LEGITIMATE DEFENSE IN THE HOME: TOWARDS CLARITY?*
INTRODUCTION[1]
The Irish constitution recognizes[2] the right to life and the inviolability of the dwelling. This poses concerns in the context of legitimate defense[3] vis-à-vis the dwelling house. The reason is that everyone is entitled to a right to life. So, some will argue that a burglar does not face a devaluation of his right to life by virtue of his culpability; on the other hand, a home owner has a constitutionally protected right by virtue of Art 40.5, as well as a right to life. These are competing interests and, therefore, it is difficult to understand why an attacked person’s life trumps that of an aggressor without any cogent proposition.[4]
But such arguments are beyond the scope of this essay. Nevertheless, it will suffice to say in passing that such philosophical issues determine where the balance tilts[5], and it is left for the lawmakers to resolve such issues based on policy grounds. And this is where this essay comes into play: it is the irrefutable proposition that citizens have a sufficient interest in whether their rights and duties are delineated clearly and precisely in the law. This is known as the principle of legality.[6] The point is that a householder who faces an intruder is entitled to know his rights and duties.
In this essay, I will argue that the Criminal Law (Defense and the Dwelling) Act 2011, hereinafter Dwelling Act, clarifies the law on the lawful use of force in the home as it stood before the enactment of the Dwelling Act, but it does not substantively amend the law. I will also assess whether the Dwelling Act strikes ‘’the correct balance between the rights of the occupier and those of a trespasser.’’[7] But I must quickly add that these issues should not be divorced from the social context, which prompted legislative action[8]
POSITION PRE-DWELLING ACT
As one commentator mentioned, ‘‘Irish laws governing the rights and duties of a homeowner against an intruder have been difficult to understand and apply…’’[9] The reason is due to, in part, the fact that Irish law on legitimate defense is a combina-tion of common law and statute. The former deals with the use of lethal force, while the latter, Non-Fatal Offences Against the Person Act, 1997, hereinafter the 1997 Act, deals with non-lethal force and effectively abolished the common law in this respect.[10] The point is that whenever, and wherever, non-lethal force is used for the purposes set out in the 1997 Act[11], the applicable legal rule is contained in the 1997 Act; on the other hand, whenever, and wherever, lethal defensive force is used, the courts will have recourse to common law principles.[12]
But before going further to discuss the salient points on why the law pre-2011 is not clear, it is important to note that there is a distinction between self-defense simpliciter and defense of the home, although it may not be difficult to envisage situations where the two are mixed. This distinction is necessary for when the two interests, defense of one self and defense of the home, are divorced, questions such as whether one is allowed to use lethal force in defense of one’s home becomes apparent, for it is scarcely debatable that one should be allowed to use lethal force in defense of one’s self.[13]
In the old common law, certain duties were imposed on a claimant of self-defense in order to justify or excuse the use of defensive force; one of those requirements is the duty to retreat.[14] This requirement is predicated on the rationale of conflict avoidance. The point is that one was required to retreat so far as practicable, if he could do so with safety, before he could resort to lethal force. But under the common law, there was no obligation to retreat under attack in the home, and this is known as the Castle Doctrine.[15] The essence of this doctrine is that by virtue of not being under any duty to retreat, one is allowed to stand fast and repel force with force. So in R v. Hussey[16], where a lessee fired a shot at his land lady and other accomplices, thereby wounding two men, it was held by the Court of Criminal Appeal that his actions was justified as he was defending his home. The problem with this doctrine is that the scope or rationale is not clear. Is it based on a defense on the home itself or a life-threatening attack in the home? The relevance is that if it is based on the home itself, then the threshold for the use of lethal force will be an attack on the home. Some commentators[17] have argued that Hussey is not good law as it allows the threshold for lethal force to be the home itself, but without any judicial pronouncement, even in Ireland, at least until the People (DPP) v. Barnes[18] decision, which I will revert to later, the scope of the doctrine was unclear. The point is that even if the doctrine was part of Irish law, a householder was not certain whether the threshold for the use of lethal force was an attack on the home or a life-threatening attack. Another related issue is the ambit of the home. Did it cover the garden or an adjacent farm?[19]
But, as one commentator[20] seems to agree, the Castle doctrine was not even part of Irish law. Or, at least, it was not clear if it was. Briefly, this was because in R v. McInnes[21], an English decision, Edmund Davies L.J., held that failure to retreat is simply a factor to be taken into account in deciding whether the force was necessary and reasonable. Walsh J. quoted approvingly of this decision in People (AG) v. Dwyer[22], which laid the law on excessive self-defense, although it was obiter.[23] The point is that if failure to retreat might negate a finding of reasonableness, then it is arguable that a householder might be obliged to retreat in certain circumstances. But Dwyer was not about defense in the home but rather self-defense and so this would be speculation. However, a more cogent argument for this conclusion sits easily with the 1997 Act. s.20(4) states that ‘‘ 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.’’ And the home came within the ambit of the 1997 Act by virtue of s.1(1) which states that property means ‘‘property of a tangible nature, whether real or personal’’. But another issue is that the 1997 Act deals only with non-lethal force and, in this respect, it cannot be definitively stated what effect the 1997 Act had on the Castle doctrine, coupled with the fact that the case law, in particular Dwyer, which deals with defensive fatal force, did not comment on this. It is important to note that the Castle doctrine gives power to repel force with force in the home, whether lethal or non-lethal. On these grounds, the law was not clear.
Another reason why the law was not clear was because of the law on self-induced necessity[24] but, for coherence, I will defer my analysis of this area until the next section. Nevertheless, at this point, it will suffice to state that the common law took a restrictive approach to those who created the necessity for defensive force. The general principle is that one who provoked an attack with the intent to kill is precluded from claiming the benefit of self-defense[25], unless he absolutely withdraws. Put simply, the common law imposed stringent retreat requirements on self-induced defenders before they could use lethal defensive force. The point is that there was no clear Irish judicial authority on this area and in the absence of it, it was not clear whether there was a stringent obligation on an aggressor, who provoked the attack, to retreat before he could use lethal force or whether his failure to retreat would be assessed based on an innocent aggressor i.e. the failure to retreat is only a factor to be taken into account whether the use of force was reasonable.[26] The relevance of this is that the obscurity in this area would affect the rights and duties of a householder and burglar as the outcome of their case might largely depend on this. Can the intruder kill the householder without retreating and rely on the defense of self –defense? Or can the householder use disproportionate force by virtue of the fact that the original aggressor failed to retreat?
Other areas, it was contended[27], that lacked clarity is the concept of reasonableness as a criteria for assessing the degree of force used. I will defer my analysis until the Dwelling Act as the test is the same and there are issues that will be discussed in tandem with the test. But it will suffice to state at this point that much of the criticism was due to the much media circulated decision of People (DPP) v. Nally[28]. This case[29] is important for two points; the first with which we are concerned at the moment is that the amount of force that was used by Nally to shoot the deceased, a traveler, would not have passed a faithful application of the traditional elements of justified defensive force; Mr. Ward, the traveler, did not pose any imminent danger to Nally and he could have retreated safely to his house. Notwithstanding this, the jury acquitted him based on the reasonableness criteria as laid out in Dwyer. Whether the concept of reasonableness is vague is an issue I will address later.
In summary, the law was not clear for the following reasons:
- Whether use of fatal force was restricted to protection of self or extended to home.
- Whether Castle doctrine was still part of Irish law and its scope. Connected was the issue of retreat
- Whether self-generated necessity curtailed the plea of self-defense and whether there was onerous retreat obligations imposed beyond that of innocent aggressors.
- And whether the competing interests are sufficiently protected by the concept of reasonableness. But this is an academic issue and opinions will differ.
BARNES’ DECISION
The Criminal Court of Appeal decision in People (DPP) v. Barnes[30] is important because it clarified certain aspects of the law[31]. In summary, the court held that burglary is an act of aggression and therefore a burglar is an aggressor; that the Castle doctrine is part of Irish law and a householder does not have to retreat; and that under some circumstances, lethal force used by the householder is reasonable.
In regards to the issue of self-induced necessity, the court held that ‘‘…the killing of a householder by a burglar, during the course of the burglary, can never be less than manslaughter, by reason of the burglar’s initial grave, aggression.’’ There have been several criticisms for this approach. First, Spencer[32] argues that the CCA did not provide ‘‘greater guidance’’ on whether ‘‘the law places different retreat requirements on different species of aggressor.’’ But Spencer misses the point that if a deadly or non-deadly original aggressor, to use the term of the Law Reform Commission, is not to be acquitted on the grounds of self-defense, then it certainly makes no sense to specify retreat obligations for ‘’different species of aggressors’’ since the result will be the same i.e, no acquittal.[33] O’Sullivan[34], on the other hand, has argued on the desirability of the approach adopted by the CCA and also that it contradicts explicit and implicit CCA jurisprudence.[35] The paramount concern should be whether the approach strikes a balance between the competing rights and it is asserted that it does. A person who invades one’s dwelling and causes him harm should not be able to claim full self-defense by virtue of the fact that ‘‘the necessity to which he is at last reduced, was at first so much owing to his own fault.’’[36] Also from the point of conflict avoidance, this approach achieves that objective; an intruder will be forced to absolutely withdraw knowing that he faces no less than a manslaughter conviction.
DWELLING ACT 2011
The Dwelling Act does not repeal the 1997 Act nor does it abolish the common law defense of self-defense/excessive force, as established in Dwyer.[37] What it does is clarify the law by stating positively what the rights of a householder are; it does not substantively amend the law but bears striking similarity with the 1997 Act.[38] Due to this, I will only highlight the salient features of the Dwelling Act and move on to other pressing issues.
s. 1(2) states that ‘‘reference to a dwelling includes a reference to the curtilage of the dwelling.’’[39] Another feature is s.2(8).[40] The essence of this provision is that a householder is not precluded from using reasonable force by virtue of the fact that the intruder was intoxicated or insane.[41] A further feature is s.5 of the Dwelling Act.[42] The effect of this provision is that an intruder will not be able to subsequently claim damages for any injury caused to him by the use of reasonable force. The Dwelling Act also states positively that a householder is not under obligation to retreat and that force, for the purposes of the Dwelling Act, could include lethal force
v Reasonableness: s.2(a-b) states that the test for justifying the use of force is whether a householder believes the intruder has entered or is entering as a trespasser for the purpose of committing a criminal act and the force used is only such as is reasonable in the circumstances as he or she believes them to be.[43] Reasonableness here is determined subjectively as it is a function of the circumstances. First, the person must perceive, subjectively assessed, a threat to one of those purposes as set out in s.2 (b)(i-iii) and the amount of force used under those circumstances will be viewed objectively.[44] But the amount of force used is not entirely an objective criterion since latitude will be given to human frailties. On this ground, it would seem that the objective assessment of the force used will become more as a test of credibility in assessing whether he honestly believed in the circumstances.[45] s.2(4) states that:
it is immaterial whether a belief is justified or not if it is honestly held but in considering whether the person using the force honestly held the belief, the court or the jury, as the case may be, shall have regard to the presence or absence of reasonable grounds for the person so believing and all other relevant circumstances.
The essence of this provision is to remind the householder that he is not given a blank check to fill in whatever he believes; the court will have regard to the presence or absence of reasonable grounds. So, a householder who shoots at a child picking some fruits in his compound will not be entitled to claim the benefit of legitimated defense. But it is important to note that the presence or absence of reasonable grounds is not a determinative factor as there might be other ‘‘relevant circumstances.’’
There have been various criticisms[46] for a reasonableness test which does not expressly incorporate elements such as necessity and proportionality. Irish Council for Civil Liberties[47] criticizes this test on the ground that it does not have due regard to the intruder’s right to life; they contend that requirements of necessity and proportionality should form an express part of the reasonableness test. They rely on Art 2[48] of ECHR and Ashworth’s criticism[49] of the English court’s approach. But the problem with their view is their Ashworth’s criticism is based on the fact that there is a difference between ‘‘sudden’’ and ‘‘expected’’ attacks, and he argues, convincingly, that in expected attacks, the requirements of proportionality and necessity should be fulfilled. However, in regards to sudden attacks, he cites the famous dictum of Holmes J. that ‘‘detached reflection cannot be demanded in the presence of an uplifted knife’’ and concedes that there is good reason to dilute the test in such situations.[50] My point is that most of the attacks on homes are sudden and the reasonableness test represents the true vagaries of human nature. Some will, of course, argue that certainty is needed in the law but the point is that the law’s objective is not only certainty[51] but also fairness; and a balance must be struck between these objectives.
In regards to the view that the test of reasonableness contravenes Art.2 of ECHR, the point is that virtually all the cases in the ECHR dealt with a state official, particularly the police; the police is a professional unit trained in the act of combat and it follows that they can respond to unexpected attacks; this is not so with a householder. As Ashworth notes, even the Strasbourg court, despite, its insistence on the requirment of ‘good reason’, has also deferred to the beliefs of an ‘‘officer who was required to act in the heat of the moment to avert an honestly perceived danger to his life’’[52]
v Property: s.2(7) states that ‘‘the use of force shall not exclude the use of force causing death’’ and goes on to mention that force could be used to protect property from ‘‘appropriation, destruction and damage.’’ And s.10 states that property means property of a tangible nature, whether real or personal, including money. It is arguable that these provisions allow the use of fatal force in protection of property. However, the popular opinion seem to be that ‘‘it can rarely, if ever, be reasonable to use deadly force merely for the protection of property.’’[53] But, as has been mentioned, the case of R v. Hussey suggests that lethal force can be used in defense of property, although it has been suggested that this is no longer good law.[54]
The Irish Council for Civil Liberties have argued cogently that lethal force should not be used in defense of property, but the open approach taken by the Oireachtas is the right one for it is impossible to decide abstractly whether lethal force should not be used in protection of property. What the Oireachtas did is keep the possibility for use of fatal force in protection of property open. In a situation where a scientist, who has carried out a research on his laboratory for years, faces an aggressor who intends t destroy it, would it not be reasonable to use fatal force in prevention of his property? Again, it is submitted that the concept of reasonableness operates so that the court or jury can adjudicate whether it was reasonable to use lethal force.
CONCLUSION
There were so many issues that could not have been dealt with. But it is enough to state that the Dwelling Act 2011 clarified the law in this area without adding substantively to it.
At the heart of the Dwelling Act are issues such as the conflicting interests/rights of the householder and burglar. While I have argued that the step taken by Oireachtas to balance the conflicting interests is a genuine one, the point is that a completely satisfactory balance cannot be attained, as there will certainly be differing views. But as Hawkins notes, it would seem to be too much leeway to accord undue rights to an aggressor by virtue of the fact that ‘‘the necessity to which he is at last reduced, was at first so much owing to his own fault.’’[55] Also, in regards to the issue of certainty, the question is whether complete certainty can ever be achieved?
Having regard to these arguments, it is respectfully submitted that the Dwelling Act takes a common sense approach and it accords latitude to the vagaries of human nature.
Bibliography
Books
- Ashworth, Principles of Criminal Law, (5th ed., Oxford 2006)
- Charelton, McDermott & Bolger, Criminal Law, (Butterworths, Dublin 1999)
- Fletcher, Rethinking Criminal Law, (Oxford, 2006)
- Hanly, Irish Criminal Law, (2nd ed., Gill & MacMillan 2006)
- Jurgen Habermas, Between Facts and Norms, (William Rehg tr.,Polity Press 1996)
- McCutcheon, Criminal Liability: A Grammar, (Round Hall, Dublin 2000)
- Smith & Hogan, Criminal Law, (12th ed. by D. Omerod, Oxford 2008)
Journals
- Ashworth, ‘Self Defense and the Right to Life’ (1975) 34 CLJ 282
- B. Sangero, ‘A New Defense for Self-Defense’ (2006) 9 Buff. CLR 475
- Beale, ‘ Homicide in Self-Defense’ (1903) 3 Colum. L. Rev. 526
- Beale, ‘Retreat from a Murderous Assault’ (1903) 16 Harv L Rev 567
- F. Leverick, ‘Defending Self-defense’ 2007 OJLS 563
- J.J. Thomson, Self-Defense’ (1991) 20 Philosophy and Public Affairs 283
- McCrossan,’The Nature of the Offence of Burglary and the Permitted Response of a victim of that offence, DPP v. Barnes’ (2007) 17 ICLJ 30
- O’Sullivan,’ The Burglar and the Burglarised: Self-Defense, Home Defense and Barnes’ (2007) 17(4) ICLJ 10
- Spencer, ‘Self Defense and Defense of the Home’ (2007) 17(2) ICLJ 17
- Stacy Caplow, ‘The Gaelic Goetz: A Case of Self-Defense in Ireland’ 2008 Brooklyn Law School, Legal Studies Paper No. 114
Legislation
- Non-Fatal Offences Against the State Act, 1997
- Criminal Law (Defense and the Dwelling) Act 2011
Other Sources
- Irish Council for Civil Liberties, ‘Submission on the Human Rights Compliance of the Criminal Justice (Defense and the Dwelling) Bill 2010.’
- Law Reform Commission, Consultation Paper on Legitimate Defense, LRC 41-2006
- Law Reform Commission, Report on Defenses in Criminal Law, LRC 95-2009
* I have endeavored to state the law as I understand it, but I remain responsible for
any error. Also, due to the word-limit, some points and criticisms on the law are
footnoted, and it is advised that the reader should have regard to it.
[1] This essay is in response to the comment of Mr. Alan Shatter T.D. announcing the
the coming into effect of Criminal Law (Defense and the Dwelling) Act 2011.
Comment available at: http://inis.gov.ie/en/JELR/Pages/PR12000003
[2] Art 40.3.2 imposes an obligation on the state to protect every citizen as best as it
may from ‘’unjust attack’’ and in the case of injustice done, ‘’vindicate the life,
person, good name, and property rights of every citizen.’’; Art 40.5 states that ‘’the
dwelling of every citizen is inviolable and shall not be forcibly entered save in
accordance with law.’’
[3] Legitimate defense means the lawful use of force, ranging from non-fatal to fatal
force, to ward off harm to a legitimate interest. This covers Self-defense, protection
of others, property, and prevention of crime. See generally McAuley and
McCutcheon, Criminal Liability: A Grammar, (Round Hall, Dublin 2000)
[4] See F. Leverick, ‘Defending Self-defense’ 2007 OJLS 563 at 572 where she tries to
provide a theoretical justification to the troubling issues.
[5] See Fletcher, Rethinking Criminal Law, (Oxford, 2006) 860
[6] See Law Reform Commission, Report on Defenses in Criminal Law, LRC 95-2009,
para. 2.24, p.31;Jurgen Habermas, Between Facts and Norms, (William Rehg tr.,
Polity Press 1996) 230, has stated that because ‘‘judicial decision making is bound to law and legal statutes, the rationality of adjudication depends on the legitimacy of existing law.’’ This shows that certainty in judicial decisions is dependent on the principleof legality.
[7] Dail Deb 20 October 2010, vol. 719, col. 400
[8] See: http://www.rte.ie/news/2005/1111/nallyp.html ; http://www.independent.ie/national-news/eyes-of-the-law-out-of-focus-when-it-comes-to-selfdefence-73192.html ; http://www.mayonews.ie/index.php?option=com_content&task=view&id=760&Itemid=38.
[9] Stacy Caplow, ‘The Gaelic Goetz: A Case of Self-Defense in Ireland’ 2008 Brooklyn
Law School, Legal Studies Paper No. 114 at p.29 Available at SSRN:
http://ssrn.com/abstract=1189497. Accessed on 03 March, 2012.
[10] Discuss confusion as to whether it abolished the common law use of lethal force as
[11] s.18(1) and 19 deal with the situation in which non-lethal force can be used
[12] People(AG) v. Keately [1954] IR 12; People (AG) v. Dwyer [1972] IR 416
[13] It is only the rationale for self-defense that is ever debated. See B. Sangero, ‘A New
Defense for Self-Defense’ (2006) 9 Buff. CLR 475. Available at:
http://works.bepress.com/dr_boaz_sangero/5. Accessed on 05 March, 2012
[14] See generally, Beale, ‘Retreat from a Murderous Assault’ (1903) 16 Harv L Rev
567. This duty to retreat is a component of the requirement that the use of force
must be necessary. As the Law Reform Comission, Consultation Paper on
Legitimate Defense, LRC 41-2006, para. 5.15, p. 176, ‘’the necessity rule and the
retreat rule are inextricably linked.’’
[15] ‘’[A man] is under no duty to take to the fields and the highways, a fugitive from
his own home’’: People v. Tomlins [1914] 213 N.Y. 240, per Cardozo J.
[16] [1925] 18 Cr. App. R. 160.
[17] Smith & Hogan Criminal Law (12th ed., Butterworths 1999)372, assert that ‘’[e]ven
if this were the law at the time, it would seem difficult to contend that such
conduct would be reasonable…’’; McAuley & McCutceon, n. 4, p.762
[18] [2006] IECCA 165
[19] Ashworth, ‘Self Defense and the Right to Life’ (1975) 34 CLJ 282 at 294, n.37,
comments that ‘’the term ‘home’ was strictly construed, even in the nineteenth
century’’ and cites Dakin’s Case (1828) 1 Lew. 166 in support where Bayley J.,
directed that ‘‘If [he] had known of the back way, it would have been his duty to
have gone out backwards, in order to avoid conflict.’’ This comment shows that it
may have been possible for the court to say that a homeowner who shot an
assailant in his garden was not in his ‘’home’’ and therefore not entitled to the
protection of the Castle doctrine.
[20] O’Sullivan,’ The Burglar and the Burglarised: Self-Defense, Home Defense and
Barnes’ (2007) 17(4) ICLJ 10. Although she did not expressly agree with the Law
Reform’s commission conclusion that the Castle doctrine was no part of Irish law
due to the fact that it was irrelevant as the issue had been decided at her time of
writing in the decision of People (DPP) v. Barnes, n.18, it would seem she would
have also reached that conclusion.
[21] [1971] 1 WLR 1600 at 1607
[22] [1972] IR 416
[23] The retreat point was not in contention; the issue was whether a person who used
excessive force in self defense but honestly believed he used no more force than
necessary could avail of a half-defense, i.e. manslaughter, instead of being
convicted for murder.
[24] Self induced necessity arises where a person creates the necessity to use
defensive force by means of provoking the attack, whether by words or physical
acts. For an understanding of this area, see Beale, ‘ Homicide in Self-Defense’
(1903) 3 Colum. L. Rev. 526
[25] Although McAuley & McCutcheon, n.3, 757, mention that this general principle is
subject to the ‘chance medley’ exception where he unambiguously withdrew from
the conflict, their support, pace the authors, for this view is misleading. This is so
as they cited Stoffer v. State (1864) 15 Oh. S. 47 for a support of this view, but the
problem is that this case is not one of chance medley as the appellant had a pre-
meditated intention to kill his assailant. Infact Beale, n.24, at 532, cited the case
under his category of ‘’necessity maliciously caused by the defendant’’.
[26] McAuley & McCutcheon, n.3, at 757 assert that ‘’the strict policy evident in old
cases has arguably been superseded by the principle that a person is entitled to
defend himself against an unlawful attack notwithstanding that it may have been
provoked by wrongful conduct on his part.’’ The authors cite Dwyer, n.22;
People (DPP) v. Doran [1987] 3 Frewen 125 in support of their assertion, where
facts have a striking similarity to that of self-induced necessity.
[27] See Law Reform Commission, n.14, para. 1.03, p.5
[28] [2006] IECCA 128
[29] For an interesting and insightful account of this case, See Stacy Caplow, n.9.
[30] [2006] IECCA 165
[31] See McCrossan,’The Nature of the Offence of Burglary and the Permitted Response
of a victim of that offence, DPP v. Barnes’ (2007) 17 ICLJ 30
[32] Spencer, ‘Self Defense and Defense of the Home’ (2007) 17(2) ICLJ 17
[33] Infact Beale’s different retreat requirements for different aggressors is based in
fact that a ‘‘necessity maliciously caused by the defendant’’ is murder unless he
absolutely withdraws, whereas a ‘‘necessity caused by the defendant, but not
maliciously’’ is manslaughter if he does not withdraw, but will be entitled to full
self-defense if he withdraws to the wall. See Beale, n.23. On this basis, there is
hardly any need to specify different retreat requirements for different aggressors
since the result will be the same.
[34] O’Sullivan, ‘The Burglar and the Burglarized: Self-Defense, Home-Defense and
Barnes’ (2007) 17(4) ICLJ 10
[35] O’Sullivan’s point is primarily based on the fact that in Nally, Carney J., in his
unique wisdom, instructed the jury that he will only accept a verdict of murder or
manslaughter. This direction was overturned in the CCA as it was a usurpation of
the jury’s role. In this regard she argues that the decision in Barnes is against the
ratio of Nally. But these cases are distinguishable: assuming the CCA in Barnes
created a new defense, as O’Sullivan asserts, then the point of her argument is lost.
This is so because the jury’s role is to adjudicate the veracity of facts and apply it
to existing law; what Hardiman J. did is lay down a general principle applicable to
future cases and not just to Barnes, but in Nally Carney J. usurped the role of the
jury by telling them what outcome of the existing law would be on the facts; the
existing law in Nally did not restrict the scope of the defense, no matter how
perverse the facts were.
[36] Hawkins, P.C., ch. IX, s. 17.; this is also the view of Ashworth, n.18, where he states
that:
It would be in accordance with principle and with the older authorities if D
[the original aggressor] were under a prima facie duty to avoid further
violence and if, when placed in a situation where violence could not be
avoided if his life were to be saved, he should retain a qualified liberty to
use force for self-defense. The exercise of his liberty would not justify an
acquittal, but would reduce the offence from murder to manslaughter.
McAuley & McCutcheon, n.4, at 759 seem to also support this view.
[37] s.4 of the Dwelling Act states that ‘‘[N]othing in this Act shall operate to prejudice
any defense recognized by law as a defense to a criminal charge.’’
[39] s.1(1) states that curtilage means an ‘‘area immediately surrounding or adjacent
to the dwelling which is used in conjunction with the dwelling, other than any part
of that area that is a public place.’’ The essence of this provision is that it wipes
away the uncertainty as to whether the definition of the home is restricted to the
four walls of the house. So an intruder who enters a householder’s garden with an
intent to commit acriminal offence, or the house holder believes so,the householder
is entitled to use reasonable force. But this provision can be criticized for not
specifying the extent of the curtilage. Should it be 1acre or 10acres? On the other
hand, it can be argued that specifying the extent of curtilage will be an un-
necessary legislation since it may cause uncertainty as a householder may not
know, in the heat of the moment, whether a particular area invaded by the
intruder falls within the ambit of curtilage. Also, it might create an incentive for
intruders to cause damages on people’s property as they will seek to argue that
it the area is not a dwelling because it does not fall under the curtilage definition.
In all, it is submitted that this is good law; the extent of the curtilage should be a
matter of interpretation by the courts.
[40] It states that ‘‘[A]n act is criminal notwithstanding that the person doing the act if
charged with an offence in respect of it, would be acquitted on the ground’’ that
he (1) acted under duress; (2) he was in a state of intoxication; (3) he was insane
so as not to be responsible according to law for the act.
[41] Obviously, this provision raises difficult philosophical and human right issues.
F.Leverick, n.4, at 564, rhetorically comments that if all human life is equally
valuable, then it is difficult to explain why we should permit individuals to kill
an aggressor, particularly where for reasons such as age or insanity, the aggressor
is not responsible for his actions. The truth is that there is no good or bad answer
to this question and the desirability of the provision will depend on the rationale
that underpins legitimate defense and also having regard to the social context in
which it was enacted. Obviously, a rationale that is predicated on culpability i.e.,
that the householder is entitled to take the life of the innocent aggressor because
of his moral blameworthiness does not answer the question as the insane man is
not guilty or responsible for his actions. But it might be argued that this issue can
be reconciled saying that rationale for the forfeiture of the innocent aggressor’s
life is based not on his fault but on his conduct. See J.J. Thomson, Self-Defense’
(1991) 20 Philosophy and Public Affairs 283. Available at: http://philpapers.org/rec/THOS. Accessed on 10/03/2012. But even under this
approach
[42] It states that ‘‘[N]otwithstanding the generality of any other enactment or rule of law concerning the civil liability of persons in relation to trespassers, a person who uses such force as is permitted by section 2 in the circumstances referred to in that section shall not be liable in tort in respect of any injury, loss or damage arising from the use of such force.’’ This provision refers to s.4(1) of the Occupiers’ Liability Act 1995 which states that an occupier owes a duty towards a trespasser not to injure him or damage his property intentionally. s.5 effectively abrogates this duty to trespassers.
[43] This is the same test under Non-fatal Offences Against the Person Act, 1997, s.18(1)
[44] See Hanly, Irish Criminal Law, (2nd ed., Gill & MacMillan 2006) 128
[45] See Charelton, McDermott & Bolger, Criminal Law, (Butterworths, Dublin 1999)
1032
[46] Law Reform Commission, n.14, has stated that the concept of reasonableness does
not satisfy the principle of legality and recommended that the traditional
elements of necessity, proportionality, and imminence form part of the test.
[47] Irish Council for Civil Liberties, ‘Submission on the Human Rights Compliance of
the Criminal Justice (Defense and the Dwelling) Bill 2010.’ Submission Available
[48] Art. 2(2) states that ‘‘[D]eprivation of life shall not be regarded as inflicted in
contravention of this Article when it results from the use of force which is no
more than absolutely necessary
- in defense of any person from unlawful violence
- in order to effect a lawful arrest or to prevent the escape of a person lawfully detained
- in action lawfully taken for the purpose of quelling a riot or insurrection
[49] Ashworth, Principles of Criminal Law, (5th ed., Oxford 2006) 137
[50] ibid. at 148
[51] After all, any objective to achieve complete certainty is illusory.
[52] Ashworth, Principles of Criminal Law, (5th ed., Oxford 2006) 148
[53] Smith & Hogan, Criminal Law, (12th ed. by D. Omerod, Oxford 2008) 372
[54] ibid. Law Reform Commission, n.14, para. 2.94, p.37, has recommended that lethal
defensive force should not be used in defense of property.
[55] Hawkins, P.C., ch. IX, s. 17
lawpodium 
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