Jonathan O'Brien (Cork North Central, Sinn Fein)

I move amendment No. 2:

In page 5, to delete lines 10 and 11 and substitute the following:

"(7) Notwithstanding the provisions set out in Section 2, the use of force shall exclude the use of force causing death except in circumstances where it is absolutely necessary.

(8) Notwithstanding the provisions set out in Section 2, the defence of private property shall not be a legitimate reason for the use of fatal force.".

We discussed this amendment on Committee Stage and I have retabled it because we mis-worded it on Committee Stage. Section 2(7) states: "The use of force shall not exclude the use of force causing death". On Committee Stage the Minister said:

I will focus briefly on the aspect of the amendment which would introduce a new subsection (3). It appears the intention of this is to exclude private property from the use of force causing death. This aspect of the amendment alone would defeat the entire purpose of the Bill. Subsection (11) states, "For the avoidance of doubt, a reference in this section to property includes, unless the context otherwise requires, a reference to a dwelling". Hence, a dwelling obviously is an individual's property. The Bill, as it stands, does not allow for the use of lethal force in defence of private property per se. The purpose of this Bill is to recognise the special position of the dwelling in law as recognised by the common law and as explained in some detail by the Court of Criminal Appeal in the Barnes case and, not least, as embedded in the Constitution, which guarantees in Article 40.5 that "The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law".

Having carefully studied and considered what the Minister said, I believe his analysis is incorrect when he says the Bill does not permit the use of lethal force per se in the defence of private property. Section 2(1)(b)(ii) on the justifiable use of force states it is legal to use force "to protect his or her property or the property of another person from appropriation, destruction or damage caused by a criminal act". Section 2(7) states, "The use of force shall not exclude the use of force causing death." From my reading it is clear that the Bill allows for the use of lethal force in the defence of private property without the accompanying threat to persons within that property. If it is the Minister's intention to only allow the use of lethal force in defence of private property where the defence of that property forms part of a defence of persons within it, the Bill should state this clearly. On Committee Stage the Minister said:

It is worth recalling that in the Barnes case, Mr. Justice Hardiman referred to a burglary, entering someone else's house, as essentially an act of aggression. To be precise, he stated:

Every burglary in a dwellinghouse is an act of aggression. The circumstances may make this element of aggression more or less patent but the violation of a citizen's dwellinghouse is just that, a violation and an act of aggression no matter what the other circumstances.

Lethal force would, of course, only be reasonable to use in exceptional circumstances and only where it was proportionate to the threat with which someone was confronted. For example, if an attacker was attempting to firebomb a family home, it would be reasonable to use very strong force to prevent that attack so as to protect the lives of those in the home. The Deputy's proposed amendment would prevent the householder from using such force as his or her protection of the home would constitute the defence of private property.

We do not dispute the constitutional inviolability of the dwelling. However, we dispute the ability of a person to be able to take the life of another in defence of that dwelling. The Bill clearly permits the use of lethal force in cases in which there is a threat to private property. We do not believe it is correct to place the same value on a life as on bricks and mortar. On Committee Stage the Minister used the example of someone attempting to firebomb a house and a person using lethal force to defend the lives of those within it, which is a completely different scenario because the threat is different - it is to the life of somebody within the home. However, if the home is empty, the threat is just to the bricks and mortar.

Amendment No. 2 would not prevent somebody from taking reasonable and necessary action to defend himself, herself or other persons. It is to prevent someone from using lethal force where the risk is simply to the bricks and mortar. For example, if a person is standing in his or her garden and another person attempts to set fire to the home which is empty, that does not pose the same threat as somebody attempting to firebomb a home when the family is inside it and different rules should apply. We do not claim a person cannot use lethal force, but when it is used, there must be a threat to the life of the person or his or her family within the private property, not just a threat to the private property.

See this speech in context