Michael McDowell (Dublin South East, Progressive Democrats)

I move amendment No. 1:

To delete all words after "That" and substitute the following:

"Dáil Éireann declines to give a second reading to the Bill in order that consideration be given to the issues raised in this Bill and another Private Members Bill recently introduced in the Seanad on the same issue, and to allow time for examination, reflection and debate of the matters therein with a view to drawing up proposals on the issues, if such be considered necessary, for inclusion in the proposed Criminal Justice (Miscellaneous Provisions) Bill.".

In recent years, cases where intruders and people who have tried to tackle them have been either injured or killed have fuelled the debate whether the law as it stands strikes the right balance between the rights of occupier and those of the trespasser. There is a genuinely held belief in some quarters that the law does not give sufficient protection to a person who finds intruders in his or her home. I recognise the understandable public concern which exists in respect of this matter and I have no doubt that Deputy Jim O'Keeffe's motivation in bringing forward this Bill arises from a similar appreciation on his part of that public concern.

Article 40.3.2° of the Constitution imposes a duty on the State to protect by its laws, as best it may, its citizens from unjust attack and, in the case of injustice done, to vindicate the person of every citizen. The legislative method we have employed in this jurisdiction relating to assault and self-defence in respect of someone who fears they may be the victim of an assault is the Non-Fatal Offences Against the Person Act 1997.

What is to be considered in the context of the Private Members' Bill before the House is the efficacy of the current legislation in dealing with the kinds of situations which arise from the incidents involving occupiers and intruders, which have received a great deal of attention both in this jurisdiction and neighbouring ones in recent years. Deputy Kenny described the current law as utterly ridiculous and ludicrous. However, this law was introduced in 1997 by my illustrious predecessor, Nora Owen, at a time when Deputy Kenny sat at the Cabinet table and must have approved its content. A law that he describes as ridiculous and ludicrous in 2006 did not appear so in 1997.

As Deputy Jim O'Keeffe is aware, this is the second Private Member's Bill in recent weeks to focus on the use of reasonable force in respect of the protection of a person's property and defence against attack in one's home. My colleague, Senator Morrissey, published a Bill in the Seanad on 8 June 2006 entitled the Defence of Life and Property Bill, which broadly deals with one of the issues in the Deputy's Bill. Deputy Jim O'Keeffe tabled a parliamentary question in November 2005 seeking my views on whether the law as it stands is sufficiently balanced in terms of a person's right to defend his or her home. He also asked if I had plans to put measures in place to address the concerns of home owners on the issue. I draw the Deputy's attention to my reply to that question. I will not read it into the record. In it, I stated that if Opposition Deputies had proposals for changes to the law in this area, I would examine them.

The purpose of Deputy Jim O'Keeffe's Bill is to provide for the protection of home occupiers who confront intruders or trespassers within a dwelling. It proposes to create a rebuttable presumption that any force used by an occupier in such circumstances to protect his or her home or family is reasonable and comprises protection from civil liability for the actions of a home owner in all circumstances. This Bill would remove any compulsion on occupiers to retreat from confronting intruders and would provide a mechanism whereby a jury could consider the person's specific circumstances when coming to a decision on the reasonableness or otherwise of the person's actions — so far, so good.

The effect of section 3 of the Bill is that where the occupier uses force against a trespasser, there is a rebuttable presumption that the force was reasonable and, under section 4, no civil liability on the part of the occupier should arise in respect of any harm, whether serious or not, arising from actions referred to in section 3, namely, the use of force in one's own home. The difficulty is that while section 3 purports to allow the trespasser to rebut the presumption in favour of the actions of the occupier, section 4 appears to have the effect of disallowing the trespasser's right of rebuttal.

See this speech in context