The text of the proposed amendment appears to be confusing and possibly contradictory to what I assume the Deputy set out to achieve. I presume he meant to provide in subsection (7) that the use of force shall exclude the use of force causing death except in circumstances where it is absolutely necessary. The amendment reads that the use of force shall not exclude the use of force causing death except in circumstances where it is absolutely necessary. It is the opposite of what the Deputy intended.
If the intention of the proposed amendment is to include a test of necessity into the use of force causing death, perhaps as a reflection of the approach proposed by the Law Reform Commission in its report or a reflection of Article 2 of the European Convention on Human Rights, I welcome that intention. However, I must oppose the amendment as it fails to take proper account of the wider provisions of the Bill. Subsection (7) does not stand in isolation. When it states that the use of force shall not exclude the use of force causing death, it is making a simple declaration to show that the Bill is not constrained, as the 1997 Act is, to non-fatal cases. It is not allowing for the use of unreasonable force.
Section 2(1)(b) is very clear when it states that the force used is only such as is reasonable. That is basically an objective test. A jury or a court will ultimately determine whether the force used is reasonable. Where lethal force is used unnecessarily it would, of course, be unreasonable. In fact, I recall when I was an Opposition Member addressing this Bill and noting that the tests that apply here in the context of determining the appropriateness or not of conduct was a mixture of both an objective test and a subjective test. I expressed some concern about ensuring that we were compliant with the European Convention on Human Rights and that the Bill did not fall outside it.
I will focus briefly on the aspect of the amendment which would introduce a new subsection (3). It appears the intention of this is to exclude private property from the use of force causing death. This aspect of the amendment alone would defeat the entire purpose of the Bill. Subsection (11) states "For the avoidance of doubt, a reference in this section to property includes, unless the context otherwise requires, a reference to a dwelling." Hence, a dwelling obviously is an individual's property. The Bill as it stands does not allow for the use of lethal force in defence of private property per se. The purpose of this Bill is to recognise the special position of the dwelling in law as recognised by the common law and as explained in some detail by the Court of Criminal Appeal in the Barnes case and, not least, as embedded 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.”
It is worth recalling that in the Barnes case, Mr. Justice Hardiman referred to a burglary, entering someone else's house, as essentially an act of aggression. To be precise, he stated:
Every burglary in a dwellinghouse is an act of aggression. The circumstances may make this element of aggression more or less patent but the violation of a citizen's dwellinghouse is just that, a violation and an act of aggression no matter what the other circumstances.
Lethal force would, of course, only be reasonable to use in exceptional circumstances and only where it was proportionate to the threat with which someone was confronted. For example, if an attacker was attempting to firebomb a family home, it would be reasonable to use very strong force to prevent that attack so as to protect the lives of those in the home. The Deputy's proposed amendment would prevent the householder from using such force as his protection of the home would constitute the defence of private property. Consequently, there are circumstances in which the defence of private property may indeed require the use of lethal force. Sticking with the example of a firebombing attack on a home, what if the householder used a hurley to fend off the attacker? Moreover, what if, in the course of so doing, he injured the attacker who subsequently died? Under the Deputy's proposed amendment, the householder, whose only intention was the defence of his or her home, could face a homicide charge for defending his or her home. These are all relevant and important issues.
If one reverts to the relevant part of the European Convention on Human Rights, the relevant article is Article 2, which provides 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.
A specific request for advice on the compatibility of the Bill with the European Convention on Human Rights was made by my officials to the Attorney General's office. I was anxious, having raised the matter on Second Stage, that this issue be fully considered. The advice received is clear, namely, the Bill is compatible with Article 2 of the convention. The advice points to the ruling of the Court of Criminal Appeal in the Barnes case, which suggests the crime of burglary can never really be regarded as constituting simply an offence against property. The advice made reference to the quotation from Mr. Justice Hardiman's judgment to which I made reference earlier. There is another quote from that Supreme Court judgment in which Mr. Justice Hardiman, when delivering the Barnes judgment, refers to how "the special status of a dwellinghouse has always been linked to the dignity of its occupants". He then quoted from a case from 1828 in the York summer assizes that referred to:
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.
Mr. Justice Hardiman then concluded:
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 protection of the Bill is provided only to householders who are in their house at the time when the dwelling is violated and so it can be seen that any act taken by the householder in defence of his or her property is also an act involving a defence of the person in the dwelling house against what, in the language of the European Convention on Human Rights is "unlawful violence". The level of force which a householder is permitted to use in response to that aggression is only that "such as is reasonable in the circumstances as he or she believes them to be". The provision, "reasonable in the circumstances as he or she believes them to be" is of course the subjective element of the test that is applicable. As I stated earlier, the concept of reasonableness is well known to Irish jurisprudence. It embodies the concepts of necessity and proportionality, while allowing for a rounded consideration of all the circumstances of every case.
However, when discussing this Bill, it is important to keep all this in rational perspective. It is important, if an individual's house is burglarised, that he or she is free to defend himself or herself, as well as his or her family or property and to so do using reasonable force based on the circumstances as he or she understands them to be. This is a reasonable protection. It is reasonable to ensure that individuals who do so protect themselves do not either find themselves charged with murder on foot of a fatality or find themselves sued by a burglar or a burglar's bereaved survivors in circumstances in which they used reasonable force.
However, in so far as the public follows these debates, members also should not encourage people to engage unnecessarily with those intent on criminality and those who burglarise their houses. Everyone is aware that burglaries take place in a variety of circumstances and some of those who engage in burglaries are not simply interested in stealing property. There are some very bad people who have terrorised the elderly in rural areas in particular, as well as other families who have engaged in gratuitous violence when they have had the opportunity to so do when burglarising properties. Moreover, there are others who, as a result of drug addiction, burglarise and on occasions are completely out of control. If members of the public find themselves in a position in which a burglar has entered their home, for some people, a considered retreat out of the house into safety, if that is available to them, as well as immediately contacting the Garda Síochána if that is available to them, is the best way of dealing with such situations. I do not wish to encourage what I would describe as a gung-ho approach on the part of each individual when a burglary takes place. Elderly individuals confronted by younger people burglarising their homes who try to defend themselves may be at a substantial disadvantage.
Consequently, this Bill provides protections to ensure that people can regard their homes as their castles and that people who reasonably defend themselves or family members against a burglar will not end up being prosecuted. While all these protections are important, members also should urge members of the public to be cautious when engaging with those who may be potentially violent, so as to ensure that bad things do not happen to them that are a great deal worse than some property being removed from their homes.