Fine Gael has countered claims that Enda Kenny deliberately cashed in on anti-Traveller prejudice by making ridiculous claims about the inadequacy of the present laws in giving homeowners rights to protect their property and themselves and in avoiding any critical comment on the killing of John Ward, writes Vincent Browne.
Fine Gael claims Kenny was making his proposals about changing the law, not in the context of the Pádraig Nally-John Ward issue, and that the law is indeed "unbalanced" in favour of an intruder against a homeowner.
Writing in the Irish Daily Mirror last week under the heading "Back the victims. NOT the criminals" with a large photograph of a handcuffed Nally on the left and a logo "Justice for Pádraig" in the middle of his article, Kenny began with an alarmist construction of someone being woken at 3am and realising there was an intruder downstairs.
He said that in such a situation the law failed to protect the rights of a homeowner to protect his/her property and family.
He claimed that the Non-Fatal Offences Against the Person Act, 1997, left the homeowner open to possible conviction if a jury found he did not avail of the opportunity to retreat before using force; the onus may be on the homeowner to show that the threat of force, as opposed to its actual use, would not have sufficed; the homeowner will have to show the force they used was reasonable in the circumstances. For these three reasons he said "the law [ is] currently unbalanced".
Quite aside from the issue of whether this was legal nonsense or not, just consider the effect of this intervention in a debate that was focused on the justifiability of Nally in killing the Traveller, John Ward.
Remember what had happened. Nally came upon Ward at the rear of his house, obviously up to no good. He shot Ward, wounding him in the arm. He then beat Ward with a thick stick, inflicting up to 20 blows on his head and, as Ward was limping away from the property, Nally went back inside his home, got more gun cartridges, reloaded, went out to the road outside his house and shot Ward dead at close range as Ward was crouched down on the road underneath him.
Kenny's response to this was not to condemn the brutal and unjustifiable killing of another human being but to comment on his perceptions on the inadequacy of the law in protecting the rights of homeowners.
The problem, according to the subtext, was not the awful murder of an already disabled and defenceless intruder - a member of the Travelling community - but the absence of a legal entitlement for homeowners to use unreasonable violence (if he does not think reasonable violence is sufficient, as explicitly permitted by law, then he must be in favour of the use of unreasonable violence).
On the issue of the law, Section 18 of the Non-Fatal Offences Against the Person Act, 1997, makes it clear force may be used by a person in circumstances where is seems to them the use of forces is reasonable (in other words the law permits a subjective test) and force may be used to protect oneself, one's family or property.
Section 20 of the same Act says a person who threatens to use force is deemed to have used force. It says: "The fact that a person had an opportunity to retreat before using force shall be taken into account in conjunction with other relevant evidence, in determining whether the use of force was reasonable."
Kenny seems to think this could require a homeowner to back off in the face of an intruder who threatens his/her property, the homeowner's own life and that of his family.
Nonsense.
The retreat bit obviously has to do with a confrontation such as one in a pub or on the street where, although a person is threatened by another with the use of force, the threatened person could defuse the situation by simply walking off.
There is nothing in the Act about a homeowner having to retreat, about having to give a warning about the use of force before using force and about the onus of proof on the reasonableness of the force resting with the homeowner.
Anyway, why does Kenny think this Act is now so unreasonable? It was introduced by Nora Owen, then minister for justice, in April 1997, on behalf of the government of which Kenny was a member.
What has happened in the years since then to require a change in this legislation?
Had there been no break-ins before then? Were homeowners not then entitled to have the law properly "balanced" between them and intruders?
No, what is different now is that there is a hugely emotive issue now at play in the very volatile Mayo constituency, Kenny's two Fine Gael running mates are milking this issue for what it is worth, and Kenny cannot be found wanting in the anti-Traveller crusade.
Too bad about the poisoning of the public mind.