Legislation on homeowners’ rights due early 2007

LEGISLATION on the rights of homeowners to defend their property from intruders is likely to be published early in 2007.

Thursday’s acquittal of Mayo farmer Pádraig Nally, on a manslaughter charge relating to the October 2004 death of John ‘Frog’ Ward, has re-opened the debate about how much force a householder should be allowed to use when confronted by an intruder.

Legislation on the matter was already in the pipeline before the current controversy erupted and the Criminal Law (miscellaneous provisions) Bill is due to be brought before the Oireachtas by Tánaiste and Justice Minister Michael McDowell in the coming months.

Meanwhile, the Irish Rural Dwellers Association (IRDA) said that one of the reasons behind the Pádraig Nally case was the isolation being experienced by people in many rural areas.

While not commenting on the legal aspects of the case, Jim Connolly of the IRDA said that Mr Nally’s situation “is echoed throughout rural Ireland” and will be replicated as time goes on.

“They don’t have neighbours and the reason they don’t have neighbours is that there are huge tracts of rural Ireland, such as parts of north Mayo, which won’t have anybody living in them in a few years’ time.”

Mr Connolly said that the IRDA was established to combat “the planning regime” on rural housing.

“It’s inconceivable in one of the richest countries in Europe that there are areas where there are no people. How can they sustain services, how can they protect anybody?” he said.

Last month, the Law Reform Commission published a consultation paper on the defence of property, recommending greater rights for homeowners under attack.

The main suggestions to be considered by Mr McDowell as he prepares to introduce legislation on the subject, include the proviso that somebody defending their home should no longer be expected to retreat in the presence of an intruder.

The use of force should be allowed in appropriate circumstances, according to the commission, subject to five specific tests. These are:

* The proportion of force used.

* The need for such force.

* The type of force.

* The immediacy of the threat from the intruder.

* The unlawfulness of that threat.

Lethal force should be allowed, it said, to defend the home and also the immediate area around the home if they meet the specific tests. The commission recommends clarifying the situation of defending property along with defending oneself and one’s family.

In the event of a breach of one of these tests, where an “honest but unreasonable mistake” was made by the homeowner and he or she kills the intruder, they should be found guilty of manslaughter rather than murder, it suggested.