Tom Parlon (Laois-Offaly, Progressive Democrats)

Section 18(1) of the Non-Fatal Offences against the Person Act 1997 clearly states the purposes for which force can be lawfully used. Deputy Jim O'Keeffe's Bill fails to do this. Rather, it would significantly widen the circumstances in which force could be lawfully used. Moreover, it would also significantly reduce the ability of a court or jury to decide upon the reasonableness of the actions of the accused.

Section 5 confines the provisions of the Criminal Law (Home Defence) Bill 2006 to non-fatal offences. Section 6 seeks to amend the Non-Fatal Offences against the Person Act 1997 by adding new definitions and providing that no occupier has a duty to retreat before using force within his or her home. Section 20(4) of the Non-Fatal Offences against the Person Act 1997 provides that the fact that a person had an opportunity to retreat before using force shall be taken into account, in conjunction with other relevant evidence, in determining whether the use of force was reasonable. This is again a matter to which a court or jury is to have regard and any proposal to change this provision must be cautiously examined.

My colleague, Senator Morrissey, published the Defence of Life and Property Bill 2006 in the Seanad on 8 June. This legislation broadly deals with one of the same issues dealt with in the Deputy's Bill. The objective of Senator Morrissey's Bill is to amend the civil and criminal law to allow for the use of justifiable force by home owners against those who trespass with the appearance of intending to commit a serious criminal offence, without obliging the person using such force to show that he or she did not avail of an opportunity to retreat. In other words, the householder would be allowed to stand his or her ground and use justifiable force.

Section 2 of Senator Morrissey's Bill provides for a defence in criminal proceedings where the use of force by an occupier took place in or in the area of a dwelling, in circumstances where a trespass was done for the purpose of committing a serious criminal offence and the action of the occupier entailed the justifiable use of force. The provisions of the Defence of Life and Property Bill 2006 would apply to murder, attempted murder, manslaughter and an offence under the Non-Fatal Offences against the Person Act 1997. Section 2(2) of the Defence of Life and Property Bill 2006 contains similar provisions to those in section 6 of the Criminal Law (Home Defence) Bill 2006.

The kernel of the issue of self-defence under the provisions of the 1997 Act is whether the force used was reasonable. There is no exact answer to this question. Under the present law, it is a matter for the court or jury to decide. This is as it should be. The 1997 Act ensures juries are given the option of rejecting a plea of legitimate defence where they are satisfied that there is an absence of reasonable grounds for the belief that the use of force was justified or it was unreasonable not to retreat. Any amendments to the law is this area require thoughtful consideration.

We must proceed with caution. Both Deputy Jim O'Keeffe's Bill and the Bill introduced by Senator Morrissey require considerable analysis and consideration before any fundamental change in the law in this area. The fraught situation in which an occupier confronts an intruder in the family home is a situation in which unexpected and serious actions might easily ensue. The level of reasonable force used to remove or disable the trespasser is naturally difficult to assess in such a situation. We must consider whether current legislation is sufficient to protect the occupier who applies force in such situations or whether a change along the lines suggested by Deputy Jim O'Keeffe and Senator Morrissey is required.

The Non-Fatal Offences against the Person Act 1997 was drafted as a result of the recommendations of the Law Reform Commission and has generally worked well. There is a need for examination and reflection before any new legislative proposals are brought forward in this area. My colleague, the Minister for Justice, Equality and Law Reform, expressed the view in yesterday's debate that consideration could be given to this issue being addressed in the context of the Criminal Justice (Miscellaneous Provisions) Bill, which will come before the House later this year. However, careful consideration must be given to all aspects of the matter before this is decided.

See this speech in context