Yesterday saw a flurry of activity in the area of criminal justice, with the publication of the new Victim’s Charter and the signing into law of the Criminal Procedure Act 2010. Both of these developments will be examined in future posts. Today’s blog deals with the most newsworthy piece of draft legislation announced in the past 12 months: the Criminal Law (Defence and the Dwelling) Bill 2010.

This Bill has been long in gestation, with previous versions mooted by the government in 2007 and by Fine Gael in 2009. The Law Reform Commission published a lengthy and comprehensive Report late last year dealing with Criminal Defences generally.  Readers might remember I blogged about the LRC’s Report when it was published, highlighting what I saw as the gap between the Report’s recommendations about legitimate defence in the home, and the overly broad wording of the draft bill attached to the Report.

According to the Department’ s press release the Criminal Law (Defence and the Dwelling) Bill 2010 makes provision for the following:

·        definitions for such terms as “dwelling”, “property” and the “curtilage” of the dwelling.
·        the extent to which justifiable force may be used against an intruder.
·        that the use of justifiable force against an intruder with criminal intent would not exclude the use of force causing death
·        the absence of a requirement on the part of an occupier to retreat when defending the dwelling or the people in it against an intruder entering with criminal intent.
·        that a person who uses such force as is permitted by the Bill will not be liable in tort in respect of any injury, loss or damage arising from such force.

The Bill also states that where justifiable force (see below) is used,  that force does not exclude the use of lethal force against an intruder.

Under section 2(1) the Bill 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 (a) he or she believes the other person is a trespasser and is in the dwelling in order to commit a crime, and (b) the force used is only such as is reasonable in the circumstances. The force must be (i) to protect himself or herself or another person present in the dwelling from injury, assault, detention or death or (ii) to protect his or her property or the property of another person from appropriation, destruction or damage caused by a criminal act, or (iii) to prevent the commission of a crime or to effect a lawful arrest.

The Bill explicitly adopts the Castle Doctrine into Irish law, stating that a homeowner is not under a duty to retreat. This  clarification of the Castle Doctrine is most welcome, since under the common law, (most recently outlined People (DPP) v Barnes) the position is not clear (see my previous blog).

Significantly, the test applied as to what is reasonable degree of force is a subjective one, that is what the homeowner honestly believed the threat to be at the time.  There is no objective standard for the behaviour expected by the community of a homeowner – although the jury can have regard to the presence or absence of reasonable grounds for such a belief, looking at all  the circumstances. The lack of an objective element is troubling, especially since, the Bill seems to countenance the use of lethal force even in the defence of property, and not life. It should of course be borne in mind that the whole point of the Castle Doctrine is to recognise the intimate connection between a person’s physical safety and an invasion of the home by an intruder. If, however, the burglar is unarmed, and only after the car keys, and does not make any threatening gestures towards the homeowner, it is doubtful that the use of lethal force by the homeowner should be deemed to be justifiable. Accusations that it is a license to kill have been rejected by Minister Ahern, who stresses that juries will still have to assess whether or not the degree of force used was justifiable in all the circumstances. In these circumstances the Court of Criminal Appeal’s comments in Barnes that it is ridiculous to suggest that a private citizen, however outraged, may deliberately kill [a burglar] simply for being a burglar” are still relevant.

Unfortunately the Bill does not set out the four factors suggested by the LRC in terms of the assessing reasonableness; ie a threshold requirement (although arguably this is covered by the requirement that homeowner honestly believes the intruder is there to commit a crime);  imminence, necessity and proportionality. If the Bill explicitly included these factors it would aid  juries who face the arduous task of retrospectively assessing the subjective intentions and state of mind of homeowners who kill intruders. It is to be hoped that as the Bill winds its way through the Oireachtas, that these requirements will be inserted.

One final remark about the symbolic rationale for this Bill (discussed in the earlier blog; legal journalist Carol Coulter (Irish Times) has also highlighted it in her commentary on the draft legislation; see also Minister Ahern’s comments). The rhetoric of protection surrounding this legislation points up the importance in criminal law reform, in playing on, in this case, elderly people’s sense of insecurity and in shaping the public’s sense that ‘something is being done’ about violent burglaries.

Of course the underlying presumption is that the criminal law is an appropriate tool for dealing with all social ills. This is indicative of a certain unjustified inflation of the importance of criminal law in alleviating a generalized feeling of insecurity and uncertainty that pervades modern life. Scholars, like David Garland and Shane Kilcommins and Barry Vaughan have pointed to an over-reliance on criminal law as a valve through which concerns about crime are directed. This is instead of more proactive approaches to tackling crime, such as more Gardaí, developing a more connected society, etc.  So if we look at legitimate defence of the home: the problem that the law is trying to deal with here is property crime. Policy makers and government would arguably be better employed in coming up with ways to tackle the reasons why people engage in property crime – reasons like poverty, caused by drug and alcohol addictions, unemployment, social exclusion. Factors such as the isolation of rural inhabitants, especially the elderly living on their own, are not solved by the enactment of a law. Social initiatives, like community buses, employing more social workers, more police, would go a long way towards alleviating isolation of rural dwellers. Providing information to encourage elderly people to save with a credit union or a bank instead of keeping money at home might help.

On the prevention side too it is crucial that money is put into drug rehabilitation centres, methadone clinics, and creating employment and social amenities for young people. The point is not that criminal law reform should not take place, but that there is a need to highlight political priorities and the attractiveness, both for the politicians and for the media, to focus on criminal law as a panacea for all social ills. (A similar trend can be seen with the enactment of the Criminal Justice (Public Order) Act 2010 which criminalises begging.)

Consider, too,  the fact that the Dept of Family Rural and Gaeltacht Affairs temporarily a personal pendant alarm scheme for elderly people last year saying it cost too much. Eamonn Timmins of Age Action has expressed his concern that at the same time the new law on defence of the home was being mooted, the Dept of Community, Rural and Gaeltacht affairs was saying it was concerned about the costs of the pendant alarm scheme. It would seem that a new scheme called Seniors Alert is now in place, although the Department has refused to extend the scheme to cover house alarms.

If government is truly concerned with preventing property crime and making elderly people feel more secure, surely a more creative approach is needed, one that does not focus solely on the passage of a law as the solution.

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Written by Sinead Ring

Sinéad Ring is a lecturer at Kent Law School where she teaches Evidence, Criminal Justice and Gender, Sexuality and Law. She recently received her PhD from University College Cork on constructions of fairness in historic abuse cases. You can contact her on s.ring@kent.ac.uk