on the premises at the consent of the owner. The example given by Mr. McDowell in this regard was party guests. The definition of "occupier" is broad enough potentially to encompass persons not connected with the owners of a particular property. Such persons could enjoy protection under the provisions of the Bill where they cause serious harm to a person considered a "trespasser", who may be a child or a party gate-crasher. I am not aware that there has been a sudden increase in prosecutions of home owners for using force against trespassers. A recent case relevant to this legislation was the Nally case, in which instance the defendant was found not guilty following an appeal.
As it stands, our law incorporates checks and balances. I am concerned that Fine Gael's proposal would send out the signal that force is an option rather than a last resort. Sending out the message that force is an option may lead to more prosecutions against occupiers for use of force because more of them will be of the view that this is the way to go. There is currently a widespread view that the use of force is not necessarily a wise course of action in this type of situation. The Minister referred to the principle of avoidance in this regard. The general perception is that one should not endanger oneself or one's family by using force unless there are no other options.
My other difficulty with Fine Gael's promotion of this Bill is the notion that its provisions would make intruders think twice. The premise is that potential burglars would desist from criminal activity for fear of being injured by the occupier and because they would be unable to sue for any such injury. I am not convinced this principle would be effective in practice. The way to deter burglars and those who intend to harm others or cause damage to property is by ensuring they are fearful of being caught, prosecuted and convicted. The important issues in this regard are a good Garda presence, efficient Garda methods and ensuring those who commit such offences are tried and convicted. Deputy Rabbitte referred to older people in both urban and rural areas who are particularly vulnerable to attack. During the last election campaign I met an 80 year old woman whose home had been burgled twice in a matter of weeks and who had been assaulted in the course of one of these intrusions. Her house was not alarmed, she lived alone and felt isolated, even though her home was on a housing estate. We must do more to ensure older people are not isolated in their communities and are offered supports. Funding for personal alarms for older people should not be withdrawn.
The Bill would effect a fundamental change regarding the desirability of retreat as a primary option for occupiers who are faced with intruders. This sends the wrong signal. There is a possibility occupiers may make a mistake in regard to the nature of the trespasser and the threat posed by him or her. There is often only a split second in which a decision must be made as to what action to take against a trespasser and what could be deemed reasonable force in the particular situation. However, this Bill positively promotes the taking of force. This may make it more likely for a person to decide, in that split second, to use force. This is not something that should be encouraged.
The Bill stipulates that its provisions regarding reasonable force cannot be used as a defence to murder. I understand the reasons that there has been a modification in respect of manslaughter. However, it will be open to a person to use reasonable force as a defence where he or she has caused serious injury to another intentionally. Will a person who has caused grievous bodily harm to another in these types of circumstances be allowed to claim the defence of reasonable force? I have difficulty with this provision.
The Bill provides that a trespasser who has suffered harm, whether serious or not, cannot take action against the perpetrator unless it can be shown that the force used by the latter was unreasonable. However, the provisions in this regard are broad. What will happen, for example, where the trespasser is a child? The force used by an occupier against a child trespasser may not be considered unreasonable under the provisions of this Bill but most of us would agree it would be morally wrong to use force against a child. The Bill does not protect children in those circumstances. I agree with Deputy Rabbitte that we should await the report of the Law Reform Commission. There are certainly concerns to be addressed regarding the law as it currently stands; hopefully the commission will provide guidance in this regard. I have serious concerns about the proposal put forward by Fine Gael.
Gabhaim buíochas as an deis labhairt ar an Bhille seo. Tá sé cosúil leis an Bhille a cuireadh os ár gcomhair anseo mí Meithimh 2006, Bille a chuir an Teachta Jim O'Keeffe os comhair an Tí. Ag an am chuir mé ina choinne agus is oth liom a rá arís go mbeidh mé ag cur i gcoinne an Bhille seo de thairbhe nach bhfuil smaoineamh déanta ar an méid atá Fine Gael ag iarraidh a chur trasna sa Bhille um an Dlí Coiriúil (Cosaint Tí Cónaithe) 2009. Tá i bhfad níos mó smaoinimh le déanamh ar an cheist seo go mbeimid in ann teacht suas le Bille a chuirfidh san áireamh go díreach na ceisteanna móra atá na Teachtaithe a chuir an Bille seo os ár gcomhair ag triall a chur trasna.
As I said in 2006 when discussing the home defence Bill presented by Deputy Jim O'Keeffe, the law must always seek to strike a balance between the rights of victims and those of alleged criminals. We must never forget that the premise which fundamentally underlines our justice system is the presumption of innocence until a person is proven guilty. The problem with this Bill is that it sends out the message to householders that they should act as judge, jury and executioner, albeit it does not allow for a defence to murder. It seems to suggest that any person who is found on another's property, whether guilty or not of the crime of trespass, may reasonably be subject to punishment by a kicking or worse.
Deputy Tuffy made an important point regarding the definition of trespass. There are many cases in which a trespasser does not have malicious intent. For example, a trespasser could be a family member who disputes the ownership of a land or property in a case of probate and wishes to assert his or her perceived rights. The trespasser may be a squatter who does not pose a threat to the occupier because the latter may not have been at home when he or she moved in to a premises. An improved definition of the word "trespasser" is, therefore, required.
The Bill is obviously intended to address circumstances in which a person is trespassing with intent to do damage or injure. Increasing levels of violence are being perpetrated by burglars in homes across the country, whether in isolated rural areas or urban centres. A significant number of elderly people in a particular part of my constituency have had their homes broken into. Thankfully in the cases with which I am familiar, none of the victims was assaulted, although they had the fear of God put into them by these burglaries and have been left afraid to continue living alone. This is one of the serious consequences of break-ins. It is bad enough to lose valuable property or a family heirloom. What is worse, however, is that victims often become afraid to continue living in their home.
In one recent case, the victim of a break-in, a woman who had lost her husband the previous year, was so traumatised that her family found it necessary to move her to a nursing home. Victim impact statements need to be used against criminals involved in break-ins to ensure they understand the full consequences of their actions and judges must take into account the impact of burglaries on old and vulnerable people. The impact of a break-in extends beyond a window being broken to gain access or a watch or wad of money being robbed.
The number of robberies is increasing as a consequence of the recession and increasing prevalence of drugs. Drug addicts use robberies as a tactic to obtain money to feed their drug habits. With burglars becoming more violent and ruthless, it is vital that such criminals be subject to the full rigours of the law when arrested and brought before the courts.
The danger with this type of legislation is that it encourages what are known as "have-a-go heroes", including people who may not be able to stand up to intruders, to come downstairs wielding an implement, with the result that a violent confrontation ensues. The proper response should be to call the Garda Síochána. This would be possible if the Garda was properly resourced but the problem, especially in rural areas, is that more and more local Garda stations are empty at nights, weekends and in some cases during the week. Moreover, Garda equipment is not up to scratch, for example, the promised digital radio system has still not been rolled out. We also need more gardaí to be released from duties that could be undertaken by civilians. A recent media report indicated that we have failed to meet the target for civilianisation, a process which would release more gardaí to engage in duties such as responding quickly and effectively to alarm calls made by people who believe their homes are under attack by burglars. As other Deputies have noted, greater investment is required in security for the elderly and those living in isolated areas to discourage attempts to break in to their homes.
We need to take a cautious approach to legislation of this nature and understand what would be the consequences of its enactment. One of the key dangers is that the Bill would increase conflict and violence during break-ins. One woman informed me that she woke up to find a person she did not know staring down at her. Not understanding the consequences of her actions, she screamed out and a hand was place over her face. If this legislation had been in force at that time, the woman in question may have had a knife or other weapon concealed under her pillow and may have used it to lash out at the intruder. She would then have had to face the consequences of her actions. The Bill does not provide a basis for mounting a defence in the case of murder, although in the case of a woman who lashes out with a knife and kills an intruder, the offence would probably be manslaughter. Nevertheless, taking an implement such as a knife upstairs implies premeditation and an intention to use it. The outworkings and consequences of this scenario have not been adequately addressed.
This three page Bill does not do justice to the issue involved. I encourage the Fine Gael Party Deputies to go back to the drawing board and consider the recommendations of the Law Reform Commission when it reports to determine whether it is possible to address some of the problems I and others have identified. On that basis, a Bill could be introduced to protect victims, while leaving intact the presumption of innocence until proven guilty, one of the cornerstones of our justice system.
I wish to share time with Deputies Conlon, Collins and Johnny Brady.
The subject matter of the Bill before the House is of considerable interest to Members and citizens. It is also an issue in which I have a keen interest. We are all aware of cases in which persons have entered a house or property without adequate excuse and with criminal intent, resulting in injury or death. Such cases have fuelled a debate on whether the law strikes the right balance between the rights of an occupier and those of a trespasser. There is a genuinely held view that while the Non-Fatal Offences against the Person Act 1997 legislates adequately for a case of self-defence in most circumstances, it does not give protection to a person who finds intruders entering his or her home with criminal intent. While I am fully aware of the efficacy of the current legislation, I also share the understandable public concern that the best legislative resources should be made available to provide for the protection of the home or dwelling.
I am a firm believer in the need for tough legislative provisions to combat all types of criminal activity and make no apology for fully supporting legislation passed in the previous Dáil session to deal with a wide spectrum of criminal law. The Bill before us is not adequate, well thought out or sufficiently strong to justify my support. It is, in effect, a copy of an earlier Bill introduced in 2006 and contains a number of a flaws which would make it inoperable for the purpose for which it is intended. For example, the term "dwelling house" does not include the curtilage or area immediately surrounding a home. This is a major flaw because an intruder may not have entered a home but may be in a person's yard or, in the case of farmers, adjoining farmhouses or other parts of the property in which the farmer attends to his or her lawful business.
A further flaw in the legislation is its failure to make distinctions between types of trespassers, for example, between a young person who may stray onto a property and a bogus caller who uses a sales pitch as a pretext to access the property. On many occasions they are not legitimate sales people and, as many others have found, it is difficult to dislodge them, whether from a house, farmyard or an adjacent area.
The special status of a home or dwelling has always been linked to the dignity of the individual. An attack in the home has unique characteristics and is very different from other forms of attack. Given the potentially emotive nature of such an encounter, I suspect that a great many people share this opinion. As we are all aware, Article 40.5 of the Constitution contains a specific provision that "the dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law".
References have been made to pendant alarms. As a board member of Muintir na Tire, which runs the national community alert programme, I am disappointed that the scheme has been suspended. It has not been ended by any means, but it is subject to review. I have made submissions to that review, as has Munitir na Tire and I hope many more interested parties will do so. Pendant alarms constitute a vital piece of equipment, especially for the elderly and other vulnerable people. The scheme was subject to a lot of abuse, however, and was not effective. There are only three suppliers. I know one of them had a spot check of over 5,000 pendants, which were fitted at enormous cost to the taxpayer, but they were lying dormant because the annual monitoring charge had not been paid. This is a shameful waste. The money would be better spent if the monitoring fees were paid for by the Department on an ongoing basis. It is pointless having this infrastructural investment if the pendants are not being used.
The proposals of an bord snip nua from Mr. McCarthy and his Dublin 4 friends must be rejected out of hand. They have forgotten about rural Ireland. We must support the gardaí who do a difficult job. They need our support and the community alert scheme strives to bolster the relationship between such organisations, the public and An Garda Síochána. There is no replacement for the Garda on the beat, who has time to have a cup of tea and a chat with people, especially those living alone. It is also important that gardaí visit schools, thus engendering a respect for the law among young people. We must maintain and nurture that relationship. The removal of any more Garda stations and allied resources would be a huge blow in that respect. Gardaí cannot solve crimes without community support. That is one of the reasons this Bill is somewhat premature. We should all examine the matter together to try to perfect the legislation which deals with a hugely emotive issue.
Many people cannot sleep properly, especially with the onset of autumn. In addition, when the clocks go back next month, it will get dark at 5 p.m. so people living alone will have a long period during which they will see nobody else. With the removal of some postal services, people living alone may not receive visits from anybody.
I am currently involved, as are others around the country, in establishing a listening service called Good Morning South Tipperary. Data from companies monitoring pendant alarms show that many people use such pendants not because of attacks or accidents but due to sheer loneliness and isolation. We have found from telephoning such people that they are happy to engage in conversation. Their faces light up and they are in a better state of mind and health when they have contact with others. People who have peace of mind are more relaxed and healthy, which in itself reduces health care costs.
Everyone is entitled to be considered innocent until proven guilty, and we must respect that legal tenet at all times. However, I have serious concerns having had considerable experience of the court system following my own incident. The situation in the courts is very frustrating and some cases can continue for ten years. Justice delayed is justice denied. It is also frustrating for gardaí when they have a book of evidence, yet cases cannot come to court.
The free legal aid area has been totally abused and ripped off. People with previous records have availed of free legal aid, but that service should be denied to them. There should be some recompense whereby they must pay their share. I am not talking about those who are innocent and have not been convicted.
We should all stick together to try to get a comprehensive Bill to deal with these matters.
A few years ago, a couple of high profile cases in Ireland and the UK succeeded in putting the issue of protecting individuals, families and property in one's own home at the top of the agenda. These legal cases also highlighted what has long since been an issue for many people in rural Ireland — that is, the fear and vulnerability that many rural dwellers, and particularly older people, feel living alone. The threat of intrusion looms large for many people and the high profile cases I mentioned have probably exacerbated this fear.
From the way the Fine Gael Party is talking, one would think there is no legislation in this area, but that is incorrect. The Non-Fatal Offences Against the Person Act 1997 sets out clearly that home-owners are entitled to use reasonable force in protecting themselves and their property. In addition, in a recent judgment Mr. Justice Hardiman stated:
The offence of burglary committed in a dwellinghouse is in every instance an act of aggression. The violation of a citizen's dwelling house is just that, a violation and act of aggression, no matter what the other circumstances ... Although he is not liable to be killed by the householder simply for being a burglar, he is an aggressor and may expect to be lawfully met with retaliatory force to drive him off or to immobilise or detain him and end the threat which he offers to the personal rights of the householder and his or her family or guests. And this is so whether the dwellinghouse which he enters is, or appears to be, occupied or unoccupied when he breaks into it.
Therefore, contrary to what Fine Gael would have us believe, the role of the victim is protected and the law does not favour the criminal. That said, there are still anomalies in this area. We must strike the right balance between allowing home-dwellers to protect themselves and their family, as well as their property, while avoiding a legalisation of the shoot-to-kill approach.
In recognition of some of the anomalies in this area, in 2006, the Law Reform Commission made a number of recommendations in its consultation paper. It suggested that innocent defenders may only resort to lethal defensive force in response to a threat where they are unable to retreat with complete safety from that threat. In line with recent case law, the commission recognised that a defender should not be required to retreat from an attack in their dwelling home even if they could do so with complete safety. The commission found that lethal defensive force should not be used in defence of personal property. It does not recommend that any upper limit be placed on the force that may be used to defend one's dwelling house.
I will not go into the shortcomings of the Fine Gael Bill as I agree with the Minister's arguments. This is a complex subject and any errors or oversights could have huge repercussions. A gentleman's home is his castle and we are all entitled to feel safe and secure in our homes. Likewise, we must be able to exercise due force when our sanctuary is threatened. Greater clarity regarding what is reasonable force is needed. I look forward to the Law Reform Commission's forthcoming proposals on this issue and that is why I will be not be voting in favour of this proposed legislation.
I am grateful for the opportunity to partake in this important debate because all of us are united about progressing legislation to protect our law abiding citizenship. It is unfortunate, given the downturn in the economy, that an upturn in crime is being experienced, particularly in rural Ireland. There is no point shying away from it. Fear is widespread and as a Member representing a rural constituency, I am well aware of the fear experienced by senior citizens, in particular, living in isolated parts of County Limerick. Regrettably, I am contacted on too many occasions by them to report incidents and I try to advise and work with them and with State agencies. Recently in the parish of Fedamore, County Limerick, near my home, a lady woke up in the middle of the night to find her car the subject of an arson attack outside her front door. Her insurance company provided her with a replacement car the following day but that night, the car was also burned out. The company will not provide with her with another replacement car and she is potentially uninsurable. She must do without a car until the perpetrator of the crimes is brought to justice. The gardaí are effective in County Limerick and they deal with various cases efficiently, for which I thank them. Agencies such as Victim Support deserve our assistance and they should be given credit because they provide significant support to the victims of crime.
The Government, the Labour Party and Sinn Féin seem to be at one regarding this issue and we should all get together and advance legislation on foot of recommendations due shortly from the Law Reform Commission. Reservations have been raised about the issue of reasonable force and the definition of the "curtilage of one's property". This is relevant in rural areas, particularly for those who own farms and outbuildings. Experience can be drawn from a number of high profile cases involving people in rural areas in recent years. It is important to get this right because failure to do so could result in people hiding behind legislation.
The Garda has become proactive in interacting with local community groups in my constituency. Last Monday, more than 100 people met gardaí at a meeting in Shanagolden. The gardaí were able to take them through crime statistics for Shanagolden and Foynes, which were generated through investment in the PULSE information system. It is important that community representatives can talk to gardaí about hard facts and figures because hysteria and misinformation about crime levels often take over. It is important that gardaí can produce hard facts and figures about crime levels and detection rates to reassure communities. The Garda is also proactive in the roll-out of the neighbourhood watch and community alert schemes, which is also important. An bord snip nua made a recommendation about the future use of rural Garda stations and the House must engage in a serious debate on this issue. Many stations lie idle but do we want increased investment in human resources in order that more gardaí are on the beat or do we want to tie up resources in land and buildings?
I echo the comments about the free legal aid scheme. A fundamental root and branch review of the scheme is needed because the balance is tipped in favour of the perpetrators of crime who use it on multiple occasions and against the victims of crime.
I welcome the opportunity to contribute to the debate. Every citizen is entitled to live in his or her home without fear of intrusion. We all know constituents — some of us have had personal experience — who have experienced such intrusions and they bear the scars forever. We should do everything we can to ensure such criminal activity is reduced.
I support Deputy Mattie McGrath's comments regarding pendant alarms for elderly and vulnerable people. They are a tremendous asset for them and it is most important that they know somebody is at the end of a telephone line when a crisis occurs. I also support Deputy Collins's comments regarding the Garda. Members of the force do a tremendous job in difficult circumstances. Crime prevention officers in my constituency are extremely busy meeting community groups to discuss how people can make their homes safer.
The Law Reform Commission is due to report shortly on a number of issues relating to homicides, including the defence of a home dwelling, and a draft Bill will be published before the end of the year. It is a little premature for Fine Gael to bring forward this legislation in advance of the report and its recommendations. The LRC is considering the issue of legitimate defence. In November 2006 it published a consultation paper on the issue, which included consideration of issues relevant to this topic. What is the benefit in having the LRC report pending and all the work that went into it if we pre-empt the commission by publishing a Bill that may include some or all of its recommendations? I urge the Minister to carefully analyse and evaluate all of the commission's proposals. The Joint Committee on Justice, Equality, Defence and Women's Rights should discuss the report in great detail.
Furthermore, there have been important case law-led legal developments. It is currently a matter for a court and a jury to decide in cases of attacks in the home whether the force used was reasonable on the facts of the specific case. In December 2006 Mr. Justice Hardiman dealt with the issue of permissible response to an attack in the course of a burglary in the 2006 case, DPP v. Barnes. The judgment stated: “Every burglary in a dwelling house is an act of aggression . . . It is quite inconsistent that a householder could ever be under a legal obligation to flee their own dwelling house.” This is correct. When should an invader of a private house ever have equal or superior rights to the lawful occupant? Legislation is required to defend one’s rights and punish others and if individuals trespass or invade other people’s private property, they should have little defence as they have made a conscious decision as to where they should go. We must protect people in their own homes and I hope this is the guiding principle of the LRC report.
Many issues relating to the Bill must be discussed. In the case of self-defence, the test under existing law is subjective. That means a person may act depending on the danger he or she feels he or she is in. The purpose of section 5 is to ensure no provision in the legislation can be used as a defence for murder. How would this work in practice? It is woolly and unclear. Section 4 would affect the Occupiers Liability Act 1995. There is also an inconsistency in applying a criminal standard in section 7 when we see a civil standard in tort liability. It reflects a Bill which was not fully thought out and was rushed, which is never the basis for effective legislation.
The Bill does not address the issue of the curtilage of the dwelling. How far outside the dwelling is its immediate area? Will the Bill leave this up to the judge to interpret? If that is the case it defeats the argument for the necessity of the Bill. I see the rationale behind why the Fine Gael spokesperson brought forth this Bill. There is a need for greater legal certainty but the Bill does not provide that. I urge the Minister to provide a level of certainty, security and peace of mind to homeowners the length and breadth of the country.
There are a number of minutes left. With the consent of the House I will allow Deputy O'Connor to use the remaining minutes. Deputy McGrath thought it went without saying that Deputy O'Connor would speak on this Bill.
I am easily forgotten. I am glad to have the opportunity to make a brief contribution. The Ceann Comhairle will note I am the only Dublin person among the five speakers. I am anxious to make that point. I support the views my colleagues expressed regarding rural policing and difficulties but I represent a mainly urban constituency, although there are rural voters in Bohernabreena and Brittas and I am happy to support their views.
I compliment Deputy Flanagan and his colleagues in Fine Gael on giving us the opportunity to raise issues about which I know, from listening to the debate, we are all concerned. It was decided not to proceed with legislation on this issue for the present, pending the publication, as my previous colleague said, of a Law Reform Commission report on legitimate defence. A consultation paper was published in November 2006 which includes consideration of issues relevant to this topic and a Law Reform Commission report on a number of issues related to homicide, including defence of the home dwelling, along with a draft Bill, is due to be published before the end of 2009. I am told it would be premature to advance proposals on the topic before that report is published.
I will not disagree with this Bill — it is an issue of great concern to many of us. I have heard other colleagues make the point that we need to support the Garda in our communities. Some of the House will know I live in Tallaght, the third largest population centre in the country. Like everywhere else we face challenges as far as security and crime are concerned. At the South Dublin County policing board last Friday I took the opportunity, which I am always happy to do, to strongly support the Garda in its efforts on behalf of my community and the wider community. At that meeting we received a report which embraced the entire constituency.
My constituency is served by Garda stations in Tallaght, Crumlin, Rathfarnham and Clondalkin and there are issues about that administration which I will continue to raise with the Minister. We listened to a community report which referred to many issues of relevance as far as this Bill is concerned. I support the concept and will press the Minister to take action in this area. I appreciate the courtesy the Ceann Comhairle extended to me and I thank him.
I wish to share time with Deputies Breen, Deenihan, English, Doyle and Creighton.
Is that agreed? Agreed.
I have long been of the opinion that many Fianna Fáil Ministers are out of touch. I did not realise so many backbenchers were also out of touch. The history of Private Members' Bills over the last number of years has been poor. I did some research and in one 30 year period only three such Bills have been accepted. On this occasion, this Bill is so important it should be considered. From listening to the Minister and the Fianna Fáil backbenchers it is obvious it will not be considered.
This Bill will benefit homeowners. The appeal from Deputies Flanagan and O'Keeffe, who sponsored the 2006 Bill, was to let it go to committee and if it could be improved, similar to what the Minister, Deputy Lenihan, said about the NAMA legislation, it would be. I am satisfied that Fine Gael would be prepared for that to happen but, from listening to the other side of the House it will not happen.
The Bill is a considered piece of legislation and the most important aspect of it relates to reasonable force. Reasonable force is still the measure of force to be used regarding a burglary or trespass. It has been long interpreted by case law as force that would be used by a reasonable man.
This Bill transfers protection in law from the aggressor to the victim. I was interviewed on a local radio station in Galway during the summer when the Bill was first published. I must admit I did not realise the number of people who had no idea that if somebody breaks into their home and confronts them, the first thing they are obliged to do is retreat. That is what the law currently states. One must retreat. If a victim does not retreat and confronts the person, he or she can be up in court. It has happened in Ireland and in the UK. That is wrong and we are reversing that point of law.
We had a tour of Tallaght from Deputy O'Connor and I am sure there will be other tours from other Deputies. Garda numbers are stretched more than ever. The population is increasing and a significant number of people are leaving the force. In my constituency of Wexford the population 30 years ago was a little over 70,000, it is now 140,000. I spoke to a garda from Gorey who was leaving the force and he said Garda numbers in Gorey are similar to when he joined the force 20 years ago.
The numbers can be managed to show there is a significant number of gardaí all over the place but that is not the case. The Constitution protects the inviolability of the dwelling and the home. The home is where we have our families, children and parents. It is appalling that, under the current law, a person who breaks into a home has more protection in law than those who live there. This Bill will change that. I appeal to the other side of the House to allow it to proceed to Committee Stage and to put down amendments to improve it if they wish. I look forward to that.
I congratulate Deputy Flanagan and his team on bringing this Bill before the House. It is unfortunate that the Government will not support the Bill this afternoon because it is very fair and tilted in favour of the homeowner. If somebody breaks into a home and there is clear criminal intent, the law should be tilted in favour of the homeowner and not the intruder. For anybody that has been through this, there is nothing more dramatic than waking up and finding an intruder in one's home, and many victims never get over it.
I understand Eircom Phonewatch did a survey recently and stated more than €100 million worth of goods were stolen from Irish homes between June 2007 and June 2008. On average, nearly €4,000 was taken from each home during that period. The same survey revealed the interesting fact that eight out of ten burglaries take place while the occupant is at home. It is frightening for people to have this happen in their homes. The figures have risen significantly since 2004, when only five out of ten burglaries were reported to have taken place when occupants were at home.
In the past three years the number of burglary incidents reported to Claregalway division stations have grown from 316 in 2005 to 458 in 2007, with the rate of detected burglaries for the same period having increased from 55 in 2005 to 142 in 2007. While I commend the Garda on the increase in detection rates, we could attain a higher rate of detection in our policing policy if the policy supported the maintenance of local rural Garda stations.
The national CSO crime figures, which were published in February of this year, showed a similar trend. Theft and related offences had increased by 2%, and burglary and related offences had increased by 4.5%. Like many Deputies, I am aware of a spate of burglaries in my own constituency, particularly in rural and isolated areas, in recent months. Elderly people and people who live alone are most vulnerable to such crimes. In my own parish, an elderly man who lives on his own in an isolated area was recently attacked and tied up for the sake of €60 or €70. It is a relatively common phenomenon. If he had not freed himself, the consequences of the crime could have been much worse.
The people of rural Ireland would sleep much more soundly in their beds if there were 24-hour manned Garda stations in their local areas. There is a huge cloud over the future of many rural Garda stations. The current trend is to concentrate Garda stations in urban areas, at the expense of rural communities. The only 24-hour Garda stations in County Clare are in Ennis, Shannon, Kilrush, Killaloe and Ennistymon. The other Garda stations open for just a few hours each day. In recent months, I have received a number of calls from people who live in isolated parts of the county and are worried about the increased incidence of burglaries in their areas. They are concerned that the short opening hours of their local Garda stations are resulting in gardaí having to travel long distances to respond to incidents. It is sad that it takes gardaí a long time to respond to incidents in villages like Miltown Malbay, which is 13 km from Ennistymon, and Ballyvaughan, which is 25 km from Ennistymon. The Government has turned a blind eye to the Garda Síochána's policy of increased urbanisation. I call on the Minister, Deputy Dermot Ahern, to review the strategy and to put gardaí back in our rural areas.
The aim of this Bill is to tilt the balance in favour of the victim, rather than the criminal. Surely one should be able to protect one's family when an intruder breaks into one's home with criminal intent. This Bill will ensure that a jury will be able to consider one's specific circumstances at the time of the confrontation. More importantly, it will provide protection from civil liability to people who potentially could be sued by a burglar. Fine Gael is not suggesting that home owners should confront intruders. On the contrary, we are proposing that legal protection should be afforded to home owners who find themselves in unavoidable situations when criminals enter their homes. Everybody has the right to live in peace and to be safe in his or her home. I urge the Government to reconsider this Bill, which favours the victim rather than the criminal.
I had an opportunity to address this matter when another Bill dealing with it was discussed in this House some years ago. At that time, most Deputies called on the Government to take action in this area. It is obvious that no action has been taken since then. It is reasonable to expect the House to address the matter on this occasion. The law as it stands is confusing. Those who are attacked in their homes can find themselves in precarious circumstances. It has happened to someone I know.
Having listened to some of the speakers on the Government side of the House who have spoken about this issue - I do not refer to the Minister of State, Deputy Calleary - it is obvious that they have never come into contact with someone who has been attacked in his or her home. Although this serious matter affects a relatively small number of people, our law should address it to some extent. The Minister for Justice, Equality and Law Reform has said that the Law Reform Commission will make some proposals this year and a Bill will be produced thereafter. While I hope that will happen, I remind the House that it has been promised before. When we discussed this matter in 2006, the then Minister said the same thing. I would bet anything that it will not happen this year, even if the Government is still in place. This serious issue can be addressed collectively by the House. People on both sides of the House have a good knowledge of the law. Some of them, like Deputy Creighton, have practised as barristers or as solicitors. The manner in which this fairly considered Bill has been rejected today is symptomatic of the way this House does its business. It was not accepted, as it could have been, because it was produced by the Opposition, which obviously cannot avail of the support of the Government's many parliamentary draftspeople and legal advisers. I understand that Deputy Flanagan received a telephone call from the Minister's office, or from his Department, to the effect that this Bill would be accepted. I do not know why there has been a change of mind in the meantime, but that is what has happened. This legislation has been rejected by the Government for political reasons. That is not a good way to do politics in this House.
The most recent figures for crimes of this nature do not say where the burglaries in question occurred. The figures for the second quarter of 2009 are alarming. During that timeframe, there were 2,305 burglaries and related offences in the Dublin region. By contrast, there were just 1,801 such offences during the same period in 2007. The number of burglaries in the Dublin region increased by almost 500 between 2007 and 2009. In the first quarter of 2007, there were no cases of aggravated burglary, which includes people breaking into houses, in the southern region. There were ten such crimes in that region in the second quarter of 2009. I am not being selective with the figures I am presenting to the House. The reality is that these crimes are happening more often. Repeat offenders know that the law is more or less on their side at this time. They know that people who come across intruders have a sense of a doubt about what they can do to defend their homes. They know that such people tend to think twice before they take action — they probably hide and hope these people go away. Now that the Government has rejected Fine Gael's very good proposal, I appeal to it to ensure that the Law Reform Commission's report is published and that a Bill is introduced in this House by the end of the year, as promised by the Minister, Deputy Dermot Ahern.
I am grateful for the opportunity to say a few words on this important and simple Bill. It is right that it has been introduced at a time when no big court cases that would distort our discussions on this issue are taking place. Despite all the madness that is taking place in respect of various issues, some of which are close to the heart and some of which are not, this is a good time to have a proper debate on legislation of this nature. One would imagine that some leeway would be afforded to us as we try to engage in proper politics, but that has not happened so far today. The Minister came in and tried to find something wrong with this proposal so that he would not have to accept an Opposition Bill. Of course the Bill is not perfect — we do not have the expertise and advise of the Government's draftspeople to help us to put it together. We introduced it in the hope that it would be discussed, amended and ultimately passed. It is time for us to get something done in this regard. Instead, the Minister came in and tried to suggest that the current law is good enough. He said that further clarity is coming down the line and that a new Bill will be produced by the Government. Although this issue was discussed three years ago — I am sure it was also debated many times before then — problems continue to be caused by the grey area that exists. I hope the new Minister of State, Deputy Calleary, will bring about change within the Government. The people want a new kind of politics — they are fed up of the old kind. They have had enough of the pathetic showmanship and argy-bargy of the past couple of years. They want action to be taken. If we do not start to do things in here, there will be a revolt some day soon. Certain common sense things need to be done simply, without being complicated or dragged out over many years as they unbelievably have been. It is time for us to wake up and start to get things done in this House. This is an example of a simple problem that needs to be corrected and put right.
If someone enters one's family home when one's partner and children are present, one is expected to walk away and retreat. That is lunacy. Who in their right minds would retreat and put their children in danger? It is stupid to expect such a response. The sooner we change that, the better because otherwise somebody else will end up in this situation. It is bad enough that someone might end up in court for injuring an intruder but what if that person's child was injured because he or she retreated? The responsibility will rest on the shoulders of the Members opposite if they do not act.
People do not know what the law currently requires of them. The Government has the duty to ensure that the law is clear. This Bill attempts to set out in black and white what one can do. An intruder has no business in someone else's home. The garden and the adjoining football pitch are different issues because to enter a home, an intruder has to come through the door, window or, like Santa Claus, down the chimney. One has a right to take action against anyone who enters one's home without permission. We have a duty to enforce that right in law.
This Bill is straightforward and deserves to be enacted. In many parts of rural Ireland, people are afraid that someone might come up their driveways and through their doors. As few rural Garda stations are manned 24 hours per day, people need the law to protect them in other ways. The lack of resources means they cannot easily pick up the telephone and get a response from a Garda station. Unemployed people who are trained in clerical work could easily be employed in Garda stations so that gardaí can be put on the streets. We have discussed this issue for many years but we continue to deal with the politics of inaction.
It is a pity that we have not moved with the times. This week, the Ceann Comhairle reminded us about Dáil reform. We have a duty to reform the Dáil so that we can react more quickly to issues even when the Government wishes to delay. We are stuck with an old system which does not get things done, with the result that people suffer. I urge Government Members to accept this Bill or else to introduce similar legislation.
Like my colleague, Deputy English, I did not come here to posture politically but to get things done. In fairness to the Minister of State at the Department of Enterprise Trade and Employment, Deputy Calleary, who is sitting opposite, he is of the same mind. I was able to predict what the Minister for Justice, Equality and Law Reform would say. There are similarities to the Cluster Munitions Bill 2008, which was introduced by Deputy Timmins and subsequently dressed up in new clothes as Government legislation. In reality, we could have dealt with it as mature adults. Deputy English correctly noted that people expect more of us.
This is a simple Bill. Thankfully, I have been in the High Court on only a couple of occasions, where I watched barristers plead with judges in defence of their clients. We are not supposed to act that way when we debate issues. The Minister picked holes in our Bill and several Members, including Deputy Ó Snodaigh, have referred to the Law Reform Commission. This matter is not even on the programme for Government. It is a simple matter of shifting the onus of responsibility for proving a breach of the law onto the intruder. The occupants of a house are not prepared for the intrusion. It is like having to decide whether to brake or swerve when a cat or dog runs across the road in front of one's car. Deputy Ó Snodaigh, in his softly-softly approach, suggested that if a woman believes she is entitled to refuse to retreat she may keep a knife under her pillow. I do not know many women who hide knives under their pillows. Most people are aware that the occupant is not always in the right because of the high profile cases that have come before the courts.
The Non-Fatal Offences against the Person Act 1997 is contradictory in this regard. On the one hand it requires that the force used be reasonable but, on the other, it provides that a jury may consider whether the accused had an opportunity to retreat from conflict. If I stand on my landing and three bedrooms are occupied by my family members, it is not fair to ask me to retreat rather than try to protect them. The onus to retreat should not be put on the occupant of the home. The Bill clearly provides such a right within the house. If one can chase an intruder, one also has time to dial 999. Reasonable force is that which is needed to overpower an intruder. That can be determined in a court if and when the Bill is tested. Reasonable force does not entail inflicting unnecessary harm or hurt on an individual. That is basic common sense.
The new joint policing committee for County Wicklow recently held its inaugural meeting. The chief superintendent who addressed the committee reported that robberies in the county have increased from 31 to 37, an increase of 19%. Burglary and related offences went from 634 to 712, an increase of 92 cases or 15%. An earlier speaker correctly attributed these increases partly to the economic situation. People are taking desperate measures which they would not normally attempt. Wicklow is on the doorstep of the biggest conurbation in the country and has two regional roads and a vast expanse of isolated upland territory. We simply ask that this Bill be given reasonable consideration rather than parked like the Cluster Munitions Bill 2008.
This is an extremely important Bill. The Minister of State at the Department of Justice, Equality and Law Reform, Deputy Barry Andrews, will be more aware than many of his colleagues of the principle in the criminal justice system that ignorance of the law is no defence. However, that is difficult to explain in the circumstances outlined by my colleagues and when the Government admits that the law in respect of defence of the home is a grey area. There is a lack of logic to some of the interpretations that have been made of the law.
This Bill has two simple aims. First, it achieves legal certainty and brings fairness and clarity. Second, it allows people to have peace of mind in their own homes. This is particularly important, as has been pointed out, for the elderly and for people who live in isolated areas but it is broader than that. Many people, both in urban and rural areas, are concerned about the practicalities of how they can defend their homes and their families and they are entitled to peace of mind.
There has been much reference to the Law Reform Commission. I suppose it is pertinent to state that the Law Reform Commission has appealed for clarity on this aspect of the law. The Law Reform Commission report states:
A failure to specify rules of acceptable conduct clearly exposes accused persons to "the vagaries of juries" and "to gusts of public opinion".
Therefore, the Law Reform Commission agrees with Fine Gael that there is a need for clarity in this area.
There has been much confusion about why this legislation is required and I heard some dangerously emotive language from the Government benches. Fine Gael is not stating, contrary to what some colleagues of the Minister of State, Deputy Barry Andrews, have suggested, that people should be entitled to shoot to kill. That is not what we advocate. Fine Gael advocates that we balance the rights of innocence people — victims in their homes — with the rights that already pertain to intruders in the home, and that is important to point out.
Both the criminal law and the civil law are confusing in this area. We hope and strive to achieve a degree of clarity. We have already pointed out that there is a constitutional issue. The Constitution has not been done justice via legislation. The Constitution refers, in Article 40.5, to the inviolability of the dwelling but that has not been transposed into legislation which protects that constitutional right.
The following question arises. Who has rights, victims or perpetrators? The Constitution provides protections to people in a range of circumstances and the focus is often on the rights of the accused — the rights of those who have been arrested such as the right to fair trial — but we should not forget that it is not just criminals who have rights. The Constitution bestows rights on all of us, particularly law-abiding citizens, and protects all of us. It is the duty of the Legislature, and particularly the Government, to ensure that the most basic right, the right to sleep soundly at night in our own homes, is protected. That is a matter on which the Government, and particularly the Minister for Justice, Equality and Law Reform, Deputy Dermot Ahern, needs to focus and reflect.
In criminal law, for example, the presumption of reasonableness currently lies with the perpetrator and we in Fine Gael consider this unfair. We propose, in section 3 of the Bill:
Where the occupier of a dwelling uses force in relation to a trespasser who is unlawfully present, and remains within the dwelling, the force used by the occupier shall, unless the contrary is proven, be presumed to have been reasonable.
We are not proposing a shoot-to-kill Bill. What we are proposing is simply to shift the burden of proof from the innocence party to the guilty perpetrator, the person who is uninvited and intruding in somebody's home.
Deputy Creighton's time has expired.
I will finish on this important point. The Minister is waiting for a Law Reform Commission report, which has been promised for a long time. He is planning on fobbing off essential and urgent legislation yet again for a Law Reform Commission report. We all are well aware that the Law Reform Commission has published many volumes of reports, none of which have ever been acted on. It is essential to point out as well that the Minister proposes to abolish the Law Reform Commission, and that needs to be put on the record. There is a little inconsistency in a Government paralysed and unable to act without a report from a body that it proposes to abolish in the first place.
I am pleased to be able to speak on this Bill. I commend Fine Gael for putting it to the House and commend the discussion and the contributions of all Members of both sides.
Deputy Doyle made the point that there was an increase in crime in Wicklow. It is something that has been seen in certain places and it may be attributable to the difficult budgetary situation and the condition of the economy. However, we also must be careful, as Deputy Creighton stated, in not over-egging the pudding to try to persuade on the points we wish to make. We can create a fear of crime. We can create a situation where people are more in fear of crime than is necessary by using words that are intemperate and designed to achieve a political end rather than to inform or enlighten any debate. Unintentionally, one can create a spiral of fear and one can feed into this creation of the fear of crime. There is crime and there are figures for crime. The figures can increase from time to time but that does not mean that the fear of crime must increase. Among all of the western European countries, the rate of crime in Ireland is very low and yet there is a political incentive from time to time for political parties to show that they can out-muscle each other on the "hang ‘em and flog 'em, throw away the key" kind of speeches that we have heard on occasion.
There is a balance between victims and perpetrators that is reflected in law. That is a fact of which we all are aware. I dare say some of the speeches tend to suggest it is an either-or situation. That is not the case. There is a fair balance in law and in the Constitution in respect of victims and perpetrators, and that is right and proper.
Deputy Creighton referred to the inviolability of the home, which is a right in the Constitution but which is not an absolute right. There are no absolute rights in the Constitution. All of these are conditional on other rights and the courts are continuously trying to balance the hierarchy of rights. It is not accurate to state we must either support the victims or the perpetrators. We can fashion a law in a civilised society and a criminal justice system that protects both.
Much comment has been made about the Law Reform Commission. The Law Reform Commission has an important role but because we are going to hear what it has to say does not mean that this debate is not relevant, it is very relevant. I introduced a Private Members' Bill in the last Dáil which preceded a later Law Reform Commission report on the same subject. The commission referred to the debate on my Bill, and the Bill itself, in formulating its proposals and statutory framework, and that has since passed Second Reading in the House. It underlines the fact that one can have a useful and informative Private Members' discussion on a Bill followed by a Law Reform Commission report, followed by action in law, and that is what we did on spent convictions. No doubt the Minister, Deputy Dermot Ahern, is genuine in stating that he proposes to make changes when he has had a report from the commission.
As has been said, the importance and special status of a person's home is unquestionable. For example, there is a recognition of this in the Constitution as referred to. Equally, it is clear that there is a concern in some quarters as to whether the legislation in the Non-Fatal Offences Against the Person Act 1997 strikes the right balance in terms of the matter to which I have been referring. The issue has been raised by some Deputies that while in general it legislates adequately for circumstances where self-defence may be applied, it does not deal adequately with such a situation within the home. As all Members will be aware, the 1997 Act provides that reasonable force may be used to protect oneself or a family member or another, or to prevent a crime. The key factor is that the use of force must be reasonable in all the circumstances.
Another factor that has arisen in the debate is that section of that Act provides that the fact that a person had an opportunity to retreat before using force shall be taken into account in all the circumstances is not an absolute duty to retreat — that must be made clear in a reasoned debate on this issue — in determining whether the use of force is reasonable. That is a matter of law and it is something for a judge to inform a jury on.
The Minister of State's time has expired.
It is not subject to what is termed "the vagaries of juries". I would not agree with the Law Reform Commission's comments quoted by Deputy Creighton. Our juries must be trusted as a jury of our peers in these cases.
I welcome the opportunity to contribute to the proposed Bill and I want to commend Deputies Michael Ring and Charles Flanagan on bringing it before the House today. It is timely legislation for many people throughout the country.
It is quite clear to the public at large that the rights of the home owner are not being adequately protected. We need to ensure that the victim has greater support than he or she has under the law at present. In particular I want to highlight for the Minister the reality of what is happening in the country today and I am worried about what he said in his opening statement. Deputies and the public at large are aware of cases where persons have entered a property without adequate excuse, with criminal intent, with the result of injury or death. Such cases have fuelled the debate as to whether the law strikes the correct balance between the rights of the occupier and those of the trespasser. That is why Deputies Ring and Flanagan have introduced this legislation. It is quite clear to many that the home or property owner does not have the same rights under the law as the trespasser in such cases.
I want to draw the Minister's attention to what is happening, particularly in the west of Ireland, in rural areas, especially in east Galway, the place I know best. Over the past 12 to 18 months in particular, gangs of raiders have concentrated in east Galway, as the evidence shows. It is not a question of their concentrating in just isolated areas, but rather in urban neighbourhoods and rural villages, in regions such as Loughrea, Killimer, Portumna, Tynagh and Woodford. There have been repeated hits on this area and these are occurring with far greater frequency than in the past. This is giving rise to great concern among communities. It is difficult to understand why the Government, which is aware of those facts, has decided to curtail the grant assistance for the provision of safety and security, such as alarms for the elderly. It is unbelievable that the Government can come forward with this idea at the present time.
These raiders and gangs have attacked people, damaged their property and stolen vast amounts of items, obviously for resale. The authorities must realise that these gangs have local information provided by people with links to them. Reportedly, such local informers are on the payroll of the gangs and successfully identify the property of elderly vulnerable people or business people who may hold valuable items including cash in their houses. They are paid according to what the raids yield. Again, it is unbelievable that the present Garda structure in rural Ireland, particularly in east Galway, clearly shows that so-called community policing has left vast areas without cover, as has been repeatedly highlighted this evening for the Minister.
The gardaí know that these gangs use special means of communications, for instance traffic cones that are placed outside a house that is deemed suitable for a hit. Even more commonly, empty plastic bags are used to mark a property. These are very simple mechanisms, but that is what is going on and if the Minister continues to ignore these occurrences, elderly people in Ireland will be in a vulnerable state. I ask the Minister to immediately accept the Bill before the House. If he has to amend it, by all means let him do so, but to reject it out of hand as he has done is a careless response to an absolute need for the protection of people in rural Ireland.
I want to compliment my colleague, Deputy Charles Flanagan, with whom I was delighted to be associated in the introduction of this Bill. He and the legal staff within Fine Gael thought about the Bill very carefully. It will not be long before there is a change of government and I have no doubt when this man is Minister for Justice, Equality and Law Reform, he will bring the necessary legislation through the House.
The Deputy is counting the seats already. Is that not complacent?
I am disappointed with the Minister of State and the Government that they did not accept this Bill. If there were elements they did not like, these could have been dealt with on Committee Stage. That has happened in the House before. Deputies Flanagan and Shatter have brought Bills before the House and previous Governments have brought in the necessary amendments on Committee Stage to deal with them. I cannot understand why the Government did not do this. Everybody is crying out for this legislation. The Law Reform Commission has made recommendations and of course the McCarthy report recommended the abolition of the commission, so how will it do its job if this is implemented? It is important that we have the Law Reform Commission to make recommendations. The courts are telling us we need to change the law and bring in legislation that protects the home owner.
We have had a fair share of difficulties with robbers and burglars in my constituency and seen some of our citizens tied up in their homes and murdered. We have had other high profile cases in the constituency where people were afraid in their own homes. There is nothing worse than to live in fear in one's own home. Mine is the third biggest county in Ireland with many rural areas. We have these travelling gangs, as Deputy Burke has said, coming through our constituencies, driving through the night, robbing and beating up the elderly and people living in isolated areas. Admittedly, people do not want to take the law into their own hands. Neither Deputy Flanagan nor I is saying people should shoot on sight. We thought about this Bill. We are not saying that somebody should be shot if one sees him or her in one's garden. Quite simply we are arguing that if somebody attacks a husband or wife, daughter, son or one's goods, one has a right to save one's family and property. In the event, when this happens the law is on the side of the perpetrator.
I came across a case recently where a guy who was robbing a house fell and broke his ankle and he wanted to sue the occupier. That is the type of legislation we want to change, to bring the power to the people that are in their homes. I am not suggesting that the Minister of State should be shot if he comes knocking at my door at 10 o'clock at night. I know there are those who might want to shoot many Fianna Fáil people, but I am not one of them.
It is not mentioned in the Bill.
However, I am saying that reasonable force should be allowed. If some of these cases go to court, I am sure the judge might have an opinion on that, too, but we will not go into that today. I want to put on the record of the House the fact that I believe that a person's home is his or her castle and he or she has a right to protect it. A criminal can come in and use whatever power he or she wants. Criminals are not afraid to use knives, guns and other forms of violent attack. One has to step back and decide whether to defend one's home, family or one's goods. The legislation has to be changed. The power must lie with the home owner. At present an intruder can come into a person's home and the person must step back and then if the person uses force he or she must go to the court to defend him or herself — perhaps at his or her own cost. What happens to the criminals? They get free legal aid from the taxpayer. The full power of the law is with them.
People have had enough of this. They are sick and tired of what is going on. This party believes in law and order. We believe the law and order must come together. In this case the order must be that a person in his own home must be able to protect his wife, family and goods. Order must be that if an intruder breaks into a house at 1 a.m., he is not coming in for a cup of tea — he is coming in to rob the house. If the householder gets in his way he will deal with that person or his or her family. We have recently seen cases of bank employees being taken from their homes and money being taken. People must be able to use reasonable force to protect themselves and their families.
I cannot understand why the Government has not dealt with this issue before now. While Deputy Jim O'Keeffe is not in the House at present he will be shortly. When he brought a similar Bill before the House, we were advised that the Government was to introduce its own legislation. This week we thought that the Government would accept our Bill. It was small-mindedness on the part of the Minister and Department not to accept the Bill and make the necessary changes on Committee Stage.
Deputy Charles Flanagan has put considerable effort and thought into the Bill. We did not do this lightly. We got plenty of legal advice as we wanted to get it right. If we got parts of it wrong we were prepared to accept whatever amendments the Government wanted to table. However, it has rejected it again. The law will be against the people in their homes tonight and the law is with the criminal. I do not say that I want to see every intruder shot. However, I am saying that people in their homes should be allowed to use reasonable force against thugs who are prepared to use force against them. A man in Charlestown was tied up and left to die. Other old people elsewhere have been beaten up badly. Problem gangs are going around the country, but they are not as accountable as are those living in their homes. Sometimes we have names and addresses for them.
This is reasonable legislation. Shame on the Government for not accepting it. Even at this late stage I call on the Government to accept the Bill, which is good. If amendments need to be made on Committee Stage, that can be done. Law should be for the people and not for the criminal.