Alan Shatter (Dublin South, Fine Gael)

In dealing the Deputy's previous amendment, I misread a note on the trespass issue. Of course, that amendment did incorporate the trespass matter which had been the subject of exchanges on Committee Stage. That would not have made the Deputy's amendment any more acceptable for the reasons I gave with regard to the application of the test of reasonableness.

As for the amendment before us, again a similar amendment was considered on Committee Stage. I must oppose this amendment once again because it fails to take proper account of the wider provisions of the Bill. Section 2(7) does not stand in isolation. Section 2(1)(b) is clear when it states "the force used is only such as is reasonable". That is an objective test. A jury or a court ultimately will determine whether force used is reasonable, should the matter arise. Where lethal force is used unnecessarily, it will be unreasonable. As has been noted previously, the concept of reasonable force is well known to Irish jurisprudence and embodies the concepts of necessity and proportionality. The aspect of the amendment which would introduce a new subsection (8) would defeat the entire purpose of the Bill. Section 2(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." As it stands, the Bill does not allow for the use of lethal force in defence of private property per se. The purpose of the Bill is to recognise the special position of the dwelling in law, as recognised by the common law, confirmed by the Court of Criminal Appeal in the Barnes case and not least, as embodied in the Constitution, which in Article 40.5 guarantees "The dwelling of every citizen is inviolable and should not be forcibly entered save in accordance with law". Lethal force would only be reasonable to use in exceptional circumstances and only where it was proportionate to the threat faced. In light of this, I cannot accept the Deputy's amendment.

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