Brendan Kenneally (Waterford, Fianna Fail)

I welcome this Bill, as will most people around the country, because it will tidy up once and for all a legal situation that most people would consider unjust. It will also define for both householder and intruder where they stand in the event that their paths cross.

I believe in the concept that a man's home is his castle. This tenet may have originated in England but now extends across the world to countries that hold that a person has a right to defend his or her family home, members and property in all reasonable circumstances. I hold this to be sacrosanct, and have been dismayed on occasions when I read of severe penalties being imposed on people who - on the face of it at least - were defending their homes, families and property from being seriously intruded upon by people with robbery or worse on their minds.

I am especially pleased to see this legislative proposal come before us because the position is not clearly defined not only in this country, but in many countries across the world as well as several US states. Everybody refers to the castle doctrine but in many cases the entire interpretation is left to the police, the prosecution service and, ultimately, the courts. Now we will have as clear a definition of what is allowable as exists in any jurisdiction, and people will know their limitations in protecting their families and property. After the Joint Committee on Justice, Defence and Women's Rights held hearings on this subject and teased it out in some detail, the outcome was communicated to the Law Reform Commission.

This is a considered piece of legislation dealing with a subject which troubles many people, particularly those living alone, and will define clearly what is allowed and what is not. If a person or his family are truly at risk, will that person stop to consider whether he has the right to strike a blow, fire a shot or push someone out a window? The instinct for survival is paramount, but we must reassure people, in the uncharged atmosphere of this debate, that they finally have the legal right to defend themselves, their families and their properties with all reasonable force at their disposal if they consider it necessary at the time.

In recent times there have been several high-profile cases involving intruders and defenders which have been as emotive as they have been tragic, and the publicity surrounding them has prompted debate and division, producing scenarios which should not be legally unclear. Neither, it should be said, should they be used to justify an extreme position on either side. I refer in particular to the case of Padraig Nally, who was convicted of the manslaughter of an intruder, although the conviction was subsequently overturned. This case was the subject of widespread debate at the time, and there is no doubt that the sympathies of the vast majority of the contributing population were on his side.

There are difficulties at present in this regard, particularly in rural Ireland. Deputy Rabbitte referred in his comments to the submissions we received in the Joint Committee on Justice, Defence and Women's Rights about what is happening in rural areas and the fact that so many people are living frightened lives. There are people roaming the countryside daily in every rural county seeking vulnerable people, mostly those who are living alone. If these people are challenged they will pretend they are looking for directions or something similar. That in itself is frightening for people who do not expect such people to call, and they have a reasonable assumption that these people have an ulterior motive. This must be taken into consideration when evaluating the actions of a house owner. There are other people in rural areas who call at houses for legitimate purposes; those people have nothing to fear. However, there are grave problems in this regard, and the law has perhaps not been strong enough in protecting these people. That is what we are striving to achieve.

What we are debating here is the right or otherwise of a householder or occupier to defend his or her home and the definition of the level of violence that can be used against an intruder. I hold little sympathy for a person who is injured or even loses his life in the commission of a crime against an individual or his property, provided only reasonable methods have been used in the defence of the occupiers or the property. This is not to equate property with people. Let us envisage a situation in which a home is about to be burned, with the occupants either inside or outside. I have no difficulty in supporting the property holder in defending his property, whether he be in his home, his business, his garage or his garden shed. I see it as lawful to resist such an attempt to destroy property, provided a reasonable and sufficient level of resistance is used. Each case will vary, but a homeowners or occupiers have a right to feel safe within their dwelling and have a right to defend their family and companions with whatever reasonable means are at their disposal.

It is interesting to see that just last week, the state of Pennsylvania grappled with this problem, but they had no difficulty in extending what they describe as the "castle doctrine" by giving homeowners more latitude in using deadly force to protect themselves and their property. Their measure passed in the state Senate on a vote of 45 to four, so there was very little room for doubt in that state. The measure received across the board support from both sides of Parliament and I suspect that there will be little in the line of opposition to the proposal before this House either, if Deputies are truly to be honest.

Pennsylvania's new Bill proposed allowing homeowners the use of a firearm or other weapon to defend themselves on the porch, lawn or garage of their homes, as well as in the house itself. It is interesting to note that we have confined the provisions of our Bill solely to the dwelling and curtilage, while Pennsylvania included the occupancy of a vehicle as well. The Bill in Pennsylvania defined the right as follows:

Persons residing in or visiting Pennsylvania have a right to expect to remain unmolested within their homes and vehicles. No person should be required to surrender his or her personal safety to a criminal, nor should a person be required to needlessly retreat in the face of intrusion or attack outside the person's home or vehicle. The use of deadly force is not justifiable under this section unless the actor believes that such force is necessary to protect himself against death, serious bodily injury, kidnapping or sexual intercourse compelled by force or threat; nor is it justifiable if the actor, with the intent of causing death or serious bodily injury, provoked the use of force against himself in the same encounter.

I consider all of that to be perfectly reasonable and principles to which we should aspire.

Let us return to our own country. Just this week, a house under construction was burned down by five individuals wearing balaclavas and the security man threatened and ordered off the property and had his car keys and mobile phone confiscated. If that house were occupied at the time with means of escape cut off, should not the occupier defend himself and his property with all reasonable force? We have had many petrol bombings in recent years for a variety of reasons and it would be foolhardy to deprive the occupant of the house the right to the use of reasonable force to defend himself or herself.

In my own city last year, a man's home was attacked by individuals and he died as a result. There was no actual physical assault, but there is no doubt that the incident caused the unfortunate victim to lose his life. Would he not be justified in using a high degree of force without question to remove the risk to his person? Had he not an equal right to life as enshrined in our Constitution? The penalty for conviction in a case like this should not merely be for burglary or breaking and entering, but related in some close fashion to the death which resulted. Deaths caused in the commission of a crime, or by virtue of the commission of a crime, must be treated with appropriate penalties.

There was widespread public debate in the media at the time and there was no doubt where people stood on the issue. My own feeling is that if a perpetrator gets injured during a break-in or in an assault during the defence of the family home, then, to put it mildly, "tough luck". He was grievously breaking the law and violating the Constitution. A publican in the midlands was attacked in his place of work a couple of years ago, and was assaulted and mutilated to the point where he lost his life. Who could deny that man the right to defend himself with all reasonable force and methods at his disposal up to and including taking life?

The Pennsylvania declaration surely applies and its words go to the very core of our debate. "No person should be required to surrender his or her personal safety to a criminal, nor should a person be required to needlessly retreat in the face of intrusion or attack outside the person's home."

If somebody is trespassing with criminal intent or is in the process of burglary, then there must be the right to defend oneself and one's home with reasonable force. The term "reasonable", like in so many other elements of the law, is the key to all this and must be kept in mind when combating the threat of or actual violence. Section 2 of the Bill deals with the question of reasonable force. This does not exclude the use of force causing death. It is important that we now define this clearly, in light of some famous cases which have occurred in the more recent past. As far as I know, this is the first time this principle has actually been enshrined in law and it may well be a precedent for other jurisdictions.

I am also pleased to see that a person who is injured in the commission of a criminal act does not have any legal redress in civil law against the homeowner. This is common sense and is long overdue. It is important that the Bill bans the taking of civil actions against occupiers who protect their dwellings and inflict injuries incidental to that. There was a case in Chicago a few years ago where a young man was being stalked by somebody to the extent that the stalker broke into that man's house. The young man's father - the owner of the house - had no idea what this person was doing or what he was capable of doing. He took out a legally held firearm and he shot the intruder in the arm. That homeowner ended up being sued. Most people do not carry firearms in their homes in this country, because we do not have the same culture as that which exists in the US, but a person here could have a hurley or baseball bat close at hand for such situations. If that person had acted similarly to the person in Chicago, then perhaps he could end up being sued here. Any doubt that exists will be removed by this Bill, which is to be welcomed.

I must query whether being intoxicated by either drink or drugs is being considered as a defence in such cases. I sincerely hope not. The day is long gone when any court should accept the plea that "He had too much to drink, your Honour." I would ask the Minister to clarify this matter definitively. This would be a charter for people to act recklessly, but I do not think this is what the Minister had in mind. Section 2(8) states that "An act is criminal notwithstanding that the person doing the act— (a) if charged with an offence in respect of it, would be acquitted on the ground that...(iii) he or she was in a state of intoxication". I asked a solicitor in Waterford to look at this wording. He was of the opinion that it was fairly vague and difficult to understand, but he agreed with me that using the fact that one was intoxicated as a defence basically means that the owner of the house does not have the right to attack an intruder because the intruder was intoxicated. A person can be intoxicated from alcohol, drugs, solvents and so on. I want to see this issue clarified. If that can be used as a defence, it means that anybody can have a few pints and then carry out a burglary, and would be better off doing so than carrying out a burglary in a sober state. If this is the case and if it replicates similar provisions in other Bills, then we have to look at those other Bills as well. The Minister should clarify this when he responds at the end of this debate.

We see how the country is sliding into a culture dominated by drink, with excesses causing a wide range of social, medical and legal problems. I am all for the social life which the pub affords, but there is no doubt that we have gone much too far. The combination of excessive drinking and the easy resort to freely available weapons, or just fisticuffs, has caused many deaths, in addition to permanent disability and serious injury. A death occurred outside a public house just this week, following a difference of opinion on a football match. This may well have been unpremeditated and accidental, but the victim is dead, the casualty of an increasingly violent society.

One of the perceived problems with this legislation is that those opposed to it will claim that property owners may use it as justification for attacking people they believe are intruders or, in the extreme case, use force against people because they feel they just looked at them in a funny way. Critics may call it the law to shoot first and ask questions later. I have every confidence in the courts to assess the evidence before them and deal properly and effectively with people who abuse the new latitude. It will soon become apparent to people that this is not a licence to shoot to kill, but a serious and limited ability to use force to offset real and immediate risk of harm.

I hope that this measure in the criminal law may steer judges in the civil code who tend to award compensation to people with criminal intent who get injured in the course of committing a crime, just because they fell foul of some defect in the home. The public are tired of this and I hope this measure may go some way to redressing the civil imbalance also. I congratulate the Minister who has tackled other social problems very effectively in the recent past, particularly the scourge of head shops. I welcome this Bill and with the clarifications I sought earlier, I commend it to the House.

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