Dermot Ahern (Louth, Fianna Fail)

Section 4 of the Bill purports to exonerate an occupier from any liability in tort for any harm done, whether serious or not, to a trespasser when the factors set out in section 7 apply. Such a provision would affect the delicate balance in the existing law on the liability of occupiers in respect of the duties owed to those entering their property. This would constitute a significant amendment to the provisions of the Occupiers' Liability Act 1995.

It would appear from section 5 that a defence of reasonable force in respect of the death of an intruder, which can be invoked where self-defence is pleaded, would not apply in the case of a person who killed an intruder in the home dwelling. This would put an accused person in those circumstances at a distinct disadvantage with respect to an accused who may have killed an assailant when attacked at a location other than the home dwelling. This is an extraordinary failure which underlines the many failures in this piece of legislation.

Section 6(b) would mean that an occupier who intentionally or recklessly engaged in conduct which created a substantial risk of death to any person, whether that person was a trespasser or not, would not be liable to prosecution for endangerment under section 13 of the Non-Fatal Offences Against the Person Act if the conduct took place within the dwelling. Such a measure would represent a significant change in the law from that which obtains at present, which is regarded as a fair and balanced legislative position. This is a remarkable proposal by any standards. What is being proposed is that an occupier may engage in reckless conduct even against someone who is not a trespasser - perhaps a guest at a party in the house or some other innocent person. If the reckless and dangerous conduct takes place in the dwelling and the person who engages in it is the occupier, that would appear to be sufficient to allow this conduct to be undertaken with impunity.

Section 7 sets out the matters which are to be taken into account when determining whether the force used was reasonable. All but one of the four considerations are on the objective standard. The law, as it stands, in relation to the use of force as a method of self-defence is on the subjective standard. I am of the view that the present state of the law in this regard may be better for a person who might use force against an intruder as the test is currently subjective. That is to say that a person can use force which he or she feels is necessary in light of the level of danger that person believes himself or herself to be in at the time. In light of the current provisions of section 18 of the 1997 Act, the presumption proposed in this Bill is, in my view, unnecessary. As the presumption is unnecessary, other provisions which regulate the application of the presumption are consequently also unnecessary.

One of the major flaws in the Bill is in regard to the issue of curtilage. I note it does not deal with the issue of what is defined as the curtilage of the dwelling house, that is the area immediately surrounding the dwelling. In some respects I can understand the reasons for avoiding this issue as it is too complex for this legislative effort. However, we cannot ignore the fact that trespass can also occur and an occupier could be in danger from a trespasser in a garden or in a place on the occupier's property immediately adjacent to the dwelling house. The difficulty is defining and limiting the extent of the curtilage of a property. This is a matter that may have to be given further careful consideration. I would like to think that the Law Reform Commission will come up with some view in that regard and I understand it will. The danger of an abuse of the concept of curtilage is always possible, particularly if an incident took place on the property of the occupier but if the property in question contained a parcel of land that was a considerable distance from the home. In the context of the castle doctrine, which is a significant feature of the US legal system, the case law has tended to be inconsistent. In one case, Beard v. United States in 1903, the court held that a defender was not obliged to retreat from an attack carried out in a field some 50 or 60 yards from his dwelling house. Faced with a similar case some years later the Florida Supreme Court in 1907 held that a defender was obliged to retreat not withstanding that he was working in his field about 200 to 300 yards from his house. This is a matter which has yet to be addressed by Irish law. However, it cannot be ignored that it is necessary to deal with this issue in the Bill. For example, if a conflict between an intruder and an occupier moved from the house to the garden, it would appear that the occupier would lose the protection which is being offered to him or her under this Bill because the conflict is no longer taking place in the dwelling house. That is a fundamental flaw in this Bill. That is why the issue of curtilage needs to be addressed.

Fundamentally what has to be considered by the House in the context of this issue is how effectively the current legislation works and the need, if any, for legislative change to address particular aspects relating to situations which arise involving occupiers and intruders.

No situation involving assault is ever normal. In the context of an assault in the home, regard must be had to the unique circumstances which prevail when an intruder is being dealt with in the place where we all have a right to consider to be a place of safety.

The Law Reform Commission published a consultation paper in 2006 on the subject of legitimate defence. This publication was part of a series which is being undertaken by the commission into aspects of the law on homicide in this jurisdiction. It is worth bearing in mind that the consultation paper made a clear distinction between the application of defence in connection with attack on the home dwelling and the use of self-defence in the context of an attack in other circumstances. The Law Reform Commission recommends that "a defender should not be required to retreat from an attack in their dwelling house even if they could do so with complete safety". The commission's consultation paper is a useful document and it is currently finalising its report. On checking with the commission yesterday, we learned that its report will be published before the end of this year. I understand its report will contain specific recommendations on the issue of the application of legitimate defence in the context of an intruder in the dwelling home and also in the curtilage of it. In line with the practice of the Law Reform Commission, it will produce a draft Bill on the issues contained in its report.

While it is opportune to discuss this issue in a dispassionate way, I genuinely believe we should await the Law Reform Commission report, which will issue before the end of the year, and on receipt of its draft Bill, which will be accompanied by that report, we can examine it as the grounding legislation on this matter, which the Oireachtas can discuss and hopefully pass.

See this speech in context