Pat Rabbitte (Dublin South West, Labour)

This is a slight Bill that purports to clarify the law in circumstances where a householder finds himself or herself confronted at home by an intruder with apparent criminal intent. In particular, it addresses the issues surrounding the use of force in circumstances where the intruder is injured fatally or non-fatally.

Unfortunately and as has been stated, many people are apprehensive about being attacked in their homes. The extent of drug abuse in so many communities has fuelled this fear, leading, as it does, to burglaries when the intruder is under the influence of mind-altering substances. Whether this malaise can be addressed by more criminal law is doubtful. Whether this particular Bill improves on the existing law is extremely doubtful.

This is the first time that Dáil Éireann has been asked to approve a law that positively refers to the intentional killing of another citizen. As the law stands, lethal force is already a permissible possible outcome in cases of self-defence. The Minister will need to answer concerns summarised by the Oireachtas Library Service Digest as: "the wholly subjective test as to the occupier's belief will potentially allow for the infliction of deadly force on the basis of paranoia, fear or anxiety rather than objective concerns over physical threats to the individual, rather than just to property."

The public controversy surrounding certain terrible incidents that have happened in isolated rural communities has prompted this Bill. There have been some appalling atrocities in rural Ireland where elderly defenceless people have been the subjects of shocking physical attacks. In my native county and other western counties, for example, some acts of unimaginable cruelty have been inflicted on senior citizens usually, but not always, living alone. It is difficult for some urban dwellers to comprehend the effect of such bestial attacks on persons who live alone and are vulnerable to such attacks. I have no doubt that many decent, law-abiding senior citizens living in isolated parts live in nightly terror of being the victims of such aggravated assaults.

The Joint Committee on Justice, Defence and Women's Rights had an opportunity to take submissions on this issue from a number of organisations such as Rural Link which set out most graphically the fear present in the countryside. People such as elderly farmers living alone literally live in fear for their lives as a result of the spates of attacks that take off from time to time. There have been some terrible examples. If all the Members of this House thought we could correct that malaise by having more criminal law we would be more than willing to enact it but is that how we are going to combat this phenomenon, which is relatively new in rural Ireland? It is not many years since one could leave the door off the latch in rural Ireland and the question of personal safety never arose. However, those days are gone and the question arises now. It is a challenge for wider society and needs more considered strategies in terms of encouraging or reassuring those people they can be more safe in their homes. It is a more difficult, complex and complicated question than additional criminal law alone will solve.

I do not wish to give the impression that although the Bill was undoubtedly prompted by what has happened in rural Ireland in some celebrated cases such things are unknown in urban Ireland. That is not the case. Last week in committee I gave the Minister the example of a meeting in Fettercairn in Tallaght in my constituency that I attended along with colleagues in the House at which the joint policing committee held a forum. It was very well attended by the local community, the chief superintendent, the superintendent, senior community gardaí and senior officials of the county council. It was a night for us legislators to hang our heads in shame because of the litany of abuse suffered by law-abiding decent citizens trying to rear their families and make a living. We heard their cry of pain about the manner in which they have been neglected and how policing has fallen down and become ineffective. There are terrible instances of racial and other attacks and regular spates of burglaries and people are genuinely living in fear in their homes This is especially the case where such people are vulnerable or living alone, or are women living alone or housed emigrants.

The resources available for community policing are entirely inadequate. None the less community policing seems to have been a tremendous success. Everywhere I go I hear the role of community gardaí praised. However, the resources are not there and in the times that are in it I do not see this Government, or, to be honest, any Government that will replace it, making more resources available. This calls for a redirection of resources within the Garda Síochána to community policing. It is a very worrying situation when a community loses faith in the Garda Síochána. I do not know whether the Minister received a report on that meeting but I am sure one went up the line in the Garda. A great number of decent residents got up to explain their personal circumstances, in which they feel persecuted in their homes or are afraid to go out at night, and how the increasing number of break-ins is a great worry.

I mentioned the influence drug abuse has on this phenomenon. When I talk about strategies other than additional criminal law I have in mind such measures as action to reduce demand for drugs. The Garda in my constituency, which I doubt is different from the Minister's constituency, will be able to point to the fall in the number of burglaries where a community drugs treatment centre is doing its job as it ought. When young fellows, who, for whatever complex reason, have fallen into the drug abuse way of life are put on a methadone or stabilisation programme the number of burglaries immediately and identifiably falls. It is an argument for strengthening capacity to reduce demand for drugs and ensuring the resources are in place. There is panic among local drugs taskforces about further paring back of the resources available to them because they are overstretched already. Notwithstanding their success the problem has become worse and is endemic in some communities. For example, I attended a meeting last week in St. Andrew's Resource Centre in Pearse Street. It had nothing to do with my constituency but a number of organisations came together to deal with problems such as intimidation of people working at the coal face on the drugs issue. They, too, live in some trepidation concerning resources and the forthcoming budget. They operate on a shoestring as it is but do so to considerable effect. For example, the Minister for Community, Equality and Gaeltacht Affairs, Deputy Pat Carey, appears to have signalled that the moneys available - which were paltry - to the informal sector in terms of education and prevention among young people will now be pared back and brought into the formal sector, namely, the school system. We have been down the road on this before and we know that it did not work. I was the Minister of State at the time who established the national drug strategy and the local drugs taskforces. The reason I was given the job was the Departments of line Ministers were involved in turf wars as to whether it was the responsibility of the then Departments of Health, Justice, the Environment, the probation service, the local authority or whoever.

The basis of the national drugs strategy was a partnership between the community and the statutory agencies. The community and its voluntary allegiance to the objectives is central. If the Minister pulls back the moneys again going into the statutory agencies, and he loses that community intent, then there will be a worsening of the drugs situation, especially in urban Ireland.

At the moment the law provides that a householder is entitled to defend his or her home. However, under the existing law if he or she uses force to defend himself or herself, the family or the home, the force used must be proportionate. The householder cannot lawfully kill the intruder, merely on the basis that he or she is a burglar.

As has been referred to, the Court of Criminal Appeal held in the case of the DPP v. Barnes that under Article 40.3.1° and Article 40.3.2° of the Constitution a person cannot lawfully lose his life simply because he trespasses in the dwelling house of another with intent to steal. The common law rule is that a person in his dwelling house can never, in law, be under an obligation to leave it, to retreat from it or to abandon it to the burglar or other aggressor.

The Minister spent a great deal of time drawing our attention to section 3, where he is enshrining in statute and making plain that a householder is not required to retreat. Section 3, he says in his script, provides that nothing in the Bill shall operate to require a person to retreat from his or her dwelling, or require a lawful occupant in a dwelling to retreat. I am sure there is an explanation but he will have to explain to me how that differs from the present situation. The courts have clearly held that there is no obligation to retreat. As Mr. Justice Hardiman has said, there are occasions when it may be wise to retreat but there is no legal obligation on the home owner or occupier to retreat. That is the danger of the perception that Deputy Shatter spoke about, and people know that. The danger now is people will get the impression that it is permissible to use legal force in circumstances where they believe their property, their family or themselves are at risk. However, the court has clearly pointed out that there may be many situations where the householder would be well advised to flee but he or she can never be under a legal obligation to do so.

The Non-Fatal Offences Against the Person Act 1997 states that in all cases of self-defence, the opportunity to retreat shall be taken into account in determining whether force was reasonable or not. However, no lawyer I know believes, and no court has held that there is a duty on the householder to retreat. The Bill seeks to clarify the law relating to self-defence in the context of the dwelling and the justifiable use of force. It states that force against a trespasser will be lawful when the householder or occupier honestly believes that the trespasser is on the property to commit a crime, and the force is necessary to protect the occupier, another person or property.

This force can include, depending on the circumstances, lethal force. Section 2(7) states: "The use of force shall not exclude the use of force causing death." It is my understanding, given the matters I have indicated being taken into account, that the use of force never excluded the use of lethal force. I do not see where the test in this Bill for assessing the justifiable use of force differs from the test required by the 1997 Act. Again, I refer to the digest prepared for us by the Oireachtas Library, which states, "In respect of the assessment of the reasonable use of force, the Bill clarifies the existing law but it does not substantively amend it". Therefore, whereas section 2(7) does not exclude the use of lethal force, it is not at all clear from section 2(1) whether lethal force may be used to protect property

Various court judgments have established a hierarchy of values where the protection of human life ranks higher than the protection of property. This Bill may cause more difficulty for the courts that it clarifies by purporting to address certain issues but then dodging them.

If it has been the law since time immemorial that one can rely on self-defence even if one's attacker is fatally wounded, what does this Bill add to the law? I do not know of any legislation on this side of the Atlantic where this House has ever been asked before to expressly set out in legislation the right to kill another human being. Up to now the courts seem to have been able to apply the law without offending the reasonable sensibilities of most people. Deputy Shatter pleaded that the Minister would promulgate very clearly that this is not the intention in this case. Moving from Deputy Shatter to another object of the Minister's affection, the Irish Council for Civil Liberties, it deals with this question as regards the defence of property. I only received this as I walked into the Chamber, so I am not sure whether the Minister has seen it.

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