Joanna Tuffy (Dublin Mid West, Labour)

Deputy Flanagan, when introducing this legislation, said that it did not encourage occupiers to take action and it was intended to reassure occupiers of homes that the law is on their side. However, I am concerned that the legislation as drafted might encourage occupiers to take action and to use force. It sends out a signal that the use of force in itself is a reasonable response. I am concerned this would normalise the use of force by occupiers on intruders.

I accept the legislation does not go as far as that which supports the type of view that is held in this regard in the United States. The Minister referred to the Castle doctrine. We know from what we learn about the United States that there appears to be a widespread view that one should protect one's home and in this regard many people there keep guns in their home for personal protection. While I am not suggesting the Bill promotes this type of approach, it might encourage some people here to keep weapons, presumably legally, such as guns or knives in their home. When one goes down this route there is a much greater danger that people other than trespassers will be injured by those weapons. A Fine Gael Member previously referred in this House to a person who kept an ornamental sword in the home.

Another issue of concern for me is the definition of "trespasser", which is very broad. Deputy Flanagan stated that Fine Gael has amended the definition of "trespasser" since 2006. However, I am concerned about the manner in which it has been amended. In this Bill, "trespasser" is defined in the broadest sense. The amendment states that a trespasser includes a person who enters a property with a lawful licence and whose presence becomes unlawful by violation of the express or implied terms of that licence. This, in effect, allows the occupier to decide at some point that the person is a trespasser, which could be an unreasonable decision on the part of the occupier or a misunderstanding on his or her part. However, such person would be protected by the provisions of this Bill. I believe the amendment of the definition of "trespasser" has made the definition broader. It means that a unilateral decision can be taken at any time by the occupier of the House that a person is a trespasser against whom he or she can use force.

The Minister mentioned - this was also mentioned by former Minister for Justice, Equality and Law Reform, Deputy Michael McDowell - that a trespasser could be a child. A child might not realise or understand he or she is a trespasser and is unlawfully on another's premises. There are also many other types of people who may not view themselves as trespassers. There is nothing in the Bill that requires that a trespasser need have any criminal intent. In other words, it might not necessarily be a burglar or a person who intends to cause injury or damage that will be covered under the definition of "trespasser" in this Bill. For example, the former Minister, Mr. Michael McDowell, referred in 2006 to the possibility that a party gate-crasher might be defined as a trespasser. Newspaper reports regularly refer to incidents arising out of the gate-crashing of parties.

Similarly, I have a difficulty with the definition of "occupier" in the legislation. This might apply to persons on the premises at the consent of the owner. The example given by Mr. McDowell in this regard was party guests. The definition of "occupier" is broad enough potentially to encompass persons not connected with the owners of a particular property. Such persons could enjoy protection under the provisions of the Bill where they cause serious harm to a person considered a "trespasser", who may be a child or a party gate-crasher. I am not aware that there has been a sudden increase in prosecutions of home owners for using force against trespassers. A recent case relevant to this legislation was the Nally case, in which instance the defendant was found not guilty following an appeal.

As it stands, our law incorporates checks and balances. I am concerned that Fine Gael's proposal would send out the signal that force is an option rather than a last resort. Sending out the message that force is an option may lead to more prosecutions against occupiers for use of force because more of them will be of the view that this is the way to go. There is currently a widespread view that the use of force is not necessarily a wise course of action in this type of situation. The Minister referred to the principle of avoidance in this regard. The general perception is that one should not endanger oneself or one's family by using force unless there are no other options.

My other difficulty with Fine Gael's promotion of this Bill is the notion that its provisions would make intruders think twice. The premise is that potential burglars would desist from criminal activity for fear of being injured by the occupier and because they would be unable to sue for any such injury. I am not convinced this principle would be effective in practice. The way to deter burglars and those who intend to harm others or cause damage to property is by ensuring they are fearful of being caught, prosecuted and convicted. The important issues in this regard are a good Garda presence, efficient Garda methods and ensuring those who commit such offences are tried and convicted. Deputy Rabbitte referred to older people in both urban and rural areas who are particularly vulnerable to attack. During the last election campaign I met an 80 year old woman whose home had been burgled twice in a matter of weeks and who had been assaulted in the course of one of these intrusions. Her house was not alarmed, she lived alone and felt isolated, even though her home was on a housing estate. We must do more to ensure older people are not isolated in their communities and are offered supports. Funding for personal alarms for older people should not be withdrawn.

The Bill would effect a fundamental change regarding the desirability of retreat as a primary option for occupiers who are faced with intruders. This sends the wrong signal. There is a possibility occupiers may make a mistake in regard to the nature of the trespasser and the threat posed by him or her. There is often only a split second in which a decision must be made as to what action to take against a trespasser and what could be deemed reasonable force in the particular situation. However, this Bill positively promotes the taking of force. This may make it more likely for a person to decide, in that split second, to use force. This is not something that should be encouraged.

The Bill stipulates that its provisions regarding reasonable force cannot be used as a defence to murder. I understand the reasons that there has been a modification in respect of manslaughter. However, it will be open to a person to use reasonable force as a defence where he or she has caused serious injury to another intentionally. Will a person who has caused grievous bodily harm to another in these types of circumstances be allowed to claim the defence of reasonable force? I have difficulty with this provision.

The Bill provides that a trespasser who has suffered harm, whether serious or not, cannot take action against the perpetrator unless it can be shown that the force used by the latter was unreasonable. However, the provisions in this regard are broad. What will happen, for example, where the trespasser is a child? The force used by an occupier against a child trespasser may not be considered unreasonable under the provisions of this Bill but most of us would agree it would be morally wrong to use force against a child. The Bill does not protect children in those circumstances. I agree with Deputy Rabbitte that we should await the report of the Law Reform Commission. There are certainly concerns to be addressed regarding the law as it currently stands; hopefully the commission will provide guidance in this regard. I have serious concerns about the proposal put forward by Fine Gael.

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