Dermot Ahern (Louth, Fianna Fail)

I thank Deputies on both sides of the House for the positive comments they made on this Bill. I hope, as Deputy Shatter stated, we can proceed to its passing. It is a relatively short Bill and does not warrant much amendment. Deputy Shatter criticised the Government for not introducing it before but, as I noted, the Law Reform Commission was making an examination of the issue of defences in general and we felt we should wait until that had been considered.

Deputy Shatter referred to previous Bills tabled by Fine Gael, including the Criminal Law Home Defence Bill 2006, sponsored by Deputy Jim O'Keeffe. Although the principle of that Bill was laudable, the Criminal Law (Home Defence) Bill 2009, sponsored by Deputies Charlie Flanagan and Michael Ring, was a copy of the 2006 Bill which was rejected by the House on the basis of advice given to Government in regard to its sustainability. It contained some flaws. In the 2009 Fine Gael Private Members' Bill there was a presumption that force used by an occupier against a trespasser was reasonable. The Attorney General stated this was too broad and too blunt. For example, it would have presumed it was reasonable to use force against a child who innocently wandered into a house. The issue of a child wandering into an orchard to take an apple was raised. Ultimately this Bill is based on common sense and what is reasonable. If a child wanders into an orchard to steal an apple, any response using physical or lethal force would be totally disproportionate and would fall outside the remit of this Bill which would provide no protection to anybody using force in those circumstances.

The Fine Gael Private Members' Bill did not deal with a situation in the Bill where, in the event of a child innocently wandering into a house, there was a presumption that force could be used. It also failed to place any restriction on the circumstances in which such force might be used and did not deal with the issue of curtilage. That Bill was silent in that respect. It only afforded protection to the occupier while within the strict confines of the dwelling. The current Bill takes a common sense approach that allows the occupier to take reasonable defensive action within the curtilage of the dwelling. The 2009 Private Members' Bill went too far in allowing an occupier to intentionally or recklessly engage in conduct which creates a substantial risk of death or serious harm to another. Under the current Bill, although the actions of an occupier may result in harm to another, the occupier's motivation must be that of protecting against harm to persons or damage to property. The actions must be reasonable. Those are reasons the previous Bills were rejected by Government as being too blunt and too broad in their construction.

On this Bill we took the Attorney General's advice regarding its constitutionality. The framers of the Constitution clearly recognised the central importance of the dwelling in the life of every citizen and provided for that in the Constitution. That has been recognised in laws passed since the Constitution was put in place and this Bill follows that constitutional provision. It is necessary to say it does not give a licence to kill, or a charter for any person to have a go by vigilantism, or whatever, as certain people outside the House have suggested. On the other hand, Deputy Rabbitte called it a slight measure. It is not a slight measure but a balanced Bill that recognises the right of a lawful occupier to use reasonable force against anybody that he or she believes is trespassing on his or her property with criminal intent.

A number of Deputies raised the issue of curtilage which was looked at very closely by the Attorney General. The scope of the previous Private Members' Bill was only in regard to the actual dwelling but there are circumstances when the criminal act may start in the dwelling and then move to a yard or driveway, or wherever. That was a major fault in that Bill. However, I can understand that the definition of curtilage is somewhat difficult. The framing of this is to ensure that while it is possibly wider than that, the area involved should be used in conjunction with, and for the enjoyment of the dwelling. Obviously, it would be up to a court or a jury to decide on that.

The Attorney General has examined the question of constitutional protection for the dwelling carefully and advised on the particular course set out in the Bill for definition of curtilage, by extending the protection contained in section 2 for householders' actions only as far as the curtilage. The Bill recognises the limits of the doctrine of constitutional inviolability of the dwelling. It also draws on the case law to make it clear that a householder cannot be expected to retreat from the home.

A number of Deputies, including Deputy Sargent, raised this in their contributions. Indeed Deputy Sargent raised this with me, personally. They referred to the Law Reform Commission's report on defences in the criminal law, part of which this legislation is based on. They had recommended an approach that would replace the reasonableness test by criteria already embedded in that concept - threshold, immanence, necessity and proportionality. The Law Reform Commission was recommending an approach to the general law on defences, as I said in my general contribution, and its recommendations anticipated codification of the criminal law. To have adopted the approach recommended by the Law Reform Commission would have required changing the law on defences, generally. The concept of reasonableness is long known to Irish law, and one that is amenable both to judicial direction and indeed to a common sense understanding, as I said before. This Bill is based on common sense and on what is reasonable in the particular circumstances pertaining to an instance.

The whole issue of reasonableness is a concept that juries have applied without too much difficulty over the years. Crucially, however, it implicitly embodies the concepts enumerated by the Law Reform Commission while rightly allowing for a rounded consideration of all the circumstances in every case. However, the Law Reform Commission report generally was based on a codification of the law on defences and we are not at that stage in that respect. Given that this Bill was necessary, I believe it was the view of most Members of the House that we should deal with this particular aspect on its merits. It was felt that we should pick this piece out of the Law Reform Commission's report.

I gave an undertaking that once the Law Reform Commission's report was published, we would publish our own Bill within a relatively short space of time, which we did.

Deputy Shatter raised the issue of the European Convention on Human Rights. The Bill has to be construed both in the light of the inviolability of dwelling provisions, Article 40 (5) of the Constitution, but also in the light of the guarantee as regards the protection of human life in Articles 40 (3) and also in the European Convention on Human Rights. The Bill was drafted in consultation with the Attorney General, who would always have regard for the Constitution and the European Convention on Human Rights.

I reiterate that the Bill does not seek to authorise the use of force, lethal or otherwise, which is unreasonable or unnecessary. A number of Deputies raised the question as to whether I had considered the views of the Human Rights Commission on this. My officials had initial discussions with the commission, but as yet I do not believe we have received submissions from it. I expect it to publish its observations on the Bill shortly.

A number of Deputies raised the issue of the various types of assistance on offer such as "community alert" and "neighbourhood watch". My Department has provided substantial support over the years for the community alert programme. There are 1,351 such schemes in operation throughout the country. Some Deputies referred to the Garda Síochána's older people's strategy, which I and the Minister of State, Deputy Áine Brady launched recently, along with the Garda Commissioner. It sets out current and future initiatives to be taken by An Garda Síochána, working with members of the general public to assist older people who consider themselves under threat or victims of crime. I compliment the Garda Síochána on the initiative it has taken in that respect.

A number of Deputies referred to community policing. The latest available figures show that 1,038 gardaí were specifically assigned to community policing as at the end of August 2010. Obviously, every garda is expected to have an awareness of the community he or she is living in, but this is a specific initiative involving dedicated community police, men and women. Since the end of 2007 there has been a 70% increase in the number of community gardaí, which again shows the Garda Síochána is very much aware of the necessity. The Garda Commissioner and I, some time back, relaunched the community policing project in Ballymun. I know from my talks with members of the Garda management that they are great supporters of community policing. I commend them because, while we need to have the specialised Garda units, equally the garda on the beat who is known to the people at community level and vice versa is vitally important.

A number of Deputies raised the seniors alert scheme which replaced the scheme of community support for older people. Deputy Carey raised the matter of grant assistance. This scheme, which is in place, provides grant assistance towards the purchase and installation of equipment. When I was Minister for Social and Family Affairs I found this an excellent scheme. It was passed on to the Department of Community, Equality and Gaeltacht Affairs, which is now the lead Department in that respect.

Another initiative is the neighbourhood watch strategy for 2007-11. The Garda authorities inform me that there are currently 2,340 neighbourhood watch schemes in operation around the country. Obviously, they work very closely with An Garda Síochána. Deputies Flynn, Chris Andrews and Ferris mentioned the effective deployment of An Garda Síochána, as did Deputy Rabbitte in respect of Fettercairn. Ultimately, the allocation of Garda resources is a matter for the Garda Commissioner to determine where gardaí are to be based. That is continually being monitored and reviewed and optimum use is made of Garda resources. The resources of divisional Garda units throughout the country are augmented by national units such as the national bureau of criminal investigation, the special detective unit, the Garda national drugs unit, the organised crime unit and other elements of An Garda Síochána's support services. As of 31 August 2010 the latest available figures show that there were 14,615 gardaí, with a further nine in training. There is a total of 1,038 community gardaí, 112 juvenile liaison officers, 1,035 members of the traffic corps and 629 Garda reservists. That is an all-time high level for gardaí in the history of the State.

Deputies Creighton, Chris Andrews and others raised the issue of tougher sentences for crimes. We have made this point and that is one reason there are substantial numbers in our prisons today. Over the past 20 years or so the Oireachtas has increased sentences fairly dramatically. Every time there is major publicity about a crime, with sections of the media crying for tougher sentences, obviously the political process responds. The knock-on effect, however, is that the more substantial the sentences being laid down in legislation, the longer the sentences handed down by the Judiciary.

The average life sentence now is approximately 17 years, whereas not so long ago - perhaps 15 or 20 years ago - it was only seven and a half years. I have had discussions previously with the Attorney General on the issue of mandatory sentencing, particularly for burglary and aggravated burglary involving older people. The Attorney General has asked the Law Reform Commission, under the legislation, to consider this issue. I remind Deputies that in the Criminal Justice Act 2007 we provided the courts with the power to make monitoring orders on persons convicted of aggravated burglary, for which, as I already said, there is a maximum sentence of life imprisonment. The courts may also make protection of persons orders prohibiting offenders from engaging in any activity or behaviour that would cause the victim of the offence fear, distress, alarm or intimidation. The same Act provides for mandatory minimum sentences for repeat offenders.

Deputy Kenneally expressed concern about section 6. I assure the Deputy that the intention of this section is to provide a defence for the householder who may have used force against someone entering the dwelling to commit a crime, and not for the intruder. The fact that the intruder may fall into one of the categories set out in the section does not mean it can be concluded that the act perpetrated on entering the dwelling was not criminal.

I think the Deputies for their general support for this Bill. It clarifies the existing law, which was more or less laid down in DPP v. Barnes. It also extends the existing provisions, particularly with regard to the issue of curtilage, which it clarifies. In addition, it clarifies that the householder is not subject to the possibility of a claim for damages by an intruder in the event of the intruder's being injured.

This is a balanced Bill. There have been some suggestions, mainly outside the House, that it is a charter for what may be termed "have-a-go vigilantes", but this is not the case. Rather than merely giving the Judiciary the ability to deal with particular cases, it will send a strong signal to the people who perpetrate these crimes that they are facing a hazard not just in terms of their ultimate culpability once they are found guilty but also in the case that they enter someone's home.

The Bill follows on from the constitutional provisions regarding property. Deputy Rabbitte mentioned the possibility of limiting the provisions to certain properties, but I do not accept that. It is important that our legislation reflects the special position of the dwelling in our Constitution and the inviolability of the dwelling house for every citizen. The dwelling and the people therein must have special protection from the Oireachtas and this Bill achieves that.

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