Criminal Law (Defence and the Dwelling) Bill 2010 Alan Shatter TD - Minister for Justice, Equality and Defence - Second Stage Speech (Seanad)

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Thursday 8 December 2011

A Chathaoirligh,

The Criminal Law (Defence and the Dwelling) Bill 2010 aims to bring clarity to the law on the use of force in defence of the dwelling.  It reflects the special status of the home in our common law tradition and in the Constitution and strikes the correct balance between the rights of the occupier and those of an intruder.

Law on Burglary
I am sure that every member of this House deplores the actions of criminals who prey on householders, particularly the elderly and those in isolated areas.  This Bill is a response to the harsh reality of crime and in particular the crime of burglary.  It addresses those situations where a person in his or her home has, in an emergency, to use force themselves.  It is important to note that this Bill is not the only response to burglary as our laws have many relevant provisions addressing such crimes.  It is a criminal offence which carries heavy penalties.   A person guilty of burglary is liable to a fine or imprisonment for a term not exceeding 14 years or both.  Aggravated burglary carries a possible life sentence.

The law has also been reinforced by the Criminal Justice Act 2007 which provides that a court may make a Monitoring Order for persons convicted of aggravated burglary. Courts may also make a Protection Of Persons Order prohibiting 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.

Crime Prevention
The first recourse of any householder faced with a burglary should be, where circumstances permit, to the Garda Síochána.  They are best placed to deal with violent offenders and to investigate and assist in the prosecution of offences.  Better than any investigation or prosecution is, of course, the prevention of crime.  The Garda Commissioner informs me that a new Burglary Crime Prevention and Reduction Strategy is at an advanced stage of development. It will focus on

1. Promotion, and delivery, of burglary prevention advice to the community
2. Identification, and targeting, of hotspots and other areas prone to, or likely to, suffer incidents of burglary
3. Identification, and targeting, of burglary offenders, in particular prolific burglary offenders.

The Garda Supporting Safer Community Campaign launched in September focused on burglary prevention and reduction and a targeted Garda response to burglary with regard to locations, times, offenders and victims.
Basis of Bill
People should feel safe in their homes.  No one can disagree with that proposition.  Our home is where we raise our children.  It is where we spend time in the intimate company of family and friends.  It is where we return at the end of the day to rest.  It is where we live our private lives in peace, and it is our shelter from the world.  An intrusion into the home is an intrusion into that shelter, that private life, that haven for the family.  It is an attack on our peace of mind that can destroy a person’s sense of personal security and cause disturbance for many years after it has occurred.  That is why the law has always seen an intrusion into the home as a particularly egregious offence.  This is borne out by the judgment of Mr Justice Hardiman in the Court of Criminal Appeal in the leading case on these matters in recent years, DPP v Barnes.  Judge Hardiman noted

‘…the special protection afforded to the dwellinghouse dates back to time immemorial. It has been expressed in various ways, none perhaps so well known, even outside legal circles as that in Semaynes case (1604) 5 Co. Rep. 91a:
"That the house of everyone is to him as his castle and fortress, as well for his defence against injury and violence as for his repose…".

This is the origin of the "castle doctrine" prominent especially in U.S. law.

The special status of a dwellinghouse has always been linked to the dignity of its occupants, as in the following quotation from Meads and Belts case (1828) York Summer assizes:

"… the making of an attack upon the dwelling, and especially at night, the law requires as equivalent to an assault on a man’s person; for a man’s house is his castle, and therefore, in the eye of the law, it is equivalent to an assault…".

Those citations, together with the others, both leading and deriving from the constitutional status of the dwellinghouse, are what lead us to conclude that the breaking into of a person’s house by a trespasser with intent to steal or commit any other form of crime is indeed, in and of itself, an act of aggression.’

The constitutional provision referred to in that judgment is of course Article 40.5 which states -
"The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law".

Any discussion of defence of the dwelling, therefore, connotes, to a greater or lesser extent, defence of the person.

The common 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 mainly embodied in the Non Fatal Offences Against the Person Act 1997. Amongst other matters, the 1997 Act addresses the rights of those who are required to use force in defence against an attack on themselves, others or on property. The Act (in a reflection of the common law tradition) permits the use of reasonable force in defence against attack. The 1997 Act is concerned with attacks irrespective of where such attacks may occur. The Bill before the house today is concerned with attacks in the dwelling and on the curtilage of the dwelling. It does not repeal the 1997 Act, rather it complements it and provides for some technical amendments to it.

The Law Reform Commission Report of 2009 was a most helpful contribution to the considerable public discourse on this issue in recent years.  This Bill now builds on all of that tradition and debate to clarify the law in an approach which I believe that all sides of the House can support.

While respecting the basic principles of legitimate defence identified in the Law Reform Commission report, the Bill is structured in a different way than that suggested by the Commission. The structure of the Commission’s suggested 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. The Commission’s approach anticipated a wider codification of the criminal law and as that wider issue is still under consideration it would be inappropriate to adopt such an approach in this Bill.

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. Senators should note the definitions of "dwelling" and "curtilage" in subsection 1 and that subsection (2) provides that every reference to the dwelling in the Bill  includes a reference to the curtilage of the dwelling.

"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."

The Bill provides, in Section 2, 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.

Section 2 focuses on the use of force by an occupier against an intruder entering the dwelling with criminal intent. 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. The occupier may be mistaken as to the circumstances, but if their belief is honestly held, they will enjoy the protection of the Bill.  It will be a matter for a court or a jury to decide whether the occupier's belief was honestly held, as Subsection 4 provides:

"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."

Once the circumstances (as honestly believed by the occupier) are established, the force used in response to those circumstances must be reasonable.  The force must, therefore, be objectively justified.  Simply put, the circumstances are largely a matter for the subjective judgment of the occupier, the force used in response to those circumstances is a matter for the objective judgment of a jury.

Section 2 Subsection (5) clarifies 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."
Section 2 Subsection 7 provides that the use of force shall not exclude the use of force causing death. This is a carefully thought out provision.  It does not stand alone.  It is in no way an encouragement or licence for unwarranted violence as it is subject to the reasonable force provisions of subsection (1). It acknowledges the reality that a householder’s aim should be to protect his home and family and that he is authorised to use reasonable force to do so.  Reasonable force, as we know, is that which is necessary and proportionate in the circumstances to that task of protection.  What if a householder takes a stick to fend off a knife wielding burglar?  And what if, in the course of doing so, he injures the attacker who subsequently dies?  The householder has not set out to cause death, but the force he has used was necessary and proportionate to the threat of stabbing.  I do not think anyone in this House would see the householder’s action as unreasonable in the circumstances.  Of direct relevance to this provision in the Bill is the right to life embodied in the Constitution.  It states at Article 40.3.1 ,

"The State guarantees by its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen."
And at 40.3.2 it states

 "The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name and property rights of every citizen".

Having considered these provisions in his judgment in the Barnes case, Judge Hardiman stated,

"It seems an elementary proposition, in the light of such provisions, that a person cannot lawfully lose his life simply because he trespasses in the dwellinghouse of another with intent to steal. In as much as the State itself will not exact the forfeiture of his life for doing so, it is ridiculous to suggest that a private citizen, however outraged, may deliberately kill him simply for being a burglar.

But this is by no means the end of the matter."

Further on he stated –

"The offence of burglary committed in a dwellinghouse is in every instance an act of aggression, an attack on the personal rights of the citizen as well as a public crime and is a violation of him or her."

The right to life of the intruder therefore needs to be balanced with the right of a householder to an inviolable dwelling and an inviolable person.  This Bill strikes that balance carefully in a manner that reflects the tests outlined by our Courts over the years.

When this Bill was debated in the Dáil, concern was expressed that subsection 7 in some way authorised the use of lethal force in the defence of mere property as section 2 subsection  (1) (b) (ii) lists the protection of property as one of the purposes for which force can be used.  It is very important when reading a Bill such as this to see it in its entirety.  The use of force authorised by this Bill, whether resulting in death or not, must always be in accordance with section 2 (1) (b) which requires that the "force used is only such as is reasonable in the circumstances."  The force referred to in this Bill is always in the context of a person in a dwelling.   The reference to protection of property, therefore must always be viewed in the context of the dwelling and subject to the reasonableness requirement.  If I may quote yet again from the judgment in the Barnes case -

"Though a dwellinghouse is property and often indeed the most valuable piece of property an individual citizen possesses, it would be quite wrong to equate it with other forms of property such as money or moneys worth or other pieces of personal property. Though these may have a sentimental as well as a cash value, and may in certain circumstances be important or even essential for the individual who owns them, a dwellinghouse is a higher level, legally and constitutionally, than other forms of property. The free and secure occupation of it is a value very deeply embedded in human kind and this free and secure occupation of a dwellinghouse, apart from being a physical necessity, is a necessity for the human dignity and development of the individual and the family."

Also of concern are the provisions of the ECHR, in particular Article 2 of the Convention which states in paragraph 2 -

"…Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:
a. in defence of any person from unlawful violence; …."

The Attorney General’s Office was asked for specific advice on the compatibility of the Bill with Article 2 in light of concerns raised during the second stage debate in the Dáil.  I am advised that the Bill is compatible with the convention.  It is clear from the Irish jurisprudence and the Law Reform Commission report that the test of reasonableness incorporates the concepts of necessity, imminence and proportionality.  It is also clear from the caselaw of the European Court of Human Rights, for example in the Giuliani case, that domestic legislation is not required to use language identical to that of the convention, rather what is important is how domestic legislation is interpreted and applied by national courts so as to give effect to the principles of the Convention.

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 various grounds set out in the subsection.

Subsections (10) and (11) provide for some technical definitions and clarifications necessary to the operation of the Bill.

Although the wisest course of action in some circumstances might be to retreat from the 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.

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.

Section 6 of the Bill amends Section 18 of the Non-Fatal Offences Against the Person Act 1997 to reflect changes in law on the age of criminal responsibility.

Section 7 is a standard provision concerning expenses.

Section 8 is a standard provision dealing with the short title and commencement provisions.

In conclusion, A Chathaoirligh, this Bill is concerned with some of our most fundamental rights, the right to life and the right to peaceful occupation of our homes.  The Bill clarifies rights of householders and makes it clear that unlawful intruders can rightly expect to face reasonable defensive force.

The Bill acknowledges the special position of the dwelling in our Constitution and in our traditional understanding of the common law.  It accommodates a version of the castle doctrine that has due cognisance of the constitutionally protected right to life.

The Bill acknowledges practical realities by extending protection for householders to the curtilage of the dwelling.

It makes it very clear that a householder is under no obligation to retreat from an attacker.  It ensures that there will be no exposure to civil liability if an intruder is injured as a result of the use of reasonable defensive force.

This Bill recognises the realities faced by a householder who may have to take immediate action to defend his or her home against violent attack and provides for a commonsense system to judge those actions in a manner that respects the rights of all concerned.

I commend the Bill to the House and I look forward to hearing the views of all Senators on it.