Jim O'Keeffe (Cork South West, Fine Gael)
Link to this: Individually | In context

Question 51: To ask the Minister for Justice, Equality and Law Reform his views on whether the law as it stands is sufficiently balanced in terms of a person's right to defend their home; and his plans to put measures in place to address the concerns of homeowners. [35802/05]

Michael McDowell (Dublin South East, Progressive Democrats)
Link to this: Individually | In context

Sections 18 and 20 of the Non-Fatal Offences against the Person Act 1997 make statutory provision on the justifiable use of force in order to protect a person or property or to prevent a crime. Section 18 sets out the various purposes for which justifiable force may be lawfully used, that does not constitute an offence. The force used must be reasonable by reference to the circumstances believed by the person to exist. The purposes include the protection of the person or his or her family or another person from injury, assault or detention caused by a criminal act, protection of his or her property or property belonging to another from appropriation, destruction or damage caused by a criminal act or from trespass or infringement and prevention of crime or a breach of the peace. Section 20 defines the meaning of "use of force" for the purposes of section 18 and section 20(4) provides that the fact that a person had an opportunity to retreat before using force shall be taken into account in conjunction with other relevant evidence, in determining whether the use of force was reasonable.

Section 1(2) provides that for the purposes of section 18, it is immaterial whether a belief is justified or not, if it is honestly held. The presence or absence of reasonable grounds for the belief is a matter to which the court or jury is to have regard, in conjunction with any other relevant matters, in considering whether the person honestly held the belief.

As Deputy O'Keeffe is aware, it is important that within the criminal justice system we strive to achieve a balance between the competing rights of all those involved. While we all wish to protect ourselves, our families and our property from potential danger, we must also be accountable for the actions we take in such a situation if they go further than is reasonable in the circumstances. The legislation clearly states that the use of force is justifiable in certain circumstances and also what is "reasonable" use of force. It also provides that a belief of the need to protect oneself does not have to be justified objectively if honestly held and leaves this as a matter for the courts to decide.

In the circumstances, the law as it currently stands is sufficient and serves us well. However, if the Deputy has proposals for changes to the law in this area, I will examine them. I stress, however, that this is not an issue on which there should be issue-surfing. There is a delicate balance between the use of force by citizens and members of the Garda Síochána for their own purposes on the one hand and the protection of everybody in the community on the other. Nobody has spoken to me recently, or in the light of recent legal cases, of any reasonable grounds to change what is already set out in law as the correct balance between the right of self-defence, as it is commonly called, and the duty to uphold the rights of others, including not taking life unless strictly necessary.

Jim O'Keeffe (Cork South West, Fine Gael)
Link to this: Individually | In context

I take it from the Minister's reply that he feels that the balance provided by the 1997 Act is the correct balance. The law needs to be rebalanced and the pendulum needs to be swung more in favour of the home owner who has to face an intruder, perhaps in very difficult circumstances. I am not referring to a recent major case but am talking about the general issue. There are approximately 25,000 burglaries per annum, two thirds of which involve intrusion into people's homes. The onus is on us to provide the home owner, in so far as we can, with the best possible protection.

I am particularly concerned at the Minister's statement that the fact of a person having the opportunity to retreat before using force should be taken into account. That is a matter of major concern to home owners who might be faced with a very difficult situation at very short notice.

Objective commentators such as Professor Finbar McAuley of UCD have referred to this issue and argued that the phraseology in the 1997 Act needs to be examined. In the United Kingdom, where there have been similar difficulties, moves are afoot to go much farther than even I would be prepared to go, that is, to put an onus on the prosecution to prove that the force used by a home owner was grossly disproportionate. Does the Minister believe there should be a greater onus on the prosecution to prove that the home owner was unreasonable, rather than the current situation, which leaves the matter somewhat up in the air, at least as far as a jury is concerned?

Michael McDowell (Dublin South East, Progressive Democrats)
Link to this: Individually | In context

The 1997 legislation was introduced by former Deputy Owen and put through the Houses in the lead up to the general election of that year by the Labour, Fine Gael and Democratic Left Government. The legislation predates the current Government. The wording and balance was chosen by the Opposition parties, not by me.

Joe Costello (Dublin Central, Labour)
Link to this: Individually | In context

The Minister cannot improve on that wording.

Michael McDowell (Dublin South East, Progressive Democrats)
Link to this: Individually | In context

Deputy Jim O'Keeffe has stated that he believes the balance might be recast somewhat in favour of the home owner. Let us see the colour of his money on this issue. Let us see exactly how he believes that should be done. If he wishes to do this, the Criminal Justice Bill provides an opportunity for the House to consider the issue. If the balance that was struck in 1997 in the legislation introduced by former Deputy Owen is inadequate, improper or ill-advised in the light of modern circumstances, let us see the exact circumstance and changes that the Deputy has in mind.

It is easy to speak about these matters and to assert that one would like to shift the pendulum a little to the left or the right. It is not so easy to define a case where an action would constitute an offence under existing legislation but would not do so if a slightly different test was introduced.

I agree with the Deputy that the recent highly-publicised case has nothing to do with this issue because nobody in this House will suggest that a person, having shot and beaten another, should be at liberty to return to a shed, reload his or her weapon, hunt down the other person and finish him or her off. Nobody will suggest that such action should not constitute an offence. I take it that there is unanimity in the House on that issue.

Jim O'Keeffe (Cork South West, Fine Gael)
Link to this: Individually | In context

Unlike the Minister, I will not refer to that recent case. Nobody wants a situation to pertain where people can be killed with impunity.

I will rise to the challenge the Minister has set. He is satisfied with the law as it stands but has suggested that if I come forward with a specific proposition, he will do as I have done with regard to some of this proposals, that is, if I find them reasonable, I support them. I will rise to his challenge but I expect the Minister to support any proposal I might bring forward if he believes it is reasonable. I can bring forward a proposal that is reasonable, will provide more of a defence for home owners, while not creating an imbalance in the law.

Michael McDowell (Dublin South East, Progressive Democrats)
Link to this: Individually | In context

I welcome that proposal because the Deputy knows that during discussions at meetings of the Joint Committee on Justice, Equality, Defence and Women's Rights, I have made it clear that amendments to the criminal law emanating from any source, in the context of proposed legislation, will be considered in a fair and reasonable way. I look forward to seeing any proposal from Deputy Jim O'Keeffe with regard to changing the law. I am not saying that the law is perfect but it is easy to talk about changing the law. I want to see exactly how the law could be changed and what difference any change could make.