I move amendment No. 1:
In page 4, to delete lines 3 to 20 and substitute the following:
"2.—(1) Notwithstanding the generality of any other enactment or rule of law and subject to subsections (2) and (3), it shall not be an offence for a person who is in his or her dwelling, or for a person who is a lawful occupant in a dwelling, to use force against another person or the property of another person where—
(a) he or she believes the other person has entered or is entering the dwelling as a trespasser for the purpose of committing a criminal act, and
(b) the force used is only such as is reasonable and proportional in the circumstances as he or she believes them to be—
(i) to protect himself or herself or another person present in the dwelling from imminent injury, assault, detention or death caused by a criminal act,
(ii) to protect his or her property or the property of another person from imminent appropriation, destruction or damage caused by a criminal act, or
(iii) was necessary to prevent the commission of a crime or to effect, or assist in effecting, a lawful arrest.".
I am sure the Minister is aware that the amendments before us are the same as those I submitted on Committee Stage. Ordinarily I would not resubmit the same amendments on Report Stage but having discussed them on Committee Stage I felt I would have to table them again. On Committee Stage I listened carefully to the Minister's arguments for not accepting the amendments and I subsequently read the transcript of the committee meeting. Having done so I felt further discussion was needed on section 2 as we still have some concerns about how the Bill is being presented.
Amendment No. 1 proposes to delete section 2(1)(a) and (b). As I stated on Committee Stage, in deciding if an individual is justified in using force, a two prong test comprising subjective and objective elements is provided. It was pointed out on Committee Stage that to satisfy the subjective test, the householder need only believe the force used is reasonable in the circumstances as he sees them. In this respect, it does not matter if the force can be justified or not if the person honestly believed it was reasonable in the circumstances. To satisfy the objective tests on whether an individual honestly believed the force used was reasonable, a jury will be asked to consider the presence or absence of reasonable grounds after taking into account all relevant circumstances. I said on Committee Stage that we believe the lack of reference in the Bill to proportionality, necessity and imminence meant the objective test set out in the Bill was not robust enough and did not comply with Article 2 of the European Convention on Human Rights.
On Committee Stage, in response to the amendment, the Minister said:
In addition, the approach in the Bill reflects the well known judgment of the Court of Criminal Appeal in DPP v. Barnes. The test of reasonableness in fact incorporates elements such as imminence, necessity and proportionality, which are referred to in the amendment.
I appreciate the purpose of the Deputy's amendment might be an attempt to tighten up the circumstances in which force can be used [but] it is likely the amendment would in fact have the effect of imposing additional tests to those already prescribed in the Bill.
The Minister went on to say:
The Bill is based on the approach of reasonableness [that] already incorporates elements such as necessity, imminence and proportionality If, for example, an action is taken that is disproportionate, it is highly unlikely [when] taking all factors into account, that it would considered reasonable.
For these reasons the Minister would not accept the amendment.
Having read that, I consider the Minister was contradictory. He stated our amendment, which adds the elements of imminence, necessity and proportionality, would have the effect of prescribing additional tests to that of reasonableness. He then went on to state that the test of reasonableness already incorporates the elements of imminence, necessity and proportionality. If that is the case and they are already incorporated, what is the problem with including them in legislation so every person is clear this is what is needed to satisfy that test? I also ask the Minister to state what additional tests he thinks the amendment will bring if this is the reason he opposes it.
Stating that an action that is disproportionate is highly unlikely to be considered reasonable is not good enough. Highly unlikely means it is not beyond the realms of possibility that a disproportionate action could be considered reasonable under this Bill. If the purpose of the Bill is to provide clarity, it will fail if our amendment is not included and will likely be of no use to the Minister.