John Moloney (Laois-Offaly, Fianna Fail)

There is understandable public concern as to whether current legislation, namely, the Non-Fatal Offences Against the Person Act 1997, is correctly balanced between rights of the homeowner and someone who trespasses into his or her home with criminal intent. This issue has generated considerable debate both in this jurisdiction and elsewhere in recent years.

The Fine Gael Party does not have a monopoly on concern over this issue. The Government has also taken a constructive and considered approach to the issue and it will continue to do so. However, we should bear in mind that the citizen currently has the protection of the law if he or she defends himself or herself against attack in the home or elsewhere. Self-defence is a long held legal principle and it is provided for in the 1997 Act.

Our Constitution 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 to vindicate the person of every citizen. The bedrock of our law in relation to assault and the issue of self-defence in respect of someone who fears that he or she may be the victim of an assault is, as I said, the Non-Fatal Offences Against the Person Act 1997. I would like to place on the record of the House that this is effective and sound legislation and although it does not specifically deal with attacks which take place in the home, it deals with the issue of the use of force for the purposes of self-defence generally including incidents which might occur in the home. As the Minister, Deputy Dermot Ahern, has pointed out, sections 18 and 20 of the 1997 Act make statutory provision in relation to the justifiable use of force to protect a person or property or to prevent a crime. Section 18 sets out the various purposes for which justifiable force may be lawfully used which does not constitute an offence. These purposes include the protection of the person or his or her family or another person from injury, assault or detention caused by a criminal act, protection of his or her property or property belonging to another from appropriation, destruction or damage caused by a criminal act or from trespass or infringement and prevention of crime or a breach of the peace. The force used must be reasonable by reference to the circumstances believed by the person to exist.

Section 20 defines the meaning of "use of force" for the purposes of section 18 and subsection (4) 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. Section 1(2) of the Act provides that for the purposes of section 18, it is immaterial whether a belief is justified or not, if it is honestly held. This is a very important provision. It means that if an individual is defending himself or herself from attack, he or she may apply the force he or she feels is reasonable to defend himself or herself effectively. The presence or absence of reasonable grounds for the belief is a matter to which the court or jury is to have regard, in conjunction with any other relevant matters, when considering whether the person honestly held the belief.

The current law clearly states that use of force is justifiable in certain circumstances and also clearly states what is reasonable "use of force". It also provides that a belief of the need to protect does not have to be justified if honestly held and leaves this as a matter for the courts to decide. The 1997 Act provides protection for the homeowner who finds himself or herself in the very stressful and difficult position of discovering an intruder in his or her home. This legislation has served us well to date. It provides a very well thought out balance between the need to be able to protect ourselves, our families and our property from potential danger and the need for us to be accountable for the actions we take in such a situation if we go too far.

The purpose of Deputy Flanagan's Bill is to provide protection for home occupiers who confront intruders and-or trespassers in their homes. It proposes to create a rebuttable presumption that any force used by an occupier in such circumstances to protect his or her home or family is reasonable and comprises protection from civil liability for the actions of a home occupier in all circumstances. The Bill would get rid of any obligation on occupiers to retreat from confronting intruders in their homes. Where an occupier uses force against an intruder the Bill would allow a jury to consider certain factors set out in section 7 when coming to a decision on the reasonableness or otherwise of the occupier's actions. These factors include such matters as whether the occupier had family members in the dwelling, whether there was sufficient time to decide on a course of action and whether the options for defence against a trespasser were limited.

Section 3 creates the rebuttable presumption that the force used was reasonable, where the occupier uses force against a trespasser who has gained unlawful entry to, and remains within, his or her home. Under section 4, no civil liability on the part of the occupier shall arise in respect of any harm, whether serious or not, caused by the actions referred to in section 3. Moreover, section 7 requires the court, in determining whether the occupier's actions were reasonable, to take into account the particular factors described in the section.

Our primary legislation in the area of occupier's liability is the Occupiers Liability Act 1995. That Act reduces the extent of the occupier's obligations to trespassers. It provides that an occupier owes a duty not to injure a trespasser intentionally and not to act with reckless disregard. The Act also provides that where a person enters onto a premises for the purpose of committing an offence or, while there, commits an offence, the occupier is not liable for a breach of the duty imposed generally on trespassers unless a court decides otherwise in the interests of justice. Additionally, section 8(a) gives the occupier an entitlement to use proportionate force for his or her self defence, the defence of others or the defence of property.

The occupier is not required to discharge the standard of reasonable care which visitors can insist on under the 1995 Act. When considering whether an occupier has acted with reckless disregard for a trespasser on his or her property, a court must have regard to all the circumstances of the case. These include the behaviour of the person and the nature of any warning given by the occupier. It is also worth remembering that section 57(1) of the Civil Liability Act 1961 provides that it shall not be a defence in an action of tort to show that the plaintiff is in breach of the civil or criminal law.

Deputy Charles Flanagan's Bill appears to assume reasonableness in potentially dangerous situations on the part of the occupier and places the burden of disproving that presumption on the trespasser. In attempting this, drafting difficulties arise with the Bill and questions remain to be answered about the extent to which section 4 gives occupiers' exemption from all civil liability. These matters would in my view upset the delicate legal balance which is contained in the Occupiers' Liability Act 1995 and it would be most unwise to interfere with this legislation without the most careful consideration.

Section 18(1) of the Non-Fatal Offences Against the Person Act 1997 clearly states the purposes for which force could be lawfully used. Deputy Charles Flanagan's Bill fails to do that. This Bill appears to significantly widen the circumstances in which force could be lawfully used. There is no mention in it of the protection of life or the protection of property. The Bill would also significantly reduce the ability of the 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 2009 to non-fatal offences. Section 6 would 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. I have some sympathy with the provision on the issue of retreat. The Minister has already outlined some of the difficulties that can arise if a person is required to retreat from his or her own home in the face of an intruder. If further legislation is required on this matter the Government will not hesitate to provide it. We would be well advised to consider the matter again in light of the Law Reform Commission's work.

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