Michael McDowell (Dublin South East, Progressive Democrats)

The Bill proposes that where a householder uses force to repel or prevent trespass on the house or surrounding areas by persons who appear to be intent on committing a serious criminal offence, the entitlement to use justified force shall not be judged by reference to the opportunity to retreat. I have considerable sympathy for the proposition that the obligation to retreat within one's house should be the subject of a reconsideration by the House. However, that measure was introduced by a Cabinet in which Deputy Kenny sat. For him to describe it in the House as an "utterly ludicrous" and ridiculous rule of law stretches political credibility a long way.

The provisions of this Bill do not apply to murder and manslaughter, but they should apply to the most serious offences. If one uses force in the defence of one's home, life or whatever, the Bill should apply to the most serious offences just as it applies to less serious offences. The House must consider this issue. Deputies Kenny and Jim O'Keeffe said that proving force to be reasonable should be a matter for the prosecution. That is already the case. In a criminal prosecution in respect of the use of force in defence of one's home, it is for the prosecution to prove beyond reasonable doubt that the amount of force used was unreasonable.

The issue of reasonableness has always dogged lawyers. In a case in the 1920s, the American jurist Oliver Wendell Holmes stated: "Detached reflection cannot be demanded in the presence of an uplifted knife." The 1997 Act ensures that juries are given the option of rejecting a plea of legitimate defence where they are satisfied that it was unreasonable not to retreat. Removing the issue of retreat in the context of someone who commits an act of criminal trespass with the intent to commit a serious offence, as Senator Morrissey's Bill proposes, is one matter, but doing what the Deputy is suggesting would leave us with another problem on our hands.

I believe the Labour Party will not support this Bill.

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