Criminal Law (Defence and the Dwelling) Bill 2010
The Home Defence Bill came before the Dail this week, Fine Gael proposed a similiar Bill both in 2006 and 2009. The Government following recommendation from the Law Reform Commission have finally presented legislation to the Oireachtas. Below is my contribution on the matter
We have waited a long time for this legislation. The Fine Gael Party, in particular, has argued for quite a period of time that such legislation is necessary. In 2006, Deputy Jim OâKeeffe tabled a Private Membersâ Bill on the subject and, as recently as last year, Deputies Charlie Flanagan and Ring tabled a similar motion on the issue. Some commentators look on the Bill as political posturing. I do not agree because it is necessary legislation that redresses the imbalance, both perceived and real, in our law.
The Minister, in debating this matter during the Fine Gael Private Membersâ motion last year, stated, âI am a strong believer in tough legislative provisions in combating criminal activity of all kindsâ. Tough legislative provisions in their own right are worth little more than the paper they are written on. The issue of security for older people was a catalyst in drafting this legislation but, ironically, this cohort is the least likely to be able to defend themselves with force in their home. Elderly people need more than legislation.
I refer to two specific examples of more concrete action than legislation. The McCarthy report states: âThe number of Garda stations is very high at 703, and many of them are in need of extensive refurbishment. We recommend that the Garda station network be reduced by around half.â ation is necessary. In 2006, Deputy Jim OâKeeffe tabled a Private Membersâ Bill on the subject and, as recently as last year, Deputies Charlie Flanagan and Ring tabled a similar motion on the issue. Some commentators look on the Bill as political posturing. I do not agree because it is necessary legislation that redresses the imbalance, both perceived and real, in our law.
The Minister, in debating this matter during the Fine Gael Private Membersâ motion last year, stated, âI am a strong believer in tough legislative provisions in combating criminal activity of all kindsâ. Tough legislative provisions in their own right are worth little more than the paper they are written on. The issue of security for older people was a catalyst in drafting this legislation but, ironically, this cohort is the least likely to be able to defend themselves with force in their home. Elderly people need more than legislation.
I refer to two specific examples of more concrete action than legislation. The McCarthy report states: âThe number of Garda stations is very high at 703, and many of them are in need of extensive refurbishment. We recommend that the Garda station network be reduced by around half.â Can the Minister extend his belief system beyond tough legislation to ensure broad brush stroke proposals such as this in the Government-sponsored report are framed in the context of the Gardaâs ability to counter the criminal activity of aggravated burglary? I remind him that the presence of rural Garda stations offers security to the people they serve and removing them from these vulnerable communities will have the opposite effect. Traditional community style policing and the frequent patrolling of neighbourhoods has become the exception rather than the rule in the Ireland we live in today. I acknowledge the community policing initiative is a success story but we need more dedicated community gardaĂ. In my own county town of Ennis there are seven community gardaĂ headed by a sergeant while in Shannon, there are two dedicated community gardaĂ. I compliment them on their sterling work liaising with communities. They offer a wonderful service, which represents the way forward. However, nine dedicated community gardaĂ is too few to police a population of 110,000 in County Clare.
The second example is the Department of Community, Rural and Gaeltacht Affairs scheme that provided pendant alarms and household security devices to older people, which has encountered major problems over the past two years. The pendant alarms, worn around the neck, enable the holder to make immediate contact with a central station to seek help if they fall or experience a sudden emergency, including a robbery. It is incredible that this successful scheme, which provided older people with a sense of security in their own home, was suspended last year because the Department felt the spend was increasing too much. Under the scheme, every person in the State over the age of 65 was entitled to financial assistance for the pendants or for improved security to their homes. Elderly people are concerned about safety in their own home. They took action by availing of the pendant alarm scheme. The Department became concerned at the spend on the scheme and it was, ultimately, suspended because it proved to be popular and worthwhile.
In shifting the focus from allowing older people to feel safer in their own homes towards a canon of legislation, the Government is taking its eye off the ball. An elderly, frail person living alone in an isolated area will feel safer when this legislation is enacted but he or she would feel 100 times safer if his or her local Garda station were not under threat of closure or if the suspension in the acceptance of applications for security devices was lifted. The Bill is not an end in itself, as it must be backed up with practical measures on the ground.
State intervention in the provision of proper community-based policing along with secure locks, burglar alarms and pendant alarms would create a much more valid improvement in older peopleâs security. The number of burglaries and robberies carried out in this State increased by one third in the second quarter of 2010. The recent CSO statistics illustrate that robbery, hijacking and extortion offences increased by almost 34% from 575 to 770 during the quarter. A total of 1,659 robberies against the individual were recorded, which represents an increase of 37.4% when compared to the same period in 2009. The crime figures presented by the CSO for recorded crime offences make interesting reading. Burglary and related offences increased from 24,913 to 26,877 between 2004 and 2009, an increase of 8%. The number of aggravated burglaries increased from 282 to 369 in the same period, an increase of 31%. Aggravated burglaries, those carried out with a weapon, as a percentage of all burglaries, have increased by just over 0.2% from 2004 to 2009.
This is a prime example of using statistical data to present an argument in a particular light. A total of 282 out of approximately 25,000 in 2004 and 369 out of approximately 27,000, represents just a 0.2% increase on the overall figure. However, this is little comfort to the 369 individuals or families who suffer an ordeal such as this. More than one aggravated burglary takes place in our country every day of the year. There is little doubt, as a proportion of overall recorded burglary offences, that aggravated burglary is on the increase. This trend, which is disturbing, is not unexpected. There is no doubt that the effects of the recession have had an impact on the crime rate. One can only expect this trend to continue.
The 2009 Eircom PhoneWatch burglary report, published last November, found that more than three-quarters of respondents felt they were more at risk from theft. A further 40% felt more at risk from violent crime and 71% believed that crime as a whole had increased in Ireland since the recession officially began in 2008. The figures for this November should make for very interesting reading.
Many view this Bill as being a right-wing measure which bestows some type of charter on the homeowner to act in a more aggressive manner. However, I do not share these views. This legislation will finally provide homeowners with a measure of protection by balancing the law in their favour against the increased number of burglaries and attacks in the home. The Bill is about addressing the imbalance in the current law and giving rights back to the homeowner when faced with an intruder. It is this principle that Fine Gael tried to reassert through a Private Membersâ motion in 2006 and 2009. At this stage we have case law to help in the drafting of this Bill. I welcome the publication of the Bill but it is very unsatisfactory that we have had to wait such a long time for its publication.
Section 2(1)l provides that it will not be an offence for a homeowner or a lawful occupant of the home, to use force against an intruder where he or she believes the other person is a trespasser and is in the dwelling in order to commit a crime, and the force used is only such as is reasonable in the circumstances. The force must be such as to protect himself of herself or another person present in the dwelling from injury, assault, detention or death, or to protect his or her property or the property of another person from appropriation, destruction or damage caused by a criminal act, or to prevent the commission of a crime or to effect a lawful arrest. The Bill states unequivocally that there is no obligation to retreat from the dwelling and that force can be used even if there was a safe and prudent opportunity to retreat. This in effect is the castle doctrine in practice which is based on the old dictum that, âa manâs house is his castleâ.
The Minister has stated in his contribution that juries will still have to assess whether the degree of force used was justifiable in all the circumstances. The Bill does not currently define the factors in terms of assessing reasonableness. The Law Reform Commission in its report made an effort to do this on threshold requirement, imminence, necessity and proportionality. The Minister is leaving it up to juries to retrospectively try to decide on these matters, without a proper set of legislative tools. This element of the legislation needs elaboration and further work on Committee Stage.
The fact that the legislation potentially straddles both the criminal and civil justice systems creates ambiguity in that burdens of proof differ across both systems. I ask the Minister to consider the following scenario where the legislation could overlap both criminal and civil systems. I presume that, were somebody acquitted of an offence in the criminal justice system on the basis of âbeyond reasonable doubtâ under section 2 of this legislation and, subsequent to this, faced civil liability charges, he or she could use section 5 as a defence in the civil court. This seems clear and serves the purpose of the legislation.
However, what would happen if there were no prosecution under criminal law against the individual who had protected his or her property and the process began with t