Alan Shatter (Dublin South, Fine Gael)

The Deputy essentially is revisiting the issues dealt with on Committee Stage. For the reasons I gave, I cannot accept the Deputy's amendment. The Deputy has raised issues about the European Court of Human Rights and was correct to cite me as having stated that the legislation has been proofed in that context by the Attorney General and that I have been advised the legislation is in order. In the context of case law from the European Court of Human Rights, I also am satisfied that the legislation is in order.

I revert to the issue. It arises specifically under section 2(1) and the wording thereof, which states:

Notwithstanding the generality of any other enactment or rule of law and subject to subsections (2) and (3), [the key point is] it shall not be an offence for a person who is in his or her dwelling, or for a person who is a lawful occupant in a dwelling, to use force against another person or the property of another person.

It goes on in section 2(1)(a) to specify where "he or she believes the other person has entered or is entering the dwelling as a trespasser for the purpose of committing a criminal [offence]" and in section 2(1)(b):

the force used is only such as is reasonable in the circumstances as he or she believes them to be—

(i) to protect himself or herself or another person present in the dwelling from injury, assault, detention or death caused by a criminal act,

(ii) to protect his or her property or the property of another person from appropriation, destruction or damage caused by a criminal act, or

(iii) to prevent the commission of a [criminal act].

One has then brought in the objective test of reasonableness to this issue. Essentially, lethal force can only be used, in the way the courts may well see it, in circumstances where it is reasonable and that will be in exceptional circumstances. Moreover, it must be used in the context of an individual being the occupant of a dwelling or being in his or her dwelling. Consequently, were I occupy a dwelling or am in my dwelling and there is a trespass, in the vast majority of instances, lethal force would not be appropriate. However, the test of reasonableness will apply, as will its other subtexts of imminence, proportionality and necessity, and the law as it is now being proposed to be enacted in the Bill will be on all fours with the approach taken in case law dealing with the reasonableness test. For these reasons I cannot accept the Deputy's amendment, which effectively would undermine the principles behind the Bill, namely, to ensure that individuals can regard their homes as their castles and can use reasonable force in circumstances in which there has been a trespass.

That said, I repeat a point I made on Committee Stage, because I think it is important. The Bill is not an invitation to individuals to put themselves in harm's way. People who have a burglar in their home may well, under the Bill following its enactment, for reasons of protecting themselves or their family lawfully defend themselves using reasonable force. However, there will be many instances in which people's homes are burglarised or in which there is an intruder in the home, where there may be a disproportionate age gap between the intruder and the occupant of the home. The intruder may be an individual of violent disposition or may be an individual who is high on drugs and who has no capacity to assess a situation and make any judgments that could be relied on. For many people who discover an intruder in the home, leaving the home, telephoning the Garda Síochána and seeking assistance may be a better and preferred option to that of engaging with the intruder.

However, the Bill does something that is important. It gives a statutory framework to the constitutional recognition of the inviolability of an individual's dwelling house. In that context, it will ensure that where someone's dwellinghouse is violated, where someone's home is being burglarised, where people feel themselves or their families to be under threat, they can address this threat, if they have the capacity to so do, in a manner that is reasonable and proportionate to deal with a threat that is imminent and poses a serious risk to their safety or where there is a risk of loss of property or, as I mentioned on Committee Stage, where there may be a risk of their homes being burned down.

See this speech in context