Alan Shatter (Dublin South, Fine Gael)

I welcome the fact that the Criminal Law (Defence and the Dwelling) Bill is before the House. The Bill is the Government's very belated effort to provide protection to people confronted by attackers in their homes. Fine Gael advocated reform of the law in this area over four years ago, publishing a Private Members' Bill in 2006. The Government repeatedly and cynically voted down Fine Gael's efforts to change the law in 2006 and again in 2009. The initial Bills were published by Deputy Michael Ring in 2006 and by Deputy Charles Flanagan in 2009.

The Government sent the issue to the Law Reform Commission for the commission to report and that report was published in 2009. While welcoming the Bill, Fine Gael is critical of the fact that the Government delayed its publication and delayed changing the law in this area. If the Government had a more constructive view of the legislative role Members on the Opposition should be allowed to play in this House, legislation in this area could have been enacted in late 2006 or early 2007. Any amendments to the Bill presented by Deputy Michael Ring could have been incorporated into it on Committee Stage after passing this House on Second Stage. The same applies to the Bill presented by Deputy Charles Flanagan.

I agree with the Minister's point that people should feel safe in their homes. No person should feel under any obligation to retreat in his or her home or from lawful occupation of it when confronted by an intruder. It is of substantial importance that the law in this area is set out clearly in an Act of Parliament so that people know exactly their position if they are confronted with the nightmare of a burglar or someone who is uninvited intruding into their home and who clearly poses a threat to the person, their family and their property.

Statistics in respect of the offence of burglary and related offences are interesting and show what is happening under the watch of this Minister. In the context of the published statistics that are available, in 2007 there were 23,603 recorded burglaries and related offences. By 2009 that had increased to 26,877, an increase of in excess of 3,000. In the case of burglaries, but not aggravated, as they are described in the statistical report, in 2007 there were 23,052, in 2009 there were 26,079. Again, an increase of in or about 3,000. In 2007 there were 2,171 robbery, extortion, and hijacking offences. In 2009 there were 2,487. In 2007 there were 814 cases of robbery of an establishment or institution. In 2009 there were 1,030.

On this Minister's watch there has been a substantial increase in offences of burglary, robbery and related crimes. The number of robberies and burglaries carried out in Ireland rose by a third in the second quarter of 2010 according to data from the Central Statistics Office. Robbery, extortion and hijacking offences rose by 33.9%, from 575 to 770. There are 1,659 recorded offences of robberies against individuals during that period, a rise of 37.4% compared to the same quarter in 2009. The quarterly figures for robbery, extortion and hijacking offences rose by 24.3%, from 676 in the first quarter of 2009 two 840 in the first quarter of 2010.

The reality is that under the watch of this Minister, despite a great deal being made of the action he has taken to tackle the problems of crime, people are less safe in their homes today than they were when he took office. Only today the Irish Examiner, addressing the issue of drugs and drug gangs, reported on a conference that took place yesterday indicates that this country is experiencing a gangland and drugs crisis with entire communities facing intimidation on a regular basis. The report was on the proceedings of a major conference that was held yesterday.

Many of the burglaries that occur are drug-related. Desperate people, drug addicted, on too many occasions out of their heads on drugs, enter the homes of individuals burglarise them and terrorise families, placing individual lives at risk and engage in conduct that leaves a lasting scar on the lives of those who find themselves victims in these circumstances.

It is right that this legislation is before the House and that we set out very clearly that people are not under any legal obligation to retreat when they find an intruder in their home. Quite correctly the Minister made reference to the judgment of Mr. Justice Hardiman in the case referring to the constitutional provision about the inviolability of the home in which he made it clear that whatever about the perception in some legal quarters, if one's home is burglarised or one finds an intruder, one is not under any obligation to retreat.

The provisions in the Bill address issues both with regard to an intruder who enters a property where a person feels a need to protect himself or herself and also the position with regard to property itself being stolen. I refer to section 2, which is a section of particular importance. The Minister has detailed its provisions in his speech. It provides a mixture of an objective and subjective test in determining whether the use of force is justified by an individual in their home confronted by an intruder.

Section 2(1)(a) deals with what I would describe as the subjective test. It says it is not an offence for a person, "who is in his or her dwelling, or for a person who is a lawful occupant in a dwelling, to use force against another person or the property of another person where..he or she believes the other person has entered or is entering the dwelling as a trespasser for the purpose of committing a criminal act." The provision is based on the assumption that a person must believe someone has entered their property as a trespasser for the purpose of committing a criminal act and then the force used under section 2(1)(b) can only be such as is reasonable in the circumstances as he or she believes them to be. That is very much the subjective test. One must believe that someone has entered one's home to commit a criminal act and in the circumstances, as one believes them to be, the force one uses must be reasonable. That essentially is a personal perception. It is quite possible that someone could enter my home and I could believe I am under some sort of a threat that I am not in fact under and use a certain level of force and I could not be prosecuted for using that level of force if I had a genuine subjective belief as to the position.

Section 2(4) which deals with the objective part of it states: "It is immaterial whether a belief is justified or not if it is honestly held." One must have a belief as to the circumstances, that they justify force, and one must obviously hold that belief. If that is challenged in court proceedings the objective test which is prescribed by section 2(4) allows a jury or judge to consider whether the person using the force had "regard to the presence or absence of reasonable grounds for the person so believing." The mixture of the subjective and objective gives rise to a complex piece of legislation. The mere fact that an individual believes that the force he used in the circumstances is appropriate does not necessarily mean that that belief will be accepted if the background circumstances are such in which it was concluded that one did not have reasonable grounds for that belief.

The mixture involved in the test is designed to ensure that the force used is reasonable and is not disproportionate. That will leave a certain lack of clarity in the legal position but I am not sure that there is a different way of dealing with it. I am not being critical in any way of the Minister for the approach now taken in the Bill, as prescribed. It cannot be that one can use any type of force simply because one swears one believes something to be a position in circumstances in which no reasonable individual could possibly have had that belief. For example, if a young child climbs over a garden wall to rob an apple from an orchard and I decide to take out my shotgun because I think the eight or nine year old poses a threat to my life and I shoot the young child it is clear that is not something that could possibly be defended under the Bill. No judge or jury could regard one as having reasonable grounds for such an approach.

The question that I wish to raise with the Minister - it is something he might respond to in replying, laying emphasis on my view and the view of the Fine Gael Party that people must feel safe in their homes and that they must be able to use reasonable and appropriate force to protect their person and property, is the extent to which the Bill has been assessed by him, his office and the Office of the Attorney General by application of Article 2 of the European Convention on Human Rights and the right to life provision therein which, as I understand it based on case law, is that when one is acting in a self-defence role the actions one takes must be proportionate. I want the Minister to address that issue because there are varied views on it.

The Minister, instead of accepting the second Bill proposed by Deputy Charles Flanagan, said he was awaiting the report from the Law Reform Commission. In the 2009 report, the LRC referred to the English lawyer and scholar, Professor Ashworth, who queried if English law on the use of lawful force complies with Article 2, the right to life provision of the European Convention on Human Rights. His questioning was prompting by the English legal test of reasonableness, or whether it is reasonable and necessary, rather than absolutely necessary and strictly proportionate, as adopted by Article 2 of the EU Convention on Human Rights, being the test prescribed to allow for the loss of life when someone engages in an act of self defence.

The Law Reform Commission decided the test of reasonableness is too "vague and unstructured" in paragraph 2.25 on page 31 of its report. It recommended that "substantive requirements traditionally embedded in the defence" should form part of any new law on legitimate defence in an effort to achieve certainty. These requirements, as minimum thresholds, were described as "imminence, necessity and proportionality". According to the commission, "Placing these requirements on specific statutory footing will help guide the courts and, ultimately, juries; it is the opinion of the commission that juries should be provided with direction with regard to these elements rather than simply being asked to base their decision on a test of reasonableness." Those quotations come from the Law Reform Commission report on defence and criminal law, 2009, paragraph 2.26, page 31.

I would like the Minister to address further why he has not adopted that approach as prescribed by the Law Reform Commission and has not prescribed a specific test of proportionality. It is important that issue be addressed by him.

This Bill is an important measure that will let people know where they stand when their privacy is violated, when intruders are discovered in their home and when individuals and families experience terrifying events through no fault of their own when others decide they will burglarise their homes and assault the occupants. There have been far too many incidents in this State in isolated homes in rural areas. Families have been terrorised by thugs and gangs of young people who have not only set out to burglarise homes in general, but have particularly targeted retired people and subjected them to acts of barbarity and viciousness that are completely unacceptable anywhere and which must be stopped. There are many individuals who are not capable of defending themselves. The elderly cannot defend themselves when their homes are burglarised and even the able-bodied cannot when confronted by individuals with guns, knives, bars or other weapons or when they are confronted by people high on drugs. While people should not ever be obliged to retreat from their own homes, there are occasions when, for their own safety, if they discover intruders in their homes, they should be cautious as to how to deal with them.

It is important that the message goes from this House that while in principle, this legislation is welcome, Fine Gael supports the position that an individual confronted by an intruder in his home should not for defending themselves or their family ever find themselves either a defendant in a criminal trial nor a litigant defendant in a civil action in which a burglar tries to secure damages from them. Nevertheless, there are many circumstances in which it is very unwise to confront an intruder in the home. The message should not be sent out of this House that we are encouraging ordinary citizens to take on violent individuals some of whom are sometimes completely out of control on drugs because on occasion taking them on can result in greater tragedy than finding a way to avoid a confrontation.

There are circumstances where someone might have no choice but to engage in confrontation and if he does not do so, his life or the life of a member of his family may be placed at risk but there is an issue of public perception surrounding the Bill and we must be careful about that. The body to which we look to protect the public, to preserve law and order in this State and to prevent and detect crime is the Garda Síochána. If someone's house is invaded it is essential, if it is possible for the occupants to do so, to make an emergency call to seek assistance from the Garda Síochána. The Garda must have the resources, be those patrol cars or communications systems or manpower, to respond when families make an emergency call and state that they are under threat because there is someone in the grounds of their home, or to use the old fashioned word from the Bill, on the curtilage of the home, or someone has been found to be within their home. When the Minister responds, he should address that issue.

This should not be seen to be a Bill that encourages people to take on intruders; people should not be encouraged to put themselves in harm's way when it is unwise. Fine Gael and, in fairness, the Minister wish to tackle the difficulty of those in harm's way being criticised for defending themselves in appropriate circumstances. The Bill not only allows people to defend themselves to protect themselves from injury, assault, detention or death caused by a criminal act, it also expressly states that individuals can protect their property or the property of another person from appropriation, destruction or damage caused by a criminal act. The Bill acknowledges that on occasion people defending themselves as allowed under its provisions, using appropriate force, may in that defence cause a loss of life.

Coming back to the principle that people are entitled to feel safe in their home, to feel privacy in their home and not to have a fear of intruders, people are entitled to protect themselves and their family from attack, there is concern outside the House that the Bill facilitates the killing of burglars for taking property. That is an issue the Minister must address. People should be able to defend themselves, their home and their property, but there is a difference between defending oneself and one's family against attack and killing someone because he or she is going to steal the lawnmower. This State does not have capital punishment. Killing someone for taking property when an individual's safety or the safety of his or her family is not under threat and where there is no genuine risk or concern of assault, detention or injury to anyone, is an issue that requires further teasing out.

I gave the lawnmower example deliberately because the Bill is not only concerned with an intruder entering within the bricks and mortar of a home, but with an intruder being within the curtilage of a home. The curtilage of one's home is one's front garden and back garden. Interestingly, the Bill does not fully define what is meant by "curtilage". While there is a definition, it does not provide for a particular acreage. I am open to correction, but my recollection is the Family Home Protection Act 1976 describes the curtilage as a maximum of one acre around the home. In this Bill, the curtilage is defined as "an area immediately surrounding or adjacent to the dwelling which is used in conjunction with the dwelling". How many acres could that include?

It is very important that we get the Bill right. If a young child climbs over a wall to steal an apple from an orchard, he or she is stealing property. If a passerby picks up someone's garden shears which that person has left in the front garden, he or she is stealing property. No matter how we may condemn the individual stealing the shears and tell the child he or she should not steal the apple, we cannot have occupants of homes trying to shoot individuals in those circumstances.

It is also important that we protect the treaties to which we are parties and our position with regard to them in international law. Will the Minister outline to what extent the provision in the Bill relating to theft and property, as contained in section 2(1)(b)(ii), has been tested against Article 2 of the United Nations convention on human rights? It is reasonable to expect the Minister to address the issue and put it on the record of the House. It is important that he do so.

It is desirable that any individual who burglarises a house or intrudes on others within their homes and threatens their safety, their lives or assaults them, be arrested and sentenced and that the proper provisions of our law are applied. It is important that appropriate sanctions be applied to individuals who commit crimes. As the Bill deals with criminal law, I will refer to an announcement by the Minister, as reported in newspapers a couple of days ago. He suggested that some form of legislation might be introduced urgently to provide for community service for individuals who, having been convicted of minor offences, could possibly be sentenced to terms of imprisonment of six months or less. Presumably, this would largely apply to the District Court. When replying, will the Minister tease out his suggestion further?

I am conscious that the majority of those serving prison sentences are sentenced to terms of one year or less. In 2009, the number of individuals sentenced to terms of imprisonment of one year or less was 9,150, according to the Prison Service's annual report. Some 5,750 of those convictions were for three months or less. A difficulty in the prison system, as is well documented, is the number of prisoners serving short sentences of one year or less who re-offend within a year or two and go back to prison. One of the burdens which this country has is that each prisoner serving a sentence costs an average of €77,220 per annum according to the Prison Service's figures. It works out at just short of €1,500 per week.

I agree with the Minister in so far as he seems to be developing a policy in this regard. A number of individuals who are given short-term prison sentences at substantial expense to the taxpayer are not prevented by their terms of imprisonment from re-offending but simply emerge from the prison system as better graduates and perhaps more proficient offenders. A number of these people could repay the community more effectively by doing community service. If we make better use of the community service system, they might not re-offend. What is the Minister's exact plan in this regard?

I will conclude, as I am conscious that I only have approximately 20 seconds left. Fine Gael supports the principle of the Bill. We regret it has taken so long to get to this point after the publication of our Bill on this matter in 2006. In general terms, we welcome the Bill's approach. The issues I have raised are appropriate for this side of the House to raise so that the Minister might address them on the record of the House. After Second Stage, I hope the Bill can proceed to Committee Stage rapidly. I also hope that, when the Minister concludes, he will give us some indication as to how quickly that can occur. There is no particular reason for this Bill not to be enacted and become law before the end of November.

See this speech in context