David Cullinane (Sinn Fein)

I welcome the Minister. We seem to have a mania in this country for introducing criminal legislation which is often draconian and seldom, if ever, used. It is usually a response to a public outcry and rarely is a comprehensive solution sought to crime and its causes. I am not making this point to impugn this Bill. While I have concerns about aspects of the legislation, in respect of which I have tabled several amendments which we will deal with on Committee Stage, I intend to support it.

However, there is a broader issue here in that we seem to fixate on introducing legislation rather than finding effective solutions to crime. The Garda is not seeking more legislation. Gardaí are alarmed at the closure of small Garda stations and the merger of others. They are concerned at the shortfall in numbers on account of the recruitment freeze. They are dissatisfied with the amount of resources available to them generally. They want stations to be maintained to an adequate level. They are seeking more gardaí and more resources to enable them to fulfil their role of protecting citizens.

What I have not heard the Garda asking for is additional legislation. This is because the existing powers and provisions in criminal law are sufficient. In recent years we have seen a reduction in the numbers of gardaí on the street, with the recruitment freeze being continued by this Government. We must focus on tackling the resource restrictions which serve to prevent the Garda from performing its function of preventing crime. Government measures such as the pension levy, recruitment embargo and the reversal of the civilianisation programme have all contributed to reducing the number of gardaí on the street, which affects the force's ability to prevent crime and protect people. Introducing legislation and limiting Garda numbers is a perverse approach. We must offer the Garda more support if we are serious about tackling crime. In particular, we must ensure that gardaí in remote rural areas are well supported and their stations maintained if we want to protect remote home owners who feel at risk.

This Bill does not alter in any substantial way the law as it stands on the issue of self-defence in the context of defence of one's dwelling. It is largely concerned with placing on a statutory footing the existing common law, as enunciated by the Court of Criminal Appeal in the case of DPP v. Barnes, to which the Minister referred in his opening statement. The Bill was initially introduced some years ago in the context of public controversy following the Padraig Nally case. Its key focus is defining the level of force a home owner may justifiably use in defence of his or her property and whether there is an obligation on a home owner to make use of an opportunity to retreat. Furthermore, the Bill provides a definition of "dwelling" as well as dealing with the issue of civil liability.

On the issue of the justifiable use of force, the Bill provides that the use of force against a trespasser will be lawful where the occupier honestly believes the trespasser is on the property to commit a crime and that force is necessary in order to protect the occupier, another person or the property. This is similar to what is stated in the Non-Fatal Offences against the State Act 1997. I am concerned at the possibility of lethal force being seen as a proportionate response and the context in which that would apply.

It is worth noting the criticism the Law Reform Commission levelled at the existing standard and, by extension, the new Bill in its 2006 paper. In assessing the justifiable use of force, the commission found that the existing standard was too vague and required clarification. It proposed a four-part test focusing on the following: threshold - whether the threat was sufficient to warrant a response; imminence - whether the threat was close and impending; necessity - whether force was necessary to protect persons or property; and proportionality - whether the force used was proportionate to the threat. This test has not been adopted in the current Bill. As such, I intend to table an amendment to clarify the issue of lethal force and to ensure the test as set in the legislation is adequate.

Section 2(1)(b) of the Bill states that it is legal for a home owner to use force to "protect his or her property or the property of another person from appropriation, destruction or damage caused by a criminal act". Section 2(7) states, "The use of force shall not exclude the use of force causing death". It is clear, therefore, that the Bill allows for the use of lethal force in the defence of private property without the accompanying threat to persons within that property. If it is the Minister's intention to allow the use of lethal force only in defence of private property where that defence forms part of a defence of persons within it, that should be clearly stated in the Bill. I intend to table an amendment to such effect on Committee Stage.

I will also table an amendment regarding the test on the use of force. The two-prong test comprises a subjective element, that is, relating to the perception of the person concerned, and an objective test, that is, what a reasonable person might perceive as justifiable. I am not convinced that the objective test set out in the Bill is sufficiently robust. The lack of reference to necessity and imminence is my key concern in this regard.

On the issue of obligation to retreat, the Bill reaffirms the finding of the court in DPP v. Barnes that there is no obligation on the householder to flee or retreat from his or her home and, therefore, a person should not be punished in law for standing his or her ground. It effectively restates common law. I will return to this on Committee Stage.

On the broad issue of crime prevention, we are sadly mistaken if we consider that legislation such as this can solve the crime problems in this country. What is needed, and what my party has called for, is an expedited and far-reaching process of civilianisation to free up fully trained gardaí from administrative and other duties in order to fight crime. Far too many gardaí are carrying out administration work. Action in this regard was promised by the Government parties when they are were in opposition and I hope they will follow through on their commitment. There must be increased funding for Garda drug units, with enhanced community input into their use and priorities. As a member of the south-east drugs taskforce, I saw the problems caused by the lack of specialised gardaí in the area, a problem I am sure is prevalent throughout the country. We must have independent oversight of informer handling practices in order to prevent situations developing where individuals with a relationship with gardaí are allowed to amass a criminal empire. There must be enhanced Garda visibility and activity, and the use of sniffer dogs, in areas experiencing chronic drug problems.

I have often heard the Minister say that legislation is not the answer to everything. The vast majority of gardaí are not seeking new legislation but additional resources. Introducing legislation such as this while at the same time shutting down rural Garda stations, thus failing to protect people living in rural areas, is a perverse way of dealing with a serious problem in communities throughout the country.