Jim O'Keeffe (Cork South West, Fine Gael)

I am delighted to introduce the Criminal Law (Home Defence) Bill on behalf of Fine Gael as the next step in a series of policies on law and order that we have begun rolling out. Article 40.5 of the Constitution states: "The dwelling of every citizen is inviolable and shall not be freely entered forcibly save in accordance with law." This article provides the constitutional basis for the Fine Gael Bill.

Through this Bill, Fine Gael wants to promote its strongly held view that it should be the victim and not the criminal whose rights should be most protected by law. This Bill covers those who are the victims of intrusion into their homes. It does not cover those who experience others trespassing on their land. While Fine Gael does not promote the excessive use of violence, we believe that an innocent person who is intruded upon in his or her own home, often in the dead of night, should not have the law weighted against him or her in his or her quest to prove that he or she acted reasonably.

The change proposed in the Bill to the law will, in effect, attempt to vindicate the rights of ordinary people who attempt to protect their homes and families in the face of knife or gun-wielding intruders who come upon them in their homes with intent to steal or injure the occupants. Once we implement this change in the law perhaps intruders will think twice before they embark on stealing sprees in innocent people's homes, often maiming and destroying lives in the process. We are not talking about an academic principle here. We are talking about a situation where, on average, we have approximately 500 burglaries every week, three quarters of them into people's homes.

Apart from the criminal aspects, we also propose to get rid of the ridiculous anomaly which exists in Irish civil law whereby a person who is an intruder into a person's dwelling can sue the owner of the dwelling for injuries incurred while illegally on the premises. The law at present is capable of rewarding the lawbreakers and punishing those who abide by the law. This situation cannot continue.

This Bill is a considered and reasonable proposal to amend the law in regard to the protection of home occupiers who confront intruders to their homes. It creates, in section 3, a rebuttable presumption that any force used by an occupier to protect his home or family is reasonable. This will clearly and significantly shift the burden in favour of the householder and will send out a clear message that the law is not on the side of burglars and thieves.

The Bill also removes, in section 6(c), any compulsion on occupiers to retreat from confronting intruders, by amendment to section 20(4) of the Non-Fatal Offences Against the Person Act 1997. This provision was designed with street disturbances in mind and is meant to encourage brawlers to walk away from potential confrontations. It has no place where a person disturbs a burglar in his living room while his wife and children are asleep upstairs.

In section 7, the Bill lays out the factors that must be considered by a jury if the prosecution decides to rebut the presumption of reasonableness. These extraneous factors include consideration of whether the householders had, at the time of the break-in, family members in the house, whether the householder only had a split second to decide what to do, or the fact that he or she may have had very few options to defend the home or family, or whether he or she honestly believed such.

The Bill specifically precludes providing a defence to murder or unlawful killing in section 5. This cannot therefore be described as a murderer's charter or anything of the sort. The protections in this Bill will have no effect in a case where a householder kills an intruder in cold blood and the Bill does not seek in any way to justify actions that are over the top or premeditated.

Further to what the leader of Fine Gael, Deputy Kenny, said in the recent Ard-Fheis, this Bill will provide protection from civil liability to people who could potentially be sued by a burglar. A householder will now have no liability for an intruder who trips or injures himself in that person's house, even if he is injured by the defensive actions of the householder.

A major factor in whether the Fine Gael Bill will pass into law is where the Fianna Fáil-Progressive Democrats Government stands on the protection of householders. Last March, in a debate on the Criminal Justice Bill, Deputy Andrews of Fianna Fáil asked what had happened to the Fine Gael plan to introduce a Private Members' Bill to amend the Non-Fatal Offences Against the Persons Act 1997. Having alleged, incorrectly, that it had been forgotten about, he then claimed that it was a "hare-brained, crackpot idea".

Deputies will also be aware that a member of the Progressive Democrats, Senator Morrissey, published a Private Members' Bill in the Seanad a few weeks ago "to provide a full defence in criminal and civil law in cases where force is reasonably used by occupiers in dwellings to defend life or property against persons trespassing with criminal intent". That is not 100 miles away from my Bill.

There has been some uncertainty as to the status of that Bill. At first, it appeared that it was a Government Bill but when probed on it on the Order of Business, the Minister for Finance, Deputy Cowen, told us that it was a Progressive Democrats Bill and that, "It is important that small parties keep their identities." More recently, when the Tánaiste, Deputy Harney, was asked about the Bill last week, it was further downgraded from being a Progressive Democrats Bill to being "an initiative by Senator Morrissey".

While the Progressive Democrats Bill has the same thrust as the Fine Gael Bill, it fails to deal with the broad spectrum of issues that are at hand. It would be helpful at this stage to have a clear statement from the Minister for Justice, Equality and Law Reform, Deputy McDowell, as to his position in regard to that Bill. Does he not accept that the Fine Gael Private Members' Bill is sensible and reasonable and has the potential to deal effectively with this issue of so much concern to so many householders? Does he not also accept that it deals with the civil liability aspect which is also referred to in the Progressive Democrats Bill, or whatever it should be called? The Bill also deals with the issue of not holding against a householder his or her failure to retreat.

What is the Fianna Fáil position? On 8 June, the Minister for Finance, Deputy Cowen, claimed he supported the Progressive Democrats initiative. Are we to understand from that statement that Fianna Fáil will support this Bill? Is it, perhaps for the first time ever, going to put party politics to one side and follow the right course of action?

One of the problems I have with the "Government-Progressive Democrats-Senator Morrissey-Deputy McDowell" Bill, or whatever the label should be, is that it allows a defence to murder. The Fine Gael Bill has been most carefully drafted and we have been conscious of the many different scenarios that could arise under this legislation. For that reason, we have put a number of important provisos into the Bill.

In our Bill, the actions must take place strictly within the home. If a person follows an intruder into the garden and assaults him there, no protection is afforded under this Bill, but a home can be anything from a caravan to a shed as long as someone is living there. That is the essential criterion. The rebuttable presumption can, as its name suggests, be rebutted, so actions that are not necessarily reasonable can be held against a householder if they can be shown to have been excessive. If such is the case, no protection is provided under this Bill. The difference is that now it is the prosecution, rather than the person whose house was broken into, who must show this. The Bill also provides that a person who knowingly assaults a garda is not protected by its provisions. Nor does it provide protection for a person who murders an intruder. However, the ordinary protections of the common law in this area will apply in such instances. Although it is not covered in this Bill, such a person may claim his or her actions were in self-defence because that protection already exists.

The raison d'être of the Bill is to provide clear protection to those who find themselves in the unfortunate situation of confronting a criminal in their home. It is designed to protect such persons from prosecutions that would be considered by any reasonable standard to be unjust and unfair. The rainbow Government enacted the main legislation governing this general area, the Non-Fatal Offences Against the Person Act 1997. This fine legislation is applied universally and is widely praised by legal practitioners, but it is not perfect in affording protection to home owners. This Bill will update the Act to deal with those factors that were not in the mind of drafters in 1997.

In previous debates on this subject, the argument was made that there is no need for this legislation given that there have never been cases of householders being convicted for actions that would be seen by most people as reasonable. While it may be the case that there have not been any major miscarriages of justice in this area, one must consider the situation in other jurisdictions, where there have been many such instances. It is also entirely incorrect to suggest that the DPP does not bring actions in cases such as those envisaged by this Bill. There are examples of people who have been charged with offences connected to their actions to protect home or family. This Bill will legislate in a more comprehensive and fairer way for those circumstances.

I am aware of a case some years ago where a father sought to protect his young son who was chased down the street by an adult and followed into his home. The father, in an effort to protect his son, grabbed an ornamental sword that was hanging on the wall in the hallway and wielded it as a threat to the intruder, telling him to leave the house. The intruder then grabbed the sword by the blade and suffered some injuries. A prosecution for assault followed and the father was convicted, though for a lesser offence. This man now has a criminal record as a consequence of taking what most of us would agree was the correct and understandable action of a parent protecting his child in his own home.

This Bill will remedy that lacuna and allow the courts to dispense justice rather than law. This is the important point. Are we here to establish justice or to support an existing law which is clearly deficient in protecting the position of home owners? Even if one accepts the argument that there have been no cases where someone was unfairly prosecuted — I have shown that is not the case — a change of the law in this area sends an important message to the public, and particularly to potential intruders, that the constitutional inviolability of the dwelling will now be statutorily protected in practice as well as in theory and that people's homes are a no-go area as far as the law is concerned.

Through this Bill, we must send a message to criminal communities that we will not tolerate them breaking into other people's homes. We will not continue to allow the law to be inequitable in this area. It must respect the inviolability of the dwelling, protect home owners and side with civilised, law-abiding members of society.

This is not an issue that is relevant only in this State. In researching the Bill, I found it has given rise to major debate and changes to the law in many other countries. It has been tackled in different ways in various jurisdictions but the central thrust of the approach to reform is always the same, to provide greater protection to home owners. In the United Kingdom, for example, the civil liability aspect of the relevant legislation was changed following the furore arising from a case where a burglar issued civil proceedings. Discussion in that country currently relates to a change in the criminal aspect of the legislation relating to the expression "grossly disproportionate force". Other examples of legislative endeavours to address this issue include Article 122-5 of the French criminal code, the Crime (Self-Defence) Amendment Bill in New Zealand and the relevant changes in New South Wales. We are not ahead of the posse in trying to establish the situation in regard to this matter clearly and fairly. Rather, we are taking into account changes that have taken place in other parts of the world in trying to ensure, as far as we can, that home owners will enjoy the protections they are entitled to under the law and the Constitution.

I referred in my earlier remarks to the views of different factions within the Government. Shortly before this debate commenced I was handed a notification of the Government's get-out approach — the stroke it intends to pull to ensure it will not have to face a decision on this issue. I understand the Government will try to get the Bill kicked to touch. If this is the reasoned response of an allegedly reasoned Government, God help the home owners of this State. This is a Government incapable of making a decision about anything. It is only in agreement on the question of not making a decision and in doing anything to cling on to power. Rather than hanging separately, Government Members will hang together for as long as possible.

I remind the Minister for Justice, Equality and Law Reform it was he who made a virtue of being radical rather than redundant. He is clearly on the road to redundancy if he has the gall to place before the House an amendment to have this Bill sidelined for an indeterminate period. I urge all Members to support this Bill. It will give home owners the protection to which they are entitled, ensure that the civil liability to which they are currently exposed will be obliterated and cannot arise in future, and establish in law the reasonable presumptions to which they are entitled in confronting intruders in their home.

See this speech in context