Tom Morrissey (Progressive Democrats)

In May of last year, I introduced the Defence of Life and Property Bill to the Seanad. The Bill provides a full defence in criminal and civil law in cases where force is reasonably used by occupiers in dwellings to defend life or property against persons trespassing with criminal intent. Specifically, the Bill proposes that, where a householder uses force to repel or prevent trespass with criminal intent in his or her house and surrounding areas, the entitlement of the householder to use justified force shall not be judged by reference to any opportunity to retreat.

The political background to this Bill was the public concern which arose regarding the prosecution of Mr. Padraig Nally for the manslaughter of Mr. John "Frog" Ward. This was a tragic case. First, and most importantly, a man lost his life, which is appalling. His killing means his children lost their father and his wife lost her husband. Nothing can bring him back to them or compensate them for this loss. The second consequence of the killing of Mr. Ward was that Mr. Nally was charged with manslaughter. Mr. Nally was later acquitted of the charge.

Although Mr. Nally was acquitted, it is clear from the facts of the case that he had a case to answer. However, his prosecution raised a very important political question, namely, whether the right to self-defence from criminal attack of one's family in one's home is a general right or constrained. Is the right to self-defence generally free as long as the defending dweller does not engage in obviously reckless or criminal behaviour? Must the dweller observe a higher and more exacting standard? In short, do we bend over backwards and impose impossibly exact standards of behaviour on home dwellers awoken from their sleep at 3 a.m.?

The answer to this question depends on one's interpretation of the Non-Fatal Offences against the Person Act 1997. It is a general principle of law that one can act in self-defence against an attack or even against an imminent attack. The 1997 Act qualified that right and section 20(4) states: "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."

The implication of this section is that the law seemed to put a question mark over a person's right to defend his or her home and property. It seemed to imply that if a person was awoken in his or her bedroom in the middle of the night by intruders downstairs, that person might not be able to rely on a legal defence of self-defence if he or she went downstairs and confronted the intruders. If one's house was broken into at 3 a.m. and one made one's way downstairs and, in confronting a burglar, knocked him or her down whereupon he or she hit his or her head against the fireplace and died, one could be robbed of the legal defence of self-defence. Not only did one not avail of an opportunity to retreat, one actually went down the stairs to confront the intruder. Remember the exact words of the 1997 Act: "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."

It seems absurd that the law of the land might imply that a person who went downstairs to defend his or her house and family from late-night intruders could not rely on self-defence to justify his or her actions. It seems absurd that the person could end up on a manslaughter charge if the intruder was unlucky enough to bang his or her head against a hard surface and die. In this respect at least, the 1997 Act, which was brought through the Oireachtas by the then Minister with responsibility for justice, Nora Owen, was ambiguous and gravely defective. Let us not forget that sitting around the Cabinet table when that legislation was approved were the current leaders of Fine Gael and the Labour Party, Deputies Kenny and Rabbitte.

The Defence of Life and Property Bill was the result of concern about the defects in the 1997 Act. We introduced it in the Seanad last May. I will outline the key elements of the Bill. In a prosecution for assault or manslaughter, it shall be a defence for a home dweller to show that the alleged acts took place at the home of the accused or in its curtilage, that the injured person was trespassing giving rise to the reasonable inference that the trespass was done for the purpose of committing a serious criminal act, and that the acts alleged against the accused constitute the justified use of force under section 18 of the 1997 Act. Where the first two facts are established, the home dweller's right to self-defence shall not be judged by whether he or she availed of an opportunity to retreat. This defence will also apply in any civil proceedings which might be taken by the intruder against the home dweller. These are reasonable provisions which would have two effects. First, they would remove ambiguity under the current law concerning the rights of people to defend their homes against criminal attack, and second, they would strengthen the rights of dwellers over criminals.

Shortly after we published the Defence of Life and Property Bill, Fine Gael published similar proposals in their Criminal Law (Home Defence) Bill in the Dáil, which is similar to our Bill but different in some key respects. In each of these respects, the Fine Gael Bill got it wrong. That Bill would have permitted serious assault without civil remedy. As the Bill would have freed dwellers from any civil liability for any act taken against trespassers, it went too far. For example, if a child was trespassing in a house, the adult dweller would be exempt from civil liability, irrespective of the force they used to thrash that child. By contrast, our Bill only relaxes the law for dwellers where the trespasser shows criminal intent.

The Fine Gael Bill limited its effects to the domestic dwelling, limiting the extra rights conferred on an occupant of a domestic dwelling to that dwelling. If a brawl erupted between an occupant and a burglar and that brawl spilled out into the front garden, the occupant would lose the additional legal protections conferred by the Fine Gael Bill. By contrast, our Bill extends to the area around the house and deals with somebody who sees their car being vandalised or set alight and goes out to stop it, for example. In contrast, the Fine Gael Bill would have abandoned that person, who have had to retreat and allow his or her car to be vandalised because, outside the house, a different standard applied. That was not reasonable.

The Fine Gael Bill provided no protection in the case of manslaughter. This may sound reasonable until one considers a case where a dweller confronts a burglar who falls down the stairs, hits his head and is killed. The Fine Gael Bill would have offered such a dweller no protection whatever, but our Bill offers some protection to such a person.

This Bill is a commonsense proposal designed to address a clear problem in our law. The Nally case caused major public controversy, not all of it helpful. It brought to our attention a clear problem in our law, although that problem did not arise in the Nally case. Now we have been alerted to this problem, it is up to us to consider it and advance solutions to it. This Bill does just that.

I hope my colleague, the Tánaiste and Minister for Justice, Equality and Law Reform, Deputy Michael McDowell, can accept the reforms outlined in this Bill. Perhaps he could accept the Bill or even the thrust of the Bill in future legislation. I commend this Bill to the House.