Charles Flanagan (Laois-Offaly, Fine Gael)

This straightforward Bill will prevent a trespasser from taking a civil action against a home owner who may injure that trespasser while defending his home. It will mean that a home owner will not be subject to a criminal prosecution in such circumstances. It seeks to set out clearly in law that a home owner is not under an obligation to retreat when faced with an aggressor in his or her dwelling. One might be surprised to learn that one can be sued by a trespasser if one injures him or her while defending one's home. I do not doubt that many people will be surprised to learn that a person who defends his or her home with the use of non-fatal force can face criminal charges at some later stage. Fine Gael believes that the current arrangements need to be changed. The present situation, in effect, tips the balance in favour of the trespasser rather than the home owner. This uncertain position is unsustainable and is giving rise to confusion and a lack of clarity.

Fianna Fáil is strangely resistant to proposals to clarify the situation and restore the rights of the householder. Fine Gael's previous efforts to achieve legislative clarity were rejected. A Progressive Democrats Bill also died a quiet death. In April 2008, the then Minister for Justice, Equality and Law Reform, Deputy Brian Lenihan, claimed the matter would be dealt with in the Government's legislative programme. However, the current schedule of legislation states it is "not possible to indicate at this stage" when the Government might see fit to publish its criminal law (defence of life and property) Bill. It is not clear if such legislation would be new, or would be a rehash of the old Progressive Democrats Bill. Fine Gael is willing to step into the breach by introducing a Private Members' Bill that clarifies the law on home defence. We have taken on board some of the objections to our previous Bill, which I will detail later in this debate. We are willing to accept amendments, within reason, which may be forthcoming from any part of the House.

I am surprised that Fianna Fáil Deputies are according such little priority to the issue of home defence. There are three good reasons this Bill should attract cross-party support. First, the Law Reform Commission has called for greater legal certainty in this area, a call that has been echoed by a Supreme Court judge, Mr. Justice Hardiman. Second, Article 40.5 of the Constitution emphasises the inviolability of the dwelling. Members of the Oireachtas should be guided by that constitutional principle when we frame new laws. Third, from a political point of view rather than a legal one, I am surprised that my colleagues in this House do not want to be in a position to inform their constituents they have played a positive part in ensuring they will not be subject to tortious or criminal liability if they injure a trespasser while defending their homes. It is important to stress the Bill does not have anything to do with using lethal force to defend one's home. As it is concerned exclusively with non-fatal force, it seeks to amend the Non-Fatal Offences Against the Person Act 1997.

I ask Deputies to note that burglaries are on the increase, as the Minister for Justice, Equality and Law Reform can testify. The Central Statistics Office has reported that in the 12-month period that ended in the second quarter of 2009, recorded aggravated burglary offences increased by almost 10%, to 340, when compared with the corresponding period up to 2008. It is accepted that burglaries increase during economic downturns. Accordingly, this Bill is appropriate and timely.

I would like to comment on the common law position. The matter of home defence was considered by the Court of Criminal Appeal in the 2006 case of DPP v. Barnes. While this case dealt with a fatal incident, it is relevant in so far as the court examined issues relating to home defence. The case concerned a horse breeder living in an isolated rural area who interrupted two burglars as they were ransacking his home. One of the burglars claimed that the householder attacked him with a knife, resulting in a struggle in which the householder was killed by multiple stab wounds. The burglar claimed to be acting in self-defence. In its deliberations, the court accepted the legal doctrine known as the "castle doctrine" into Irish common law. This doctrine stipulates that while there is a duty on a person attacked in the street to retreat, this obligation does not exist if the person is in his own home. The court stressed that the castle doctrine is by no means a licence to kill. Instead, it means that a householder can stand his ground and does not need to retreat from an attack to defend his own home. The court held that every burglary is an act of aggression and every burglar is an aggressor. The Law Reform Commission has recommended the acceptance in Irish law of the castle doctrine. In the Barnes case, the court also considered the doctrine of self-generated necessity, which concerns the onus on a person who has provoked an attack to retreat. The court clarified that this defence does not apply to a person who causes conduct or a state of affairs with a view to using force to resist or terminate it. Therefore, it is clear that the courts are attempting to introduce a fairer situation for the householder under common law. In the Barnes case, however, the Court of Criminal Appeal stressed the need for legal certainty, which placed a clear onus on the Members of the Oireachtas to deliver such certainty. Thus far, the Government has failed to provide the certainty needed.

In 2006, my predecessor as Fine Gael justice spokesperson, Deputy Jim O'Keeffe, introduced a Private Members' Bill entitled the Criminal Law (Home Defence) Bill 2006. I commend the Deputy on that initiative. That Bill proposed to amend the law in relation to the protection of home occupiers who confront intruders. Section 5 of the Bill specifically precluded a defence of murder or unlawful killing. Section 3 proposed to create a rebuttable presumption that any force used by an occupier to protect his or her home or family is reasonable. This would shift the balance in favour of the occupier. Section 6(c) proposed to remove the requirement to retreat by amending section 20(4) of the Non-Fatal Offences against the Person Act 1997. Section 7 then set out the factors that must be considered by a jury in order to rebut the presumption of reasonableness. These include whether there were family members in the house at the time; whether it was a split second decision on the part of the defender; consideration of other options that may have been available to a defender; and the presence or absence of an honest belief in the availability of such alternatives.

The Bill before the House today is similar to the 2006 Bill but we have taken on board some of the critiques made of that Bill and produced what I believe is enhanced legislation. Once again, we introduce the notion of a rebuttable presumption that any force used by an occupier to protect his or her home or family is reasonable, which means that if a criminal case is taken against him or her the prosecution must prove that the actions were not reasonable in order to secure a conviction, thereby clearly shifting the burden off the householder and sending out a message that the law is on his or her side. This Bill ensures that if the prosecution decides to try to rebut the presumption of reasonableness, the jury will consider the defendant's specific circumstances at the time of the confrontation. These circumstances, which are set out in section 7 of the Bill, included the following: the presence or absence of family members in the house at the time; the fact that the householder might only have had a split second to decide what to do; the fact that he or she may have had few options for defending home or family; and that he or she may have honestly believed that few such options were available. Anybody who has experienced a burglary will know of the horrendous ordeal it visits upon homeowners and their families.

This Bill places on a legislative footing the notion that the occupier does not have a duty to retreat from confronting intruders. Under section 20 of the Non-Fatal Offences against the Person Act 1997, when deciding if a person's actions were reasonable a jury may consider whether he or she tried to avoid a confrontation by retreating. This provision was designed originally with street disturbances in mind and is meant to encourage potential brawlers to walk away from potential confrontations. It has no place in a situation where a person disturbs a burglar in his own living room while his wife and children are asleep upstairs. This provision places the castle doctrine which was approved in the Barnes case and by the Law Reform Commission on a statutory footing.

The Bill specifically precludes providing a defence to murder or unlawful killing in section 5, again echoing the view of the Court of Criminal Appeal in the Barnes case. I stress to Members, and those in the Labour Party in particular, this provision cannot therefore be described as a murderer's charter or anything of the sort. The protections in this Bill would have had no effect in a case where a householder killed an intruder in cold blood and the Bill does not seek in any way to justify actions that are over the top or premeditated. For that reason, consideration of previous break-ins or intimidation is not outlined as something the jury must consider, although it could go towards the person's perceived lack of options.

The Bill also provides protection from civil liability to people who could potentially be sued by a trespasser. A householder now has no liability for an intruder to trips or injures him or herself in the person's house, even if the injury is caused by the defensive actions of the householder, so long as the force used was reasonable. I believe this is a very important provision which will be welcomed by ordinary and decent people throughout this State. This provision emphatically tips the balance of rights in favour of the homeowner and away from aggressors who would seek to violate the dwelling and commit the act of burglary.

The Bill contains a number of important provisions. The actions must take place within the home and a person who follows an intruder into the garden and assaults him there will not have protection under this Bill. The rebuttable presumption can, as its name suggests, be rebutted, so actions are not necessarily reasonable. If they can be shown to have been excessive, no protection exists under this Bill. The difference is that the prosecution will have to prove that excessive force was used. A person who knowingly assaults a garda is not protected by this Bill.

Fine Gael does not advocate occupiers taking on intruders themselves, and indeed would rather advise avoidance of confrontational situations with criminals who may be armed with knives or guns and who are not afraid to use them on innocent, law abiding citizens. This Bill affords legal justification for personal protection by people who find themselves in unavoidable situations after being confronted by intruders in their own homes. Far from encouraging people to take action, we want to assure them that if they do take action, the law will be on their side and not the criminal's.

This Bill is different in several ways from the 2006 Bill. The definition of "trespasser" has been changed from the definition of the term in the Occupiers' Liability Act 1995 to one which takes into account the objections of the then Minister for Justice that the 2006 Bill did not account for party goers who refused to leave. We took this point on board and the present Bill covers cases where a person enters a house lawfully, either for trade or other purposes, but whose presence becomes unlawful, as well as a person who simply enters the property unlawfully.

The 2009 Bill also addresses a potential contradiction that existed in the 2006 Bill in respect of the conflict between providing a rebuttable presumption that the force used was reasonable and the exemption for liability in civil law for any act done by the home owner or occupier in effecting this reasonable force.

The most significant difference is that the Bill provides that where a criminal offence occurs in a victim's home, the judge must take this into account at sentencing as a serious aggravating factor. This is a significant and meaningful change and one which supports Fine Gael's broader position of defending victim's rights and protecting people in their homes.

I am pleased to introduce this Bill to the House. Following the lead given by Deputy Jim O'Keeffe in 2006, Fine Gael has stepped up to the plate to deliver the legal certainty that has been sought by the Court of Criminal Appeal and the Law Reform Commission in respect of home defence. Most importantly, we are taking steps to protect home occupiers from civil and criminal liability should they injure trespassers who have violated their homes.

I appeal to my colleagues on the Government benches to read this Bill because I have already heard misrepresentations from Fianna Fáil backbenchers. They should consider its contents and ask themselves whether they can justify voting against it. If they have difficulties with the legislation, we can find solutions on Committee Stage. Would opposing this Bill be minor political point scoring at the expense of delivering a genuine improvement in our legal framework? This is an opportunity for us all to stand up for homeowners' rights. I commend the Bill to the House.

See this speech in context