CHECK AGAINST DELIVERY
Thank you President. I am delighted to be here today to launch this very significant Report on a subject which to a certain extent goes to the heart of the everyday operation of the criminal justice system. I am not surprised to see that it is a Report which meets the very high standards which the Commission has set for so many years. The work of this organisation has been consistently helpful to my Department. The Reports and Consultation Papers which the Commission publishes are invariably measured and balanced and naturally they are carefully considered. Judging by today's Report quality and professionalism continues to be the hallmark of the work of Commission.
The Report being launched today complements the recent work of the Commission in other important areas of the criminal law such as murder and involuntary manslaughter. This Report is in my view an important element in the Commission's ongoing work in developing proposals for a reform and ongoing updating of the
In undertaking its work clearly the Commission is cognisant of the project on the codification of the criminal law currently underway under the chairmanship of one of your part-time Commissioners, Professor Finbarr McAuley. The Expert Group on the Codification of the Criminal Law is working towards a draft Criminal Code Bill and that it is intended in the general part of that draft Bill to deal with, among other matters, general defences and self-defence. I note also that the Commission anticipates that the subject matter of today's Report may ultimately form part of the Advisory Committee's draft Criminal Code Bill.
As this Report clearly demonstrates, defences in criminal law give rise to very particular issues. They represent a departure from the basic requirement that a finding of guilt must be based not only on guilty actions but there must also be the requisite mental element (mens rea) that demonstrates the appropriate intention, recklessness or negligence. When a defence arises it seeks to show that some other factor intervened to dilute or remove the person's responsibility for the actions that he or she undertook. We have to be sure that only those who are truly deserving benefit from them. Defences should not be seen as a means of avoiding genuine culpability.
I am very interested to see that the Report makes specific proposals in relation to the defences of provocation and duress. The Report recommends that these defences should be put on a statutory basis and to that end the draft Bill attached to the Report provides a suggested approach. I welcome these contributions and I will of course give them further serious consideration, as I will in respect of the entire Report.
I would now like to come to the question of the application of legitimate self-defence in the context of the defence of the home dwelling. However before I do I would like to make the point that the provisions of the Non Fatal Offences Against the Person Act 1997 represent a very effective legislative tool in the context of the application of self defence. While there is always room for improvement in the development of criminal legislation the provisions of this Act are by no means superfluous.
Members of the Commission will be aware that the Government published the Heads of a Bill entitled the Criminal Law (Defence of Life and Property) Bill in 2007. It was decide not to proceed with the drafting of this Bill pending the outcome of the Commission's deliberations in the matter. Members of the Commission will also know that there have been a number of Private Member's Bills on this general topic introduced in the Oireachtas in recent years. Clearly the defence of the home dwelling is an issue of interest to many people and it is not too difficult to see why.
We are all aware that Article 40.5 of the Constitution protects the inviolabilty of the dwelling of every citizen. In my own experience the Irish people take this particular provision very much to heart. We all feel, quite rightly in my opinion, that the home should be a place of safety and refuge. The judgement by the Court of Criminal Appeal in the case of DPP V Barnes(I.E.C.C.A. 165 2007) which was given very shortly after the publication of the Commission's own Consultation Paper on legitimate defence, is very important. It is important because the court took the opportunity presented by that case to discuss a number of issues which had also been the subject of discussion in the Commission's Consultation Paper. Some of salient points of that judgement are quoted in this Report and I mentioned them myself in a debate on Private Member's Bill on the subject in the Dáil in September. I think the most significant of the points made by Mr Justice Hardiman bear repeating. He said:
"Every burglary in a dwelling house is an act of aggression. The circumstances may make this element of aggression more or less patent but the violation of a citizen's dwelling house - is just that a violation and an act of aggression no matter what the other circumstances."
The judgement went on to say:
"Although he, [the burglar] is not liable to be killed by the householder simply for being a burglar he is an aggressor and may expect to be lawfully met with retaliatory force to drive him off or to immobilise him or detain him and end the threat which he offers to the personal rights of the householder."
With regard to the very crucial issue of retreat in the face of an intruder, a topic on which this Report contains a specific recommendation, the Court of Criminal Appeal was no less emphatic. The Court said:
"it is quite inconsistent with the doctrine of inviolability of the dwelling house, that a householder or other lawful occupant could ever be under a legal obligation to flee the dwelling house or as it might be put in more contemporary language to
retreat from it.......it follows from this that a person can never be in a worse position in point of law because he has decided to stand his ground in his house."
The judgement in the Barnes case represents a highly significant clarification of the common law position in respect of this issue. It has in my view gone a long way to addressing a number of concerns which have been raised on this subject. However, when it comes to the use of lethal force Justice Hardiman indicated that it would be unjust to provide for an entirely subjective standard. He went on to say in that context:
"....a person cannot lawfully lose his life simply because he trespasses in the dwelling house 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."
In the view of the Court of Criminal Appeal therefore, neither an entirely subjective nor objective test is justified in this kind of circumstance. Obviously, a balance will have to be struck in any legislation which is informed by the findings in Barnes or for that matter which arises from the recommendations of this Report.
I am satisfied with the general approach of the Report particularly with regard to the question of the application of self defence in the context of an attack on the home dwelling. The recommendations made in this regard coincide with the general thrust of the Heads of the Bill which the Government approved in 2007. There are three specific recommendations contained in the Report which are particularly relevant to the matters which may be addressed in a forthcoming Bill on this topic. The first of these is the issue of retreat in the face of attack which the Court of Criminal Appeal dealt with so comprehensively in the Barnes case. The Report makes the following recommendation:
"The Commission recommends that a defender should not be required to retreat from an attack in their dwelling.....even if they could do so with complete safety."
There is a general feeling, which I personally share, that to require a retreat from one's own home in the face of an attack should not be countenanced. I intend to propose a change in the law to reflect this recommendation. The Report expands on this point with a further recommendation relating to the extent of the home dwelling. It says:
"The Commission also recommends that this non retreat rule should apply to all occupants of dwellings and that it is irrelevant that the defender is attacked by an intruder or non intruder. The Commission also recommends that "dwelling" should be defined as including the vicinity or the area immediately surrounding the home, including any access path, garden or yard ordinarily used in conjunction with the dwelling."
This too is an important point requiring some consideration and is one that will be addressed in legislation. This kind of definition can present challenges to policy makers and parliamentary drafters alike, so I am grateful to the guidance on the point contained in this Report.
I am glad to see that the Report also recommends the retention of the proportionality rule as a requirement of legitimate defence. The Commission proposes that in assessing whether the use of non lethal force was proportionate the court or jury as the case may be, may take account of the circumstances as the defendant reasonably believes them to be. That recommendation is broadly in line with the current provisions of the 1997 Act in this regard.
On the issue of the defence of the home dwelling generally I believe that the Commission, in its recommendations has succeeded in striking a balance between the rights of an occupier who may be under threat from an attacker and the requirements of the proper rule of law with which we must all comply.
I support the thrust of the legislative proposals outlined here today.
I can confirm here to day that there will be legislative change proposed in relation to this issue.
Shortly I hope to bring these legislative proposals before Government relating to the defence of the family home with a view to early enactment.
In developing my proposals in this area, the Report being published today will be a valuable guide. I am grateful to the Commission for the contribution it makes to the debate on the application of defences generally in this Report. It is a matter of concern to us all that attacks, particularly on the vulnerable in the home, are an increasingly unpleasant feature of modern life and very recent events bear this out. The problem is one which requires to be addressed in a number of ways and changes in legislation is but one if those ways, albeit an important one, to help tackle the problem. The timely publication of this Report will be an invaluable aid to helping that process.
I am grateful to the Commission and to you President for inviting me here to launch it today. It is a fine piece of work and I am happy to be associated with it. Thank you very much and may I wish you all a very happy Christmas.