Ivana Bacik (Independent)

I welcome the Minister to the House for the debate on this Bill. It has been a long time in the genesis, as other speakers observed, and it clearly enjoys cross-party support. I echo the words of the Minister and others regarding the terrible fear of burglary endured by many home owners. I have spoken to elderly neighbours in south inner-city Dublin who are terrorised by that fear. Even when they themselves have not been burgled in the past, reports of break-ins in the area are a cause of dread to them. This is a serious issue for many people, particularly elderly people living alone, in both urban and rural areas throughout the State.

However, as somebody who has practised in criminal defence for some years, I do not necessarily agree with Senator Bradford's view that rights in criminal law have always been balanced in favour of the suspect. I would contend that our criminal justice system is reasonably fair overall. In recent years in particular there has been a much greater concern for and recognition of the rights of the victim, which is welcome.

The Bill originated in Private Members' legislation and was finally put to the Dáil in October 2010 before being restored in March this year. It follows on from work by the Law Reform Commission in its consultation paper of November 2006 and its report of 2009. The 2006 consultation paper on legitimate defences was produced in the wake of the Nally case, which have given rise to a great deal of public concern.

I have read and rehearsed this case many times with students and it has always struck me as very sad case because of the human story behind it. This was the case of the Mayo farmer to which other speakers have referred. He shot an individual who was in the course of burgling his property. It painted a very sad picture of rural isolation and of the fear of burglary and of the response to same. It was also a case which had a very different outcome, even in the initial trial before the Central Criminal Court, to the outcome of the Tony Martin case to which others have referred.

It points out the difference between our law and the divergence in our legal system from English law. Senator O'Donovan has rightly referred to the very close relationship between the two but in the Dwyer case in the 1970s, our Supreme Court had departed significantly from English law on self-defence in finding that an accused person who killed in self-defence but using more than reasonable force would not be guilty of murder if in fact he or she honestly believed the force was no more than necessary in the circumstances. Such a person could only be convicted of manslaughter. Whereas, in England, Tony Martin, in relatively similar circumstances, was guilty of murder, Pádraig Nally in the first trial was found guilty of manslaughter and of course, subsequently acquitted following the judgment of the Court of Criminal Appeal. These cases point out the difference and any changes to our law on legitimate defence have to be read in light of the Dwyer case.

The Law Reform Commission pointed out in 2006 that the matter of legitimate defence in the dwelling was something that was still uncertain in Irish law. It has been accepted that lethal defensive force may not be used to defend personal property but the commission says this matter needs to be clarified. This paper was produced before the Barnes judgment to which the Minister and others have referred, the judgment of the Court of Criminal Appeal in the Anthony Barnes case which was a different case concerning a killing in the course of a burglary by the person engaged in carrying out the burglary in which he had killed an elderly householder, Mr. Richard Forrestal. This was another very tragic case. In the Barnes case, the law was very clearly stated by Mr. Justice Hardiman on the use of defence in the dwelling, that a burglar does not have the same rights as a householder. If a burglar kills, he or she is always guilty of manslaughter at the very least if he or she kills in the course of a burglary whereas a householder may kill a burglar lawfully in self-defence and the issue then is the level of force used.

We debated this also in the Joint Committee on Justice, Equality, Defence and Women's Rights in January 2010 so the matters have been very well rehearsed over a number of years. At that meeting we heard from a number of different groups including the Irish Council for Civil Liberties and Irish Rural Link, who made presentations which, interestingly, had a very similar focus, even though these groups do not always see eye to eye. There was a general support for legislation of this sort, which was very welcome. The common theme was that legislation is only part of the way in which we need to deal with isolated householders concerned about limits of their protection in law. Other colleagues, including notably, Senator Bradford, have made reference to the issues around rural policing and this is an issue which will naturally concern people. The closure of rural Garda stations and the curtailment of opening hours will have a bearing on people's perception of their own safety and security.

If I may diverge for a moment and speak about the budget, since others have spoken about it, I was concerned to note the cut to the budget of the National Women's Council of 35% and I suggest that is an unfortunate and a disproportionate cut for an organisation that has done very well in securing philanthropic funding for projects but which will now see its core funding significantly cut. I suggest if this could be phased over a period of years rather than all at once.

Senator Cullinane has referred also to the issue of the non-legislative measures to deal with issues around isolation and insecurity and burglary. I believe we all are in agreement, as is the ICCL and the Irish Rural Link. Clearly, that policing is a key matter when dealing with burglary and it is not just a matter of legislation. It is very welcome to hear the Minister say there will be a new burglary crime prevention and reduction strategy and it is very welcome to hear of the Garda initiatives and we are all aware of Neighbourhood Watch and the other initiatives already in operation around the country to try to generate a better sense of security in communities. This must all go into the mix.

I note the momentum behind this legislation and behind the creation of greater clarity in the law on the use of legitimate force in the dwelling. We can debate Senator Cullinane's amendments on Committee Stage but it is clear that this is not just about defence of property but also about defence of the dwelling and, as Judge Hardiman said in the Barnes case in his usual eloquent way, this is a very different type of property when discussing the use of force within the dwelling to defend oneself. It is also important to set out in statute the fact there is no obligation to retreat. While many of the provisions in the Bill are not new in the sense they are already in the Barnes judgment, the law has been much more clearly stated in the Barnes judgment than it was ever set out previously. Yet, there is still a need for greater clarity which is the reason this Bill is so welcome as regards the household, the curtilage, the definition of "dwelling" and the statement that there is no obligation to retreat.

Two or three other points might be teased out at this stage which have been discussed on Committee Stage in the Dáil. First is how this legislation sits with the Dwyer decision and how it sits with section 18 of the 1997 Act, the current statutory statement of the use of legitimate force defence. How, in practice, will this work if a householder is charged with unlawful killing within the dwelling? Presumably, this legislation will provide a defence that supersedes the section 18 defence. We all hope there will not be many cases in which this Act will become relevant. The Minister has given an example of a householder who takes a stick to fend off a knife-wielding burglar but when discussing the technical issues of the use of this defence, usually the examples we would give are the examples of the householder who uses a gun to fend off a burglar with a knife or a stick and this is where the difficult questions of proportionality and judgement arise.

We have found in practice that juries are very reasonable and rational in applying tests that have this dual subjective-objective element and we are now well used to it as it is in the 1997 Act and it also arose in the Dwyer decision. Juries will have no difficulty in applying the test set out here in judging the difficult questions around the use of force and the level of force used in response to an attack.

We welcome the Bill and we accept, as does everyone, that legislation alone is not a solution to the difficulties surrounding burglary and the real fears of people but this is welcome legislation in that it clarifies existing legal provisions around the role of a householder who uses force in defence of his or her dwellinghouse.