Jimmy Deenihan (Kerry North, Fine Gael)

Last night I welcomed the Bill. It has been sought for some time by my party in particular. The Bill addresses two important matters of public concern, a concern that has been expressed in the media by a number of commentators not only in this jurisdiction, but also in the United Kingdom. Those concerns are the perceived injustice of occupiers being sued by burglars and the extent of force an occupier can use to defend their property. They are the core issues in the Bill. It has come about because of this perceived injustice. Following each high profile case, there was a response in the House to bring forward appropriate legislation to clarify the law in this regard.

The most celebrated case was that of Tony Martin in England. A burglar attempted to sue him having been injured on his property and this generated significant media comment in both the UK and Ireland. Tony Martin shot dead a 16-year old burglar and wounded his accomplice, who subsequently attempted to sue for the injuries sustained. He was convicted of manslaughter, though the bid to sue him was rejected in court. This high profile case challenged the Government and the Opposition..

Apart from the civil liability issue, considerable legal debate has taken place in recent years about whether, and to what extent, members of the public could resort to force to protect their property from trespassers. The issue came to public prominence in Ireland in 2006 when Padraig Nally was convicted of the manslaughter of a man he suspected was attempting to rob his farm. The conviction was subsequently quashed and he was found not guilty following a retrial. Both these high profile cases put pressure on the Legislature to act and this legislation is the final part of the reaction, which I welcome.

Fine Gael made two attempts to introduce legislation in the Dáil, which would have helped to clarify this grey area but, like most Private Members' Bills, it was rejected. The Progressive Democrats Party in an attempt to compete with us on law and order issues introduced a Bill, which was unusual for a Government party, but this happened because of the Fine Gael Bill at the time. Our Bill provided for a presumption that force used against a trespasser would be reasonable unless the trespasser could prove otherwise and that an occupier would be exempt from civil liability for any harm caused to a trespasser. It similarly removed the obligation to retreat. Generally, the objectives of the Bill are contained in this legislation. Fine Gael introduced the Criminal Law (Home Defence) Bill in 2009, which was almost identical to the 2006 Bill. It differed by providing for reduced immunity for occupiers who overreact in order that unreasonable force would still generate civil liability. The Bill was defeated on Second Stage.

Under this legislation, "curtilage" refers to the immediate area surrounding a house or adjacent to a dwelling and is used in conjunction with the dwelling. Where people have extensive gardens around their houses, the definition of "curtilage" may have to be reinterpreted in the future. It needs to be clearly defined because people have vast gardens which are very much part of the house. Perhaps the Minister will refer to this issue when he replies. Where a householder considers that a person has entered a dwelling or his curtilage for the purpose of carrying out an offence, he or she may use force against the intruder in the following circumstances: to protect himself or herself or any other person from injury, including death or imprisonment; to protect his or her property or the property of another from theft or damage; to prevent a crime; or to assist in making a lawful arrest. These are plausible scenarios.

In deciding whether the householder is justified in using force a two-pronged test comprising subjective and objective elements is provided for. The subjective test means that the householder must believe that the intruder entered for the purpose of committing a criminal offence. He or she must also believe that the force used was reasonable in the circumstances, as he or she sees them. In this respect, it does not matter whether the use of force can be justified or not if the person honestly believes that it was reasonable in the circumstances. With regard to the objective test, in deciding whether the person honestly believed that the force used was reasonable, a jury should consider the presence or absence of reasonable grounds for the belief and all other relevant circumstances. For example, if a householder claims that he or she honestly believed there was a need to stab someone to prevent a personal injury or damage to property, a jury would be directed to examine circumstances such as the behaviour of the intruder, whether he or she was carrying a weapon, the exact circumstances of the stabbing, what was said, where it took place, etc.

These are the principal ingredients of the Bill and it has generally been welcomed. The Irish Council for Civil Liberties, ICCL, sent us an interesting overview of the Bill and it is generally in favour of it. The council's officials have asked for an amendment about which the Minister will be aware. Perhaps he will address their concerns in his reply. They have also made a good suggestion, that because of the extensive media coverage the Bill has attracted, the Director of Public Prosecutions or the office of the Minister should draw up simple guidance for members of the public when the Bill has completed its passage through the Oireachtas and has been enacted. Such clarity could reassure people of their legal rights in defending their homes without erroneously encouraging them to believe that the Legislature has granted them a licence to take more extreme action. I do not believe in using the term "licence to kill" because that is not the intention of this Bill. I hope there will be a great deal of public education when the Bill is enacted to clarify what people are entitled to do.

The Bill has also been welcomed by the Association of Garda Sergeants and Inspectors because it gives clarity to the entitlement of the homeowner to defend his home against uninvited intruders. The vice-president said, "The Bill has shifted the balance of rights back to the homeowner where it should always have been". He also described as "ridiculous" suggestions that the Bill equates to a licence to kill and contended that homeowners would continue to act in a sensible and peaceful way, with which I totally agree. Irish Rural Link made a presentation to the Oireachtas Joint Committee of Justice, Equality, Defence and Women's Right during my tenure as a member of the committee and its representatives were clear about their support for the legislation.

Apart from the questions posed by the ICCL, this Bill has been universally accepted. Yesterday evening I mentioned that I took part in a debate on Radio Kerry some years ago with Deputy Ferris when Fine Gael proposed its Bill. He was very much opposed to it then but listening to him last night, I do not know now. I welcome the fact that he seems to be supportive of it now. There is unanimity on the Bill within this House as far as I can see.

There is a bigger issue with regard to the security of homes. We must all take more responsibility for security in our homes. We should not encourage people in any way to invade our homes or trespass on our property through our own negligence. People should be very conscious of closing windows when they leave and ensuring doors are locked. Some people do not do this and it is amazing the number of people, especially in the countryside, who leave doors unlocked.

People should have a gate leading onto their property which should be secured at all times. Perhaps they should also have signs to the effect that trespassers or uninvited guests are not welcome. We do not want to create a siege mentality but people can take certain precautions and should be vigilant at all times when it comes to their buildings, houses and where they live. Also, where possible, the use of cameras and an alarm system can be a deterrent. Not everyone can afford a camera or alarm system but generally speaking they come cheap enough and if people can afford it, they should install one. When a potential trespasser or burglar sees that a house is fitted with an alarm system, straight away it is a deterrent for them. Alarm systems should be encouraged as much as possible.

I welcome the Bill. Fine Gael made two serious efforts to introduce a similar Bill. This was heavily criticised at the time, especially by Vincent Browne. He had a right go at Fine Gael over the first Bill in 2006 and I wonder what he is saying about this Bill now. Last night, I complimented the Minister on bringing forward the Bill and I recognise that he has brought forward a raft of legislation. He has been in the House more often than any other Minister and has brought forward some very good reforming legislation during his term of office.

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