Michael McDowell (Dublin South East, Progressive Democrats)

I welcome the opportunity to address the House on Senator Morrissey's Bill, the subject matter of which is one of great interest not only in the Oireachtas but in the country at large. It is a subject I consider to be of the utmost importance.

Senators are aware of cases in which persons have entered a house or a property without adequate excuse and with criminal intent with the result that injuries or death have been caused. Such cases have fuelled the debate whether the law as it stands strikes the right balance between the rights of the occupier and those of the trespasser.

There is a genuinely and widely held belief that while the Non-Fatal Offences against the Person Act 1997 legislates adequately for circumstances where self-defence may be applied in most circumstances, it does not give sufficient protection to a person who finds intruders with criminal intent in his or her home. It is my contention — no doubt, a similar view informed Senator Morrissey's proposal — that an attack in the home has unique characteristics, given the potential emotive nature of an encounter between an occupant in the home and an unwelcome intruder. I share the understandable public concern regarding this matter and I have no doubt Senator Morrissey's motivation in introducing the Bill arises from a similar appreciation of that public concern.

Article 40.3.2° of the Constitution imposes a duty on the State to protect by its laws as best it may its citizens from unjust attack and, in the case of injustice done, to vindicate the person of every citizen. It is important to note that this provision applies to all citizens, including those engaged in criminal activity. The 1997 Act is the legislative method employed in this jurisdiction regarding assault and self-defence in respect of someone who fears he or she may be the victim of an assault. This Act has served us well and continues to do so. It was drafted following recommendations of the Law Reform Commission. The issue of self defence under the terms of the 1997 Act, which is only one element of the legislation, boils down to the question of reasonableness, that is, whether the force used by the defender was reasonable. The difficulty is that there is no single answer to this question, with each set of circumstances differing from another. The 1997 Act ensures that juries are given the option of rejecting a plea of legitimate self defence where they are satisfied it was unreasonable not to retreat. It therefore preserves the principle of conflict avoidance in circumstances where that is possible.

It is not, however, always possible or even desirable to retreat in the context of an intruder entering the home. There may be other family members present who need protection. There may be valuable property one does not wish to abandon. It simply may be that the understandable tension and stress of the incident renders the defender incapable of flight or of any movement. In fact, there is the right to stand one's right in one's home. If the home is inviolable under the Constitution, one has no right to cede the ground and render it violable to some other person.

Section 2(2) of Senator Morrissey's Bill addresses this issue. It provides that the retreat provisions contained in section 20(4) of the 1997 Act, shall not apply where there is an intruder in the home or on the curtilage of the home and where the trespass is done for the purposes of committing a serious criminal offence.

There are significant differences between the Bill under consideration here in the Seanad this evening and the Non Fatal Offences Against the Person Act 1997. The key differences are as follows. The provisions of Senator Morrissey's Bill apply only to a person's dwelling and the curtilage of the dwelling while the 1997 Act applies to self defence in general, regardless of location. The Bill, as I have said, removes the requirement to retreat as set out in section 20(4) of the 1997 Act. Senator Morrissey's Bill provides a defence in criminal proceedings to specific circumstances relating to trespass and intent to commit an offence in a person's house or on the cartilage. The Bill also provides a similar defence in relation to civil proceedings. Finally, the provisions of Senator Morrissey's Bill apply to murder and manslaughter which is not the case with the 1997 Act, which is concerned merely with non fatal offences against the person.

Last June, in a debate in the Dáil on the Fine Gael Private Members' Bill, I expressed agreement with the sentiments behind the publication of Senator Morrissey's Bill at the time. It was my view, however, that the Fine Gael Bill contained some deficiencies which are not to be found in Senator Morrissey's Bill. The key differences between the Fine Gael Bill and Senator Morrissey's Bill are that the provisions in the former did not extend to the curtilage of the dwelling and the provisions cannot be used as a defence to the application of lethal force by a defender. When the Government opposed that Bill in June it was pointed out that it contained no distinction between certain kinds of trespass. It made no reference to criminal intent and there was no protection for accidental death. To use Senator Morrissey's point, if somebody was pushed backwards and his or her head hit off the mantelpiece or a corner in the house, that was not covered by the Fine Gael Bill.

The Fine Gael Bill provided for a rebuttable presumption that any force used is reasonable while Senator Morrissey's Bill sets out the conditions for a defence in criminal proceedings. It is my view and that of the Government that tonight's Bill is the more effective of the two proposals.

I was glad to see that Senator Morrissey's Bill includes the curtilage of the house as part of the home dwelling and provides a definition of the curtilage. I remarked on the absence of such a provision in the debate last June on the Fine Gael Private Members' Bill because I believe it to be an essential element of any such legislation. We cannot have one law ending at the hall door and another at the garage door or at the front gate, so to speak. The Bill being considered here also contains a very important provision which provides protection from civil liability to the resident in cases of unlawful intrusion. Our primary legislation in this area is the Occupiers Liability Act of 1995. That Act reduces the extent of the occupiers' obligations to trespassers. It provides that an occupier owes a duty not to injure a trespasser intentionally and not to act with reckless disregard. The Act also provides that where a person enters onto a premises for the purpose of committing an offence, or while there commits an offence, the occupier is not liable for a breach of duty imposed generally on trespassers unless a court decides otherwise in the interests of justice. Senator Morrissey's Bill puts the matter very succinctly. In section 3 it states that in any civil proceedings for damages it shall be a defence for a defendant to establish that the Act took place in the dwelling or in the curtilage, that the injured party was trespassing in such a way as to give rise to a reasonable inference that such trespass or attempted trespass was for the purpose of committing a serious criminal offence and that the act alleged against the accused entailed the use of justifiable force within the meaning of section 18 of the Non Fatal Offences Against the Person Act 1997. Fundamentally what is to be considered in the context of the Private Members' Bill which Senator Morrissey has brought before the Seanad this evening is the efficacy of the 1997 Act in dealing with the types of situations which arise from the incidents involving occupiers and intruders. This House is only too well aware of such incidents, some of which have received a great deal of attention both in this jurisdiction and elsewhere in recent years. Obviously, no situation involving assault could be described as normal but in the context of an assault in the home I believe regard must be had to the unique circumstances which prevail in a situation when an intruder is being dealt with in the place which we all have a right consider to be a place of safety.

It is not only Senator Morrissey and I who regard an attack on the home as having characteristics which do not apply in other situations. Since Senator Morrissey published his Bill in May of last year, at a date which preceded publication of the Fine Gael Private Members' Bill in the Dáil——