CHECK AGAINST DELIVERY
A Cheann Comhairle,
I am very pleased to bring the Criminal Law (Defence and the Dwelling) Bill 2010 before this House.
The purpose of this Bill is to clarify and restate the law on the use of force in defence of people and property in the context of an attack by an intruder in the family home. The Bill is intended to ensure that the law is clear as to the rights of an occupier in the application of defence against a person entering the home with the intention of committing a crime. The Bill is also intended to strike the correct balance between the rights of the occupier and those of a trespasser.
I recognise and share the very understandable public concern that exists today with regard to attacks in the home. This kind of crime is intolerable. It strikes at the very heart of what most of us hold dear, that is, our homes and our loved ones. There have been a number of high profile and very serious cases involving intruders entering homes with criminal intent in recent years. Fatalities have occurred and subsequent public comment has indicated the need for people to be certain of the legal position and to be reassured that there are laws in place to protect them. This Bill addresses that need and is intended to allay any doubts on the issue which may be in people's minds. It is my intention to remove any ambiguity there may be in the law and to ensure that people are able to protect themselves, their property and others, in the home.
The law has always provided that people can use force to protect themselves, to protect others and to protect property. The statute law in this area is currently set out in the Non Fatal Offences Against the Person Act 1997. This Act sets out, among other matters, the rights of those who are required to exercise self defence in the face of an attack on themselves, others or on property. The Act permits the use of reasonable force in applying this kind of defence. The 1997 Act is concerned with attacks irrespective of where such attacks may occur. The Bill I am bringing before the house to day deals specifically with matters relating to attacks in the dwelling and on the curtilage of the dwelling. I think that we all realise the importance of the home as a place of refuge and safety. We are entitled to feel safe there and to have the freedom to defend that safety if it is under threat. The home dwelling represents a sanctuary to us all which is generally regarded as more important than any other. For the purposes of this Bill the dwelling includes not just the dwelling itself but also the curtilage as defined in Section 1. Deputies should note that the Bill being considered by the House today does not repeal the Act of 1997. That Act remains on the Statute Book.
It is also important not to lose sight of the fact that the law offers other significant bulwarks against burglars. Burglary is a criminal offence which carries serious penalties. The law in this area was updated by the Criminal Justice (Theft and Fraud Offences) Act 2001. Section 12 of that Act provides that -
A person is guilty of burglary if he or she—
(a) enters any building or part of a building as a trespasser and with intent to commit an arrestable offence, or
(b) having entered any building or part of a building as a trespasser, commits or attempts to commit any such offence therein.
A person guilty of burglary is liable to a fine or imprisonment for a term not exceeding 14 years or both.
Section 13 of the 2001 Act provides that
A person is guilty of aggravated burglary if he or she commits any burglary and at the time has with him or her any firearm or imitation firearm, any weapon of offence or any explosive.
A person convicted of aggravated burglary is liable to imprisonment for life.
More recently, the law in this area has been further strengthened. Section 26 of the Criminal Justice Act 2007 provides that a court may make a monitoring order for persons convicted of aggravated burglary. The court may also make a Protection Of Persons Order. Such an order prohibits the offender from engaging in any behaviour that would be likely to cause the victim of the offence fear, distress or alarm or would be likely to amount to intimidation of any such person. The same Act provides mandatory minimum sentences for repeat offenders. These are significant provisions and mark the determination, not just of this Government, but of all members of the Oireachtas, to penalise those who would prey on people in their homes and to protect those innocent victims of such an intrusive crime.
While the measures available to the Gardai and the courts for tackling this crime have been strengthened in recent years, it is right that we should review and renew the law governing those measures which householders can themselves take to protect their homes. The common law position on the question of resisting unwelcome intruders was set out in considerable detail by the Court of Criminal Appeal in a judgement issued in December 2006 in the case of DPP- v - Anthony Barnes (2006 IECCA 165 ) Among the points made by the Honourable Mr Justice Hardiman in that judgement was that the home of a person is more than bricks and mortar and a person is entitled to a very high degree of protection by the law. The Court noted that by virtue of Article 40.5 of the Constitution the dwelling house has a higher value legally and constitutionally than other forms of property. The Court also stated in its judgement that every burglary is an act of aggression and every burglar is an aggressor. Although it clearly stated that every burglar is not liable to be killed by the householder simply for being an aggressor, the Court made it clear that a householder may not kill with impunity any person whom he finds in his house. The Court of Criminal Appeal also held that force may be used to immobilise or detain a burglar to end the threat to the personal rights of the householder or family or guests. One of the effects of this judgement was to encapsulate elements of the so called "castle doctrine" into Irish Law. The origins of the doctrine can be traced back as far as the fourteenth century. It had been established at that time that a killing performed in defence of one's home or to repel a burglar was justified. However Deputies should note that in the Barnes decision it is explicitly stated that although an occupier may defend his home he does not have "a licence to kill."
The judgment in The People (AG) v Dwyer [1972] IR 416, is regarded as the seminal judgment in the matter of self defence in this jurisdiction although it does not relate to a case which occurred in the home it does have general application. the judgement stated: "A homicide is not unlawful..... in reasonable self defence of person or property......Full self defence permits such a degree of force up to and including the infliction of death as may be regarded as reasonably necessary.... the prosecution must establish that the accused knew he was using more force than was reasonably necessary."
I am not proposing in this Bill to introduce legislation which might be viewed as encouraging people to take the law into their own hands. However I do want to clear up any misunderstanding there may be among the public as to the law in this area and to ensure that people are aware that the law does not leave them helpless to defend themselves against aggression by a trespasser.
I believe that all sides of the House share a unity of purpose in relation to this matter. We are all equally aware of its importance. In addition to the caselaw there has been considerable public debate on the issues in recent years. The Law Reform Commission Report of 2009 has also contributed significantly to our understanding of the issues. This Bill now builds on all of that debate and learning to clarify the law.
The Bill diverges from the Law Reform Commission recommendations in some specific areas. The reason for this divergence is that the structure of the Law Reform Commission draft Bill, which dealt with Defences in Criminal Law generally, made it difficult to apply the relevant recommendations to a Bill dealing only with the dwelling and not dealing with general law on defences. To adopt a greater part of the recommendations of the Law Reform Commission would have required changing the entire law on defences. I do not propose to address such general issues in a Bill which deals specifically with the application of defence in the context of the home dwelling.
I would now like to turn to the main provisions of the Bill.
Section 1 is the standard provision containing the definitions of terms used in the Bill. I would draw Deputies attention to two particular definitions which are at the heart of this Bill. The first of which is curtilage. The Bill deals with defences which are applied in both the dwelling itself and on the curtilage of the dwelling. Article 40.5 of the Constitution provides that: the dwelling of every person is inviolable and shall not be forcibly entered save in accordance with law. Section 1 Subsection (2) of this Bill provides that every reference to the dwelling in the Bill includes a reference to the curtilage of the dwelling.
The curtilage is defined in the Bill as follows:
"curtilage in relation to the dwelling means an area immediately surrounding or adjacent to the dwelling and which is used in conjunction with the dwelling, other than any part of that area which is a public place."
Careful consideration was given by my Department and by the Office of the Attorney General to the drafting of this definition. I am advised by the Attorney General that the definition as drafted is appropriate. I believe it is important to get this right as it goes to the heart of the Bill, firstly because the curtilage and the dwelling are one and the same in this Bill and the dwelling does have specific constitutional protection. Secondly in light of the fact that the Bill provides, in Subsection (1), that it shall not be an offence for a person who is in their dwelling or a person who is a lawful occupant, to use force against another person in the particular circumstances outlined in this Section.
The definition of dwelling contained in the Bill is a comprehensive one. for the purposes of the Bill "dwelling" includes:
(a) a building or structure (whether temporary or not) which is constructed and adapted for use as a dwelling and is so used
(b) a vehicle or vessel (whether mobile or not) which is constructed or adapted for use as a dwelling and is being so used,
(c) a part of a dwelling.
The kernel of this Bill therefore, is the appropriate use of force by an occupier against an intruder entering the dwelling (which includes the curtilage) with criminal intent. These provisions are set out in Section 2. The essential component for the use of force, as set out in that Section, is that the occupier must believe that the intruder has entered the dwelling to commit a criminal act and the force used against the intruder must only be such as is reasonable in the circumstances the occupier believes them to be in order to protect himself or herself or others or property. It will be a matter for a court or a jury to decide whether the occupier's grounds for belief with regard to the amount of force used was honestly held. It is important to note however with regard to the grounds for belief the occupier may have, that Section 2 Subsection 4 provides the following:
"It is immaterial whether a belief is justified or not if it is honestly held but in considering whether the person using the force honestly held the belief, the court or jury, as the case may be, shall have regard to the presence or absence of reasonable grounds for so believing and all other relevant circumstances."
Furthermore Subsection (5) provides that:
"It is immaterial whether the person using the force had a safe and practicable opportunity to retreat from the dwelling before using the force concerned."
The absence of any requirement to retreat is a new and important feature of the Bill which I will discuss later.
Section 2 Subsection (2) makes it clear that the use of force is not permissible against a member of An Garda Síochána or a person assisting a member acting in the course of his or her duty or against a person lawfully performing a function authorised by or under any other enactment.
Section 2 Subsection 7 provides that the use of force shall not exclude the use of force causing death. This provision is an acknowledgement that a fatality could occur arising from the use of force by an occupier against an intruder as provided for in this Section of the Bill. The provision is not intended to be an encouragement to use force which will result in death. The test of reasonableness as set out in Section 2 (1) (b) applies in all cases. If an intruder to the dwelling who is intending to commit a crime is killed by the occupier, it remains a matter for a court and a jury to decide whether the force used against the deceased person was reasonable. The occupier will obviously have a judgement call to make when using force against an intruder as to the level of force required. Such an event in most cases is likely to occur in a situation of great tension and anxiety. As I have already said the force which may be used, is such as is reasonable in the circumstances the occupier believes them to be at the time of the attack. This will be the case whether the force results in the death of the intruder or not.
Subsection (8) provides that within the meaning of this Bill an act is criminal not withstanding the fact that the act may be one which, if the person was charged in respect of it would be acquitted on the grounds:
that he or she acted under duress
that his or her act was involuntary
that he or she was in a state of intoxication
that he or she was insane, so as not to be responsible according to the law for the act
or was a person to whom Section 52(1) of the Children Act 2001 applied.
That is to say that that the justifiable use of force provisions apply even if it turned out that one or more of the conditions above obtained in relation to the intruder.
Subsection 10 of Section 2 defines the term "intoxication" for the purposes of this section meaning being under the intoxicating influence of any alcoholic drink, drug solvent or any other substance or combination of substances.
Subsection 10 also defines "property" for the purposes of the Section which includes property of a tangible nature, whether real or personal including money.
Subsection (11) provides that for the avoidance of doubt, a reference in this Section to property includes a reference to a dwelling.
Section 3 provides that nothing in the Bill shall operate to require a person to retreat from his or her dwelling or require a lawful occupant in a dwelling to retreat from the dwelling. It is my belief that an occupier should never have to flee his or her home in the face of an intruder entering with the intention of committing a criminal act. I am strongly of the view that people should have the right to stand their ground in their own home. The provision in Section 3 also reflects a point made by the Court of Criminal Appeal in the Barnes case to which I have already referred. In that Judgement Judge Hardiman said it was inconsistent with the constitutional inviolability of the dwelling that a householder could be under a legal obligation to flee in the context of a burglary. The Non Fatal Offences Against the Person Act 1997 provides in Section 20 (4) that 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. I have decided in this Bill not to include a similar provision, for the reasons I have outlined. I should also point out that the Law Reform Commission in its 2009 Report on Defences in the Criminal Law recommended that a defender should not be required to retreat from an attack in their dwelling even if they could do so with complete safety. By omitting such a provision I believe we are making an important point with regard to the rights of an occupier faced with an intruder.
Section 4 of the Bill states that nothing shall operate to prejudice any defence recognised by law as a defence to a criminal charge.
Section 5 deals with civil liability and provides that a person who uses force as permitted by section 2, that is the justifiable use of force, in the circumstances referred to in that section, shall not be liable in tort in respect of any injury, loss or damage arising from the use of such force.
The Occupiers Liability Act 1995 provides that an occupier owes a duty to a trespasser not to injure the person or damage the property of a person intentionally. Under section 4 (3) of that Act where a person enters a premises for the purpose of committing an offence the occupier is not liable for a breach of duty under section 4 (1) (b) unless a court determines otherwise. There are also provisions in that Act for the occupier to use proportionate force in his or her self defence. My purpose in making this provision in Section 5 is to ensure that persons who use justifiable force, in the circumstances we are dealing with in this Bill will not be liable for civil actions by or on behalf of the intruder who has entered the dwelling intending to commit a criminal act
I have been advised by the Office of the Attorney General that the proposed provision in section 5 of this Bill will ensure that no liability will arise for the occupier who uses force against an intruder with criminal intent.
Section 6 of the Bill amends Section 18 of the Non-Fatal Offences Against the Person Act 1997. The reference in section 18(3)(a) of the 1997 Act to a person under 7 years of age requires amendment so that it now refers to section 52 (1) of the Children Act 2001 which deals with the age of criminal responsibility. The new provision has been redrafted to reflect the fact that a child under the specified age cannot be charged with an offence.
Section 7 is a standard provision concerning any expenses incurred by the Minister in the administration of the Act if passed by the Oireachtas. It provides that expenses sanctioned by the Minister for Finance will be paid out of monies provided by the Oireachtas.
Section 8 is a standard provision setting out the short title and when the provisions will come into operation. Subsection (2) sets out the commencement provisions. This is a standard provision and although it is the intention to commence the statute at the same time the provision allows for maximum flexibility.
While this Bill is relatively short it is an important Bill and deals with an issue which is of concern to us all. The protection of the home dwelling and the safety of those within it is a matter of paramount importance. The intention behind this Bill is to ensure clarity with regards to the rights of householders and other lawful occupants. Deputies will be aware that we already have, in this jurisdiction, relatively severe penalties for burglary for example a person found guilty on indictment of aggravated burglary is liable to a fine and to a sentence of life imprisonment. This Bill for the first time defines the curtilage of the dwelling along with the dwelling itself, in the context of the use of force against criminal intruders.
The Bill ensures that people are aware that they may stand their ground in the face of an attack in the home dwelling.
The Bill ensures that there will be no exposure to civil liability if an intruder is injured as a result of force being used against him or her.
The Bill acknowledges that the use of force in the circumstances envisaged in the Bill may result in the death of an intruder.
I believe it is essential that people are fully aware of the law in this area. This Bill provides that clarity and introduces some new elements to the existing legislation relating to the defence of persons and property. It's an important Bill.
I look forward to hearing the views of Deputies on its contents and I have no hesitation in commending the Bill to the House.