Criminal Law (Defence and the Dwelling) Bill 2010: Second Stage

Question proposed: "That the Bill be now read a Second Time."

The Criminal Law (Defence and the Dwelling) Bill 2010 aims to bring clarity to the law on the use of force in defence of the dwelling. It reflects the special status of the home in our common law tradition and in the Constitution and strikes the correct balance between the rights of the occupier and those of an intruder.

I am sure every Member of this House deplores the actions of criminals who prey on householders, particularly the elderly and those in isolated areas. This Bill is a response to the harsh reality of crime and in particular the crime of burglary. It addresses those situations where a person in his or her home has, in an emergency, to use force themselves. It is important to note that this Bill is not the only response to burglary as our laws have many relevant provisions addressing such crime. It is a criminal offence which carries heavy penalties. A person guilty of burglary is liable to a fine or imprisonment for a term not exceeding 14 years or both. Aggravated burglary carries a possible life sentence.

The law has also been reinforced by the Criminal Justice Act 2007 which provides that a court may make a monitoring order for persons convicted of aggravated burglary. Courts may also make a protection of persons order prohibiting the offender from engaging in any behaviour that would be likely to cause the victim of the offence fear, distress or alarm or would be likely to amount to intimidation of any such person.

The first recourse of a householder faced with a burglary should be, where circumstances permit, to the Garda Síochána. The Garda is best placed to deal with violent offenders and to investigate and assist in the prosecution of offences. Better than any investigation or prosecution is, of course, the prevention of crime. The Garda Commissioner informs me that a new burglary crime prevention and reduction strategy is at an advanced stage of development. It will focus on promotion and delivery of burglary prevention advice to the community; identification and targeting of hotspots and other areas prone to, or likely to, suffer incidents of burglary; identification and targeting of burglary offenders, in particular prolific burglary offenders. The Garda "Supporting Safer Community" campaign launched in September focused on burglary prevention and reduction and a targeted Garda response to burglary with regard to locations, times, offenders and victims.

People should feel safe in their homes. No one can disagree with that proposition. Our home is where we raise our children. It is where we spend time in the intimate company of family and friends. It is where we return at the end of the day to rest. It is where we live our private lives in peace, and it is our shelter from the world. An intrusion into the home is an intrusion into that shelter, that private life, that haven for the family. It is an attack on our peace of mind that can destroy a person's sense of personal security and cause disturbance for many years after it has occurred. That is why the law has always seen an intrusion into the home as a particularly egregious offence. This is borne out by the judgment of Mr. Justice Hardiman in the Court of Criminal Appeal in the leading case on these matters in recent years, DPPv. Barnes. Mr. Justice Hardiman noted:

". . . the special protection afforded to the dwellinghouse dates back to time immemorial. It has been expressed in various ways, none perhaps so well known, even outside legal circles as that in the Semaynes case (1604) 5 Co. Rep. 9 la:

He quoted from that judgment the following:

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 [what is known as] the "castle doctrine", prominent especially in US law.

The special status of a dwellinghouse has always been linked to the dignity of its occupants, as in the following quotation from [the] Meads and Belts case of 1825:

". . . the making of an attack upon the dwelling, and especially at night, the law requires as equivalent to an assault on a man's person; for a man's house is his castle, and therefore, in the eye of the law, it is equivalent to an assault . . .".

Those citations, together with the others, both leading and deriving from the constitutional status of the dwellinghouse, are what lead us to conclude that the breaking into of a person's house by a trespasser with intent to steal or commit any other form of crime is indeed, in and of itself, an act of aggression.

The constitutional provision referred to in that judgment is of course Article 40.5 which states: "The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law". Any discussion of defence of the dwelling, therefore, connotes, to a greater or lesser extent, defence of the person.

The common law has always provided that people can use force to protect themselves, to protect others and to protect property. The statute law in this area is mainly embodied in the Non-Fatal Offences against the Person Act 1997. Among other matters, the 1997 Act addresses the rights of those who are required to use force in defence against an attack on themselves, others or on property. The Act, in a reflection of the common law tradition, permits the use of reasonable force in defence against attack. The 1997 Act is concerned with attacks irrespective of where such attacks may occur. The Bill before the House today is concerned with attacks in the dwelling and on the curtilage of the dwelling. It does not repeal the 1997 Act, rather it complements it and provides for some technical amendments to it.

The Law Reform Commission report of 2009 was a most helpful contribution to the considerable public discourse on this issue in recent years. This Bill now builds on all of that tradition and debate to clarify the law in an approach which I believe all sides of the House can support.

While respecting the basic principles of legitimate defence identified in the report of the Law Reform Commission, the Bill is structured in a different way from that proposed by the commission. The structure of the commission's suggested Bill, which dealt with defences in criminal law generally, made it difficult to apply the relevant recommendations to a Bill dealing only with the dwelling and not dealing with general law on defences. The commission's approach anticipated a wider codification of the criminal law and as that wider issue is still under consideration it would be inappropriate to adopt such an approach in this Bill.

I will now turn to the main provisions of the Bill. Section 1 is the standard provision containing the definitions of terms used in the Bill. Senators should note the definitions of "dwelling" and "curtilage" in subsection (1) and that subsection (2) provides that every reference to the dwelling in the Bill includes a reference to the curtilage of the dwelling. It states: "curtilage in relation to the dwelling means an area immediately surrounding or adjacent to the dwelling and which is used in conjunction with the dwelling, other than any part of that area which is a public place".

The Bill provides, in section 2(1), that it shall not be an offence for a person who is in their dwelling or a person who is a lawful occupant to use force against another person in the particular circumstances outlined in this section.

Section 2 focuses on the use of force by an occupier against an intruder entering the dwelling with criminal intent. The force used against the intruder must only be such as is reasonable in the circumstances the occupier believes them to be in order to protect himself or herself or others or property. The occupier may be mistaken as to the circumstances, but if their belief is honestly held, they will enjoy the protection of the Bill. It will be a matter for a court or a jury to decide whether the occupier's belief was honestly held, as subsection (4) provides: "It is immaterial whether a belief is justified or not if it is honestly held but in considering whether the person using the force honestly held the belief, the court or jury, as the case may be, shall have regard to the presence or absence of reasonable grounds for so believing and all other relevant circumstances".

Once the circumstances, as honestly believed by the occupier, are established, the force used in response to those circumstances must be reasonable. The force must, therefore, be objectively justified. Simply put, the circumstances are largely a matter for the subjective judgment of the occupier. The force used in response to those circumstances is a matter for the objective judgment of a jury.

Section 2(5) clarifies that: "It is immaterial whether the person using the force had a safe and practicable opportunity to retreat from the dwelling before using the force concerned".

Section 2(7) provides that the use of force shall not exclude the use of force causing death. This is a carefully thought out provision. It does not stand alone. It is in no way an encouragement or licence for unwarranted violence as it is subject to the reasonable force provisions of subsection (1). It acknowledges the reality that a householder's aim should be to protect his home and family and that he is authorised to use reasonable force to do so. Reasonable force, as we know, is that which is necessary and proportionate in the circumstances to that task of protection. What if a householder takes a stick to fend off a knife wielding burglar and what if, in the course of doing so, he injures the attacker who subsequently dies? The householder has not set out to cause death, but the force he has used was necessary and proportionate to the threat of stabbing. I do not believe anyone in the House would see the householder's action as unreasonable in the circumstances. Of direct relevance to this provision in the Bill is the right to life embodied in the Constitution. Article 40.3.1° states: "The State guarantees by its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen." Article 40.3.2° states: "The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name and property rights of every citizen."

Having considered these provisions in his judgment in the Barnes case, Mr. Justice Hardiman stated:

It seems an elementary proposition, in the light of such provisions, that a person cannot lawfully lose his life simply because he trespasses in the dwellinghouse of another with intent to steal. In as much as the State itself will not exact the forfeiture of his life for doing so, it is ridiculous to suggest that a private citizen, however outraged, may deliberately kill him simply for being a burglar.

But this is by no means the end of the matter.

Further on he stated: "The offence of burglary committed in a dwellinghouse is in every instance an act of aggression, an attack on the personal rights of the citizen as well as a public crime and is a violation of him or her".

The right to life of the intruder, therefore, needs to be balanced with the right of a householder to an inviolable dwelling and an inviolable person. This Bill strikes that balance carefully in a manner that reflects the tests outlined by our courts over the years.

When this Bill was debated in the Dail, concern was expressed that subsection (7) in some way authorised the use of lethal force in the defence of mere property as section 2(1)(b)(ii) lists the protection of property as one of the purposes for which force can be used. It is very important when reading a Bill such as this to see it in its entirety. The use of force authorised by this Bill, whether resulting in death or not, must always be in accordance with section 2(1)(b) which requires that the “force used is only such as is reasonable in the circumstances”. The force referred to in this Bill is always in the context of a person in a dwelling. The reference to protection of property, therefore, must always be viewed in the context of the dwelling and subject to the reasonableness requirement. I would like to quote yet again from the judgment in the Barnes case.

Though a dwellinghouse is property and often indeed the most valuable piece of property an individual citizen possesses, it would be quite wrong to equate it with other forms of property such as money or money's worth or other pieces of personal property. Though these may have a sentimental as well as a cash value, and may in certain circumstances be important or even essential for the individual who owns them, a dwellinghouse is a higher level, legally and constitutionally, than other forms of property. The free and secure occupation of it is a value very deeply embedded in human kind and this free and secure occupation of a dwellinghouse, apart from being a physical necessity, is a necessity for the human dignity and development of the individual and the family.

Also of concern are the provisions of the European Convention on Human Rights, in particular Article 2 of the convention, which states in paragraph 2 that " . . . Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: a. in defence of any person from unlawful violence; . . .". The Attorney General's office was asked for specific advice on the compatibility of the Bill with Article 2, in light of concerns raised during the Second Stage debate in the Dáil. I am advised that the Bill is compatible with the convention. It is clear from Irish jurisprudence and the Law Reform Commission report that the test of reasonableness incorporates the concepts of necessity, imminence and proportionality. It is also clear from the case law of the European Court of Human Rights, for example in the Giuliani case, that domestic legislation is not required to use language identical to that of the convention. Rather, what is important is how domestic legislation is interpreted and applied by national courts to give effect to the principles of the convention.

Section 2(8) provides that within the meaning of this Bill, an act is criminal notwithstanding the fact that the act may be one which, if the person was charged in respect of it, he or she would be acquitted on the various grounds set out in the subsection. Subsections (10) and (11) provide for some technical definitions and clarifications necessary to the operation of the Bill.

Although the wisest course of action in some circumstances might be to retreat from the dwelling, section 3 provides that nothing in the Bill shall operate to require a person to retreat from his or her dwelling, or require a lawful occupant in a dwelling to retreat from the dwelling. Section 4 states that nothing shall operate to prejudice any defence recognised by law as a defence to a criminal charge.

Section 5 deals with civil liability and provides that a person who uses force as permitted by section 2, that is, the justifiable use of force, in the circumstances referred to in that section, shall not be liable in tort in respect of any injury, loss or damage arising from the use of such force. Section 6 amends section 18 of the Non-Fatal Offences against the Person Act 1997 to reflect changes in law on the age of criminal responsibility. Section 7 is a standard provision concerning expenses. Section 8 is a standard provision dealing with the Short Title and commencement provisions.

This Bill is concerned with some of our most fundamental rights; the right to life and the right to peaceful occupation of our homes. The Bill clarifies rights of householders and makes it clear that unlawful intruders can rightly expect to face reasonable defensive force.

The Bill acknowledges the special position of the dwelling in the Constitution and in our traditional understanding of the common law. It accommodates a version of the castle doctrine that has due cognisance of the constitutionally protected right to life. The Bill acknowledges practical realities by extending protection for householders to the curtilage of the dwelling. It makes it very clear that a householder is under no obligation to retreat from an attacker. It ensures that there will be no exposure to civil liability if an intruder is injured as a result of the use of reasonable defensive force. The Bill recognises the realities faced by a householder who may have to take immediate action to defend his or her home against violent attack, and provides for a common sense system to judge those actions in a manner that respects the rights of all concerned.

I commend the Bill to the House. I look forward to hearing the views of all Senators on it.

I welcome the Minister to the House and would like to confirm that Fianna Fáil will be supporting the concept of this Bill. There has been much discussion and research into this Bill over many years. The previous Minister introduced legislation along these lines, while Fine Gael brought in a Private Members' Bill to the Dáil a few years ago along the same lines as what is before us today.

Historically, we can think of the Tony Martin case in England, when a burglar was shot dead. That received huge publicity nationally and internationally, and our legal system is closer to that of the UK than any other legal jurisdiction in the world, along with Commonwealth countries like Australia and Canada. We are also reminded of the Nally case in the west, where a farmer shot an intruder who was apparently known to him and who was violent to him in the past. The Court of Criminal Appeal released that man. There has been much jurisprudence on this and presumably following the uproar in 2006, the Law Reform Commission prepared a consultation paper on the issue. In fairness, the Minister and his officials have incorporated the principles outlined in that paper.

The right of a person to defend his home and his property has evolved and developed in the last decade or so, primarily because these two cases acted as a catalyst for discussion on the issue. The Minister has outlined that the Constitution enshrines the protection of life, but it also enshrines the principle to protect one's property. There is no point in saying otherwise, but in most cases where aggravated burglary occurs, these people do not come on the property by chance. My knowledge from the legal side of things is that some of these places are staked out weeks and months in advance by criminals who have nothing good in mind.

There was a doubt in law and in our court system that somebody who tried to defend his home may have to retreat. I am glad that the provision in this Bill has cleared that up. Respecting the use of reasonable force, the Bill acknowledges that one's home is one's castle. Those rights are also enshrined in the Constitution. The notion of legitimate defence and the general rule that a person should retreat where possible is covered in the Bill.

Most people in civil society would welcome the direction of this Bill. It also sends a signal to the courts and criminals that people can defend their properties from undue attack. There are very few instances where somebody stumbles on a property by mistake and is met with a shotgun or a bar by somebody trying to defend his home. As I have clearly stated, the Garda authorities know that some of these people are career criminals. Some of them can be very vicious. Some rob to feed their drug habits.

The Bill, with the 2007 Act, acts as a buttress to support the thrust of what the Government is trying to do. One cannot argue it is rushed because a lot of thought has gone into it. I mentioned the Law Reform Commission. There have been a number of cases. The Minister mentioned the case of Barnes in this country. There is also the well highlighted Nally case and the case involving Tony Martin in England, a neighbouring jurisdiction. Some of these cases are seven or eight years old.

In welcoming the Bill I will not add a lot more to what I have said. It is appropriate for the age in which we live. It has been well researched. Some of our householders are in a lot of difficulty for financial reasons and they cannot protect their homes and families. The Bill clearly outlines what curtilage is. It could be somebody breaking into an outside garage or trying to steal a van from a backyard. A person's home could be a caravan, mobile home or boat. Coming from a seaside area I do not know many people who live on boats, but on occasion somebody I know used a boat for many years as his home. He is entitled to protect that.

The Minister has the full support of this side of the House. The Bill should be welcomed and I am glad to be here to lend my cúpla focail in support of this important Bill.

I will have fewer focail than the last speaker. Unlike the Minister and Senator O'Donovan I do not have a legal background and expertise. Those who have can approach Bills with a great degree of certainty and understand their definitions and limits. My comments in support of the Bill will be from a common sense perspective.

I welcome the Bill and the fact it follows a promise our party gave in advance of the last general election. It may have been Jim O'Keeffe, the previous speaker's constituency colleague, who published a Private Members' Bill some years ago. As a result of that, much other work and a number of high profile cases the Minister has introduced the Bill to the House today.

There has been a lot of debate on victims and prospective victims of crime in recent years. There has been a need for a certain rebalancing. There may have been populist hearsay, but it appeared for some time that all of the rights were with a criminal or a prospective criminal and victims and prospective victims appeared to have no rights whatsoever. In that regard the Bill is helpful and it is to be hoped it will send a strong signal to people who may be considering committing a crime against a household to reflect on their actions.

It is not an extreme measure, it is balanced. I am sure the Minister would agree that we do not want something akin to the situation pertaining in many other civilised countries such as the United States, where the issue of the right to bear arms and the right to use them almost at will is a mandatory requirement for somebody wishing to seek elected office or stand for the presidency. The right to bear arms can be taken to extremes but this is a very balanced response. The definitions of what is and what is not allowed, residence and curtilage is very helpful.

This week the Minister said a number of Garda stations across the country will have to be closed. It is unfair for the Government side of the House to say that but we have to discuss such issues. We have to try to ensure that the rate of burglary is kept to an absolute minimum. The Bill will probably apply more to rural and isolated than urban areas. Schemes such as community alert groups and neighbourhood watch need to be supported because they have a role to play in trying to reduce the number of crimes being committed. If we can reduce the number of crimes being committed and contemplated the effect of the Bill will not be required. That is the key point.

The figures I read in the very helpful research we received from the Oireachtas Library on the number of aggravated burglaries in the country showed that while the problem is under control the numbers are too high. Too many crimes are being committed. Prevention is always better than cure. I am not talking about preventing someone from shooting a man who is about to rob a house. Prevention starts at an earlier levels in terms of trying to insure people do not presume a life of crime. Active community gardaí who liaise with citizens and neighbourhood groups will help to keep crime numbers as low as possible.

There was a demand from the public when there were a number of high profile cases, including the gentleman in Mayo whose case became national front page news, that we would respond to this issue. The Minister is responding in a fair and balanced fashion. The Bill does not give a householder or citizen an absolute right to carry a machine gun and mow down anybody he or she feels is a threat to his or her property. It is putting in place legislation to provide a defence in the few instances — it is to be hoped they remain few — where a householder feels obliged to take very strong action against an intruder, be it male or female, who is robbing his or her house, threatening to do so or attacks his or her property.

The Bill is as good as it can ever be. There will always be anomalies which need to be examined and hard law cases before the courts. It is a reasonable response to problems brought to the attention of the Minister's predecessors in the past decade or so. I am sure it will be passed unanimously by the House. If one stopped a man or a woman on the street and did an opinion poll on common sense it would be the view of the public that householders must have a certain degree of right to protect themselves and their property, and the Bill is responding to that demand.

I welcome the Minister. We seem to have a mania in this country for introducing criminal legislation which is often draconian and seldom, if ever, used. It is usually a response to a public outcry and rarely is a comprehensive solution sought to crime and its causes. I am not making this point to impugn this Bill. While I have concerns about aspects of the legislation, in respect of which I have tabled several amendments which we will deal with on Committee Stage, I intend to support it.

However, there is a broader issue here in that we seem to fixate on introducing legislation rather than finding effective solutions to crime. The Garda is not seeking more legislation. Gardaí are alarmed at the closure of small Garda stations and the merger of others. They are concerned at the shortfall in numbers on account of the recruitment freeze. They are dissatisfied with the amount of resources available to them generally. They want stations to be maintained to an adequate level. They are seeking more gardaí and more resources to enable them to fulfil their role of protecting citizens.

What I have not heard the Garda asking for is additional legislation. This is because the existing powers and provisions in criminal law are sufficient. In recent years we have seen a reduction in the numbers of gardaí on the street, with the recruitment freeze being continued by this Government. We must focus on tackling the resource restrictions which serve to prevent the Garda from performing its function of preventing crime. Government measures such as the pension levy, recruitment embargo and the reversal of the civilianisation programme have all contributed to reducing the number of gardaí on the street, which affects the force's ability to prevent crime and protect people. Introducing legislation and limiting Garda numbers is a perverse approach. We must offer the Garda more support if we are serious about tackling crime. In particular, we must ensure that gardaí in remote rural areas are well supported and their stations maintained if we want to protect remote home owners who feel at risk.

This Bill does not alter in any substantial way the law, as it stands, on the issue of self-defence in the context of defence of one's dwelling. It is largely concerned with placing on a statutory footing the existing common law, as enunciated by the Court of Criminal Appeal in the case of DPPv. Barnes, to which the Minister referred in his opening statement. The Bill was initially introduced some years ago in the context of public controversy following the Padraig Nally case. Its key focus is defining the level of force a home owner may justifiably use in defence of his or her property and whether there is an obligation on a home owner to make use of an opportunity to retreat. Furthermore, the Bill provides a definition of “dwelling” as well as dealing with the issue of civil liability.

On the issue of the justifiable use of force, the Bill provides that the use of force against a trespasser will be lawful where the occupier honestly believes the trespasser is on the property to commit a crime and that force is necessary in order to protect the occupier, another person or the property. This is similar to what is stated in the Non-Fatal Offences against the State Act 1997. I am concerned at the possibility of lethal force being seen as a proportionate response and the context in which that would apply.

It is worth noting the criticism the Law Reform Commission levelled at the existing standard and, by extension, the new Bill in its 2006 paper. In assessing the justifiable use of force, the commission found that the existing standard was too vague and required clarification. It proposed a four-part test focusing on the following: threshold — whether the threat was sufficient to warrant a response; imminence — whether the threat was close and impending; necessity — whether force was necessary to protect persons or property; and proportionality — whether the force used was proportionate to the threat. This test has not been adopted in the current Bill. As such, I intend to table an amendment to clarify the issue of lethal force and to ensure the test as set in the legislation is adequate.

Section 2(1)(b) of the Bill states that it is legal for a home owner to use force to “protect his or her property or the property of another person from appropriation, destruction or damage caused by a criminal act”. Section 2(7) states, “The use of force shall not exclude the use of force causing death”. It is clear, therefore, that the Bill allows for the use of lethal force in the defence of private property without the accompanying threat to persons within that property. If it is the Minister’s intention to allow the use of lethal force only in defence of private property where that defence forms part of a defence of persons within it, that should be clearly stated in the Bill. I intend to table an amendment to such effect on Committee Stage.

I will also table an amendment regarding the test on the use of force. The two-prong test comprises a subjective element, that is, relating to the perception of the person concerned, and an objective test, that is, what a reasonable person might perceive as justifiable. I am not convinced that the objective test set out in the Bill is sufficiently robust. The lack of reference to necessity and imminence is my key concern in this regard.

On the issue of obligation to retreat, the Bill reaffirms the finding of the court in DPPv. Barnes that there is no obligation on the householder to flee or retreat from his or her home and, therefore, a person should not be punished in law for standing his or her ground. It effectively restates common law. I will return to this on Committee Stage.

On the broad issue of crime prevention, we are sadly mistaken if we consider that legislation such as this can solve the crime problems in this country. What is needed, and what my party has called for, is an expedited and far-reaching process of civilianisation to free up fully trained gardaí from administrative and other duties in order to fight crime. Far too many gardaí are carrying out administration work. Action in this regard was promised by the Government parties when they are were in opposition and I hope they will follow through on their commitment. There must be increased funding for Garda drug units, with enhanced community input into their use and priorities. As a member of the south-east drugs taskforce, I saw the problems caused by the lack of specialised gardaí in the area, a problem I am sure is prevalent throughout the country. We must have independent oversight of informer handling practices in order to prevent situations developing where individuals with a relationship with gardaí are allowed to amass a criminal empire. There must be enhanced Garda visibility and activity, and the use of sniffer dogs, in areas experiencing chronic drug problems.

I have often heard the Minister say that legislation is not the answer to everything. The vast majority of gardaí are not seeking new legislation but additional resources. Introducing legislation such as this while at the same time shutting down rural Garda stations, thus failing to protect people living in rural areas, is a perverse way of dealing with a serious problem in communities throughout the country.

I welcome the Minister to the House for the debate on this Bill. It has been a long time in the genesis, as other speakers observed, and it clearly enjoys cross-party support. I echo the words of the Minister and others regarding the terrible fear of burglary endured by many home owners. I have spoken to elderly neighbours in south inner-city Dublin who are terrorised by that fear. Even when they themselves have not been burgled in the past, reports of break-ins in the area are a cause of dread to them. This is a serious issue for many people, particularly elderly people living alone, in both urban and rural areas throughout the State.

However, as somebody who has practised in criminal defence for some years, I do not necessarily agree with Senator Bradford's view that rights in criminal law have always been balanced in favour of the suspect. I would contend that our criminal justice system is reasonably fair overall. In recent years in particular there has been a much greater concern for and recognition of the rights of the victim, which is welcome.

The Bill originated in Private Members' legislation and was finally put to the Dáil in October 2010 before being restored in March this year. It follows on from work by the Law Reform Commission in its consultation paper of November 2006 and its report of 2009. The 2006 consultation paper on legitimate defences was produced in the wake of the Nally case, which have given rise to a great deal of public concern.

I have read and rehearsed this case many times with students and it has always struck me as a very sad case because of the human story behind it. This was the case of the Mayo farmer to which other speakers have referred. He shot an individual who was in the course of burgling his property. It painted a very sad picture of rural isolation and of the fear of burglary and of the response to same. It was also a case which had a very different outcome, even in the initial trial before the Central Criminal Court, to the outcome of the Tony Martin case to which others have referred.

It points out the difference between our law and the divergence in our legal system from English law. Senator O'Donovan has rightly referred to the very close relationship between the two but in the Dwyer case in the 1970s, our Supreme Court had departed significantly from English law on self-defence in finding that an accused person who killed in self-defence but using more than reasonable force would not be guilty of murder if in fact he or she honestly believed the force was no more than necessary in the circumstances. Such a person could only be convicted of manslaughter. Whereas, in England, Tony Martin, in relatively similar circumstances, was guilty of murder, Pádraig Nally in the first trial was found guilty of manslaughter and of course, subsequently acquitted following the judgment of the Court of Criminal Appeal. These cases point out the difference and any changes to our law on legitimate defence have to be read in light of the Dwyer case.

The Law Reform Commission pointed out in 2006 that the matter of legitimate defence in the dwelling was something that was still uncertain in Irish law. It has been accepted that lethal defensive force may not be used to defend personal property but the commission says this matter needs to be clarified. This paper was produced before the Barnes judgment to which the Minister and others have referred, the judgment of the Court of Criminal Appeal in the Anthony Barnes case which was a different case concerning a killing in the course of a burglary by the person engaged in carrying out the burglary in which he had killed an elderly householder, Mr. Richard Forrestal. This was another very tragic case. In the Barnes case, the law was very clearly stated by Mr. Justice Hardiman on the use of defence in the dwelling, that a burglar does not have the same rights as a householder. If a burglar kills, he or she is always guilty of manslaughter at the very least if he or she kills in the course of a burglary whereas a householder may kill a burglar lawfully in self-defence and the issue then is the level of force used.

We debated this also in the Joint Committee on Justice, Equality, Defence and Women's Rights in January 2010 so the matters have been very well rehearsed over a number of years. At that meeting we heard from a number of groups, including the Irish Council for Civil Liberties and Irish Rural Link, which made presentations which, interestingly, had a very similar focus, even though these groups do not always see eye to eye. There was a general support for legislation of this sort, which was very welcome. The common theme was that legislation is only part of the way in which we need to deal with isolated householders concerned about limits of their protection in law. Other colleagues, including notably, Senator Bradford, have made reference to the issues around rural policing and this is an issue which will naturally concern people. The closure of rural Garda stations and the curtailment of opening hours will have a bearing on people's perception of their own safety and security.

If I may diverge for a moment and speak about the budget, since others have spoken about it, I was concerned to note the cut to the budget of the National Women's Council of 35% and I suggest that is an unfortunate and a disproportionate cut for an organisation that has done very well in securing philanthropic funding for projects but which will now see its core funding significantly cut. I suggest if this could be phased over a period of years rather than all at once.

Senator Cullinane has referred also to the issue of the non-legislative measures to deal with issues around isolation and insecurity and burglary. I believe we all are in agreement, as is the ICCL and the Irish Rural Link. Clearly, policing is a key matter when dealing with burglary and it is not just a matter of legislation. It is very welcome to hear the Minister say there will be a new burglary crime prevention and reduction strategy and it is very welcome to hear of the Garda initiatives and we are all aware of Neighbourhood Watch and the other initiatives already in operation around the country to try to generate a better sense of security in communities. This must all go into the mix.

I note the momentum behind this legislation and behind the creation of greater clarity in the law on the use of legitimate force in the dwelling. We can debate Senator Cullinane's amendments on Committee Stage but it is clear that this is not just about defence of property but also about defence of the dwelling and, as Judge Hardiman said in the Barnes case in his usual eloquent way, this is a very different type of property when discussing the use of force within the dwelling to defend oneself. It is also important to set out in statute the fact there is no obligation to retreat. While many of the provisions in the Bill are not new in the sense they are already in the Barnes judgment, the law has been much more clearly stated in the Barnes judgment than it was ever set out previously, yet, there is still a need for greater clarity which is the reason this Bill is so welcome as regards the household, the curtilage, the definition of "dwelling" and the statement that there is no obligation to retreat.

Two or three other points might be teased out at this stage which have been discussed on Committee Stage in the Dáil. First is how this legislation sits with the Dwyer decision and how it sits with section 18 of the 1997 Act, the current statutory statement of the use of legitimate force defence. How, in practice, will this work if a householder is charged with unlawful killing within the dwelling? Presumably, this legislation will provide a defence that supersedes the section 18 defence. We all hope there will not be many cases in which this Act will become relevant. The Minister has given an example of a householder who takes a stick to fend off a knife-wielding burglar but when discussing the technical issues of the use of this defence, usually the examples we would give are the examples of the householder who uses a gun to fend off a burglar with a knife or a stick and this is where the difficult questions of proportionality and judgement arise.

We have found in practice that juries are very reasonable and rational in applying tests that have this dual subjective-objective element and we are now well used to it as it is in the 1997 Act and it also arose in the Dwyer decision. Juries will have no difficulty in applying the test set out here in judging the difficult questions around the use of force and the level of force used in response to an attack.

We welcome the Bill and we accept, as does everyone, that legislation alone is not a solution to the difficulties surrounding burglary and the real fears of people but this is welcome legislation in that it clarifies existing legal provisions around the role of a householder who uses force in defence of his or her dwellinghouse.

Is Senator Norris offering?

I may speak later. As I was attending a briefing I do not think I am completely up to speed on the matter. I would prefer to listen to my colleagues and read the Minister's speech.

We would all be much happier if it was not necessary to discuss this legislation. I welcome the Minister and to compliment him on bringing forward very sensible legislation. The Bill defines the terms, "curtilage" and "dwelling". As the Minister said, people have to be free to regard their home as a place of safety and security, where they can rear their family in peace, where they can relax and rest in the evenings and where their possessions are safe and secure. The law has to support the right of the person to protect his or her home.

I am pleased the Minister has dealt with the issue of civil liability. If an intruder enters a home and in the course of committing a crime receives an injury, the homeowner is liable and may have to pay compensation to the intruder. That is an unbelievable position. I disagree to some extent with Senator Bacik. I am more inclined to agree with my colleague, Senator Bradford, that there is a perception that the law is tilted in favour of the criminal and against the law-abiding home owner. The legislation will tilt the balance back in favour of the homeowner who wants to live in peace and safety.

The issue of reasonable force will exercise the minds of many as it is a difficult concept to define, for example, in a case where an intruder is carrying a weapon or implement or there is more than one intruder and the occupant of the house fears for his or her life. Unfortunately, my home was burgled on this day four years ago. My wife arrived home only minutes after it had been burgled, pretty severely, and I am grateful she was delayeden route. I do not know what would have happened if she had arrived home in the course of the burglary. When one experiences an incident such as this it colours one’s judgment. I do not know what I would have done during the burglary and gained access to a weapon. Would I have exercised reasonable force or strayed beyond what is deemed to be reasonable? One does not know the answer to that question until one has been in that specific situation.

Criminals must face deterrents and we must ensure elderly people, whether living in a rural area or city, feel safe in their homes. The law must be seen to be on their side and serious crime must be tackled. A new band of ruthless criminals is at work. I refer to individuals who are involved in drug dealing, robbery to feed a drug habit and all sorts of scams to rob and con elderly people.

I agree with colleagues who referred to the need for the Garda to be properly resourced. I am not especially worried where gardaí are located or how many Garda stations we have, provided sufficient numbers of them are available and they are in a position to mount adequate patrols. It is irrelevant whether they come from a centralised location or a local Garda station. What is important is that we have an adequate number of boots on the street and gardaí on the beat in patrol vehicles.

Criminals and thugs must be taken out of circulation. The House discussed prison places and the availability of prison space. The Minister is particularly anxious that people who are convicted of relatively minor crimes are directed towards community service, which is an objective I strongly support. Prison spaces must be available for hardened criminals and people who carry out acts of violence against elderly and defenceless people in their homes.

I commend the excellent work being done by community alert and community watch organisations and committees. My home town of Ballinasloe has a number of highly active community watch groups which receive excellent back-up and support from local gardaí. This approach should be extended and continued and greater resources directed towards this area. There is nothing as effective in tacking crime in the community than having as many people as possible watching out for unusual activity and suspicious movements.

On the question as to whether the Minister should consider increasing resources to the Garda Reserve, there are innovative ways of adding to the reserve numbers. Many of the schemes aimed at moving people from the live register into training and so forth could be developed to help in the fight against crime.

I strongly support the objective the Minister is setting out to achieve. The Bill has been a long time in gestation. As previous speakers noted, there have been many high profile cases which demonstrate the need to implement this sensible legislation. In welcoming the Bill I am pleased that, thus far, all speakers and parties have indicated their support for it. We must also keep an eye on resources and support all agencies that can assist in the fight against crime in order that people living in rural areas and cities such as Dublin and Galway feel safer in their homes. If we cannot protect the elderly and ensure the home is the safest place in our community, we do not deserve the title of civilised society.

I compliment the Minister and his predecessors on the work they have done to bring the Bill before the House. I also commend the Law Reform Commission on its efforts in this regard and the Member who introduced a Private Members' Bill on this issue in the other House some years ago. I am pleased to support the Bill.

I welcome the Minister to the House. I regret I was not present to hear the speeches of all my colleagues. I was attending another briefing which was significant politically. I would have especially liked to have heard what Senator Bacik had to say given that the previous speaker, who is also on the Government side, disagreed with her.

Only in a small way.

Yes, it was a small point but I imagine I would have found myself in more agreement with her. I have had the opportunity to read the Minister's speech and I note there is a great deal of sense in it. There is clearly also a public mood that people are entitled to be allowed to defend themselves in their own home. The Minister's speech is balanced as he indicates that people can use force to protect themselves in their homes, provided they do so in a reasonable manner. I wonder how the word "reasonable" is defined or if there is a definition. I presume the matter would have to be determined by a court.

It is necessary to have balance because, as I am sure the Minister will recall, a number of recent cases created a certain amount of controversy. In one such case one of the principal participants was a member of the Traveller community. Without in any sense going into the rights or wrongs of the particular case — there is always a balance to be struck — it was used for very unpleasant attacks on the entire Traveller community, which was wrong. I do not believe for one second that the Minister would in any sense stand over that kind of prejudice.

As the Minister noted, the legislation addresses an emergency. If one is in one's home and an attempt is made to intrude violently, that is an emergency. Senator Mullins pointed out that today is the anniversary of a burglary on his home, which is, I suppose, serendipitous. Like many people, I have had exactly the same experience. I am not sure I behaved legally on one occasion when I found somebody in my house and chased him out to the back garden. Enraged as I was, I acquired additional strength and, picking up a stone dial I told the burglar, whom I had cornered in the garden, that I would get the police, to which he replied, "Get them, for God's sake." He was an unreliable burglar, however, and he nipped over the wall while I was telephoning the police. I trapped him next door, however, and the garda who arrived told me I was very brave but completely mad because the man in question was a well known and extremely violent criminal who had tried to burn down Store Street Garda station the previous year. He was also a heroin addict with full-blown AIDS and, according to the garda, I was very lucky he did not have a syringe with him. It merely shows that the ordinary average citizen — I believe, despite evidence to the contrary, that I qualify as such——

The Senator is more than that.

——can be outraged by this kind of intrusion, in particular, the perusal of personal material. He was going through my wallet and was fingering a picture of my aunt to whom I was devoted. This incensed me completely.

The Minister stated the first recourse should be to the Garda Síochána. That is the ideal situation, but there is the reduction in Garda numbers and the closure of police stations. My local station, Fitzgibbon Street, has been closed recently. It was done initially, we were told, for purposes of redecoration, but that is complete rubbish. We now know that it has simply been closed.

Within the past week there was an attack on my house. I believe it was inspired by the fact that extremely unpleasant and obnoxious leaflets were distributed around the area. I will not even go into the nature of the leaflets — they were too revolting. There was an attempt made to kick in my front door at approximately 9.30 p.m. or 10 o'clock. I rang Fitzgibbon Street and got no reply. I rang Mountjoy Garda station immediately and I have to say they were around straightaway. I went out armed with a well crafted 19th century shillelagh, which — let nobody think that this is the kind of thing one buys in a souvenir shop — is a lethal weapon and inspires fear. It has worked for me on similar occasions in the past.

I understand thoroughly what people feel about the defence of their home and the entitlement to defend it and to protect themselves in anticipation of the fact that the person who has violently or nefariously entered their home may be armed with something that could do them considerable damage or may be stronger, or there may be vulnerable persons, including spouses or children, in the house who may be held hostage, etc. There is a natural human instinct to support this Bill but, as I stated, a balance must be struck.

The Minister stated our home is where we raise our children. That is so for some, but that is not a definition of a home. I certainly am not raising any children, as far as I am aware, in my home but it does not mean that it is not my home. It is my home and I feel just as proprietorial about it as if I did have the pleasure, or difficulty, whichever it is, of rearing children.

However, the Minister is quite correct where he states that it is where we spend time in the intimate company of family and friends and where we live our private lives in peace, and we should be allowed to do that. The Constitution, in fact, guarantees us this right. Anything that reinforces that constitutional guarantee and protection is significant.

Reference was made to the decision in the DPPv. Barnes. An Englishman’s home is his castle was, I think, the original phrase James Joyce transmuted in Finnegan’s Wake into “the Irishman’s home is his coffin”. Presumably, this legislation is intended to ensure that in as far as possible it does not become a coffin and that somebody attacked in his or her home should not be the recipient of unlimited violence.

The approach in the United States is extreme. Anybody who has visited Los Angeles, as I have on a number of occasions as it is a city I rather like, will have been intimidated by the notices on so many front lawns that the property is subject to armed protection and intruders may be shot on sight. Personally, I think that is going rather too far. I assume that is the kind of caveat that Senator Bacik has addressed.

It is also useful that the Bill contains definitions of "curtilage" in order that we get the limitations under which a certain reasonable and legitimate degree of force may be used to repel attack.

Also, the Minister, in defining home on the question of property, makes a good point, that it is not quite the same as jewellery or even treasured memorabilia. There is something that, universally, through cultures, has been regarded as sacred about the home. It is, of course, irritating to lose possessions, but the dwelling house is, in fact, much more than a property. It is something to which people have very considerable attachment and in which they should, indeed, be allowed to feel safe.

Whereas, as I stated, I have read the Minister's speech with great interest, I regret that I was not in a position to hear all the arguments of my colleagues because I was detained at another meeting. I look forward to the future discussion of the Bill and to see whether amendments tabled.

On one of the new aspects on which I am prepared to be corrected by my various legal colleagues, including the Minister, there was previously a requirement that one should be shown to have retreated and have shown oneself to be, if not exactly acquiescent, not behaving inappropriately and that one was giving the perpetrator some kind of reasonable chance. That is a sophisticated argument that needs to be looked at and I welcome the fact that, in section 3, the obligation to retreat from the dwelling, which, as I understand it, previously existed in law, has now been nullified by the Bill. There should be no such requirement on somebody who is living in their own home. I do not see why they should be forced to retreat by law. If this Bill successfully addresses that issue, then it will, indeed, have been a good day's work.

I, too, welcome the Minister to the House. I believe — my view is that a large percentage of the wider population also believes if we were to hold a referendum — that the law of this country favours the criminal and the persistent burglar who has burgled 20, 30 or 40 times and is caught on the 45th occasion. That is the law, as it stands.

Not long ago I spoke to a young man who was attacked on O'Connell Street in Dublin — the capital city. At 9 p.m., he and his girlfriend were standing, waiting for a bus outside Clery's on O'Connell Street to go home to his apartment. He saw five or six guys coming up the street and passed no heed to them whatsoever. He and his girlfriend, and three or four others who were also waiting for the bus, were knocked to the ground. He gathered himself up, looked around him and counted to ten. There was no gun or knife. He told me that within ten seconds, if one stands up to them, a gun or a knife will appear. This young man did not care whether 25 of them attacked them. It is a good story, but my point is that from 5 p.m. that same Friday evening, those same five guys had attacked different individuals in the centre of the city.

The man involved was due to emigrate to the United States two or three days later. He saw the gardaí, who came fairly quickly. He did not know what to do — his girlfriend was crying and he was half-crying. He was worried that he was not going to be allowed to go to the United States, but gardaí had been looking for these guys since 5 p.m. and they did not get them. They told him to hop on the next bus. They did not even take his name. It is a success story where common sense was used, but I often wonder what would have been the position if he had used unreasonable force. That is one of the issues I have. What and when does one use reasonable force? If an individual breaks into one's home and one catches him leaving the sittingroom with one's television, does one open the front door, let him go and then ring the Garda? Alternatively, does one apprehend him in one's home. The thinking is so vague. What does one do in the circumstances? I know what I would do. If I did so, I would have to justify my use of reasonable force to the courts. If a burglar approached one with a gun and he accidentally shot himself as one tried to take it off him, who would be to blame? The home owner would have to go through the court system to demonstrate that he used reasonable force.

As with previous speakers, I commend those involved with Community Alert on what they have been doing. My area is to lose a Garda station and patrol car. Any time I stay in Dublin, my wife stays with my daughter because she is afraid in her own home. There is, therefore, something radically wrong.

Somebody mentioned the stalking of locations by locals to facilitate others in the commission of crimes. There is no doubt this is happening. The keys of my car were stolen approximately three months ago. I was lucky enough to have my mobile phone number written on them. I received a telephone call at 8 a.m. on a Monday and noted the caller was trying to find out my identity. I recognised the caller's voice when I succeeded in talking to him. When I put it to him that he had rung me at 8.10 a.m., he denied it. He was trying to find out who owned the car keys and the house keys. Six burglaries took place within half a mile of the home of the individual. This was too much of a coincidence. It will take a lot to prove the man had a part to play. If he did not carry out the burglaries, he directed others to do so. Locals tell others when certain individuals are working, away overnight, or at church on Sunday. It is local people who are encouraging these burglaries and robberies.

This Bill is a step in the right direction. Perhaps it is not stiff enough for a fellow such as myself who has suffered from burglaries and attacks.

I welcome this Bill. Part of me would say it does not go far enough. The legislation is progressive. A person's home is effectively his palace, as Senator Norris indicated. One's home is one's sanctuary and where one ought to feel safe. It is where the State should ensure one feels safe.

Senator Brennan stated his wife stays with his daughter when he is in Dublin to be in the Seanad. I have a similar experience. My family owns a cash business and my wife does not stay at home when I am in the Seanad for fear of burglary. Although we have a very elaborate security system, probably as elaborate as they come, there is still fear because of what has happened in this country. In the past, if one protected one's home, one was not safe from prosecution.

As a new, competent and capable Minister — probably one of the best we will have — Deputy Shatter needs to re-examine the concept of community policing. He needs to incentivise members of An Garda to live within the areas in which they work. If this means a financial incentive, so be it. Some 20, 30 or 40 years ago, gardaí who lived within the community were able to gather intelligence much more easily than they could have done had they been working away from where they lived. The Cathaoirleach, as a rural Senator like myself, will be well aware of this. Gardaí were involved in the community and built up the trust and respect thereof. They established a rapport with the community, public representatives and businessmen. They knew the good and the bad.

In the past ten years, 15 superintendents have been stationed where I come from in County Clare. One lasted three weeks and was then moved on. Another lasted approximately eight weeks and was then transferred. Another was promoted to a job in Dublin after approximately four months. There was absolutely no continuity. Over the course of approximately two years, there were six superintendents in the district of Ennistymon. As far as I am concerned, this does not represent good policing, be it community policing or otherwise. It demonstrates a lack of leadership and it is demoralising for the gardaí based in the district. It is totally inappropriate if there is to be adequate leadership.

The Minister needs to re-examine the concepts of community policing and policing within communities. Of the approximately 30 gardaí in my local station, only two are living in the community. The rest are living outside it, and that is simply not good enough. The best way to deal with crime is to have gardaí working in the area in which they live.

I am glad the Bill is receiving unanimous support. While there are always provisions that we would like to see improved, the Bill is certainly a positive step. People should feel safe in their homes. If there is an intrusion into one's personal space, one needs to be able to defend it with reasonable force. This is not too much to ask in a civilised democratic society.

The Minister has introduced this Bill within nine months of entering government. It shows the type of Ministry he is leading. It ought to be welcomed. I look forward to what the Minister has to say about community policing.

I commend the Minister for bringing this legislation before us. As he stated, the Law Reform Commission's report of 2009 was certainly a most helpful paper in addressing the circumstances that arise. The violation of one's home is a very traumatic event, irrespective of whether it is the home of an able-bodied person or an elderly person. People never forget it if their home is broken into.

I am glad this legislation is before us because it clarifies and updates definitions such as that of "curtilage". It clarifies the position on the ludicrous circumstances to the effect that, if a burglar got injured while burgling one's house, he could claim against one. I am glad the provision in this regard is to be clarified and amended.

Regarding the concept of retreating, if somebody broke into my house, retreating would be the last thing on my mind. Others, however, might not think similarly.

It is the last thing I would have on my mind but others would not be of the same opinion. I am glad this has been clarified and updated by the Minister. In the best traditions of my party over the years, I am a strong advocate of law and order. This Bill is absolutely necessary to clarify the situation because there is fear not only in rural Ireland, which was mentioned by several speakers in the context of isolation, but in the heart of all our cities. Elderly people have also been murdered in Waterford. The safety of one's home should be of paramount importance to all law makers. I welcome this Bill and acknowledge the support shown to it by all sides of the House. We must be at one in dealing with burglars in this regard.

Debate adjourned.