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.".
This amendment was tabled by my party on both Committee and Report Stages in the Dáil, as I am sure the Minister is aware, and I mentioned this in my contribution on Second Stage yesterday. The amendment, in deciding if it is justified to use force, sets a two prong test comprising subjective and objective elements. The Bill states the use of force against the trespasser will be lawful when the occupier honestly believes the trespasser is on the property to commit a crime and force is necessary to protect the occupier, another person or the property. Going back to my earlier point, it may 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 Second Stage that it is my view that the lack of reference in the Bill to proportionality, necessity and imminence risks the objective test as set out in the Bill potentially not being robust enough. I hope the Minister appreciates the point being made.
I am concerned that the objective test as set out does not comply with Article 2 of the European Convention on Human Rights. I would like to quote some of the Minister's contributions on the Bill. On this amendment, he 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 amendment might be to tighten up the circumstances in which force can be used [but] it is unlikely that an amendment would have the effect of imposing additional tests to those already prescribed in the Bill.
The Minister finished by saying:
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 not disproportionate, it is highly likely [when] taking all factors into account, that it would be considered reasonable.
When we reflect on what was said in the Dáil, it seems this was the Minister's objection to the amendment but there seems to be contradiction in what he is saying.
The Minister stated, as I have quoted, that the Sinn Féin 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 say that the test of reasonableness already incorporates the elements of imminence, necessity and proportionality. If that is the case, and they are already incorporated, then what is the problem with the amendment we have tabled? We are trying to bring certainty to this because we are concerned about the implications of the non-acceptance of this amendment.
The Minister made the point that acceptance of this amendment could impose additional tests. We questioned this in the Dáil, but received no response. What additional tests is the Minister referring to? What inference did he draw from acceptance of our amendment? I look forward to his response.