Jimmy Devins (Sligo-North Leitrim, Independent)

I am delighted to have the opportunity to speak on the Criminal Law (Defence and the Dwelling) Bill. The defence of a person's dwelling house is an issue that arouses great public debate when a person is put in a situation where he or she must defend his or her property or, more importantly, his or her life arising from an attack on his or her property by an intruder, such as a burglar. This interest is not just confined to Ireland but applies worldwide. However, in Ireland it arouses great emotion and debate, which is probably linked to our history and the importance that land, and particularly property and one's home, has in the Irish psyche.

We need only recall the recent case of the farmer in Mayo, Mr. Padraig Nally, which was mentioned by Deputy Flynn. He was convicted of the manslaughter of a man whom he suspected of attempting to rob him on his farm. This conviction was subsequently quashed and he was found not guilty in the retrial. The intense public interest and wide support for Mr. Nally was evidence of the huge interest in this issue. This huge interest is driven to a certain extent by the media, who regularly highlight injustices, perceived or otherwise, that occur in the course of defending one's home.

The statistics for burglary are interesting and show that the number of burglaries carried out with a weapon has remained virtually static since 2004 when taken as a percentage of all burglaries. Last year there were 26,793 burglaries, of which 363 were aggravated. In 2005, the respective figures were 26,381 and 274. While it is early to state why the number of these crimes appears to be stabilising, I have no doubt that credit is due to successive Ministers with responsibility for justice, who have responded rapidly and decisively to the hitherto ever-increasing level of crime. This Bill is a further example of that response and I welcome it.

There are very important principles of civil liberty in this country and where these rights appear to clash with each other, it is the duty of the Dáil to give clear leadership as to its intentions so any subsequent testing of legislation by the courts does not reveal anomalies or weaknesses. Under this Bill there is, on one hand, a right of the individual to protect himself or herself and their property when it is threatened by attack. On the other hand, there are those who will argue that the attacker or burglar has certain rights which remain attached to him or her even though they are committing a crime. In this debate it is important to achieve the greatest clarity possible on who has the greater right to protection. When a decision is made by somebody to enter another person's property with the intention of harming either the dweller in the home or his or her property, the person carrying out the crime is wrong and as a result must forfeit much of the protection he or she would have as a citizen. He or she is the instigator of an act which is a crime.

The issue of how the home dweller responds, particularly how he or she responds with the use of force, is of great interest. It raises the matter of the justifiable use of force. It is a point that has exercised many eminent minds, both academic and legal, in many arenas for many years. I am also sure lawyers have debated this issue ad nauseam in the courts over the years. The Non-Fatal Offences Against the Person Act 1997 contains much of the current law on defence by a homeowner. This Bill updates that law to bring it more into tune with the Ireland of the 21st century. The key component of the Bill is that force used against a trespasser will be lawful when the homeowner or occupier honestly believes the trespasser is in the property to commit a crime and that the force is necessary to protect the occupier.

What is the justifiable force that can be used by a home occupier within the dwelling and its surroundings? Nobody condones violence but everybody has the right to self defence. People have a right to defend themselves and their properties when they are attacked or invaded for illegal purposes. What is interesting is that under this Bill the force used by the occupiers must be reasonable in the circumstances, as they believe them to be, and be used only to protect the attacked person or his or her property or to prevent the occurrence of a crime. If either of these elements is absent, the home occupier is not entitled to the rights which this Bill will confer.

A further issue I wish to raise is what precisely is covered by the term "dwelling". This was mentioned by the previous speaker as well. The term is defined in section 1 of the Bill. I would be grateful if the Minister would clarify the wording. Does the word "dwelling" include outhouses or, in the case of farmers and others, sheds which are adjacent to the main house? What about outhouses or sheds which are some distance from the main dwelling? Take the example of a farmer with a small holding or a farmer with two separate holdings on which the farmer has outhouses that are occupied by farm machinery. If an intruder or burglar enters the shed which is far removed from the main dwelling house but which houses valuable property and the farmer is in the shed when the burglar enters, do the provisions and protections of this Bill apply in the same way as they would if the burglary was committed in the main dwelling? This is something that can occur, and I would be grateful to have it clarified. A full and apt definition of the term should be included in the Bill.

Finally, the castle principle is used by some authorities when dealing with the issue of defence of one's home. It is not language which I favour. I understand it arose from English law and dates to the time when one's home was one's castle. Frankly, few of us in the Republic would have any allegiance to or relationship with castles, certainly not with regard to our homes. However, the rationale behind the so-called castle principle is clear.

Homes are important to the occupier and the thrust of the legislation reflects this. However, the extent of a home or a dwelling should include all buildings on the land and any movable properties resting there.

The home occupier is required to believe that the crime is about to be committed against him or her, not that the crime has been committed, to secure the protection the Bill provides. While this will give rise to great debate in certain areas, it is an important protection for the homeowner, which I welcome. Faced with an intruder, as I was when my home was burgled, it is important that the homeowner can act to protect his or her property and life in order that he or she can feel safe and secure. Having to spend time thinking whether he or she is right to attack this person and defend his or her property might allow the intruder to make the first move, which could be fatal. This Bill protects the homeowner and I warmly welcome it.

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