Seanad Éireann debate -
Friday, 9 Dec 2011

Vol. 212 No. 4

Criminal Law (Defence and the Dwelling) Bill 2010: Committee and Remaining Stages

Section 1 agreed to.

SECTION 2

Senator David Cullinane

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.

Senator Paul Coghlan

This is very balanced. I compliment the Minister on his reasonableness. I mean no disrespect to Senator Cullinane's submission. What I thoroughly enjoyed in the Minister's speech yesterday was learning about the "castle doctrine" when he quoted from the body of law, dating from 1604, the American case in 1825 and the York summer assizes in 1828 "for a man's house is his castle". From time immemorial this concept has beenincorporated in the body of law and with the passage of time the law could have become much stronger in defence of the home. I think the Minister's point is very balanced and totally reasonable.

Senator Ivana Bacik

I wish to correct my friend, Senator Coghlan, to say that in the modern formulation of the "castle doctrine", it is not limited to men, for a person's home is his or her castle. I am only teasing the Senator.

Senator Paul Coghlan

We now have a new missal on account of this.

Senator Thomas Byrne

Senator Bacik had better address women's pensions because women will be affected more than men.

Senator Ivana Bacik

That is rather gratuitous.

Senator Thomas Byrne

It will be an issue next week.

Senator Ivana Bacik

I thank Senator Cullinane for tabling an amendment because it gives us an opportunity to review again the issues that were discussed in the Dáil. They were discussed by the Law Reform Commission as to whether the imminence test should be explicitly stated. I am satisfied that it is enough when one reads the totality of section 2, in particular subsection (4), as set out. Using the formulation that the courts and juries are familiar with, in the practice of using another context, they are looking at the subjective belief of the person as set out in subsection (1), the belief that the other person has entered the dwelling as a trespasser, etc., and the belief that the force used is reasonable in the circumstances. Subsection (4) gives the additional provisos that the court or jury in considering whether the person honestly held the belief must have regard to the presence or absence of reasonable grounds and all other relevant circumstances.

Those other relevant circumstances must encompass the other issues of imminence and of necessity that were set out by the Law Reform Commission. I know that the language is somewhat different from that in the Law Reform Commission report. The latter report is a report on defences and the Bill which it produced, which I thought was a very sensible Bill, seeks to set out and codify common law defences generally, not just the very specific defence of self-defence in the home, as this Bill does. It is an opportunity to make the more general point, that we have made before, and to which the Minister referred yesterday, which is the need for codification of criminal law generally, that we have so many vital principles of criminal law, including the Dwyer halfway house, to which I referred yesterday, which are not set out in statute. The 1997 Non-Fatal Offences against the Person Act set out for the first time a statutory formulation of the legitimate defence principles and the principles of self-defence. However, as Mr. Justice Hardiman noted in DPP v. Barnes, there was always a difference of interpretation as to whether that applied to unlawful killing because the Act is about non-fatal offences. There was always that slight doubt and Mr. Justice Hardiman in that judgment clarifies to a great extent the law on self defence, where it applies in cases of unlawful killing and where it applies in the home. I am satisfied that those elements are contained in the current formulation, particularly in section 2(4). I know that Senator Cullinane is seeking to amend section 2(1) but if we look at the totality of section 2, we can see that the test for the court, or in the case of a jury, the test in subsection (4) is more nuanced.

Senator David Cullinane

The purpose of this amendment is to ensure that the test, as set out in the legislation, will be adequate and robust enough. Senator Bacik referred to the Law Reform Commission paper of 2006, which criticised the existing standard. We argue, that by extension, that would apply to the new Bill. The Law Reform Commission argued for a four part test. If I may repeat what I said during the Second Stage debate, it called for the following: a focusing on 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. What the Law Reform Commission called for is different from the tests set out in the Bill. I am curious as to why the Law Reform Commission standard has not been accepted by the Minister.

Minister for Justice and Equality (Deputy Alan Shatter)

I thank Senator Cullinane for tabling the amendment because as Senator Bacik rightly states, it gives us a good opportunity to tease out issues of relevance. I think Senator Bacik summed up, more succinctly that I would, my view of the matter. She set out quite clearly how the subjective and objective elements interact under the provisions of the Bill. I will come to that in slightly more detail. I am satisfied that the test we have provided for is the appropriate test and will adequately cover the issues that the Senators have been concerned about. I apologise, my telephone has gone off.

Senator David Cullinane

It is probably one of those solicitors the Minister was talking about this morning.

Deputy Alan Shatter

I am not sure whether he or she would telephone me.

I wish to refer to an article in today's Irish Examiner on the Bill because I am anxious to ensure that no member of the public is in any way misled as to the objective or purpose of the Bill and how it will apply. The story in the Irish Examiner was a very fair account of yesterday’s proceedings in the Seanad. I welcome the fact that what was discussed yesterday in the Seanad was reported. What was written was a very accurate account of the proceedings but unfortunately the headline to the story read “Bill to give homeowners right to kill intruders”, which did not reflect the substance of what was in the story, which was accurate. It gives the wrong impression entirely about the purpose and effect of the Bill. It gives rise to an impression which certainly is not the intent of the Bill, namely, that a homeowner who discovers an intruder can simply kill him or her.

It is very important that a message goes out from the Government and from this House that this is not what the Bill permits, and that in no circumstances would the current Government or the previous Government or any Government enact legislation in the State which contained such a provision. It is unfair to the reporter, who wrote a very good and succinct piece about the content of the Bill, that his article was given that headline. My officials have written to the editor of the Irish Examiner to clarify that the Bill does not confer on homeowners a right to kill intruders. The letter notes that the Bill is in no way an encouragement or licence for unwarranted violence as it is subject to the requirement that any force used is reasonable and for defensive purposes in the context of a person in a dwelling. The very particular point is that any force that is used should be used “for defensive purposes” and based on the individual home occupier’s perception of the circumstances. The response of the home occupier to the intruder must be objectively reasonable. That incorporates Senator Cullinane’s concerns about “imminent” necessity, etc. The proportionality of the response, based on the home occupier’s perception of the circumstances, is part of the reasonableness test. The letter also clarifies that the Bill acknowledges that reasonable force used in defence of the home may result in a death, unfortunately. As I recollect it, that was referred to by Mr. Justice Hardiman in the Barnes case. No one should believe that this Bill confers a right on anybody to end the life of another person. To put it simply, the Bill recognises the rights of householders who set out to defend, rather than those who set out to kill. It is important to clarify that. The report in the Irish Examiner accurately reflected the substance of the debate. I hope it will use the opportunity presented to it by what I have said to correct its headline tomorrow, in order that people are not misled into believing this Bill provides some sort of licence to kill.

I would like to comment specifically on the amendment that has been moved by Senator Cullinane. As he rightly noted, the amendment was also tabled on Committee and Report Stages in the Dáil. It appears its aim is to ensure the concepts of imminence and proportionality are added to the test of reasonableness that is already provided for in the Bill. The concept of reasonable force is well known in our law and its interpretation by the courts. As I have already mentioned, it encompasses the concepts of necessity, imminence and proportionality. That is evident from the Law Reform Commission's analysis in its discussion paper and in the report the Senator has mentioned. It is also clear from the 1994 judgment in the case of DPP v. Clarke, which was reported on page 298 of Vol. 3 of Irish Reports of that year. In addition, the approach in the Bill reflects the test set out in the judgment of the Court of Criminal Appeal in DPP v. Barnes, which is the case to which we keep referring, and in the judgment of the European Court on Human Rights in the Giuliani case. The main difficulty with the amendment is not that it would alter the reasonableness test. If one changes the words, one changes their meaning. If this Bill were amended as the Senator proposes, it would not embody the reasonableness test that is embodied in the Non-Fatal Offences Against the Person Act 1997 under common law. As I have said, the test incorporates the concepts of necessity, imminence and proportionality, while allowing a broader, rounded and objective consideration of the circumstances of each case.

The Senator is right to say that during the Second Stage debate on this Bill in the Dáil, as Opposition spokesperson on justice I raised the question of whether the provisions contained in the Bill were consistent with judgments delivered in the European Court on Human Rights. I did not do so because I believed the previous Government was trying to violate human rights, or the previous Minister was trying to do so. I did so because I was anxious to ensure we did not fall foul, by accident, of the European Convention for the Protection of Human Rights and Fundamental Freedoms. When Fine Gael was in opposition, it spent many years seeking the introduction of the measures contained in this Bill. This matter was the subject of two Private Members' Bills. I did not want to see a Government Bill, which covered similar ground to our Private Members' Bills, to fall foul of a judgment in the European Court on Human Rights. For that reason, I had the issue examined by the Office of the Attorney General after I became Minister for Justice and Equality. Consideration was given to it. We have received clear advice to the effect that the Bill, as framed, fulfils our obligations under the European Convention on Human Rights and is consistent with judgments delivered by the European Court on Human Rights in Strasbourg. It is important to highlight this.

I appreciate this amendment was tabled with good intention. A problem arises when one moves from the concept of reasonableness, which has been applied by our courts, is understood and has been addressed in significant written judgments. The Senator wondered why I phrased things as I did in the quote he read. Even though reasonableness incorporates these concepts, the problem is that if one changes the test in the manner suggested by the Senator, it ispossible that the courts will move into another area of interpretation. There is a need for consistency in the reasonableness test. The concept of reasonableness was covered in the earlier non-fatal assaults legislation that has been mentioned. There needs to be consistencybetween this legislation and the other legislation. The Non-Fatal Offences against the Person Act 1997 embodies the reasonableness test. It is important that the 1997 Act and this Bill are clearly consistent. There does not appear to be a difference between the tests that are applied in both instances. As I have said, I am reasonably satisfied, on the basis of the advice that is available and the case law that has been mentioned, that the three concepts for which the Senator wants to make express provision are covered in the reasonableness test as itstands.

Senator Thomas Byrne

In the absence of my party's justice spokesman, Senator O'Donovan, I want to concur with what the Minister said about the article in today's Irish Examiner. I thank the newspaper for covering the Seanad. It is important that the media should do so. If some fools read the newspaper and see the headline in question, they might take the law into their own hands. I hope there are not too many fools reading the Irish Examiner. It is important for this House to send a united message about the headline mentioned by the Minister.

Senator Ivana Bacik

Senator Byrne is right to echo what the Minister has said about the article in the Irish Examiner. I am grateful to the Minister for bringing it to the attention of the House. I had not seen it. I agree with the Minister that the headline is misleading. All of us stated clearly yesterday that this Bill states and clarifies the existing law. The law, as set out in the Barnes case, clearly does not give a householder any right to kill a burglar simply for being a burglar. However, it sets out the principles under which a householder is entitled to defend his or her home and provides that the householder is under no obligation to retreat. All of us are in agreement that the headline in question is misleading. The true import of the Bill is as set out on the record of this House yesterday.

Question, "That the words proposed to be deleted stand," put and declared carried.

Amendment declared lost.

Senator David Cullinane

I move amendment No. 2:

In page 5, lines 10 and 11, to delete subsection (7) and substitute the following:

"(7) Notwithstanding the provisions set out in Section 2, the use of force shall exclude the use of force causing death except in circumstances where it is absolutely necessary.

(8) Notwithstanding the provisions set out in Section 2, the defence of private property shall not be a legitimate reason for the use of fatal force.".

I will focus on the proposal in this amendment to introduce two new subsections. Section 2(11) provides that "for the avoidance of doubt, a reference in this section to property includes, unless the context otherwise requires, a reference to a dwelling". Clearly, a "dwelling" is an individual's property. In our view, the Bill as it stands allows for the lethal use of force in defence of private property. That is my understanding. I await clarification from the Minister. Senator Bacik may have unintentionally spoken about a different aspect of this matter in her reply. She referred to the defence of one's home but I understand this is a question of the defence of one's life, or the lives of others in one's dwelling or property. I hope it is not a question of the defence of the property itself. That distinction is at the heart of this amendment. We need absolute clarity and certainty in this regard. The purpose of the Bill is to recognise the special position of the dwelling in law, as recognised by common law; as explained in some detail by the Court of Criminal Appeal in the Barnes case, which has been alluded to on a number of occasions and, not least, as embedded in the Constitution, Article 40.5 of which guarantees that "the dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law".

While Sinn Féin does not dispute the constitutional inviolability of the dwelling, we dispute the ability of a person to be able to take the life of another person in defence of his or her dwelling. The Bill clearly permits the use of lethal force in cases in which there is a threat to private property. It is not correct to place the same value on life as on bricks and mortar. The amendment would not prevent someone from taking reasonable and necessary action to defend himself or herself or other persons. Its purpose is to prevent a person from using lethal force where the risk is simply to bricks and mortar. I do not claim — nor is it the intention of the amendment to preclude all such scenarios — that a person cannot use lethal force in certain circumstances. However, when such force is used, there must be a threat to the life of a person, a person's family or an individual who resides or is present in a private property and not only a threat to the private property. I await the Minister's response.

Senator Ivana Bacik

Senator Cullinane indicated I used the term "defence of the dwelling". If I did so, I apologise as I meant to use the words "defence in the dwelling". The Bill relates to the justifiable use of force, the defence that is commonly referred to as "self-defence", within the dwelling.

A person's dwelling is at all times the setting in which acts to which the Bill refers take place. While he or she may not own the property, he or she will be the lawful occupant, whether a tenant or householder. The point is that he or she is in his or her dwelling when he or she uses the force that is justified through the operation of the defence provided for in the legislation. This is what distinguishes the action from the protection of property in a vacuum. We are not talking about someone who is acting simply to protect a warehouse that he or she owns or a premises in which he or she has some form of commercial interest.

The key point is that the property is the dwelling and the Bill makes specific rules based on the common law and the law as set out in the Barnes case and dating back to the expression of the castle doctrine, about which Senator Paul Coghlan spoke, in the context of the use of force within a dwelling by a person who is seeking to protect himself or herself or another person, as set out in section 2. That is the setting provided for in the section.

Deputy Alan Shatter

The same amendment was proposed and rejected on Committee and Report Stages in the Dáil. I must oppose the amendment once again as it fails to take proper account of the wider provisions of the Bill. As I said in the Report Stage debate in the Dáil, subsection (7) does not stand in isolation. Section 2(1)(b) is very clear when it states “the force used is only such as is reasonable”. That is the objective test to which I referred. A jury or court will ultimately determine whether the force used is reasonable. Strong force would only be reasonable to use in the circumstances where the threat warranted it. Clearly, no one would deem it reasonable to fire a shotgun at a young boy where it was clear that his only object was to rob an apple from a tree in a garden. The aspect of the amendment which would introduce a new subsection (8) would defeat the entire purpose of the Bill, which is to recognise the special status of the dwelling. The amendment also overlooks subsection (11), which states: “For the avoidance of doubt, a reference in this section to property includes, unless the context otherwise requires, a reference to a dwelling.”

The Bill, as it stands, does not allow for the use of lethal force in defence of private property per se. Its purpose is to recognise the special position of the dwelling in law, as recognised by the common law, confirmed by the Court of Criminal Appeal in the Barnes case and, not least, embodied in the Constitution, which guarantees in Article 40.5 that the dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law.

There are some issues arising from the Barnes case of which it is worth reminding the House. First, the court in question made it clear that a person cannot lose his or her life simply because he or she trespassed in another dwelling house with intent to steal. Second, it made it clear that the offence of burglary committed in a dwelling house is always an act of aggression and an attack on the personal rights of the citizen. Third, the court made it clear that although the dwelling house is property, it is wrong to equate it with other forms of property as it has a higher level of legality and constitutionality. Senators must also keep in mind that the reasonable force permitted to be used by the Bill is that used in the context of the dwelling. Section 2(1) clearly refers to a person who is in his or her dwelling or a person who is a lawful occupant in a dwelling. For these reasons, I cannot accept the amendment as proposed.

Senator David Cullinane

I return to what is stated in the text as I do not agree with the Minister's analysis. In reference to the justifiable use of force, section 2(1)(b)(ii) states a person may use such force “to protect his or her property or the property of another person from appropriation, destruction or damage caused by a criminal act”, while section 2(7) states: “The use of force shall not exclude the use of force causing death.” It is clear from my reading of the text that the legislation permits the use of lethal force in the defence of property without an accompanying threat to the life of a person. That is my understanding and for this reason I will press the amendment if the Minister is not in a position to accept it.

Senator Ivana Bacik

I refer Senator Cullinane to the consultation paper of the Law Reform Commission published in 2006, which was before the decision in the Barnes case. Setting out the law then, the commission makes a clear distinction between what force a person is allowed to use in the defence of personal property, on which it stated that for the most part it has been accepted that lethal defensive force may not be used to defend personal property, and what force may be used within one's dwelling house. The report does not recommend any upper limit to be placed on the force that may be used to defend one's dwelling house. It refers to the common law and castle doctrine to make the point that the dwelling house is a different setting from other forms of private property and, as such, different tests apply. As we heard, Mr. Justice Hardiman set out clearly the special status of the dwelling house in his judgment in Barnes in which he distinguished between defence of the dwelling house and other property.

Deputy Alan Shatter

To come back to the section, the point I made was that one cannot take a subsection in isolation and apply a substantive meaning to it that is out of sync with the rest of the legislation. I draw again to the Senator's attention subsection (7) which states: "The use of force shall not exclude the use of force causing death." The subsection makes clear that there may be a circumstance in which the force used may cause death but if force is used which causes death, it must be reasonable in the circumstances. This then begs the question as to what are the circumstances. In the context of dealing with the matter section 2(1)(b) sets out the circumstances as follows:

"the force used is only such as is reasonable 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 injury, assault, detention or death caused by a criminal act,

(ii) to protect his or her property or the property of another person from appropriation, destruction or damage caused by a criminal act, or

(iii) to prevent the commission of a crime or to effect, or assist in effecting, a lawful arrest."

The force used must be such as is reasonable in the circumstances. If one takes it that the force may include force causing death, it is not suggested, for example, that in all circumstances it would be reasonable to use lethal force to prevent the commission of a crime or effect a lawful arrest. No one is suggesting that it would be reasonable for a member of the Garda Síochána, in circumstances in which a person starts running away when the garda attempts to make an arrest, to simply reach for a gun and kill the person. That would clearly not be reasonable. Equally no one is suggesting, based on this, that if someone enters a home, takes a bucketful of a coal and is walking down the garden with the coal bucket, it would be reasonable for the homeowner to shoot that person or kill him or her by other means. While there may be a circumstance in which it is reasonable that someone loses his or her life, such circumstances will be of extremity where the reasonable test would address the issues to which the Senator referred, namely, imminence, necessity and proportionality.

Imminence, necessity and proportionality would not apply, for example, to kill people because they are walking out the door with some piece of antique jewellery. One may want to chase them down the garden to retrieve one's jewellery but certainly one could not take out the gun and kill them as that would be a disproportionate response.

The reality is that this issue is adequately addressed. What the Senator has said in regard to his amendment would only have any real application if subsection (7) was in place on its own without the reasonable test and if it was seen as an invitation to people to do what we all agree the legislation does not do — it does not give a right to anybody to use lethal force. It simply allows people to take action in defence and the action must be reasonable. The reasonableness test incorporates concepts of imminence, proportionality and necessity and has regard to the overall circumstances being the subjective understanding of the circumstances by the individual whose home has been invaded. Ultimately, their reaction is judged by the objective criteria.

Senator David Cullinane

If that is the case there should be no reason the Minister cannot accept the amendment.

Deputy Alan Shatter

I have nothing further to add.

Question, "That the words proposed to be deleted stand," put and declared carried.

Amendment declared lost.

Section 2 agreed to.

Sections 3 to 8, inclusive, agreed to.

Title agreed to.

Bill reported without amendment, received for final consideration and passed.