Martin Ferris (Kerry North, Sinn Fein)

The Bill does not in any substantial way alter the law as it stands on the issue of self defence in the context of defence of one's dwelling. Instead, the Minister is simply putting on a statutory footing the common law as it stands and was enunciated by the Court of Criminal Appeal in the case, DPP v. Barnes.

It is typical of the Minister that at a time when the Central Statistics Office figures for the second quarter of 2010 reveal a sharp increase in robberies, hijacking and extortion offences he is content to introduce legislation which fails to actually do anything. Figures from the Central Statistics Office outlined in the Bills Digest show a consistent increase in burglary and related offences since 2007. In terms of aggravated burglaries there has been a substantial increase of 43% since 2007 with 2009 figures of 363 aggravated burglaries.

The Minister, Deputy Dermot Ahern's excessive legislative focus has clearly failed to deal with the crime level in the country. He needs to focus instead on tackling the resource restrictions which are serving to prevent the Garda from fulfilling its role of protecting people from crime. Government measures such as the pension levy, the recruitment embargo, the reversal of the civilianisation programme have all contributed to reducing the number of gardaí on the street which affects their ability to prevent crime and protect people. Not alone is the Government failing to tackle the crisis, it is contributing to it. It does not bear thinking about what further cuts the Government will inflict in the forthcoming budget. The Government would be better served in focusing on taking initiatives aimed at tackling crime rather than passing legislation that does not even change the existing law. For example, the Minister should bring forward legislation to regulate shops that are offering cash for gold. These shops seek to take advantage of the economic circumstances of the least well off and are leading to an increase in burglaries as thieves are targeting jewellery more than ever. There has been an increase in burglaries in my own constituency and in many cases jewellery has been the target. The burglars are specifically targeting the elderly and those living alone as they are considered easy prey.

While I have no difficulty with supporting the Bill, considering that it simply restates the law as it exists, there are a number of observations I would like to make on it. The Bill comes in the context of public controversy following the Pádraig Nally case. Its key focus relates to the level of force that a homeowner may justifiably use in defence of his property as well as the issue of whether there is an obligation on a homeowner to make use of an opportunity to retreat. Furthermore, the Bill provides a definition of the dwelling as well as dealing with the issue of civil liability.

On the issue of the justifiable use of force, the Bill states that the use of force against a trespasser will be lawful when the 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 the property. This is already the law as set out in the Non-Fatal Offences Against the Person Act 1997. It is worth noting at this point the criticism that the Law Reform Commission has levelled at the existing standard, and indeed by extension the new Bill, in its 2006 paper. In assessing the justifiable use of force the LRC found that the existing standard was too vague and required clarification. It instead proposed a four part test focusing on threshold, whether the threat was sufficient to warrant a response; imminence, whether the threat was close and impending; necessity, whether force was necessary to protect persons or property; and proportionality, whether the force use was proportionate to

the threat. This test has not been adopted in the current Bill and may constitute a missed opportunity to clarify the limits of force in such circumstances.

Section 2(7) of the Bill does not exclude the use of legal force in such cases and the Library and Research Service believes this is the first example of legislative enactment allowing for the use of lethal force by someone other than a person acting for the State. This issue was also considered by the Court of Criminal Appeal in DPP v. Barnes, which found that lethal force may be reasonable in certain circumstances. The balance which this Bill attempts to strike on this issue is to focus on whether the homeowner had an honestly held belief that lethal force was necessary in the circumstances.

On the issue of obligation to retreat, this Bill again reaffirms the finding of the court in DPP v. Barnes that there was no obligation on the householder to flee or retreat from his or her home and that therefore a person should not be punished at law for standing his ground.

Two other key issues in the Bill are the definitions which it provides of the extent of the dwelling as comprising the home and the area immediately surrounding the building and used in conjunction with the home.

Finally, I welcome section 5 of the Bill, which provides that injuries inflicted by a householder within the parameters of this Bill will not give rise to civil liability as long as the trespasser had criminal intent.

While I have no major problem with much of the content of this Bill, I want to re-emphasise that it is purely a restatement of the law as it is. It does not and cannot be considered a credible response to the rising incidence of crimes such as burglary and aggravated burglary. I call on the Minister to take real steps to tackle crime in this country by lifting the resource restrictions which are serving to prevent gardaí from fulfilling their role of protecting people from crime.

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