Brian Lenihan Jnr (Dublin West, Fianna Fail)

The Deputy will be aware that the Government's legislative programme includes a proposed criminal law (defence of life and property) Bill, the drafting of which the previous Government approved in March 2007. The Deputy may also be aware that this important issue is currently being examined by the Law Reform Commission as part of its consideration of the issue of defences generally in the context of the criminal law. The Law Reform Commission published a consultation paper on the subject of legitimate defence in November 2006. This paper formed the basis for discussion and further consideration of the issues and consultation with interested parties. I understand that this consultation process has been completed and work on the writing of a report on the topic is under way. In its consultation paper, the Law Reform Commission gave considerable attention to the question of the application of legitimate defence with regard to attacks on property and on the person in the home dwelling and in the curtilage of the home. It is expected the report will be published by the end of this year or early in 2009. For this reason, I must await the commission's findings and recommendations on the issue of the application of legitimate defence in defence of the home dwelling.

My hand is stayed for a second reason. It has been drawn to my attention that the Court of Criminal Appeal took the opportunity to examine this question, and in a judgment delivered on 21 December 2006 in the case of the DPP v. Anthony Barnes — I am not sure whether this judgment was made before the decision of the Government to draft the legislation — Mr. Justice Hardiman said:

The offence of burglary committed in a dwellinghouse is in every instance an act of aggression. [The violation of a citizen's dwelling house is just that, a violation and act of aggression, no matter what the other circumstances.] . . . Although he is not liable to be killed by the householder simply for being a burglar, he is an aggressor and may expect to be lawfully met with retaliatory force to drive him off or to immobilise or detain him and end the threat which he offers to the personal rights of the householder and his or her family or guests. And this is so whether the dwellinghouse which he enters is, or appears to be, occupied or unoccupied when he breaks into it.

It is, in our view, quite inconsistent with the constitutional doctrine of the inviolability of a dwellinghouse that a householder or other lawful occupant could ever be under a legal obligation to flee the dwellinghouse.

The common law position, as clarified now by the Court of Criminal Appeal, goes a long way to addressing the concerns that have been voiced on this subject.

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