Lucinda Creighton (Dublin South East, Fine Gael)

This is a very important Bill, which in a different guise was originally proposed by the deputy Fine Gael spokesman at the time, Deputy Jim O'Keeffe, and subsequently brought to the House in 2009 by Deputy Charles Flanagan. I am pleased the Government has finally accepted the need to bring clarity to an area of the criminal law that has been ambiguous for quite some time. As mentioned by Deputy Rabbitte earlier, there is greater clarity in the common law at least on the basis of Mr. Justice Hardiman's judgment in the Barnes case, specifically on the question as to whether a home owner has an obligation to retreat. It was definitively interpreted on that occasion by Mr. Justice Hardiman that there is no duty to retreat, which allowed for some degree of clarification in the criminal law in this matter. However, there is a need to introduce greater clarity and certainty on the broader defence of property, and defence of the person and family members in one's own family home or dwelling place. The Bill goes some way to achieving that but, sadly, does not go far enough.

While the Minister, Deputy Dermot Ahern, made it clear to the House when we debated the Fine Gael Private Members' Bill that he wanted to await the Law Reform Commission's report in order to take on board its recommendations to a large degree, it is very disappointing that has not happened in one important aspect of the Bill, which is the question of reasonableness.

The Minister and other Deputies have referred in particular to older people living in rural areas, often in fear, and the need for them to feel a sense of protection - that the law serves them and protects them fully. Nobody invites an intruder onto his or her property or wishes a burglar to enter his or her home. Rightly or wrongly, there has been a sense among the public and many individuals and organisations representing older people that they have been served poorly by the law and have not felt protected by it, leading to a prevailing feeling of uncertainty. It is an important Bill from the point of view of giving protection to people in isolated areas, in particular older people living alone often far away from neighbours on farms and so on with no security or protection advantages.

Since as far back as 2006 I have heard some commentators suggest that legislating in this area represents some kind of right-wing agenda, playing to a wealthy upper-middle class audience, and that it does not reflect the needs of the common man. I could not disagree more. The Bill at least sets out to protect ordinary people who are vulnerable and who do not have the privileges and trappings that would enable them to protect their homes with lavish security systems and so on. It is important to knock that point on the head.

The opportunity is to provide a greater sense of security and protection for those people who do not benefit from elaborate security systems and so on. However, sadly, the Bill misses some of those opportunities. For example the Bill's most important section, section 2(1), sets out when it is considered lawful to use force against an intruder within the home. There are two criteria: that the person against whom force is used be a trespasser, trespassing on the property in order to commit a crime; and that the force used must be reasonable. While we could not dispute that, the Bill does not contain any definition of reasonableness and I hope that will be addressed on Committee Stage. Such a definition should be along the lines of what was proposed by the Law Reform Commission, which I will outline to jog the memory of the Minister and his officials with a view to improving the Bill on Committee Stage.

The Law Reform Commission report refers to four factors which would lend a degree of clarity and certainty to the concept of reasonableness. First is a threshold requirement, which it suggests would only be suitable in certain types of unlawful attack in justifying the use of defensive force especially lethal defensive force. Second, the attack must be immediate, which speaks for itself. Third, the use of defensive force must be necessary and a person should usually retreat if possible. Fourth, the defensive force should be proportionate to the unlawful attack. As I said at the outset, the issue of a requirement to retreat has already been clarified in the courts, but it is often in the interests of the home owner to retreat for his or her own personal safety, a matter that needs to be addressed. There is no requirement that a person should retreat. If those four criteria of reasonableness were included in section 2, it would introduce more clarity and certainty. That would be beneficial from the point of view of interpreting this legislation in the future. The last thing we want is for this legislation, which is being introduced to provide certainty, to bring more ambiguity into this arena and around this important issue relating to criminal law.

A number of points contained in the Fine Gael Private Members' Bill have been excluded from this Bill, and that is a regrettable. The Fine Gael Bill explicitly set out that the presumption of the use of force in the family home, in a dwelling place, is reasonable in a criminal case. That is an important element; the burden would rest with the Director of Public Prosecutions to disprove that. That was clearly and categorically set out in the Fine Gael's Private Members' Bill, but it is not set out in this proposed legislation. That aspect could be improved.

The clear protection provided for the homeowner in civil law is an important provision. The provision in the legislation that the homeowner cannot be sued for the trip and fall of a burglar who is illegally on his or her property is an step forward. That is an important provision. It would not be right for this aspect of civil law to be overlooked, even though the core issue here is one pertaining to the criminal law.

Another point contained in the Fine Gael Private Members' Bill is important in the context of the home being sacrosanct. Any invasion or violation of a family home or dwelling place should be viewed not only dimly but should be singled out by the criminal law, punished accordingly and treated as being a much higher level crime than any ordinary form of criminal activity. We dealt with that in our initial proposals by providing that a harsher sentence should be handed down for an assault perpetrated against a homeowner on his or her property. An assault on a person walking down the street is not deemed to be on the same level of gravity as an assault perpetrated on somebody in his or her own home, in his or her own sanctuary, as it ought to be and ought to be seen to be and treated as being by the criminal law. That is glaringly absent from the Minister's Bill. I hope that is something that will be considered necessary to address on Committee Stage. We have to develop and promote the concept that a person's home, a person's family place, is sacrosanct and any intrusion of that very special place will be dealt with harshly and will not be tolerated by the criminal law in this country. Those are the main elements of this Bill to which I wished to allude.

I may stand subject to correction on a point raised by Deputy Rabbitte, which he did not expound. I believe he suggested that the defence of one's property should not or could not be contemplated as a justifiable reason for the use of force. I would disagree with that. That is a very black and white interpretation of the issue. The test should be one of proportionality. Who is to say, unless one is in the circumstances at a given point in time, whether a person can judge necessarily whether his or her life or bodily integrity is under threat, whether a family member's life is under threat or whether it is simply the person's property that is under threat? It is difficult to distinguish in that respect in the context of something that happens in the matter of split seconds. The introduction in the legislation of a hard and fast distinction between property and the protection of oneself or one's family would be a dangerous step.

See this speech in context