Charles Flanagan (Laois-Offaly, Fine Gael)
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Question 4: To ask the Minister for Justice, Equality and Law Reform if he will introduce legislation to enhance the rights of homeowners in respect of defending their homes. [14494/08]

Brian Lenihan Jnr (Dublin West, Fianna Fail)
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The Deputy will be aware that the Government's legislative programme includes a proposed criminal law (defence of life and property) Bill, the drafting of which the previous Government approved in March 2007. The Deputy may also be aware that this important issue is currently being examined by the Law Reform Commission as part of its consideration of the issue of defences generally in the context of the criminal law. The Law Reform Commission published a consultation paper on the subject of legitimate defence in November 2006. This paper formed the basis for discussion and further consideration of the issues and consultation with interested parties. I understand that this consultation process has been completed and work on the writing of a report on the topic is under way. In its consultation paper, the Law Reform Commission gave considerable attention to the question of the application of legitimate defence with regard to attacks on property and on the person in the home dwelling and in the curtilage of the home. It is expected the report will be published by the end of this year or early in 2009. For this reason, I must await the commission's findings and recommendations on the issue of the application of legitimate defence in defence of the home dwelling.

My hand is stayed for a second reason. It has been drawn to my attention that the Court of Criminal Appeal took the opportunity to examine this question, and in a judgment delivered on 21 December 2006 in the case of the DPP v. Anthony Barnes — I am not sure whether this judgment was made before the decision of the Government to draft the legislation — Mr. Justice Hardiman said:

The offence of burglary committed in a dwellinghouse is in every instance an act of aggression. [The violation of a citizen's dwelling house is just that, a violation and act of aggression, no matter what the other circumstances.] . . . Although he is not liable to be killed by the householder simply for being a burglar, he is an aggressor and may expect to be lawfully met with retaliatory force to drive him off or to immobilise or detain him and end the threat which he offers to the personal rights of the householder and his or her family or guests. And this is so whether the dwellinghouse which he enters is, or appears to be, occupied or unoccupied when he breaks into it.

It is, in our view, quite inconsistent with the constitutional doctrine of the inviolability of a dwellinghouse that a householder or other lawful occupant could ever be under a legal obligation to flee the dwellinghouse.

The common law position, as clarified now by the Court of Criminal Appeal, goes a long way to addressing the concerns that have been voiced on this subject.

Charles Flanagan (Laois-Offaly, Fine Gael)
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On that point, it is not sufficient for the Minister, the Department or the Government to await progress or change on the matter from the courts. The changes should be introduced in this House and should emanate from the Department. This is a serious issue, but thanks to the inactivity of the Government over a number of years it is criminals rather than victims who appear to get most protection from the law. Since Deputy Lenihan took over as Minister for Justice, Equality and Law Reform, he appears to have relaxed the stated position of his predecessor, that this matter would be subjected to legislation at an early date.

We see, and this was confirmed last month by Deputy Cowen, the Taoiseach designate, that this is not on the list of proposed legislation and, therefore, does not appear to be a matter of priority. I remind the Minister that it is an urgent issue. I do not believe anybody in the House would promote the excessive use of violence under any circumstances but, nevertheless, people are fearful. They fear their constitutional position is not being upheld, having regard to the Constitution, which says the dwellinghouse of every citizen is inviolable and shall not be freely entered forcibly save in accordance with the law. However, the law has given rise to significant uncertainty leaving people very fearful of intruders, particularly in rural Ireland, where on a nightly basis they are subjected to fear and terror. They are left in the position where if they exercise force of a type which they may wish to use, they are ultimately culpable.

Brian Lenihan Jnr (Dublin West, Fianna Fail)
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One of the reasons, unfortunately, that householders are fearful is because of the persistent misrepresentation which the Deputy and his predecessor have engaged in with regard to the law that applies in this area. The law in this area was revisited by the Houses of the Oireachtas in the Non-Fatal Offences Against the Person Act 1997. I repudiate the suggestion that I have somehow been derelict in the performance of my duty of vindicating the rights of citizens to the security of their dwelling places. The 1997 Act makes it clear that reasonable force may be applied to protect oneself or a member of the family or another from injury, assault or detention caused by a criminal act, to protect one's property from appropriation, destruction or damage caused by a criminal act or from trespass or infringement.

There are various other circumstances in which the Oireachtas has clearly laid out the provisions. In sections 18 to 20 of the Non-Fatal Offences Against the Person Act 1997, the Oireachtas has set out in some detail the circumstances in which the right of self defence can be exercised. These cover the circumstances outlined by the Deputy. It is important, and I am glad to have the opportunity, to make it clear to the public that they are entitled to use reasonable force in the protection of themselves and their property. The recent judgment of the Court of Criminal Appeal confirms that the right of citizens is buttressed by the constitutional protection of the dwellinghouse.

Charles Flanagan (Laois-Offaly, Fine Gael)
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Notwithstanding what the Minister has said, it is almost two years since the House rejected a Fine Gael Private Members' Bill and the Government has done nothing about the situation in the interim. The Minister referred to the Law Reform Commission report of November 2006. That document explicitly states that the law in this matter is uncertain and made recommendations which have not been taken on board. I do not have a difficulty with the Minister awaiting the final report of the Law Reform Commission provided he seeks an early meeting with the chairman of the group and urges that the matter be dealt with quickly. The people are frightened as a result of the law as it stands and how it is applied.

Brian Lenihan Jnr (Dublin West, Fianna Fail)
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I do not accept the law is as vague or uncertain as is being represented, as is clear if one looks at the expressions used in the legislation we enacted in 1997. However, I am prepared to ask the chairman of the Law Reform Commission whether consideration of this topic can be expedited to a conclusion.