Alan Shatter (Dublin South, Fine Gael)

We already dealt with this matter in some detail on Committee Stage. The Deputy says he has tabled the same amendment again. What he leaves out in his comment where he refers to the transcript of what was said on Committee Stage is a reference to the exclusion from the provision he has tabled to a very important aspect of this particular legislation, section 2(1)(a). Before someone engages in the use of force, he or she must believe the other person has entered or is entering the dwelling as a trespasser for the purpose of committing a criminal offence. It was the reference to and omission of the fact that someone was trespassing on the property of another, particularly the family home. Violation of the family home by trespass is a crucial element in the matter with regard to someone engaging to defend themselves or their home in a reasonable way. Having explained that to the Deputy, I would have believed that, in resubmitting an amendment, he would have ensured that it incorporated the matter omitted from the amendment discussed on Committee Stage. The change he seeks to make would effect a fundamental change in the purpose and intent of the legislation, that is, to ensure that people do not trespass inside the dwelling home of individuals. The very fact of trespass in the context of the judgment of Mr. Justice Hederman in the case he referred to was regarded as an aggressive violation of someone's rights by virtue of illegal entry into the home. The Deputy has not addressed that issue.

On the specific issue raised, it was already said that the amendment was discussed on Committee Stage when it was noted that the section and the entire Bill have been drafted on the basis of applying the test of reasonableness. This test is well known in our law and has been interpreted by the courts. The Deputy referred to the judgment in the Court of Criminal Appeal in the case of DPP v. Barnes. During the debate on Committee Stage, Deputy O'Brien stated that the purpose of the amendment, which he has reiterated today, was to provide for a test of imminence and proportionality by way of express provisions. He stated on Committee Stage that this would make the section more robust. The approach the Deputy now proposes would alter the reasonableness test provided for in the Bill, which test is known to the courts.

The Deputy is trying to say that what I am saying is contradictory. The reasonableness test, through existing jurisprudence, incorporates the concepts of imminence, necessity and proportionality. It can also be broader in that something else might arise that would be of relevance to a reasonableness test of the manner in which someone responds to a burglary in his home. What the Deputy would be doing would be moving discretion from the court to determine in a global context whether someone has objectively behaved reasonably. In the circumstances, I can no more accept the Deputy's amendment on Report Stage than I could on Committee Stage.

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