Michael McDowell (Dublin South East, Progressive Democrats)

——the Law Reform Commission has since published a consultation paper on the subject of legitimate defence. This publication was part of a series which is being undertaken by the Law Reform Commission into the law on homicide in this jurisdiction. I ask Senator Cummins to note that the consultation paper on legitimate defence makes a clear distinction between the deployment of defence in connection with an attack on the home dwelling and the use of such defence in the context of an attack in other circumstances. In one of its provisional recommendations the Law Reform Commission states that:

...a defender should not be required to retreat from an attack in their dwelling home even if they could do so with complete safety...dwelling house should be defined as including the curtilage or the area immediately surrounding the home.

Another point that Senator Cummins might take into account is that among the conclusions contained in the Law Reform Commission consultation paper was the view that it found the arguments in favour of the use of lethal force to defend the dwelling house persuasive. This approach, it said, safeguards the individual's autonomy and has regard to the individual's inability to make split second decisions when confronted with an attacker in the home. In other words the Law Reform Commission does not believe lethal force should be removed from the protection and sub-lethal force inserted. It says there may be circumstances, in effect, where one uses lethal force and should be protected. In relation to the argument that this approach is not justified on the lesser of two evils standard, the Law Reform Commission states specifically that this is open to dispute given that most individuals in such circumstances fear death or serious injury, whether this belief is reasonable or not. The Law Reform Commission goes on to say that even if the defence cannot be justified on the traditional ground of protecting physical safety, it may be justifiable on the grounds of recognition of the home's importance to the defender's dignity, privacy and honour.

Senator Morrissey's Bill is concerned with the provisions of the Non Fatal Offences Against the Person Act 1997. However fatal offences, murder and manslaughter, which can as we know arise in incidents of trespass, are considered in the context of other statutes. In modern jurisprudence a guilty mind or mens rea is an element of most crimes. The prosecution has to prove that an accused engaged in unlawful conduct. It may also have to prove that he or she engaged in such conduct with a guilty mind. For example in a charge of assault causing harm under the provisions of section 3 of the Non Fatal Offences against the Person Act, 1997, the prosecution would have to prove a guilty mind not only in respect of the assault but also in respect of the harm. It would appear on the face of it that such a guilty mind and an intention to cause harm would not apply in the case of an intruder entering the family home with some kind of criminal intent. In a recent judgment in the Court of Criminal Appeal in relation to a case where a fatality occurred in the course of a burglary, the court said that a burglary was always an act of aggression. Therefore it might be argued that any assault on such an intruder undoubtedly would be one without culpability on the part of the occupier and one in which no accusation of criminal intent could be possibly levelled at the occupier in such circumstances.

This is where I believe we must be very careful and why I am of the opinion that the matters covered by this Bill require a considerable amount of analysis and consideration. The provisions of the Criminal Justice Act 1964 which deals with murder and manslaughter quite properly remain on the Statute Book. We have to be sure we balance the protections that we give to homeowners in situations such as those I have outlined already with proper respect for the rule of law. A legislative change such as the one proposed in this Bill cannot ever be a licence to kill. My concern is that the emotive nature of an encounter with a trespasser or an intruder, with what might be perceived by the occupier to be a criminal intent, could, as I have said, have the effect of rendering a person incapable of properly assessing his or her response and a tragedy of serious proportions might then ensue.

I also have concerns about situations which may not be as clear as the types of scenarios I have been discussing. I am thinking of circumstance where the status of a person visiting a premises is unclear. Perhaps someone who is considered to be an uninvited guest at a house for a social occasion or a situation where a caller to a house appears to be a trespasser but may in fact have a legitimate reason for being there. It would be a serious miscarriage of justice were such a person to be injured and have no recourse to the civil law for damages.

With regard to the Fine Gael Bill introduced in the other House, it excused anybody from any sub-lethal damage they did to anybody who was trespassing on their premises.