Tánaiste and Minister for Justice, Equality and Law Reform Michael McDowell has been accused by the Irish Council for Civil Liberties (ICCL) of introducing a bill that would give property owners "a licence to kill."
Mark Kelly, ICCL director described the Criminal Law (Defence of Life and Property) Bill which as "a loose formula" allowing force to be used if it is "reasonable in the mind of the householder".
The draft Bill, which was approved by the Government today, will give greater rights to individuals defending their home and property against trespassers with criminal intent.
The Tánaiste said the Bill will amend existing legislation on the defence of the person and the person's home. It will remove the obligation on occupiers to prove that they could not retreat in the face of a criminal trespasser before using force.
It will also amend both criminal and civil law in relation to the use of justifiable force by occupiers against trespassers entering with criminal intent.
Mr Kelly said that under the European Convention on Human Rights the lawful test for the use of lethal force is that it be "absolutely necessary for the protection of anyone from unlawful violence".
"In other words, there must be no other way in which life could be preserved. Where less than lethal force is concerned, the proper legal test is that it be 'strictly necessary and proportionate'," he added..
"In addition, in its present form, the Bill explicitly permits force to be used by householders against children under 12, sleepwalkers, drunks, mentally disabled persons and anyone else who stumbles into a home or garden," he said.
"Far from protecting householders, if this Bill were enacted, it would open up the possibility for anyone harmed by a householder to legally challenge the State's failure to respect their human rights under the European Convention" Mr Kelly concluded.
Speaking earlier today, Mr McDowell said: "It is my contention that an attack in the home has unique characteristics given the emotive nature of an encounter between the occupant and an unwelcome intruder.
"I believe the law should have regard to the unique circumstances which prevail in a situation where an intruder is being dealt with in one's own home, the place we all have a right to consider to be a place of safety," he said.
The proposed Bill will make provision for:
- The extent to which justifiable force may be used
- Defences which will apply in the context of a criminal prosecution against a trespasser Entering the dwelling or the curtilage with criminal intent when the occupier believes the use of force to be justified
- Definitions for such terms as 'dwelling', 'property', 'use of force' and the 'curtilage of the dwelling'
- The absence of a requirement to retreat on an occupier who is defending the dwelling or the curtilage against an intruder with criminal intent
- A defence in relation to the civil liability of an occupier in circumstances where force may have been used may be applied against an intruder entering with criminal intent.
The Scheme of the Bill which received Government approval on March 6th takes into account elements of a Private Member's Bill published by Senator Tom Morrissey in 2006 and which was debated in the Seanad on February 28th.
The Government decided not to oppose that Bill and, in the course of the debate on the matter, the Tánaiste indicated that the Government would bring forward its own proposals on the issue of defence of the home dwelling which would incorporate some of the provisions of Senator Morrissey's Private Member's Bill.