Wednesday, 28 February 2007
Defence of Life and Property Bill 2006: Second Stage
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.
I second the motion. I also welcome the Minister for Justice, Equality and Law Reform to the House. Together with Senator Morrissey, I support the Second Stage of the Defence of Life and Property Bill 2006 before the Seanad. The Bill would give full defence in criminal and civil law in cases where force is reasonably used to defend life and property against trespassing with criminal intent in people's homes and surrounding areas. The entitlement of a householder to use justified force shall not be judged by reference to any opportunity to retreat.
Concern over defence in the 1997 Act led to the introduction of this simple Bill. Currently, the law provides in section 25 of the Non-Fatal Offences against the Person Act 1997 consideration of whether the use of force was justified in criminal law. An opportunity for a person to retreat before using force would be taken into account, in conjunction with other relevant evidence, in determining whether the use of force was justified. This could mean that a person defending a family in their home could be found to have used force unjustifiably because an opportunity to retreat was not availed of. We believe this aspect of the law to be wrong and tilted in favour of wrongdoers in society.
At present, if a person's home were broken into and the burglar was knocked down by the occupant in a confrontation, whereupon the intruder hit his head on furniture and died, the occupant would be robbed of the legal defence of self-defence. Under the 1997 Act, not only would that occupant not have availed of an opportunity to retreat, that person would have pursued the burglar in defence of family and home. Is it right that the law of the land could imply that a person who went down the stairs to defend house and family against intruders could not rely on self-defence to justify his or her actions? It seems daft that a person could end up with a manslaughter charge if an intruder were unlucky enough to bang his or her head against a hard surface and die.
In this respect, the 1997 Act brought before the Oireachtas by the then Minister with responsibility for justice, former Deputy Nora Owen, was a step backwards for the rights of people defending their homes. We ask for support for our Bill before this House and hope our colleague, the Tánaiste and Minister, Deputy Michael McDowell, will accept the reforms outlined in this Bill.
I thank the Leader of the House, Senator O'Rourke, for discussions taking place on the Order of Business in this House in the past and offering Government time for Second Stage of this Bill.
A famous person once stated in Ennis: "As I was saying before I was rudely interrupted." Together with Senator Morrissey, I thank the members of our party for giving their time to discuss Second Stage of this Bill. I request that the Tánaiste take the contents of this Bill on board for future legislation.
I confess to being really surprised and even amused to see this Bill on the Order Paper. There is no reason a Progressive Democrats Senator should propose a Bill such as this when his party shot down a similar, if more carefully thought-out, Bill in the Dáil when it was presented by Fine Gael last year.
It strikes me as the purest form of hypocrisy to oppose a matter one day and propose it the next. I believe in conviction politics, but I also believe that the best time to change one's mind is when one is wrong. Has the Progressive Democrats Party changed its mind, has the Tánaiste decided that his party should support the rights of home owners to defend themselves in their homes and has he finally seen that Fine Gael was right when it proposed the Criminal Law (Home Defence) Bill 2006 in the other House?
Fine Gael has led the body politic in providing protection in this crucial area of law. As part of the rainbow Government, we passed the Non-Fatal Offences against the Person Act 1997, significant legislation that pulled together the various assault offences and provided citizens, the Garda Síochána, the Judiciary and legal practitioners with a single reference point for law in this regard.
Latterly, we sought to improve the legislation by tweaking a small part of it through the Criminal Law (Home Defence) Bill 2006 which aimed to clarify the law in respect of home owners and intruders. On 27 June 2006, the Bill was proposed in the Dáil by my colleague, Deputy Jim O'Keeffe, but the Fianna Fáil-Progressive Democrats Government voted the Bill down in an act of political cowardice. Since then, the Law Reform Commission published a report that agreed in principle with the main thrust of our Bill.
The most important difference between the Fine Gael Bill and this one is that the latter allows murder. It is a charter for murderers in that it would excuse a person murdering someone within his or her own home. It is dangerous legislation compared with the Fine Gael Bill which was voted down by the Progressive Democrats and which specifically excluded any defence for murder.
At the time, the Tánaiste tried to ridicule our Bill by suggesting that a gate-crasher at a party would have been subject to assault with lawful excuse. He could not have been more disingenuous in his comments, as the Bill referred specifically to "reasonable" force being used to remove someone. No court in the land would regard his suggestion as being reasonable.
Article 40.5 of the Constitution of Ireland states: "The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law." This article provides the constitutional basis for the Fine Gael Bill. Fine Gael wants to promote its strongly held opinion that the rights of the victim and not the criminal should be most protected by law. While we in Fine Gael do not promote the excessive use of violence, we believe that an innocent person who is intruded upon in his or her home, often in the dead of night, should not have the law weighted against him or her in the quest to prove that he or she acted reasonably.
Our change in the law would have vindicated the rights of ordinary people, such as the Tánaiste and I, who attempt to protect their homes and families in the face of knife or gun-wielding intruders intent on theft or injury to the occupants. Had the Bill been accepted by the Government, intruders might have thought twice before embarking on stealing sprees that can maim and destroy lives.
Further to what our party leader, Deputy Kenny, stated in his speech at our Ard-Fheis last year, Fine Gael wants to provide protection from civil liability to people who could potentially be sued by a burglar. A householder would have had no liability for an intruder who trips or injures himself or herself in that person's house, even if the intruder was injured by the defensive actions of the householder. This Bill has nothing to say on that subject. The Bill, which the Leader insists is a Private Members' Bill in the name of Senator Morrissey and not a Government Bill, gives no indication of where the Government stands on that issue. All we know is that it rejected Fine Gael's attempts to clarify the law and we can only assume it does not consider home defence a worthwhile issue.
Our Bill would have provided a full defence in criminal and civil law in cases where force is reasonably used by occupiers of dwellings to defend life or property against persons trespassing with criminal intent. While this Bill has the same thrust, it fails to deal with the broad spectrum of issues at hand. At this stage, a clear statement by the Tánaiste, who is present, would be helpful. Does he not accept that the Fine Gael Private Members' Bill is sensible and reasonable and had the potential to deal effectively with this issue of concern to householders?
The greatest problem with the Bill is that it allows for murder. Fine Gael is not in favour of murder or of allowing people to make use of an unsubstantiated excuse for it. We believe in home owners' rights to defend their homes. Therefore, we will support this Bill but will seek to amend it on Committee Stage to correct what are patent lacunae in its provisions. Proposing a Bill that is similar to, but not as carefully thought-out as, the Fine Gael Bill is a hypocritical exercise on the part of the Progressive Democrats. Members of the Progressive Democrats do not like what we proposed because we got in before them.
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——
——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.
If one excused all violence used on all trespassers in every circumstance, one would be saying that in the case of a child who came into a back garden to steal apples at whom a major stone could be thrown as a result of which he or she could have a broken neck or arm no liability would apply.
The Deputy did not propose changing the definition when it mattered. Senators should bear these kinds of situations in mind.
I will deal with the Government's intentions in this regard. Senator Cummins's was very interested to hear about them.
I intend in the next few days to put before the Government a Criminal Law (Defence of Life and Property) Bill. In that context, I intend to produce a six sectioned Bill which will deal with the issues that have been raised here.
I will tell the Senator that. The Government Bill will have extensive definitions of dwellings, curtilages, arrestable offences, harm, property and the like. It will also deal with the meaning of the use of force and will describe what is and is not a use of force and when a threat of force can be reasonable even though the actual use of force might not be. It will also deal with justifiable use of force for protections of personal property and for prevention of crime. It will set out grounds for defence and the scope of the legislation. It will set out, similar to Senator Morrissey's Bill, where the provisions of this Bill apply, although not in every circumstances as provided in the Fine Gael Bill. No civil liability shall apply to a person in respect of injury arising from his or her actions in relation to a trespasser whose has entered the dwelling or curtilage with criminal intent. Those are the provisions of the scheme on which the Government is currently working. I hope the Bill will be brought to Cabinet in the very near future and that it will be approved.
This leaves the question, what we will do with Senator Morrissey's Bill. Given that it is consonant with the Government's proposals, I am happy to say that the Government decided at its meeting the other day that it would not oppose it.
We waited long enough to have this debate and I am delighted that finally Senator Morrissey, with the support of at least some of his colleagues, decided to introduce this Bill to debate this matter.
People who are viewing this debate will not be fooled by this political charade that the Minister for Justice, Equality and Law Reform and his colleagues in Cabinet have been involved in for the past 18 months or so. They realise that the leader of my party, Deputy Kenny, raised this issue in the face of great opposition from the Minister and his colleagues in Government.
Yes, right, left and centre for daring to suggest that we should change the law on this area. He was attacked in the Dáil when he brought forward his Private Members' Bill. The Government, having voted it down for the most spurious reasons, when it could have tabled amendments to change the definitions on Committee Stage, has now, I suspect, with the guiding hand of the Tánaiste and Minister for Justice, Equality and Law Reform and some of his officials helped Senator Morrissey to produce this Bill last year.
I congratulate Senators Morrissey and Brennan on their excellent reading of their speeches into the record. I would like to send them to my five year old to teach her how diction should be properly formed and words should be announced. It was excellent stuff; they should keep it up.
People outside this House will realise what has gone on. They will realise it is a sham. The Government had an opportunity some time ago to do something about this, to move forward with the Fine Gael Bill and right the wrong in a considered and measured way but it failed to do that.
I wish to record the scurrilous and totally unfounded view that Senator Morrissey read into the record in respect of the 1997 legislation brought forward by myself and my colleagues. It is interesting to note that when the 1997 legislation was introduced none of the arguments put forward by the Senators opposite were put forward at that stage.
The Tánaiste and Minister for Justice, Equality and Law Reform, who I believe was a Deputy at that time in 1997, did not bring forward amending legislation or identify the great deficiencies we are now led to believe characterised the 1997 legislation. If one speaks to any practising lawyer in this town, he or she will tell one that the great advantage of the 1997 legislation, particularly in respect of assault and battery, was that it brought about a clear understanding of what the penalties were. Up to that point we were simply winging it on case law. In fairness to the then Minister for Justice, Nora Owen, she codified the law; she made it clear what the penalties were in respect of assault and battery, something which has not been done previously.
If we had more co-operation from them at that stage they could have even improved it.
Having effectively binned Senator Morrissey's legislation the Minister said that the Government, some 12 months later, will bring forward its legislation on this area. Any fair-minded person will see the constant flip-flopping of the Minister on this issue. They will acknowledge, beyond doubt, the responsible position taken by my party in the other House in respect of our Bill and that the careful consideration given to that initiative at that stage will result in some measure of legal change. We welcome that. The Law Reform Commission's report states beyond doubt that this is an area in respect of which the law must be changed and that it needs to be changed by the introduction of legislation, which we attempted to introduce last year. As I said at that time, there was no reason for the then Government not to accept that Bill on Second Stage, proceed to Committee Stage and make amendments thereto.
Exactly, it was political cowardice. It was found out not only on this but on many other issues. We need to think long and hard in terms of the rebalancing the position. We want to make it clear that where an intruder trespasses on an individual's property, absolute rights are given to the property owner in respect of what he or she can do. Those rights are well subscribed to in the Constitution. The notion that people automatically have to withdraw from that situation is one that most people would not countenance.
We need to examine the issue of curtilage which is covered in Senator Morrissey's Bill. Having encountered an intruder who is attempting to rob an individual's home, do we want to encourage that individual to run the intruder out of his or her house and down the street? This is an issue that merits debate.
Senator Morrissey dealt with the question of a licence to kill, to which the Minister also referred. We must get the rebalancing of this issue right. There is an opportunity to do that in this House. We have no difficulty in letting Senator Morrissey's Bill go forward to Committee Stage, something with which the Government seems to have a difficulty.
On a point of order, the Minister has no standing in this House. He cannot make a point of order here. The only people who can make points of order are the 60 Senators of Seanad Éireann. The Minister cannot make a point of order; he has absolutely no standing here. He is here at our invitation. He has no rights to make points of order, good bad or indifferent. I am surprised he does not know that.
Let us do it tomorrow morning. What about the Minister's Bill? What will happen to that?
People looking at this will see that the Government has once again been caught out on an issue our party first raised. The people know where the truth lies in this case and they know all the about-turns for which the Minister and his colleagues are famous. This is just another one of them and we will be happy to articulate that to the people in the next 12 weeks.
I welcome the Minister to the House. I am glad to be in the back row because I am missing all the bullets here.
I compliment Senator Morrissey on bringing this Bill forward and for the thought, effort and energy he has put into it. The purpose of the Bill is to amend civil and criminal law to allow for the use of justifiable force in the face of an intruder who enters a person's home with criminal intent, without having to show whether he or she took the opportunity to retreat in the face of that intruder. It is a very sensitive and emotional issue, but most of us are of the view that the balance must be struck in favour of the house owner. Equally, we must be careful to ensure the laws we enact are proportionate.
Burglaries are a feature of all states and we are no different to that. Burglaries in Ireland have increased dramatically over the years. We are told that there is now an average of 3.5 burglaries per hour in Ireland and a property is robbed every 15 minutes. Each year, 30,000 burglaries occur, of which 21,000 occur in ordinary households.
People have been murdered while asleep in their homes and children have been terrified, with traumatic psychological consequences. That emphasises the seriousness of the situation and is the reason we need to develop our legislation to protect those people. I compliment Senator Morrissey for doing that.
Almost 60 home owners will be burgled every day. Most of us know people who have experienced the trauma of having to deal with the burglary of their homes. Between 2004 and 2005, approximately €59 million was stolen from people's homes, which is something we need to deal with. When the influential Law Reform Commission deliberated on the issue, it also shifted the balance in favour of the citizen. It stated that someone defending his or her home should no longer be expected to retreat in the face of attack. The law-abiding members of the public, who find themselves in these terrifying situations through no fault of their own deserve whatever we legislators can provide to protect them in their time of need.
I know this is an emotional statement, but I find it difficult to consider giving any rights to an individual who breaks into a person's home, terrifies the person's family and expects the law of the land to allow him the same rights as the people he is terrifying. I know that the Minister must protect all citizens equally in law, but it is hard to take when we must legislate for individuals such as this.
Before I came to the House, a colleague of mine was talking to me about a relation of his whose business was robbed. He caught up with the guy who robbed it, who told him to do his best. He said that he may go to jail, but that he would be out in six months and he would deal with my colleague's relation. We do not want a battlefield scenario in which tit for tat actions occur. We must always be mindful of how we legislate in this respect.
I am concerned about old and vulnerable people in isolated areas. The stress and fear of hearing someone enter the home must be something to behold. The sense of isolation and fear must be unbelievable. These vulnerable individuals could easily die of a heart attack without the intruder ever laying a hand on them. If someone rushes to confront an intruder who then fell, hit his head and died, that person could be convicted of murder under the current legislation. That is outrageous.
There was a time when if I heard someone in my house, I would go downstairs to confront the individual with or without a weapon, but not anymore. Nowadays, we are dealing with a different type of intruder, one who is filled with drugs and who has long since forgotten the idea of fear. He could carry a knife or some other weapon and he might think nothing of hitting or killing the occupier. I would do what the Garda Síochána suggests we should do, which is take the family into one room and make as much noise and turn on as many lights as possible so that the intruder or intruders might be frightened. However, I am not sure if intruders on drugs would be frightened and take flight.
The underlying element to all this is the drugs problem. Without doubt, they are a major contributor to the number of robberies that take place. It is a debate for another forum, but it impacts on much of the legislation that comes through the House. I read in a newspaper last week that two out of five youngsters between the ages of 12 and 15 had experienced or dabbled in drugs of one kind or another. We see what we are up against.
The Garda Síochána has a major role to play in this. It is an important feature of good policing to have a garda in the community. The reserve force will play a major part in stepping into the breach. From my 16 years' experience on Dublin City Council, the community garda was a person with whom members of the community could always deal. He was the person people could go to with their problems. Community gardaí were very important for those areas in which they worked. The unfortunate thing is that they were never left long enough in the role. They either did not like their job or they got promoted and moved along as there was no real promotion within the community garda structure. The Minister mentioned that he was looking at the idea of giving status within the force to community garda. If community gardaí can be retained in a place where they can develop real relationships with communities and the organisations within them, we can kill off the potential for the existence of individuals that find their way into people's homes.
I compliment Senator Morrissey on bringing this Bill before the House. I support anything that endeavours to protect vulnerable people in society. If this is the way forward, I welcome that.
I support the tenor of the Bill and compliment Senators Morrissey and Brennan on presenting it to the House. We are fortunate that a number of Private Members' Bills have come before the House in recent times. This is a tribute to Members and the work they put into preparing Bills on matters of import.
I was watching the debate on the monitor and noticed how Opposition Members were getting exercised about what goes on in the other House. The work that goes on in the Dáil should stay there and should not be debated here. There is no need for that. What we do stands on its merits. In general, courtesy is shown to us and I have not heard any great criticism in the lower House of what goes on here.
The Bill is important for many reasons. Senator Morrissey outlined the high profile case which underlines many aspects of it and alluded to the sad consequences for all parties involved in that case, which was a tragedy for those involved, for the area and for the family that lost a father. It is important that the law recognises the right of people to take reasonable and proportionate defensive measures for themselves and their families. However, if people overreact, they must be held to account. Among a small section of the community there is total disregard for the rights of other people, their property, their lives and safety. When I was growing up it was traditionally held that a man's home was his castle and that if anybody trespassed with malicious intent or hit somebody on his own property, it was far more serious than if it happened in public areas. There is much common sense to that approach. As a consequence, I welcome much that is in the Bill.
The Minister said the Government intends bringing forward more comprehensive legislation that will embrace these issues and he should be complimented on that. It is easy for the Opposition to be critical when it does not have to deliver anything other than criticism. Opposition Members are like hurlers on the ditch and their comments are generally retrospective. The benefit of hindsight is great.
Senator Kett alluded to and complimented Senator Morrissey on a particular aspect of the Bill, namely, that its provisions would also be taken into account in civil cases. This is relevant considering how litigious society has become. For example, in a case in the United States, an intruder getting through a skylight injured himself and subsequently brought a multi-million dollar claim against the owners of the property for compensation. This is a ludicrous situation. If a person perpetrates a crime on others, he or she must accept the consequences may be severe. The law should not be on the side of the perpetrator in civil cases no more than it should be in a criminal case.
I am sure that all sides of the House subscribe to the sentiments expressed in the Bill. The message must be made clear that people have rights. Prudence will dictate that people do not overreact. People realise that where a criminal element is involved an overreaction could have severe consequences. Reaction must be proportionate. The legislation must include provision that where a crime has been committed and the criminal subsequently finds himself before the courts, the victim's rights will be taken into account.
I compliment Senators Morrissey and Brennan on the Bill. It is a milestone for the Seanad to have a Bill that will not be opposed in the House.
I welcome the Minister to the House and the opportunity to say a few words on the legislation. I am glad this discussion is taking place some months after a case that was a major media event. I compliment Senators Morrissey and Brennan on bringing forward the Bill. It is useful to have debate on the issue. Having looked at the proposed Government Bill, I prefer the definitions in it on first reading. However, the issue now is the need to debate the subject and come to a conclusion on it.
Speaking as somebody who has been burgled on many occasions, I always felt clear about what the law was. I believed that in defence of myself or my family, I would be entitled to use appropriate or enough force. Without going into the details of the recent highlighted case, I think the court saw it as, perhaps, two assaults and that this is what led to some confusion about the issue. In terms of rights, people have a right to defend themselves and their property.
I was at a meeting and did not hear the presentation on this Bill, but I think the definition in the Bill providing "that the act or acts alleged took place in or in the curtilage of a dwelling" is very loose. I agree we must have the definition, but it is not the defence I would want. The defence outlined in the meaning of the use of force in the proposed heads of Bill is closer to what I would like in terms of getting the balance between rights, the right to life and the right to protection of property.
People have an absolute right to protect themselves and their families. They also have a right to protect their property using appropriate and reasonable force. We need to get away from the extremes of both points of view. Some people say if somebody comes towards them, they will shoot, while other people feel no force at all should be used. In terms of the debate on the issue, people should be reassured that under the current legislation they are not proscribed from defending themselves. Rather, it may be that the burden of proof needs to be lessened. This is what I believe the Minister is trying to do in the proposed heads of Bill he has circulated. I would welcome that and believe it will assure people.
Having been burgled, even while in my house, and having discussed the issue with legal people afterwards, I am aware of the view that a person can use appropriate force to repel somebody from entering his house, on the basis of defence of home and homestead. Similarly, in rural Ireland where every house once had a shotgun, the rural hob lawyer held that if a person shot someone facing him, there was a possibility of mounting a defence, but if one shot someone in the back or when he or she was running away, a defence would not be so possible. These are the kind of guidelines we grew up with and people understood they could appropriately repel somebody making a forcible entry into their property and that they could use the defence that they were being attacked and felt their life was at risk. The phrase in the Minister's proposed heads of Bill, that the person "threatens violence", which while probably hard to prove, gives an example of what is involved here.
The defence is being in fear of one's life. In the high profile case mentioned, my view is that it was the fact the person was completely terrorised by what might happen to him that drove him to take a life. I will not go into the rights and wrongs of that situation. No doubt the psychological state of that person at that time must be understood, and anybody who has ever experienced a sense of violation — in my own case, even just minor burglaries — would understand that it is significant.
Sometimes people living on their own who go through such ordeals do not recover. Recently I was in a nursing home where somebody told me the reason she was there was that she had been burgled and could not sleep easy in her home. I listened on the radio during the week to another person in her late 70s on a related topic and she had moved from the house in which she had lived all her life into a nearby town out of fear of being on her own because she had been burgled. The Minister can see what we are getting at here. We must give people reassurance.
The Bill is timely and useful. The defence of life or property is what the Bill sets out to do, and I support that. People should be entitled to take whatever measures are necessary. The way that is being done in the Minister's proposal is a cleaner and more acceptable one, and to that extent, the people would want to know that we are dealing with this issue in a way that balances all the rights of people.
I have raised this question with civil liberties groups. I have asked them to articulate clearly what they believe is the law and what it should be, and what are the rights. Although people can huff and puff, when it comes down to it there are not that many differences when they speak of what they want to do and it is a matter of finding the means. The Bill is the start of the process and perhaps the Minister's proposal is the finish of it. I welcome the discussion and welcome the opportunity to speak to it. I wish the Government well in bringing forward its proposals.
I also welcome the Bill and I thank my colleagues, Senators Morrissey and Brennan, for bringing it forward and giving us the opportunity to speak on it. I understand it was published prior to the much vaunted Fine Gael Bill, which we heard about earlier.
Fine Gael might be talking about it, but they did not produce anything. Senator Cummins' arguments were fine, but I was concerned at the rather childish behaviour of another Senator on his party's benches, particularly where the views of people who have spent time and effort in compiling and bringing forward a Bill were derided, laughed at and compared to those of his five year old son. We do not go on like that here and I found that quite demeaning.
This is an issue, whether we like it or not, that is in every householder's mind throughout this country. I live alone and reading it has frightened the wits out of me. There is a strong case to be made for many of the points which are in the Bill, and I read the Minister's speech carefully too. It is clear that this is part of an ongoing debate on defence of one's property and of one's body and rights. In that debate, this Bill is playing a useful role.
I note the Minister stated that when he debated the Fine Gael Bill in the other House, he found parts of it proper and right and would seek to implement them at some future date in a Bill of his own. That was interesting and accommodating of him. I note that he pointed up, in particular, the areas where he found that Bill wanting, as I am sure some of the areas of this one may well be wanting, or perhaps scant, in consideration. This Bill is part of that body of work which has been built up on this important topic.
I found myself very torn on the case of the man in the west which got significant coverage some months ago. Of course one felt sorry for the man who was absolutely petrified at what was happening to him, but one does not follow a person down a lane and shoot in the back. I would take grave exception to that, which is a consequence of what happened.
This is a good Bill. This is a good Seanad in which there have been many Private Members' Bills brought forward and accepted. We are meant to be a scrutinising, reviewing and an innovative Chamber, and this is innovation on the part of Members who decided to do something about a relevant issue which is dominant in most people's minds. It is completely unnecessary to deride anyone in this Chamber for having the intelligence to bring forward a Bill. I am happy my colleagues have brought forward the Bill and that the Government has seen fit to give it due consideration. No doubt many of the points in it will make their way into a more comprehensive Bill which the Minister will bring forward in due course.
Burglaries, break-ins and ravages are not new crimes. I would imagine they are as old as time, but the wish to defend one's property and be in command of where one lives, what one owns and where one spends one's time is also as old as time, and is a primitive urge. That people feel like that should be welcomed.
While we are in favour of and welcome the Bill, I do not know what will be the next move with it. I am glad to be part of a Government team in this House which has brought the Bill forward. I hope the Minister will follow up on his faith in it and that his faith will find evidence in the provisions of the Bill he brings forwards.
——that greeted this initiative which I found difficult to reconcile with the dignity of this House. There is no such thing as political patents on good ideas. Good ideas, even when put forward first by a particular politician or party, do not belong exclusively then to that person or party. If they are good ideas they will gather support from many different sources and of course if they are bad ones, they will be abandoned even by the people who put them forward.
It is a good principle that Members of this House, both on the Government and Opposition side, are free to put forward legislative proposals. It is important to protect that principle and people should not be derided for so doing even if, as in this case, the person putting the Bill forward is a member of the same party as the Tánaiste and Minister for Justice, Equality and Law Reform.
The background to this matter was the tragic Nally affair. People living alone, especially in the countryside, are or may feel particularly vulnerable. The affair had all the ingredients — a farmer, living in isolation, land, a member of the Traveller community. That there may have been unreasonable provocation and intimidation does not justify overreaction, but this legislation and the Minister's draft heads of a Bill illustrate how extraordinarily difficult it is to cover all the possible circumstances in an area of this kind where there are unlikely to be outside witnesses or third parties. They also demonstrate how difficult it is, even when the law is settled, for judges to arrive at the right, balanced conclusion on the circumstances.
I am glad the Minister said in his response that juries are given the option of rejecting a plea of legitimate defence where they are satisfied it was unreasonable not to retreat. This might not apply in all circumstances but, as the Minister said, it preserves the principle of conflict avoidance in circumstances where that is possible. Much though we may admire those who take defence into their own hands, be it in the home or during a bank raid, it is better to avoid conflict in most cases, if possible. We should not give any impression otherwise.
I accept the point that it is justified for people to engage in self-defence. How many people do we know who secretly keep a poker behind their bedroom or kitchen doors or, in certain circumstances, a shotgun? If one brings down a poker on the head of an intruder, one does not intend to kill him, but there is a slight risk that it will be the effect. Intruders should be perfectly clear that they are not entering a harm-free zone and they may get injured, or worse. Perhaps they should contemplate this before they intrude in the first place. The law should not be over-protective of intruders although it must reprove any excessive or gratuitous use of force.
This issue requires more detailed legislation, such as the legislation the Minister is proposing. I appreciate that we are not discussing primarily the heads of the Minister's Bill but I will refer to one point. Under head four, there is no defence if the person in question knows the force is used against a member of An Garda Síochána acting in the course of his or her duty, or a person assisting such a member. This should apply to all public officials. In this regard, one should bear in mind the slightly comic example of the advertisements showing a television licence inspector appearing in a person's yard. Is the inspector not entitled to protection also?
Circumstances involving certain public officials, such as agricultural inspectors, entering one's land can be emotionally fraught and therefore legislation should be very clear as to when public officials may enter property legitimately. While welcoming Senator Morrissey's initiative, I take the Minister's central point that very detailed and carefully drafted legislation is required. Even then, much discretion will have to be exercised by judges, who will have to make fine judgments on the circumstances of particular cases.
I very much welcome this discussion because it is important to everyone.
I thank the Minister for attending for the duration of this debate. I mentioned to Senator Cummins that we were both Munster people and that we would try to keep the ball on the ground during the debate. I did not believe, however, that Fine Gael would pull on the man because it could not get to the ball. I regret that some Fine Gael Senators have tried to do so tonight.
I welcome the comments of all the Senators and the support of the Fianna Fáil Senators, particularly Senator Mansergh, who said good ideas cannot be patented by any one party. One's disclosure of good ideas does not give others the right to get prickly, as Senator Brian Hayes has sought to do.
I agree there is much more to be considered in respect of the Bill. Senator Cummins asked what the Government is doing about the matter but I am sure he was surprised that the Minister, when summing up, showed us the heads of his proposed Bill.
It provides no protection in the case of manslaughter. In the course of this debate we have seen that there are cases where the curtilage of a person's house should be taken into account. The Law Reform Commission's report made a strong case for this and highlighted a pointed difference between self-defence in general and self-defence by a person on his own property.
Consider the split-second decisions people make during an intrusion. If an intruder entered one's house and there were an altercation resulting in his death, although one did not intend to kill him, the fact that the intruder was on one's property with criminal intent should entitle one to invoke some law in one's defence. This is what we are trying to do. If one sees somebody outside one's front door breaking into one's car, for example, one should be entitled to use some form of self-defence.
Senator Mansergh stated that an intruder should not interpret the property of others as a harm-free zone.
This Bill was introduced some 12 months ago. I am delighted we are now on Second Stage and that it can proceed to Committee Stage with the agreement of the House, as indicated by the Opposition. I am equally pleased the Minister has proposed a Bill to address the defence of life and property, which Bill has Government support and will be published in the coming weeks. We will take it from there on Committee Stage in terms of taking the better part of both Bills for our discussions. The original intention behind the introduction of this Bill was to tilt the law in favour of the home owner and address the discrepancies in the law as it stands.
The Bill also has regard for the inviolable nature of the home and one's property. We are all aware this is a problem for urban as well as rural Ireland. When this Bill is eventually passed, people living in isolated communities will have a better defence than they currently do if intruders come onto their property. However, we are not saying one can beat the daylights out of somebody, which the Fine Gael Bill would allow.