Criminal Law 2010

Speech in Dail on Criminal Law (Defence of the Dwelling) Bill 2010 by Dan Neville TD 21st October 2010

I welcome the introduction of this Bill. Fine Gael has been asking for a Bill for four years that would address the situation whereby people were unsure how to defend themselves, their families and their property. Myths were growing up that the burglar was all powerful once he came in and no defence was possible without a high risk to the property owner. It was perhaps a myth but the situation arose where those who defended themselves found themselves in difficulty with the law.

This Bill provides protection for people and gives them the opportunity to defend themselves, their families and their property in the event of burglary or tiger kidnapping. These area frightening situations for those working in banks and they should be allowed to defend themselves in such situations. The Bill must address this because people should feel safe in their homes. They feel at present that they must withdraw if there is an intruder and it is important that we send a message to those who would intrude that the freedom to go about their dastardly deeds will be confronted.

I have personal experience in my community of the robbery and beating up of old people

I welcome the introduction of this Bill. Fine Gael has been asking for a Bill for four years that would address the situation whereby people were unsure how to defend themselves, their families and their property. Myths were growing up that the burglar was all powerful once he came in and no defence was possible without a high risk to the property owner. It was perhaps a myth but the situation arose where those who defended themselves found themselves in difficulty with the law.

This Bill provides protection for people and gives them the opportunity to defend themselves, their families and their property in the event of burglary or tiger kidnapping. These area frightening situations for those working in banks and they should be allowed to defend themselves in such situations. The Bill must address this because people should feel safe in their homes. They feel at present that they must withdraw if there is an intruder and it is important that we send a message to those who would intrude that the freedom to go about their dastardly deeds will be confronted.

I have personal experience in my community of the robbery and beating up of old people.

It is sad to see an elderly person living alone who has been robbed. Such people are terrified and injured, go to hospital and, despite being physically able, cannot return home out of fear. They are elderly and not as physically active as they used to be but they could survive on their own with home help. However, they are too afraid of returning home. After living their lives working hard to rear families that have now gone and looking forward to enjoying their old age, having this type of burglary visited upon them is one of the most dastardly crimes possible.

I will cite some of the statistics on burglary and other offences. In recent years, crime levels have increased. According to the Central Statistics Office there were 23,603 recorded burglaries in 2007. By 2009, that figured had increased to 26,877. Not including aggravated burglaries as described in the CSO report, there were 23,052 and 26,072 burglaries in 2007 and 2009, respectively. This increase of approximately 3,000 is similar to that of the previous category. In 2007, there were 2,171 robbery, extortion and hijacking offences. In 2009, there were 2,487 such offences. In 2007, there were 814 cases of robbery of an establishment or institution. In 2009, this figure increased to 1,030. According to the CSO, the number of robberies and burglaries rose by one third in the second quarter of 2010. The number of robbery, extortion and hijacking offences increased by almost 34% from 575 to 770. There were 1,659 recorded offences of robbery against individuals during that period, representing a rise of more than 37% compared with the same quarter in 2009. The quarterly figures for robbery, extortion and hijacking offences increased by more than 24% from 676 in the first quarter of 2009 to 840 in the first quarter of 2010.

The Government and the Minister are losing the fight to reduce levels of crime, including robberies and violence. The Government’s approach to the issues of criminal activity and safety must be re-examined urgently. While the Bill is a step in that respect, crime levels are rising and people are afraid. Given the advent of drugs and the considerable increase in alcohol consumption, many burglaries are committed by people who are intoxicated with drugs or alcohol. They are not in full control of their faculties and cannot judge a situation, regardless of the evil they are doing.

While welcoming the Bill, people must be mindful of their safety and that of their families when confronting someone. Even while a person is panicking, stressed and terrified, he or she must make a judgment as to how much violence to use in the defence of his or her property, family and self. We hope that research in this regard will be published to advise people on how to respond to a situation with which they are presented. The Bill, when enacted, could be complemented through television and radio advertising that would explain the extent of the legislation, its implications after being passed and the dangers of responding to a potentially risky situation. Someone who is highly intoxicated and looking for money for drugs with a loaded gun is a dangerous cocktail, a fact of which we must be conscious.

The Bill addresses the issue of an intruder entering a property where a person feels the need to protect himself or herself and the matter of the property itself being stolen. The Minister outlined that section 2 provides a mixture of objective and subjective tests in determining whether the use of force is justified by an individual in his or her home who is confronted by an intruder. I will refer to this matter later. Section 2(1) states:

[I]t shall not be an offence for a person who is in his or her dwelling, or for a person who is a lawful occupant in a dwelling, to use force against another person or the property of another person where-

(a) he or she believes the other person has entered or is entering the dwelling as a trespasser for the purpose of committing a criminal act,

This provision is based on the assumption that a person must believe someone has entered that person’s property as a trespasser for the purpose of committing a criminal act. Before engaging in violence, one must be satisfied in one’s own mind. While this provision qualifies the situation of responding to intruders, one can quickly read whether someone entering a dwelling believes the house is empty, in that the person tries to leave quickly upon seeing it is not empty for fear of being caught. One must judge whether the danger has moved on and the criminal act will not occur. Seriously injuring a person in such a situation could be questionable, as one must have a good reason to believe the person is violent. While this is so in 95% of cases, we all know of situations of young people who burgled houses they believed were empty, but got out as quickly as they could when they heard noises upstairs. In other words, one must believe that someone has entered one’s home to commit a criminal act and the force one uses must be reasonable.

Fine Gael believes people must feel safe in their homes and use reasonable force to protect their property. We have tabled two Private Members’ Bills on this matter in the past four years ago, including one sponsored by Deputies Ring and Charles Flanagan. I often regret that the Government will accept Private Members’ Bills only occasionally, when there is a level of reasonableness and agreement and an understanding that everyone is on the same side. I do not understand the political reasons fully, but the fear is that the Opposition will claim credibility on the basis of non-Government legislation.

End Nobody has 100% call on what is good for society. If Oppositions are reasonable in putting forward issues, it is very regrettable that, for political reasons, these are turned down with perhaps a promise that something will be done. When the matter is put to bed, however, this action never happens.

Deputy O’Shea mentioned that nobody locked their door in rural Ireland. I remember that well and indeed up to ten years ago I did not lock my car. However, it suddenly dawned on me that things were changing in this society. We find now that people are frightened, especially elderly people, and we are very conscious of this when we go canvassing and meeting people at their doors. When a certain time in the evening comes, one does not call to doors for fear of frightening people. One suspends one’s canvassing for that very reason.

The Bill will let people know where they stand when their privacy is invaded. We must be concerned and must temper our defence when confronted with weapons, be they guns, crowbars or any other item that could inflict injury. We must have a balanced approach to defending ourselves and be careful that life is not put in danger. Deputy Shatter stated that according to the Bill not alone is the house considered a property, but so is the curtilage, namely, the back and front gardens. Deputy Shatter said one does not shoot a guy because he is out in the back garden stealing one’s lawnmower or shovel. There must be balance in the approach to defending property so that life is not recklessly put in danger in such circumstances.

I welcome the Bill. It clarifies a situation which had become very difficult, especially since the Nally case in the west which clearly divided public opinion on the issue. There are people who will say there are dangerous elements in this Bill, that it may allow a certain level of recklessness. However, a level of recklessness currently exists regarding the safety of people in their homes concerning which I gave statistics. That recklessness must be confronted. This is one measure of confronting it but the Government must also consider other measures to ensure that the statistics, as I outlined them, do not continue to increase as more and more people are put at risk. People must be advised on how to protect themselves, especially elderly people who suffer spates of attacks. At one stage there was such a spate of attacks in the west that it was like an epidemic, which was seriously upsetting.

We welcome the Bill and hope it will have a quick passage through the Dáil and Seanad.