Wednesday, 29 February 2012
Dáil Éireann Debate
Deputy Bernard J. Durkan: This has been an issue for some time and relates to the unfortunate situation in the context of householders who react aggressively when their homes are burgled. In the particular case to which I refer, a householder and his wife woke up at 5.30 a.m. to find a burglar walking around and inspecting the bedroom. He did not indicate why he was there, but it can be presumed he did not come to read the meter or to check the air conditioning or the like. The householder presumed he was there with felonious intent and reacted accordingly. He pursued the individual for some time and, as a result, the individual who had intended to commit a crime suffered injuries for which he received considerable compensation, an amount of €175,000 from the householder’s insurance company, by agreement.
Fortunately for the householder, he was acquitted of having assaulted or caused grievous bodily harm and was not penalised. It is ironic and strange, however, that the burglar received a suspended sentence. Every so often issues arise that challenge the imagination and credulity of the public. If there was ever a case that illustrates beyond shadow of doubt that it is profitable to become involved in crime, to break into somebody’s house and lodge a claim against them in the reasonable expectation of winning the claim, this is it. Why would anyone work in legitimate employment? Is it not easier for burglars to go off and rob a few houses from time to time and if they get injured while doing so, make a claim against the insurance of the householder or factory owner? They cannot lose. They will get an award and will only end up with a suspended sentence. What could offer them more encouragement?
The time has come to say enough is enough. This kind of nonsense goes on from time to time. I remember a case some years ago when a burglar who broke into a warehouse was injured and he sued the owner of the warehouse successfully in court. In the case I mentioned earlier the case was taken against the insurance company. Therefore, there are two issues. The first is the readiness and willingness of insurance companies to pay out in situations of this nature when it is quite clear the person has no authority to enter the householder’s home. In the case I mentioned, he did not have the householder’s permission and was not there to paint the walls, the ceiling or any other part of the property. He had a different intention. He had entered the house with the intent to commit a felony, which is something for which a person should not get a suspended sentence. He was breaking the law with intent. Furthermore, the victim then found that he could have been charged with committing a crime by defending himself. The Criminal Law (Defence and the Dwelling) Act 2011 has already been passed and should have applied in this case, but it does not. I will have more to say on that in my short response.
Minister for Justice and Equality (Deputy Alan Shatter): I thank Deputy Durkan for raising this matter which is a concern for him. As the Deputy would know, legislation that is enacted does not apply to events that occurred in the past. Therefore, the Deputy is wrong to say the legislation to which he referred should have applied to this case.
As the Deputy is aware, the Criminal Law (Defence and the Dwelling) Act 2011 came into effect on 13 January 2012. I consider this an extremely important piece of legislation. There had previously been a lack of clarity on the rights of a householder when confronted with a burglar in their home, but this Act in one piece of legislation sets out what those rights are and makes it clear that a person may use reasonable force to defend themselves in their home. The Act recognises the special constitutional protection which applies to a person’s home under Article 40.5 which states: “The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law.”
It is important to clarify that the provisions and protections in the Act only apply when a person is in their dwelling or curtilage and does not apply to a public place. The Act allows a householder, where they believe a trespasser is entering the dwelling to commit a criminal act, to use such force as is reasonable in the circumstances in order to protect people in the dwelling from assault, to protect property, to prevent the commission of a crime or to make a lawful arrest. The Act explicitly provides that a person is under no obligation to retreat from their home. A person who uses reasonable force, as provided for in the Act, cannot be sued for damages by a burglar. I emphasise this in response to Deputy Durkan’s comments.
It is also important to remember that other laws also deal with the issue of burglary and in particular the penalties which apply to those convicted of such offences. Burglary is a criminal offence which carries serious penalties. The law in this area is governed by the Criminal Justice (Theft and Fraud Offences) Act 2001. Section 12 of that Act provides:
A person guilty of burglary is liable to a fine or imprisonment for a term not exceeding 14 years or both. I note what the Deputy said about the particular case he raised. The courts are independent and it is for the Judiciary to determine the appropriate sentence to impose in any particular case.
A person convicted of aggravated burglary is liable to imprisonment for life. In addition, section 26 of the Criminal Justice Act 2007 provides that a court may make a monitoring order for persons convicted of aggravated burglary. The court may also make a protection of persons order. Such an order prohibits 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. The same Act provides mandatory minimum sentences for repeat offenders.
It is not a matter for me as Minister for Justice and Equality to comment on the particular circumstances of any settlement made in a private civil action. The settlement of any individual claim is a matter for the relevant parties to decide on. In the case mentioned by the Deputy, it seems the claim made by the person convicted of burglary was addressed by the insurance company of the person against whom the claim was made. Insurance companies are free to make settlements for pragmatic reasons in any given case. However, as Minister, I regard the reported level of settlement reached and compensation paid in this case surprising.
Deputy Bernard J. Durkan: I thank the Minister for his reply and I am glad to hear he is surprised by the settlement. I assure him I was surprised and I am sure everybody in the country was surprised by it. I note the Minister’s comment with regard to the retrospective application of the law. It is unfortunate that the court case only took place in recent times, since the passage of the legislation into law, because in the people’s minds it looks as if the legislation should apply. If other cases of a similar nature are pending, we must ask whether the relevant legislation is strong enough to deal with those cases. I am not sure it is. It should be clearly indicated to all and sundry that if a person enters another person’s house with the intention of committing a felony, there should be no recourse to the law and no insurance payment nor compensation payment if that person falls and break his neck or if someone else injures him. That is the way it should be.
Much debate has revolved around the definition of “reasonable force”. I can never understand how in the calmness of the courtroom it can be decided that perhaps a victim used excessive force in repelling a burglar or intruder. That decision is made in the calm of the courtroom, whereas the unfortunate householder who may have been woken up in the middle of the night had to respond in the heat of the moment and in the absence of calm. He or she may have been motivated by fear, which is the greatest motivator of all. We should be cognisant of that at this time. I emphasise that regardless of the legal niceties of a particular case or whether we like it, the message being given to the public is not the right one at any time, particularly at this time.
Deputy Alan Shatter: The message being given to the public by this Government is the right one. After many years of promises by previous Governments, this Government has put into effect a law covering this issue — the Criminal Law (Defence and the Dwelling) Act 2011. The clear position now is if someone burglarises someone else’s home, the home owner is entitled to use such force as is reasonable based on the threat that he or she perceives resulting from the circumstances that have arisen. It is not simply a question of the threat as it is perceived “in the calm of the courtroom”. It is a question of the subjective threat that an individual believed he or she faced in the circumstances in which he or she found somebody unlawfully in his or her house. We cannot legislate for past events. The legislation that has been enacted applies to any burglary that takes place as and from 13 January 2012, which is the date on which the legislation came into effect. There is no particular reason the public should take any wrong message of any nature from that.
The Deputy mentioned a recent case in which a prosecution was taken against a home owner. As he is aware, the individual in question was found not guilty by a jury. Those criminal proceedings took place because the events that gave rise to the prosecution occurred substantially prior to 13 January 2012. We now have an entirely new legal position. Individuals are now protected against being sued by those who unlawfully enter and burglarise their homes, where the actions taken by such individuals to protect themselves, their family members or their properties was reasonable in the circumstances as they perceived them. This major change in our law is very important. I hope it will ensure that in future, no burglar will successfully sue any individual who took reasonable action to confront the burglar in order to protect himself or herself, his or her family or his or her property. I emphasise that the actions taken by such individuals must be reasonable, based on the circumstances as they perceive them. That is very important.
As I always say in these circumstances, although there is no obligation on one to retreat when one’s home is burglarised — one can take reasonable action to protect one and one’s family — I urge that one should contact the Garda if one has an opportunity to do so and, where possible, try to avoid confrontation. It is of crucial importance that ordinary citizens do not unnecessarily put themselves or their family members in harm’s way, even when faced with unlawful conduct by others.
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