Léim ar aghaidh chuig an bpríomhábhar
Gnáthamharc

SELECT COMMITTEE ON JUSTICE, DEFENCE AND EQUALITY díospóireacht -
Tuesday, 15 Nov 2011

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

The committee will consider the Criminal Law (Defence and the Dwelling) Bill 2010. Apologies have been received from Deputy Dara Calleary. I welcome the Minister and his officials. As usual, I urge everybody to turn off their mobile telephones.

SECTION 1

Amendment No. 4 is related to amendment No. 1. Amendments Nos. 1 and 4 will be discussed together.

I move amendment No. 1:

In page 3, subsection (1), line 31, to delete "Law Reform" and substitute "Equality".

These are technical amendments. Amendment No. 1 reflects the change of title from Minister for Justice and Law Reform to Minister for Justice and Equality. Amendment No. 4 reflects the change in functions from the Minister for Finance to the Minister for Public Expenditure and Reform. I commend the amendments to the committee.

Amendment agreed to.
Section 1, as amended, agreed to.
SECTION 2.

I move amendment No. 2:

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 is a straightforward amendment. The section could be made more robust by adding the necessity, imminence and proportionality clauses. It is something the Irish Council for Civil Liberties has also recommended and supports. Even the Law Reform Commission report in 2009 on defences in criminal law refers to seeking to provide a more robust objective test by including these phrases.

While the Deputy's proposed amendment provides for the deletion of section 2(1) and the insertion of revised text, the changes involved relate only to section 2(1)(b). As members are aware, section 2 is a key part of the Bill, as it sets out the circumstances in which a person who is in his or her dwelling or a person who is a lawful occupant may justifiably use reasonable force against another person or the property of another person. Section 2(1)(b) sets out the situations, such as protection of themselves or another, protection of property or prevention of the commission of a crime, where the force used may only be such as is reasonable in the circumstances the person believes them to be. This is, of course, intrinsically linked and subject to the requirement in section 2(1)(a) that the person must believe that the other person has entered the dwelling as a trespasser for the purposes of committing a criminal act.

This section and the entire Bill have been constructed on the basis of applying the test of reasonableness, a test which is well known in our law and in interpretation of the law by the courts. 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 that the purpose of the Deputy's amendment might be an attempt to tighten up the circumstances where force can be used. However, it is likely that the amendment would, in fact, have the effect of imposing additional tests to those already prescribed by the Bill. The Bill is based on the approach of reasonableness, which already incorporates elements such as necessity, imminence and proportionality. If, for example, an action is taken that is disproportionate, it is highly unlikely, taking all factors into account, that it would be considered reasonable. For these reasons I do not propose to accept the amendment.

I was not expecting the Minister to accept it. Section 2(b)(ii) in the amendment refers to protecting his or her property or the property of another person from imminent appropriation, destruction or damage. It would make the Bill more robust if we added these three words. We are not seeking to change the substance of the Bill or saying we disagree with the steps that can be taken. We are simply seeking to provide a little more protection in the Bill.

I refer the Deputy to the Barnes case, which talks about burglary of itself being an act of aggression. Second, the reasonableness test incorporates the concept of proportionality and imminence. The Deputy referred to the Law Reform Commission report in 2009 on defences in criminal law. It recommended the replacement of the existing test of reasonableness with a specific test of imminence, necessity and proportionality and a minimum threshold requirement in the case of lethal defensive force.

Consideration was given to the Law Reform Commission's recommendations when the Bill was drafted. However, regarding the specific requirements or tests I have referred to, it is important to be aware that the approach recommended by the commission is one which anticipates a wider codification of criminal law. While the matter of codification is under consideration it would be premature to take such an approach in this Bill. It is also important to remember that the incorporation of such an approach in this Bill could potentially cause difficulties and confusion in related areas of the law. The Deputy will be familiar, for example, with the Non-Fatal Offences against the Person Act 1997, where the concept of reasonableness remains in place as a test with regard to determining whether somebody's conduct was appropriate in circumstances where a third party was engaged in criminality.

Is the amendment being withdrawn?

No, but I will not put it to a vote.

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

I move amendment No. 3:

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 not 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.”.

Again, this proposes the deletion of subsections and their replacement. It is clear from Article 2 of the European Convention on Human Rights that the use of lethal force to defend private property, as opposed to life, is not justifiable. To bring the Bill into line with the convention and to complement Article 2, we are seeking the removal of the defence of private property as a reason for the legitimate use of fatal force.

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.

I thank the Minister for his response. While I am willing to withdraw this amendment, I may return to it on Report Stage.

Amendment, by leave, withdrawn.
Section 2 agreed to.
Sections 3 to 6, inclusive, agreed to.
SECTION 7

I move amendment No. 4:

In page 7, line 7, to delete "Finance" and substitute "Public Expenditure and Reform".

Amendment agreed to.
Section 7, as amended, agreed to.
Section 8 agreed to.
Title agreed to.
Bill reported with amendments.
Barr
Roinn