Alan Shatter (Dublin South, Fine Gael)

The proportionality of response in this context is important in determining whether someone has behaved reasonably. There may be circumstances where there is imminence and a necessity to respond and where, due to the subjective perception of the individual and out of fear, he may conduct himself in a manner that others distanced from the event may objectively view as disproportionate. However, in the round and overall, this behaviour may be considered reasonable because of the background circumstances. This is a very complex issue which, in the context of individual cases, will require an examination of the individual circumstances. That is why the reasonableness test involves a broader concept which includes the three factors about which the Deputy is concerned, but which may include more.

There could be a suggestion that an individual has behaved somewhat disproportionately. In determining whether an individual should be convicted, the overall background circumstances, the individual's personal perception of the level of threat and the conduct of the trespasser would all be issues to be considered under the reasonableness test. If the absence of one of the three criteria meant that there could be no justifiable defence of an individual charged with behaving in a violent manner towards a burglar, it would add an artificial difficulty to the workings of the law and a huge difficulty in ensuring that the circumstances in the round were fully considered by a court. It is in that context that I cannot accept the Deputy's amendment.

I return to the fundamental flaw in the Deputy's amendment, namely, his omission of the entire subsection to deal with trespassing, which is the kernel of the legislation.

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