JOINT COMMITTEE ON JUSTICE, EQUALITY, DEFENCE AND WOMEN'S RIGHTS díospóireacht -
Wednesday, 27 Jan 2010

Rights of Home Owners: Discussion.

Vice Chairman (Deputy Dinny McGinley)

The discussion is on the rights of home owners to protect themselves against trespassers. I welcome Mr. Seamus Boland, chief executive, and Mr. Seán O'Leary, policy and communications officer, from Irish Rural Link, and Mr. Mark Kelly, director of the Irish Council for Civil Liberties. I thank them for their submissions to the committee on this matter.

The format for today's meeting is that each group will make a brief opening statement, which will be followed by questions and answers. Members of the committee have absolute privilege but the same privilege does not apply to people appearing before it. Members of the committee are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the Houses or an official by name or in such a way as to make him or her identifiable.

We received the written submissions of the delegates some time ago. I invite Mr. Kelly to make his opening comments.

Mr. Mark Kelly

Thank you. I am grateful for the opportunity to address this committee on a matter of mutual concern. As the Vice Chairman said, members have received the written submission of the Irish Council for Civil Liberties, ICCL. Many will be aware from extensive media coverage that the ICCL's basic position on this issue developed over several years, often in response to legislative proposals floated in the House over recent years. For these reasons, I do not intend to trawl extensively through the content of our submissions, nor do I intend to engage in a debate on the respective rights of householders and the contemptible criminals who make a living by breaking into their houses and terrorising them, unless the members insist absolutely on my doing so. Thanks to Mr. Justice Adrian Hardiman in the Barnes case, which was taken in the Court of Criminal Appeal, the current law on home defence is quite clear. It stipulates householders cannot kill a burglar simply for being a burglar but that they are entitled to defend their homes and are not obliged to retreat while in their homes. The use of force to defend property must be proportionate. Whether it is proportionate is to be determined by using objective and subjective criteria.

In preparation for our discussion this morning and in acknowledgment of the presence of my colleagues from Irish Rural Link, I took the time to read some of their material and their submission to the committee. To my surprise, and possibly to that of the members, I found that the ICCL and Irish Rural Link share a great deal of common ground on the issue of home defence. We agree it is important not to be alarmist or populist on this issue but that it is also important to acknowledge the genuine fear of crime felt by people in rural and urban communities. We agree more gardaí on patrol could have a deterrent effect. In principle, we are not opposed to the castle doctrine applying in the sanctuary of a person's home.

We are pleased Irish Rural Link has acknowledged that any new legislation to be adopted must not justify violent acts by people who have made a conscious decision to inflict injury and that any defender must still satisfy the necessity and proportionality tests before using lethal defensive force. We note with interest that Irish Rural Link believes the Nally case demonstrated how the fear of intruders and intimidation increased the risk of an excessive response to break-ins. Irish Rural Link states in its submission that the important issues in this regard are good Garda presence, efficient Garda methods and ensuring those who commit such offences are tried and convicted.

On this and all the other points I mentioned, the ICCL and Irish Rural Link agree. The two organisations also agree that while lawyers, many of whom are present, are happy the state of the law is clear that it is working effectively in practice, many members of the public and the media are still unclear on the law in this area. Many householders do not understand their rights and responsibilities regarding home defence. As the Vice Chairman is acutely aware, it is quite difficult to discuss this subject in a sensible way without running the risk of causing further confusion as to the limits of force that are acceptable once one sets out to defend oneself.

I have circulated and will refer briefly to two examples of media coverage directly related to previous discussions on this issue. Have they been received by the Vice Chairman?

Vice Chairman

Is Mr. Kelly referring to the comments of a member of the Judiciary?

Mr. Mark Kelly

Yes.

Vice Chairman

It is not the practice in Parliament to discuss decisions or comments of the Judiciary because of the separation of powers. We should avoid doing so as much as possible. We have seen the information that has been circulated and will leave it at that.

Mr. Mark Kelly

Alright. I will happily abide by the Vice Chairman's ruling on that subject.

The coverage at the time in question demonstrated very clearly that, notwithstanding protestations made by the Tánaiste and then Minister for Justice, Equality and Law Reform, proposals in 2007 dealing with home defence were capable of being misconstrued by individuals as giving a licence to kill, thereby demonstrating the necessity for greater clarity on the subject. We took the view that the proposals were understood to be such and that it was therefore necessary for the person who had misunderstood them to apologise publicly for doing so.

The second example I circulated does not concern the Judiciary but recent media coverage of the Law Reform Commission's report produced just before Christmas. It is an article by Brenda Power from the Daily Mail. The headline, which speaks for itself, reads: “I can’t think of a better deterrent to crime than the right to kill a burglar”. The article purports to describe the proposals set out in the Law Reform Commission report but does nothing of the sort.

On the basis of quite bitter experience over the years, I concede it is important not only that the law be clear but also that it be understood clearly and explained properly and responsibly. That may not be the case as matters stand. The ICCL has a long-standing interest in ensuring people know their rights. The supporting document circulated by the committee secretariat is a small booklet we published last night on people's rights in the context of criminal justice and Garda powers. I hope the members find it of interest.

Householders should also be aware of their rights in the context of home defence in the event that someone breaks in. They should be made aware of them not as a knee-jerk reaction to the latest atrocious case of someone being attacked or terrorised in his or her home but after a process of considered reflection and in unambiguous terms.

The Law Reform Commission's pre-Christmas proposals on home defence comprise the most significant development regarding home defence since the Chairman of this committee called for the subject to be considered in October. To a large extent, the Law Reform Commission's proposals are a sensible set of recommendations to codify the existing criminal law into statute. However, I regret that a small number of the home defence proposals produced by the commission last December overstepped the mark and they should not become law. I fully agree householders should know their rights if someone breaks into their homes. However, a small number of the proposals made in the report go well beyond clarifying the existing law for householders. The Irish Council for Civil Liberties has concluded that some of them overstep the mark by placing the right to the defence of property above the right to life.

The Law Reform Commission appended draft legislation to its report, Draft Criminal Law (Defences) Bill 2009. Section 3, if ever enacted as drafted, would allow householders to justify the use of lethal force not only to repel unlawful entry by a burglar but also to prevent someone from entering the property or even damaging the home. One example being widely discussed is that it would extend the circumstances in which the use of lethal force might be contemplated to a common thief breaking into a home to steal a set of car keys from a hall table to steal the car from the driveway. It is clear to the Irish Council for Civil Liberties that this would be at odds with the constitutional protections in Article 40.3 which cover the personal rights of individuals and the right to life. It is not just about the right to life of the car thief-intruder but also the householder. As the Irish Council for Civil Liberties has stated each time such proposals are floated, once people are encouraged through the law or the media to believe it is legitimate for them to use force in such circumstances, the ante is upped. It becomes more likely that people breaking into homes will expect to be met with violence, making it more likely that they themselves will come prepared to inflict violence on householders. It would not make people safer — our shared priority — but more insecure. It would not be consistent with the Constitution or Ireland's obligations under the European Convention on Human Rights.

The Law Reform Commission also suggested a defence, if one used lethal force, should not just apply in the home but also in driveways, gardens, fields or yards. The Irish Council for Civil Liberties believes this comes perilously close to Michael McDowell's ill-fated 2007 licence to kill legislation and has no place in our law. The council has great respect for the work of the commission and its commissioners. However, it would be failing in its duty as an independent watchdog if it did not highlight what it sees as potentially dangerous flaws in these proposals.

If we agree that it would be a good idea for there to be greater clarity about the essence of the law in this area, there are a variety of ways by which this could be done. Codifying the common law through statute would be one way but there are other possibilities. In England and Wales the Crown Prosecution Service and the Association of Chief Police Officers have issued a guidance note on home defence in the form of a joint public statement to householders on the use of force against intruders. It is written very much in the style of a know-your-rights publication with simple and direct questions explaining clearly the consequences of people acting or refraining from acting in a particular way. Should consideration be given to a similar initiative in Ireland? This would have full regard and respect for the independence of the Director of Public Prosecutions but would still be complementary to statutory codification were that the route the committee decided to take.

Mr. Seamus Boland

I thank the Chairman and members for giving us the opportunity to present to the joint committee. I almost feel slightly redundant because Mr. Kelly has delivered as much of our input as he has his own. If members remember nothing else of today's meeting, the important point is that any deliberations from any committee or the Law Reform Commission should send two very clear messages which I do not believe we have yet managed to do. First, if someone has broken into one's home or is on one's property, they should not be there and their level of rights should be diminished considerably. Second, the victim needs to know he or she will be protected by the institutions of the State, irrespective of what has happened because he or she was not the initial perpetrator. He or she should not feel afterwards that he or she will get into huge trouble. In some of the more unfortunate cases highlighted, the common reality, particularly in the feelings expressed by victims, is they had incredible fear. As a result, at times they simply did not report the initial intimidation because they felt that, somehow, they were wrong.

It is interesting that Mr. Kelly was pleasantly surprised by our agreement on the matter. This should inform the committee of how difficult it is from a rural perspective to talk about the message of fear because straightaway one is hit down as looking for a licence to kill and to have a go. Most rural groups, including Irish Rural Link, have never stated they want to have a go. Unfortunately, that message is confused with doubts about the level of force to be used, etc. Most people living in rural areas have come to believe, rightly or wrongly, that they are the ones who will come out the wrong side of an incident.

The message must get across strongly that the person trespassing has diminished rights. Those who are affected by that trespasser should be given the confidence to believe they will be protected by the State. The committee is aware of the rural issues, so I shall not waste its time as regards rural isolation and so on which are well documented. We are making it clear that we are not in favour of the "have a go" viewpoint, but we are talking about the fear and intimidation that is being experienced.

The second real point IRL is making in clear terms is about whether the level of resources in terms of community alert programmes and dialogue generally between the community and the Garda has been examined. Have we examined at all the effects some cutbacks will have? We welcome yesterday's press release to the effect that there is another €60,000 available for community supports. That is enormously welcome and that is the way we should be going, since those schemes, because they are embedded in and dependent on the community, bring a great deal more confidence and support to people living in rural areas than virtually any single initiative can achieve. Even though the McCarthy report says more or less all of these should go, the fact is they bring comfort and physical help to people and that is as it should be.

In other words, we may well talk about the legislative frameworks and argue about minimum levels of force, what retreat means and how the law interprets it, etc., but if the community is not involved at local level with the Garda and other agencies, meeting the difficulties at the pass, then none of the legislative initiatives will work. In dealing with the highlighted cases, such as Nally, if one looks at what happened beforehand, so much could have been done to avoid that situation, but it was not. One can blame resources and everything else, but that is where the key work, in terms of security in rural areas, must be concentrated. More older people than ever are now dependent on their neighbours and because of unemployment fewer younger people are living in the community. We really have to focus on how we deal with the question of security in rural areas.

The recommendations of the Law Reform Commission are excellent. Mr. Kelly gave two examples of the right to defence of property, etc. Perhaps we might not agree on that, but there is room for discussion at least. If one walks in on a person living on his or her own in a rural area, there may be no other houses around. If somebody breaks in or is in the driveway looking for the keys of the homeowner's car, he or she does not have much choice, not being aware what the intruder will do. To try and interpret a ruling on that type of scenario is extremely difficult. Again, this is the confusion. If I live alone and somebody enters my property, is looking for the keys of my car and I have the means to disable him or her — which could give rise to a serious situation — that is where the confusion lies. Does the law say, in effect, "No, you can't", which puts me in an horrific situation, or does it allow me to do what I have to on the basis that the intruder should not be there and therefore his or her rights are diminished?

I welcome discussion with the ICCL or any other grouping on this issue. Rural communities would be very anxious to have such discussions, but I end as I began, with two messages. The trespasser has no rights or at least diminished rights in being there and the person being attacked should have much greater rights and far more protection from the statutory agencies.

Vice Chairman

I thank Mr. Boland. Members of the committee will now have the opportunity to ask questions, starting with Deputy Deenihan.

Deputy Jimmy Deenihan

I welcome Mr. Kelly, Mr. Boland and Mr. O'Leary to the committee, The Fine Gael spokesman on justice, Deputy Charles Flanagan, unfortunately cannot be here. I have a question for Mr. Kelly. Obviously, he is very much against what the Law Reform Commission proposes as regards home defence. Fine Gael introduced a Bill before Christmas which was very similar. Is Mr. Kelly familiar with the Fine Gael proposals?

Mr. Mark Kelly

Yes.

Deputy Jimmy Deenihan

The Law Reform Commission goes somewhat further than the Fine Gael proposals.

Mr. Mark Kelly

It does, yes.

Deputy Jimmy Deenihan

I should like if he would comment on the Fine Gael proposals, if possible.

Mr. Mark Kelly

With respect, I should prefer not to do that because I understand the Fine Gael proposals were defeated in the House and that the Law Reform Commission proposals comprise the only initiative currently on the table. Perhaps I should clarify as well, that the ICCL is broadly supportive of what the Law Reform Commission proposes, if that is helpful to the Deputy, with the exception of those aspects I have highlighted. Essentially, the Law Reform Commission proposes to codify the existing state of the common law, drawn from the case of DPP v. Barnes, with which we do not have a problem. Our problem is the one I have identified, with two specific aspects. My understanding is that they were not part of the Fine Gael Bill.

Deputy Jimmy Deenihan

The objective of the Fine Gael Bill was to rebalance the law. Does Mr. Kelly agree that the perception among the public, as Mr. Boland made clear, is that the law is still very much in favour of the intruder? That is the perception, while Mr. Kelly might disagree, among the majority of people one meets, especially those who have been affected.

Mr. Mark Kelly

I do not necessarily disagree that this is the perception. However, I disagree that this perception is an accurate reflection of the current state of the law. It would be good for something to be done about that, either through the form of a statute which codifies the existing state of the law — making clear that there are checks and balances and that householders have both rights and responsibilities — or in the form of guidance that might be issued from elsewhere. We would find ourselves broadly in agreement on the perception point, but the underlying reality, which it is very important for a law-based organisation such as the ICCL to make clear, is that current state of the law, in our view, already strikes an appropriate balance between the rights of the householder and those other rights and responsibilities. It does not need in its essence to be reformed.

Deputy Jimmy Deenihan

At the time of the Fine Gael Bill there was a high-profile incident in Waterford, which involved the Barry family. Keith Barry is a well-known entertainer in this country and his grandfather, Ken Barry, was well known as well. The family is launching a campaign at the moment at national political level, and indeed contacting Members of the Oireachtas in this regard, because it believes the only deterrent to aggravated burglary is mandatory sentencing. What is Mr. Kelly's view on mandatory sentencing for aggravated burglar, where somebody might physically abuse a household, leading to his or her death, perhaps? Should there be a mandatory sentence for that? They feel that is the only way we can deter people attacking houses, or at least from using physical force to injure the occupant of the house. The intruder will retreat rather than expect the householder to retreat.

Mr. Mark Kelly

I have two observations on that. The death of Keith Barry's grandfather was absolutely tragic, and ICCL said so at the time. I appreciate that it was precisely one of the concerns that prompted the Chairman to suggest that this committee might return and look at this issue. It also partly demonstrates the danger of reacting too quickly on the basis of one individual case, because the facts of that case turned out to be slightly different from what was thought at first.

Clearly, the Barry family have very legitimate concerns. Unfortunately, were it to be as simple and straightforward to deter burglars by introducing mandatory sentencing, then there are many other jurisdictions in which that would have already happened. We would then be able to see a pattern of the rate of burglary falling. I am sorry to say from both a criminological and legal perspective, that this is not the case. The overwhelming body of international evidence is that the only thing which effectively deters people from committing crime is the certainty of being caught. The evidence shows that sentencing has no direct or immediate correlation with the propensity of people who are wicked enough to break into people's homes and to assault old people. Were it to be as simple as that, I could not sit in front of the committee, next to my colleagues from Irish Rural Link, and tell members that the ICCL was opposed to it. Our view on mandatory sentencing is that the case has not been made internationally in any way, shape or form that it is an effective deterrent to burglars.

Deputy Jimmy Deenihan

Rural isolation is a major problem and it is becoming even bigger as the rural population ages and there are fewer young people living in rural areas. Both rural and urban isolation exists and it is a problem for old people in both settings.

Mr. Boland was right to mention that there should be a direct connection between the local Garda station and old people. There should be a log of all vulnerable people in each station. While there are stations in villages across the country, most of them are not permanently manned by a garda. There should be some obligation for the local garda to live in that community. When gardaí lived in their local community, they had much more of a connection with that community. They were much more involved in activities, be they social or sport or whatever. However the connection between local gardaí and their community seems to be gone. That should be one of the mission statements of the Garda Síochána at this stage. I live in a town and I would only know a small number of the gardaí in the local barracks and that is true for most TDs who live in bigger centres.

People with continuous links with the local community would be the postman or the community care nurse. The Garda should be working in close contact with the local postman and the community care nurse to draw up a list of those people who feel isolated and vulnerable to attack. Some people are targeted more than others. There are people out there who will target those they feel live in fear and are vulnerable. They are being robbed continuously but they are not contacting the Garda because they feel they do not have that support.

Community Alert can be very effective where there is local enthusiasm and where local activists exist. However, I understand there are vast tracts of the country where there is no community alert. Perhaps the witnesses might like to comment on that.

Deputy Pat Rabbitte

I thank the witnesses for taking the time to come in and make submissions to us. If I understand the ICCL submission, its position is that the Law Reform Commission goes beyond clarification and oversteps the mark in a couple of important respects. On the other hand, Irish Rural Link states that any change in the law must prescribe that the trespasser has diminished rights. Whatever the opinions of the Law Reform Commission, is it the considered view of the witnesses that the way to deal with this real problem in society is not necessarily legislative at all? However well people are informed about the law or however well the media chose to understand it, it will be very difficult to improve on it and this is not the best way to deal with a real problem.

Although urban dwellers are not free from the downside of this phenomenon in society today, I do not think they understand the acute fear in the countryside of older people, who are often living alone and are mentally vulnerable. I am not sure that the ICCL reference to Garda protection is meaningful in any way, because it is not there. In fairness to the Government, we might have to say that in many cases Garda protection cannot be there. We cannot have a garda at every crossroads in Ireland. Whether we can or cannot, it is a fact that we do not. Many of the rural stations cannot respond to calls or are shut down entirely. Many of our citizens are left in immensely vulnerable situations. It would be unheard of 30 or 40 years ago that an old person in the countryside might be subject to illegal intrusion into their homes, robberies, assault or worse. Unfortunately, it is not uncommon now.

I wonder if the two organisations are telling us that measures other than legislative reform are needed. Deputy Deenihan has referred to Community Alert. Mr. Boland referred to a minimum amount of money for community supports and the possibility of harnessing technology today to give protection to old people in their homes. If the Minister intends to press ahead, he will have to make a call on some of these problematic issues that are being thrown up, such as the use of lethal force and so on. We may well end up with a statute that is more problematic and that really does not do anything to protect the individual citizen in these vulnerable circumstances.

We must remember that we tend to have a kind of knee-jerk reaction that says reform of the law is the answer to all of these problems, that we should change the law and that the Minister should do this and that. I wonder if change of the law is the issue here in terms of combating this phenomenon that a number of colleagues around the table know of very well. While we are where we are, I wonder whether we might not concentrate on other measures that might be taken. Mr. Kelly referred to the example in Britain of the guidance notes, clarity and so on. I am not persuaded that a new statute will be any help to the besieged citizen, either to wave at the burglar or to go to his solicitor after the event. We need to make haste slowly.

Mr. Seamus Boland

Deputy Rabbitte has made some important points. To give an example in this regard, the report of the inspectorate of the Garda contains a harmless little recommendation that Garda stations should not have people coming in to get this, that and the other signed. On the face of it, it seems a perfectly logical thing to do and it would save Garda time. However, the person coming in to sign may represent contact with the public and the community generally. In other words, what Deputy Rabbitte says is correct in one sense, in that putting statutes in place — I made this point myself — may not be the way to go. However, if one decides not to do that, it means one must guarantee the required resources will be available to balance the other side of it, which is community.

Committee members know that, given the financial circumstances of the past year, those resources cannot be guaranteed. Community supports have been cut. We welcome the announcement yesterday of a slight increase benefiting 170 or 180 persons, which is good and I do not want to knock it. However, when a change to the law is recommended, this at least gives a perception to the besieged community, as they would see it, that the instruments of State — the Garda, the Judiciary and so on — are on their side. I know urban people are as much in this situation as rural people. Deputy Rabbitte is correct to state, and I would echo it, that law in itself will not necessarily solve it but this at least gives some security in the face of resources being cut back and community support programmes being affected. In that sense, the perception is at least dealt with.

Mr. Mark Kelly

Deputy Rabbitte is right that the fundamental problem is that people do not feel safe in their homes. The introduction of a new statute that simply reaffirms the current state of the law will not change that. I would even go slightly further than Mr. Boland in suggesting that it might actually cause more harm by creating, temporarily at least, a false sense of security among those who are crying out for something to be done to make them feel safer. Unfortunately, this is a pattern we have seen consistently over the past year and a half or so in regard to gangland and other forms of organised crime, where changes in the law have been trailed as being the magic bullet solution to problems which, self-evidently, are not going away and which have not been cured by further legislation.

The law is well settled. It is not properly understood. In the current law, it is perfectly clear that if someone breaks into one's home, one has the right to defend oneself, and the more force they use, the more force one can use, and so on and so forth. It is a question of closing that perception gap but also of addressing the root causes of why people do not feel safe in their homes, as well as looking at the practical measures that need to be taken to address that. This is harder than drafting a new statute and trumpeting it as the solution to rural crime.

Deputy Seán Connick

I welcome the delegations. The debate circles around whether one believes the burglar has rights. The whole argument is based on the fact that if a person is in his or her bed at 5 a.m. and somebody jumps over the back ditch and starts wandering about the person's house, that intruder has automatically diminished rights — that is my view. If he or they then proceed to take out the kitchen window and enter the premises, they further diminish those rights.

I would have, as we all have, experienced robberies and burglaries, whether it is a break-in to a car or a house, where the house is ransacked in the middle of the day. It is a lot easier to get over that than it is to get over the invasion in the middle of the night, difficult as those other scenarios are. However, when one has encountered it, and I have personally encountered situations where people did exactly as I described, and come into one's home and is wandering through the house, the difficulty for the individual within the house is how to react to that situation. Nobody knows, regardless of whether one is a hot-tempered or calm individual.

The fallout from that, to which Mr. Boland alluded, is the trauma, the stress, the fear and the worry, which do not go away. Four or five years later, the person still has that trauma. It is nearly five years since we had that encounter but, when my wife leaves the bedroom in the morning, I am still not comfortable until I hear the radio go on in the kitchen because I am sure then there will not be a scream or a reaction to the window being taken out or the house disrupted.

My difficulty with the whole process is that the general public and the wider society feel there is a lack of punitive action, and there is no fear for the individual who breaks into one's home. The gardaí will come and do their best — they are very supportive and there is no difficulty there — but the likelihood is that one will not hear back from them. The fingerprints are taken but one will not hear any report as to what happened and one never finds out who were the individuals who invaded one's privacy and home. The person is left in the situation where he or she has to deal with the consequences of the original break-in.

My view is that there should be mandatory sentencing in this regard. People should know that if they break the law, these are the consequences and that the consequences will be followed through. The difficulty at present, as we all know, is that a majority of offenders, repeat offenders in many cases, are given suspended sentences and within weeks, in some cases within days, they are back out and robbing people again. There is a huge issue in regard to how we sentence and how we treat habitual offenders.

We are also aware of homeowners who have been killed because they have gone out to try to defend their property. They have perhaps been sitting watching television when, all of a sudden, they are put into this situation and a family is destroyed because somebody automatically reacts to somebody else taking their car or trying to break into their home.

The other question is a societal one in that we keep pumping money into this area. We hear about the community projects, which are fantastic projects. It is like the argument about the speed bumps. We keep putting speed bumps in all our towns and throughout our counties purely because people will not drive properly, or break the law by travelling too fast within our towns. A huge amount of personal responsibility is involved here, as well as mutual respect. This is something that is now less evident.

I would have been a huge fan of the zero tolerance we talked about. As a Fianna Fáil man, I believe we should have followed through more harshly on that. I am not one of those people who wants to shoot somebody. I do not ever want to be put in that position, like the majority of citizens in the country. However, at the same time, I want the right to defend myself and to feel I have comfort, protection and safety within my own home, and within my own space. People do not want the violation of their area. It is important for that reason that we send a strong message to people and legislation is probably the way to do it in this instance. We need to send a clear message. As youngsters, for example, we raided orchards. There was always an orchard or two we would not go near because the guy who owned them had a reputation for going after people or firing a shot into the air. Fear works and it has a part to play in ensuring that people think twice before they cross the threshold. Unfortunately, I disagree with much of Mr. Kelly's presentation. While I respect his position, I disagree with it. I am more on the side of Irish Rural Link. Perhaps I am coloured in my view on that because of my experiences but they are real experiences and, as a result, I feel strongly about this issue.

Mr. Mark Kelly

If the LRC proposals became law, potentially, there would not be a safe orchard in the country. I accept the sincerity of the Deputy's concerns and, to a large extent, I share them but burglars are not concerned or worried about, or afraid of, the LRC. They do not care whether there is a draft Criminal Law (Home Defence) Bill 2009. Such proposals do not reduce, tackle or engage with crime. The Deputy's concerns are entirely legitimate and I share them. I have been a victim of crime. I have family who live in rural Ireland and I do not for a second diminish the extent to which people feel apprehensive about these matters and I never would. I agree with the Deputy that there is a need to send a strong and clear message but this message should effectively protect people by accurately informing them about what are their rights and responsibilities and that if they overreact or engage in the use of lethal force to shoot children in orchards, they are likely to face very severe——

Deputy Seán Connick

I did not say "shoot children in orchards". The fear of a shot being fired in the air is enough.

Mr. Mark Kelly

We probably agree the mix of children, guns and children is not good.

Deputy Seán Connick

But it works.

Mr. Mark Kelly

Behind that observation is the serious point that the definition of "vicinity of a dwelling" in the LRC's proposals is so broad that it could encompass precisely that situation. If the Oireachtas wants to send a message to people, it should be a responsible message that does not encourage them to have a go in circumstances in which they place themselves at greater risk. The ICCL and Irish Rural Link are broadly in agreement on that point and I do not see why we would not be. We are a rights-based organisation. We are just as concerned about our own rights as householders and those of our families as we are about the rights of people who break into homes.

The Deputy came close to our Achilles' heel in a way in his opening remark. I am not ashamed to say that, as far as the ICCL is concerned, burglars have rights. There are people who think they should not have any rights at all, but they have a right not to be shot dead if they are not doing something that is an immediate or imminent threat in someone's home. However, the existing state of the law, as set out by Mr. Justice Hardiman in the Barnes case, also makes clear that the moment burglars break into a home, they have committed an act of aggression and they cannot expect to benefit fully from a right of self-defence to the extent that the householder can and so on. The current state of the law provides more legal protection to people than is widely realised and closing that perception gap is one of the big challenges facing all of us.

Mr. Seamus Boland

The question is what are the level of rights of a person who breaks in and, unfortunately, on the issue of whether we need a law or not, we do if a community's perspective or resources are weak. We would like the committee to consider a number of community models.

Mr. Sean O’Leary

I refer to the softer element with the law being the harder element. We urge the committee to ensure that there is a community monitoring aspect to the national model of community policing that has been rolled out and that every part of the country has access to community gardaí. Deputy Deenihan referred to improved interaction and training between community health professionals and the Garda. Such low level community action would be as effective as a law change, which is necessary to give the clarity that is still lacking.

Senator Ivana Bacik

I welcome both delegations. I also very much welcome the debate because it is useful to have this discussion about the law. We are all agreed there is much more to this than just legal change. Clearly, as Deputy Rabbitte said, a great deal has to be done about policing and people's feeling of security in their own home. We are all conscious of the isolation experienced. The Nally case was extremely sad in exposing the reality of the isolation and loneliness felt by many people living alone in rural areas. Many non-legal measures need to be taken and I was concerned to hear reports earlier about further reductions in the opening times of Garda stations, with fewer open 24 hours. That will increase people's perception of insecurity, especially in rural laws.

I refer to whether there would be merit in legal change. As Mr. Kelly said, the law on self-defence in a burglary scenario is stated clearly in the Court of Criminal Appeal judgment in the Barnes case. The LRC report predated this and, therefore, it could not refer to that. However, the problem is to state the law in a judgment is not as clear to people as stating it in legislation. I agree with those who said there would be merit in stating the law in the form of a statute and the ICCL submission begins by saying the codification of legal principles set down in the Barnes case would provide robust and clear law. It would not be necessary to pass a new statute. The existing statute on self-defence, the Non-Fatal Offences Against the Person Act 1997, outlines statutory principles on when one can use force legitimately. Mr. Justice Hardiman in the Barnes judgment used that as a guideline in dealing with fatal force, in other words, where the burglar in this instance had killed or where, in the Nally case, it was alleged the householder had killed.

There is not a great deal of difference in what we all think the law should be and the difficulty relates to people's misperception of what is the law. Clearly, as Mr. Justice Hardiman stated in the Barnes judgment, 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 whereas a householder may kill a burglar lawfully in self-defence but the issue is the level of force used in response to the burglary and greater clarity in law would result if the principles in the Barnes judgment were codified. The court said one must consider the force used both subjectively from the point of view of the householder and what he or she thought and objectively from the point of view whether it was proportionate. Generally there is not a difficulty with those principles and we are all agreed there is no obligation to retreat. The householder is entitled to defend himself or herself in his or her home and there is no upper limit on the force that may be used lawfully, subject to the tests the court laid down.

I want to check that I have that right but that seems to be the common ground in the presentations. There is merit in the committee taking on board the helpful common ground that has emerged from them.

Deputy Noel Treacy

I welcome the guests and thank them for their submissions and contributions. I endorse the comments of my colleagues. The position is clear and simple. The Constitution gives overriding protection to individual citizens and that is critical to our nation. Over the years, we have allowed society, through the evolution of law, through decisions that have been made and defences of indefensible situations, to erode many of those rights. The Constitution guarantees personal rights, personal safety, property rights and protection. The members of the Garda Síochána are the guardians of the peace and I endorse the comments of Deputy Rabbitte. One cannot run any democracy on the basis of being a police state and gardaí cannot be deployed at every corner of the road or at every crossroads. I represent a typical rural constituency in which some people live 15 miles from the nearest village, as distinct from the nearest town. Such people live in rural and remote Ireland and if that is what one desires, its peacefulness, serenity and quality of life make it a beautiful place in which to live. However, if one is in need of services, one is obliged to travel for them. Moreover, those who seek support from the police in a crisis may be isolated and may not be able to get a message to them.

While I am a legislator and not a lawyer, the case law on this issue is fairly scant. The case law appears to be in a state of flux or elasticity whereby a detailed examination thereof suggests that in scenarios in which property owners are under threat or at risk of being assaulted and in which events evolve, such people are turned into the aggressor by the defence in a legal environment. Within this room, were someone to insult another person in this room in a manner that caused a row which escalated out of control, it would be survival of the fittest or the strongest. I refer to any court that adjudicates to the effect that the position of property owners, whose property has been burgled and who defend themselves or their property in a serious and difficult environment, thereby changes radically from being defenders to becoming aggressors. As a legislator, I believe something to be seriously wrong when one takes into the final conclusion that narrow timeline from the aggression that was created as a result of the burglary or intrusion. I do not believe any professional in the world can measure the evolution of the scale of pressure on one's mind or physical body during that time. I agree with Senator Bacik that it would be better to state the law clearly in statute, rather than depending on an evolutionary judgment, that is referred to in different courts, to justify a situation.

I also have been the victim of a burglary before I entered this House. One day, my office was burgled at 1.05 p.m after the staff had been beguiled. At 12.55 p.m or thereabouts, three young fellows from this city, who had a stolen vehicle, entered the office. One of them passed out as though he was about to die and said he needed to get to the bathroom. Having got into the bathroom, he opened its window and then when the staff left he returned, burgled the place and took several thousand pounds. The Garda eventually was contacted when the staff came back to discover that a major raid had been carried out. The office was destroyed and considerable damage had been done. While the gardaí in Athlone eventually apprehended those involved that evening, it had been their sixth or seventh burglary that day. Moreover, the gardaí in Loughrea had observed them that morning and had warned them that they would be on the lookout. A diligent garda on duty there spotted them, became suspicious and recorded the vehicle number. After those concerned were apprehended in Athlone that evening, they refused to give any evidence to the gardaí without being fed and needed to get a meal each. In addition, one of them required a doctor and they would not give any evidence to the gardaí without having a personal solicitor present. These people were professional burglars and Mr. Kelly has stated that they have rights. On that occasion, a Garda superintendent told me that the case involving these three guys had cost the State €14,000 that day in respect of dealing with them professionally and that there was no guarantee of securing a conviction because they had rights.

Members must face up to the situation whereby, as Mr. Boland has so clearly and fairly stated, a person who goes onto a property has diminished rights. If such a person enters a private property, that is, a house or human abode without an invitation, the only right remaining to him or her is the right to life. Members must address in a clear fashion the position in respect of those who become aggressive inside a property and the law should be on the side of those whose personal, property and constitutional rights have been either invaded or eroded. This is the reason society is breaking down. We now live in an environment in which everyone's rights appear to be equal. I refer to the rights of the good citizen who goes about his or her lawful business, runs a good home and makes his or her contribution to society. Such people become innocent victims but if they defend their rights, they almost become defendants and on some occasions, actually do so. A serious lacuna exists in the law when this is allowed to happen. As legislators, members have a serious responsibility to ensure that the law is clearly stated and that it protects, enshrines and includes the constitutional rights of the individual in all its aspects. Ultimately, the court should be in a clear position to make a final adjudication based on the evidence presented to it in respect of any particular scenario. I believe members must rise to the challenge of being absolutely committed to ensuring that the law is stated clearly and that Oireachtas Éireann legislates for it.

Vice Chairman

I thank the Deputy. May we have the witnesses' final comments, beginning with Mr. Kelly?

Mr. Mark Kelly

That was an interesting intervention from Deputy Treacy on which I have two comments. First, it is necessary to distinguish the facts in individual cases from the state of the law. To clarify a comment made by Senator Bacik, I referred to the latest Law Reform Commission report from mid-December, which takes account of the Barnes judgment. The Deputy will find no less than four pages' worth of case law, mainly from the Supreme Court, at the outset of that report——

Deputy Noel Treacy

I have read it.

Mr. Mark Kelly

—— which quite clearly describe the state of the law. However, what the state of the law cannot do by setting down principles is dictate the outcome that should take place in any individual case, nor should it, because each individual case is different. The heat of the moment is a very difficult situation for people to find themselves in and every individual case must be treated separately and on its merits. What the state of the law should do is give people clear guidance on the extent to which, in particular kinds of circumstances, they have the right to defend themselves.

My second point is that I would draw a clear distinction between the state of the law in respect of rights when people have broken into homes and the other rights-based issue to which the Deputy referred. It is clear, as Senator Bacik emphasised, that people who break into other people's homes have massively diminished rights. The Irish Council for Civil Liberties has no difficulty whatsoever with that. I should state that many of us have been victims of crime and the Irish Council for Civil Liberties has had the dubious pleasure of being burgled not once but twice by one of its own neighbours in Blackhall Place. No one is immune to such problems or is insensitive to them. However, we would draw a clear distinction between such a situation and the other rights-based situation to which the Deputy referred, namely, that of someone who is suspected of a crime and who is in Garda custody. I take it that the Irish Council for Civil Liberties may assume it is crystal clear that people in Garda custody have very clearly established rights under the Criminal Justice Act 1984, the treatment of persons in custody regulations of 1987 and indeed the Constitution itself, and that there is no Government policy to the effect that people in Garda custody who are suspected but not convicted of crimes, and therefore are legally innocent, should not have those rights.

Mr. Seamus Boland

It must be made clear as to whether the householder has the protection of whatever rights, laws or institutions of State. As Deputy Treacy suggested, relying on case law might not be the best way to do this. We must examine the current law and determine whether it strengthens my key message. We speak from a rural perspective, but there are people in urban settings who experience the same type of isolation, etc. The only way to deal with isolation of any sort is by strengthening communities and using community policing models, including the know your neighbour and community alert programmes. Unfortunately, programmes always rely on public resources and come and go. In light of the fact that they are not fixed, changes to the law must be made.

Let us be clear. Deputy Rabbitte has difficulty understanding how people in rural areas suffer from the fear of intimidation. This says a great deal about how our State sometimes operates. We need to understand the intimidation. It is real and, as Mr. Kelly has mentioned, it colours people's perspective of the reality of the law. If Deputy Rabbitte or other members cannot understand this fear, we have a problem. After today, I hope he will understand. The fear exists and must be addressed.

We thank the committee for inviting us. We appreciate the debate and interventions and we are happy to have been present.

Vice Chairman

I thank the delegates for their attendance and contributions, which will help the committee in its deliberations on this important issue.

The joint committee adjourned at 1.45 p.m. until 2.30 p.m. on Wednesday, 17 February 2010.