Dermot Ahern (Louth, Fianna Fail)

We have already accepted that we would postpone consideration of our own Bill in which we published a scheme a number of years ago on the basis that the Law Reform Commission report is now due.

The special status of the home dwelling has always been linked with the dignity of the individual. It is my contention that an attack in the home has unique characteristics, very different from other forms of attack, given the potential emotive nature of such an encounter. I suspect that a great many people share this opinion. Deputies will be aware that Article 40.5 of the Constitution contains a specific provision that "the dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law". This is a constitutional provision of paramount importance to every Irish person. As well as the protection for the home provided for in the Constitution, the special protection afforded to the dwelling house dates back many centuries. It has been expressed in various ways, including a legal case dating back as far as 1604, which stated: "That the house of everyone is to him as his castle and fortress, as well for his defence against injury and violence, as for his repose." This is the origin of the "castle doctrine" which is especially prominent in the law of the United States.

We all recognise the importance of the home as a haven of safety for those who live in it and as a place where the individual's privacy should be sacrosanct. For this reason an uninvited intrusion in the home by someone, with criminal intent, cannot and should not be tolerated. The law recognises that the application of reasonable force, in such circumstances, may be required to repel such an intruder. If the home is inviolable under the Constitution it is arguable that a person should not be required to give up ground and allow his or her home to be violated by an intruder.

Furthermore, our Constitution, in Article 40.3.2°, 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, vindicate the life, person, good name, and property rights of every citizen". The legislation which applies in this jurisdiction with regard to self-defence is the Non-Fatal Offences Against the Person Act 1997, which was drafted following the recommendations of the Law Reform Commission. Self-defence is only one element of the Act. It is a general principle of law that one can act in self-defence against attack or even imminent attack. Sections 18 and 20 of that Act are most relevant to the issues under discussion here today. It is made clear that reasonable force may be applied to protect one's self or a family member or another from injury, assault or detention caused by a criminal act and to protect one's property from appropriation, destruction or damage caused by the criminal act or from trespass or infringement.

Significantly, section 18 of the Act stipulates that the use of force applied by a person for the purposes set out in the Act is "such as is reasonable in the circumstances as he or she believes them to be." In other words, it is a subjective text which allows that the person using force may use the level of reasonable force he or she feels is necessary at the time of the attack. However, the question of whether the use of force in circumstances in which a person is defending himself or herself from attack is justified is fundamentally a question of whether such force is applied reasonably. Clearly, each set of circumstances is likely to be different, and the 1997 Act leaves it for a court and jury to decide whether the use of force was reasonable in the particular circumstances of the case under consideration.

The 1997 Act also provides that juries are given the option of rejecting a plea of legitimate defence where they are satisfied it was unreasonable not to retreat. Section 20(4) of the 1997 Act states 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". The Act therefore retains the principle of conflict avoidance in circumstances where that is possible. It has been argued this particular provision seems to put a question mark over a person's right to defend his or her home or property. I recognise it is not always possible or even desirable to retreat in circumstances where an intruder enters the home, but it should also be borne in mind that a jury, in assessing the reasonableness of a person's actions in such circumstances, would also be likely to appreciate the realities of the dilemma which would face an occupier in that situation.

Most people would agree that an attack or threatened attack from an intruder entering the home is very different from an attack or threat of attack in some other location. In the context of an intrusion into the home, there may be family members present who need protection, or valuable property that a person does not wish to abandon. It may be that the level of fear generated by an unwanted intrusion renders the occupier incapable of retreat. I acknowledge therefore that the situation with regard to the application of self defence in the home may be significantly different from the application of legitimate defence generally. While the 1997 Act is undoubtedly an effective piece of legislation, it deals with the issue of legitimate defence generally and in any location, and not specifically in the context of an attack which takes place in the home.

However, the House is aware that we live in a common law jurisdiction. We are not bound only by statute. The most recent relevant case law in this area is unequivocal with regard to legitimate defence in the context of unwanted entry to the home. In December 2006 the Court of Criminal Appeal issued a significant judgment in the case of DPP v. Barnes, on a burglary during which a fatality had occurred. This lengthy and detailed judgment is worthy of careful consideration by Deputies and by the public in general. In it, the Court of Criminal Appeal drew, inter alia, the following legal conclusions:

Every burglary in a dwellinghouse is an act of aggression. The circumstances may make this element of aggression more or less patent but the violation of a citizen's dwellinghouse is just that, a violation and an act of aggression no matter what the other circumstances.

The judgment goes on to say: "Although [the burglar] 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...".

With regard to the issue of retreat in the face of an intruder, the Court of Criminal Appeal was no less emphatic. The judgment stated:

It is ... quite inconsistent with the constitutional doctrine of the inviolability of a dwellinghouse that a householder or other lawful occupant could be ever be under a legal obligation to flee the dwellinghouse or, as it might be put in more contemporary language, to retreat from it. It follows from this ... that such a person can never be in a worse position in point of law because he has decided to stand his ground in his house.

That is the common law position in this jurisdiction as of 2006. It has been clarified and has gone a long way towards addressing the concerns that have been voiced on this subject. After reading the entire judgment, I find myself fully in agreement with it. It is important to note that the Court of Criminal Appeal makes a distinction in respect of homicide. The court expressed the view that a person cannot lawfully lose his life simply because he trespasses in the dwelling house of another with intent to steal. Where homicide occurs, whether of the burglar or the occupier of the dwelling, the common law must still be applied.

I reiterate that the Government is opposed to this Bill, although sympathetic to the idea behind it. We are opposed to it not for any narrow political reasons but simply because it contains some serious defects.

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