Protection instead of Prosecution: Why Ireland's Current Laws in Relation to Self Defence Against Trespassers Should Be Changed and

How.

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Word Count: 6213 (including footnotes)

Introduction:
Murdoch's Dictionary of Irish Law defines self defence as acting so as to defend one's person, the person of another, or one's own or another's property against criminal attack.1 As Deane J. said, self defence is embedded deeply in the ordinary standards of what is fair and just2, however, it is an undoubtedly controversial issue. It is governed by ambiguous legislation, surrounded by varying case law decisions and contains a strong constitutional dimension. As well as this, the law in relation to self defence is entangled with many conflicting moral views, not knowing which arguments to agree with. This essay will show why the law on self defence should be altered by first defining self defence and then analysing the legislation controlling the extent to which property owners can use force against trespassers. Once the current law's weaknesses have been established, the Law Reform Commission's Report on defences in criminal law3 will be examined along with American self defence theories in order to deduce how best to change the law to benefit homeowners.

Self Defence:
As previously stated, self defence is the lawful use of force by a person towards an unlawful threat to private or public interests. In the context of this essay, the term self defence will encapsulate all instances of the use of force against an unjust attack, from assault to murder. There are two main forms of defence, “justified” and ”excuse-based”.4 A justified defence is when the conduct of the person accused is deemed to
1

Murdoch's Dictionary of Irish Law's definition of Self defence, available at: http://milcnet.lendac.ie.libgate.library.nuigalway.ie/NXT/gateway.dll?f=templates&fn=default.htm$vid=milcnet:milcnet1
2

Zecevic v. Director of Public Prosecutions [1987] 162 C.L.R. 645 at 675. “The defence of self-defence is embedded deeply in ordinary standards of what is fair and just. It sounds as readily in the voice of the schoolchild who protests that he or she was only defending himself or herself from the attack of another child as it does in that of the sovereign state which claims that it was but protecting its citizens or its territory against the aggression of another state.”
3 4

Law Reform Commission, Report on Defences in Criminal Law, LRC 95-2009 (Dublin, 2009) ibid. at 27.

be morally and legally correct. An excuse-based defence is a defence for an action that is morally and legally wrong, but partially excused due to the presence of certain factors, for instance insanity or intoxication. This essay will deal with both justifiable and excuse-based defences. As stated by McMahon and Binchy, it was commonly believed that an occupier owed very little duty to a trespasser.5 This is because a trespasser is someone who purposely commits an unlawful interference with another’s person, goods or land for personal gain.6 As stated by Kingsmill Moore J. “… a trespasser trespasses at his peril and cannot complain if he suffers injury by reason of some danger ...”7 This seems relatively simple, however, complications arose when the courts began to limit the extent to which property owners could use force to defend themselves against trespassers. Before we discuss this topic we must first analyse the legislation controlling the matter.

The Law in Relation to Self Defence:
This area of law is primarily governed by: •Sections 18 to 22 of the Non-Fatal Offences Against the Person Act, 1997. •Section 4 of the Occupiers' Liability Act, 1995. •Bunreacht na hEireann. •The European Convention of Human Rights. Sections 18, 19 and 20 of the Non-Fatal Offences Against the Person Act are largely modelled on clauses 27 to 30 of the English Criminal Law Bill.8 Section 18 of the act sets out the range of circumstances in
5
6

McMahon and Binchy, The Law of Torts (Dublin, 2nd ed.,1989) at 223.

Murdoch's Dictionary of Irish Law's definition of Self defence, available at: Http://milcnet.lendac.ie.libgate.library.nuigalway.ie/NXT/gateway.dll? f=templates&fn=default.htm$vid=milcnet:milcnet1
7 8

Donovan v. Landy’s Ltd. [1963] 1 I.R. 411 at 453.

Irish Current Law Statutes Annotated, available at: HTTP://www.westlaw.ie.libgate.library.nuigalway.ie/westlawie/wisearchframes?
edit_doctype=iclsa&doctype=iclsa&iclsa_type=legis&searchFreeText=&actname_operator=AND&actname=NonFatal+Offences+Against+The+Person&year_num_section_operator=AND&year=&num=&section=&ordering=relevance

which force may be legally used against trespassers. It states that the force used must be subjectively reasonable, that is, the person using the force must believe in the circumstances that it is reasonable. Section 19 deals with the issue of “...the use of force by a person in effecting or assisting in a lawful arrest.” Section 20 of the Act defines the meaning of the use of force in relation to sections 18 and 19. Also, it states that the fact that a person who chose to use force when the opportunity to retreat was available will be taken into account in determining whether the use of force was reasonable. Section 21 and 22 are not as relevant to this essay as sections 18 to 20. So when applied to Irish cases, the Non-Fatal Offences Against The Person Act, 1997, allows for the use of a “reasonable” degree of force in self defence. (The term “reasonable” is not clearly defined by law, the definition of its meaning has been delegated to the juries who decide each individual case.) The 1997 Act creates an objective statutory test with the courts applying a subjective perception of the situation in order to determine whether or not the force used was “reasonable”. In the case of the fatal use of force, an accused person's subjective belief that his actions were reasonable along with a court finding his actions to be objectively reasonable results in an acquittal. If the accused believes his actions to be reasonable but a court renders them objectively unreasonable then the sentence would be manslaughter. As Dwyer put it, the introduction of the manslaughter verdict was rationalised by reference to the requisite mental element in murder. For example the accused would have to have committed his act with ‘malice aforethought’.9 This particular principle was set out in Irish law by the case of People (DPP) v Dwyer.10 Here, the accused was mistaken in his perception of the threat he faced. The law could not justify this, however, the courts took the view that the unlawful use of force was partially excusable in the circumstances. This reduced the sentence from murder to manslaughter. If the court does not believe the accused subjectively believed his actions were reasonable then there would be a charge of murder. It is not clear as to what extent this Act applies to cases involving the fatal use of force, after all, its short title is the Non-Fatal Offences Against the Person Act.

9

Dwyer, "Homicide and the plea of self-defence", (1992) 2(2) Irish Criminal Law Journal 73 at 76. [1972] I.R. 416.

10

However, the Law Reform Commission's report noted that the language in the 1997 Act was ambiguous enough to apply to fatal force cases.11 Section 4 of the Occupiers' Liability Act, 1995, says that an occupier owes a duty of care towards all entrants, including trespassers. Subsection 1 of section 4 sets out that an occupier owes a duty not to intentionally “...injure the person(of the trespasser) or damage the property of the person...” or to act with “reckless disregard” for the trespasser's person or property. Subsection 3 was created to exclude liability towards criminals. However, it only excludes liability for “reckless disregard” towards a criminal, an occupier would still be fully liable for deliberately injuring a trespasser. It would appear that this piece of legislation is subordinate to the 1997 Act when dealing with the event of a homeowner using force against a trespasser. The Irish Constitution has direct relevance to self defence. Article 40.3 of the constitution requires that the state must, as far as practical, “...defend and vindicate...” the rights of its citizens. It also declares that the state will ,by its laws, protect from unjust attack the “...life, person, good name, and property rights of every citizen.” Article 40.5 states that the dwelling of each citizen is “inviolable”, this means that it is secure from trespass and assault. So the constitution makes it clear that the state will protect its citizens from unjust attack, however, both the trespasser and victim are citizens, so whose rights are superior? The Constitution makes it clear that the most fundamental of all human rights is the right to life, which is enjoyed equally by all human beings at all times.12 The European Convention on Human Rights makes reference to the use of force in Article 2. It states that the deprivation of life is not in contravention with the right to life if it results from the use of force “...in defence of any person from unlawful violence”. However, it also says that the force used must be no more than absolutely necessary. Case law has also established many principles in relation to self defence. For example, the onus is on the prosecution prove its case beyond reasonable doubt. As Walsh J. put it “The onus is never upon the
11 12

Law Reform Commission, Consultation Paper on Legitimate Defence (LRC CP 40-2006) from para. 1.15–1.19. O'Hanlon, "Natural Rights and the Irish Constitution" (1993) 11 Irish Law Times 8 at 11.

accused to raise a doubt in the minds of the jury.”13 An unnecessary use of force is a crime because it is effectively amounts to an assault.14 Many other principles have been established, as will be discussed. A combination of all of the above sources of law have created a rather complicated situation in Ireland with regards to the use of self defence, so it is not surprising that these varying laws come into conflict with one another. The provisions of the Non-Fatal Offences Against the Person Act that allow for a “reasonable” degree of force to be legally inflicted on a trespasser conflicts with the constitutional right of the trespasser to bodily integrity as well as Section 4 of the Occupiers' Liability Act, which prohibits the intentional use of force towards a trespasser. The Non-Fatal Offences Against the Person Act limits the degree of force an occupier can lawfully use on a trespasser, which seems to infringe on the state's obligation to protect the “...life, person, good name, and property rights of every citizen”. When the rights conferred upon a homeowner by one piece of law conflict with the rights conferred upon a trespasser by another piece of law, whose rights are superior? The case of People (DPP) v Barnes15 dealt with some of these issues. It involved a burglar who, during the course of a robbery of a house in County Waterford, was confronted by the homeowner. The homeowner, an elderly man, was stabbed to death by Barnes in an act of what he claimed was self defence. The court found that by trespassing with the intent to steal “...Barnes was not merely committing a crime but was invading Mr. Forrestal's constitutional rights...”16 As Barnes was a burglar he was an aggressor and as Hardiman J. also stated in this case, a burglar ”...may expect to be lawfully met with retaliatory force to drive him off or to immobilise or detain him and end the threat which he offers....”17 (Emphasis added.) Since Mr. Forrestal's retaliation was legal and proportionate, self defence could not be claimed. Also, since Barnes was the creator of the danger he found himself in, he was not in the position of an ordinary reasonable man and so could not claim self defence. As O’Sullivan
13 14

The People (Attorney General) v. Quinn [1965] I.R. 366. The People (Attorney General) v. Keatley [1954] I.R. 12. [2007] 1 I.L.R.M. 350. ibid. at 362. Quote by Hardiman J. ibid at 364.

15 16
17

exclaimed, a person who set in motion the events leading to the requirement to use force is precluded from raising self-defence, unless the reaction of the original victim to the instigatory event was disproportionate.18 It is apparent that the Irish law in relation to the use of self defence must be changed, or clarified at the least. But what is the best way to go about this change? The Law Reform Commission put forward its suggestions in its report on defences in criminal law, which is discussed below.

The Need for Reformation:
The need to reform this area of law is fuelled by the need for legal certainty. As Ashworth stated, “...legal certainty is important from the point of view of producing consistent and principled court decisions, as well as guiding the conduct of citizens.”19 The Law Reform Commission acted upon this strong desire for legal certainty in regards to the use of self defence in Ireland and produced their report on defences in criminal law. The report made numerous recommendations, some significant and others secondary, to alter the law governing the use of self defence. One of the most important and logical recommendations made by the Commission was that all of the defences in criminal law should be codified.20 This would help make the current situation in Ireland with regards to the use of self defence much clearer and easier to understand for the citizens of Ireland. The Commission also suggested that after codification of all defences, sections 18 to 22 of the Non-Fatal Offences Against the Person Act, 1997, should be repealed and replaced in their entirety.21

18

O'Sullivan, "The Burglar and the Burglarised: Self-Defence, Home-Defence and Barnes", (2007) 17(4) Irish Criminal Law Journal 10 at 12.
19 20 21

Ashworth, Principles of Criminal Law (Oxford, 5th ed., 2006) at 139. Law Reform Commission, Report on Defences in Criminal Law, LRC 95-2009 (Dublin, 2009) at 2. ibid. at 31 para. 2.23.

The Law Reform Commission discussed in great detail the current test for the lawful use of force, that is, the “reasonableness” test.22 This test was described as a crude process that offers no clear guidelines to the courts (or innocent homeowners) as to the limits of acceptable force23 and has the effect of “...transferring difficult questions of law and policy behind the closed door of the jury room.”24 The Commission believes that although this test has its merits, they are out weighed by its numerous disadvantages. One of its primary drawbacks is that it is far to vague to give the citizens of Ireland a clear picture of what the law expects of them in the event of being confronted by a trespasser. The commission held the opinion that juries should be provided with direction through the substantive requirements which are usually involved in defences, for example a minimum threshold requirement, imminence, necessity and proportionality, instead of simply being asked to judge the case by what they believe to be “reasonable”. These recommendations, if acted on, would be of great benefit to the citizens of Ireland. The term “reasonable” could incorporate anything into its meaning and is therefore far too ambiguous for a matter as important as the protection of the family home. The Irish courts expect an under attack homeowner to act reasonably and in accordance with the law. In this situation, how is a normal citizen supposed to know what is reasonable and in accordance with the law, when the legislation controlling the issue does not clearly define what is reasonable? The recommendation for the introduction of substantive requirements is therefore a very advantageous one, however, these requirements must be set in a manner that benefits the innocent defender.

The Commission put forward the proposition to change the law so that “...a person does not commit an offence where he or she uses force by way of defence to the use of unlawful force by another person.”25 It stated that this rule would be subject to numerous requirements, especially the use of lethal force. These
22

Law Reform Commission, Report on Defences in Criminal Law, LRC 95-2009 (Dublin, 2009) at 31 para. 2.25. Spencer, "Self Defence and Defence of the Home" (2007) 17(2) Irish Criminal Law Journal 17 at 19. Williams, Textbook of Criminal Law (Stevens & Sons, London, 1978) at 440. ibid. at 32 para. 2.28.

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requirements will be discussed later in this essay. This suggestion is one that follows logic. To bring the current law's ridiculousness to life, imagine the hypothetical (but not uncommon) scenario of a homeowner, an ordinary citizen, being awoken by a burglar at 3 o'clock in the morning. The homeowner is confronted by the burglar, adrenaline is pulsating throughout his body because his place of refuge has been broken into by a trespasser with criminal intentions. In this scenario, the courts would expect the innocent homeowner to use “reasonable” and proportionate force against the trespasser. This is a totally unreasonable expectation. It is common knowledge that soldiers in the majority of the world's armies are specially trained for confrontations similar to the one described above. For example, The United States Central Command requires that all soldiers deployed in support of 'Operation Iraqi Freedom' be extensively trained in 14 areas, including the “rules of engagement” and the “rules for the use of force”.26 It is absurd that in the above situation the courts expect the homeowner to know what force is reasonable and proportionate when soldiers are extensively trained for the same expectation. This is why, if brought into law, the Commission's recommendation would be a breath of fresh air to the legal area of self defence. As noted above, the Commission stated that a minimum threshold requirement should be imposed on the use of force but more importantly the use of lethal force.27 This would protect the personal rights of the trespasser set out by the constitution, for example the right to life set out by Article 40.3. However, this incentive is subordinate to the fact that it would set out a guide for citizens in regard to the use of lethal force. If a defender knew in what circumstances he could or could not use retaliatory force, it would increase the defendant's knowledge as to what might amount to a successful plea. As well as that, it would give juries a sturdy starting point when determining particular cases. Minimum threshold requirements are applied in many states in America28 and they have helped to establish a clear line between what behavior the courts see as being acceptable and unacceptable. The commission suggested a similar requirement to the one set out in the
26

United States Department of Defense, Report on Training Requirements for U.S. Ground Forces Deploying in Support of Operation Iraqi Freedom (D-2008-078) 2008 at 3. ibid. at page 39 para. 2.57.

27

28

Section 3.04 (2)(b) of the U.S. Model Penal Code states that the use of lethal force is permitted in order to repel perceived threats of “...death, serious bodily injury, kidnapping or sexual intercourse compelled by force or threat”.

United States Model Penal Code, saying that lethal force should only be permitted to repel threats of “...death or serious injury, rape or aggravated sexual assault, false imprisonment by force, and, then only if all the requirements of legitimate defence are made out.”29 The concept of a minimal threshold requirement is a logically sound one, however, the one suggested above is questionably high. How is a defender supposed to know, beyond doubt that he is in danger of death or serious injury? If a trespasser is willing to illegally break into a citizen's place of refuge it is highly unlikely that he will have a problem with assaulting the homeowner. Very few criminals are Buddhist. The Law Reform Commission suggested that lethal defensive force may only be used where necessary, imminent and where it is not disproportionate, thus upholding many aspects of the current law.30 As stated by O'Malley, proportionality enjoys a high level of intuitive acceptability.31 The belief held by the Commission is that creating what has become known as 'license to kill' legislation is repugnant to the concepts of justice, as well as the Constitution. As Aristotle noted, proportionality is an important element of justice and virtue.32 But what is proportionate? Does a trespasser with criminal intentions deserve to be met with lethal force? If not, would a trespasser in the possession of a weapon in the same situation deem lethal force justifiable? Some states in America have answered the later question in the affirmative. Sections 18-1-704(3) of the Colorado Statutes have humorously become known as the 'Make My Day Law', as they provide homeowners with an immunity from prosecution for force used against a trespasser.33 As Ashworth stated, two of the concepts that justify the existence of criminal law and sentencing are the “detrimental effect and punishment.” Currently our jurisdiction concentrates on the punishment aspect of criminal law by sentencing burglars to penal servitude. Garland holds the belief that punishment controls how we ought to think about

29 30 31 32 33

Law Reform Commission, Report on Defences in Criminal Law, LRC 95-2009 (Dublin, 2009) at 40 para. 2.58. ibid. at 208. O'Malley, Sentencing Law and Practice (Dublin, 2000) at 113 para. 5-01. Aristotle, The Ethics of Aristotle translated by Thomson (London, rev. ed. 1976) at 182. Gardner and Anderson, Criminal Law (Thomson, 9th ed. 2006) at 107.

“...good and evil, normal and pathological,legitimate and illegitimate, order and disorder.”34 Irish law currently attempts to modify how criminals think about good and bad after a wrong is committed, by the implementation of punishment. This is a totally illogical approach because concentrating on the laws powerful detrimental effect would alter criminals thinking prior to a wrong being committed. If Ireland were to follow in Colorado's footsteps there would be many advantages and admittedly many disadvantages. Unfortunately there would be a possibility that a number of mistaken trespassers may be killed by homeowners, as has happened in America.35 Another downside would be the fact that trespassers would expect to be met with a greater force, so in turn would become more violent. This point was put before the Oireachtas by the Irish Council for Civil Liberties.36 Never the less, there would undoubtedly be a great reduction in the amount of burglaries committed in this jurisdiction, because the risk of death or serious injury would greatly outweigh the profit made by the burglary. As Fianna Fáil TD Seán Connick phrased

it, “Fear does work.”37 As well as this, the people of Ireland would be confident in defending their homes
and possessions from unjust attack, as the law would no longer be defending the criminal. The main counter argument to the introduction of homeowner immunity from prosecution is the fact that a trespasser has the same rights to life as all other citizens, and that, as Hardiman J. said in Barnes, “...it is ridiculous to suggest that a private citizen...may deliberately kill [a man] for simply being a burglar.” This statement would be a fair one if Hardiman J. was referring to an innocent burglar in a vacuum who was solely a burglar and did not offer any threat to his victim's well being. Unfortunately, burglars are never solely burglars, they are all also aggressors.38 The introduction of homeowner protection laws would not mean a homeowner could kill one of Hardiman J.'s mythical innocent burglars, it would mean a homeowner could confidently defend himself
34 35 36 37

Garland, Punishment and Modern Society: A Study in Social Theory (Oxford, 1991) at 252. ibid. at 108. Healy, “Allowing use of lethal force would 'up the ante'”, The Irish Times, January 28, 2010. Ibid.

38

“Every burglary in a dwelling-house is an act of aggression.” Hardiman J. in People (DPP) v Barnes [2007]

1 I.L.R.M. 350 at 364.

without fear of being apprehended. As well as this, introducing a homeowner protection law would end the constant debates on the issue and help clear up much of the confusion surrounding this particular area of law. The benefits of applying a “homeowners Protection Law”39 law in Ireland (such as in Colorado) outweigh its disadvantages, so it would be in Ireland's best interests to follow in the footsteps of American states such as Colorado, and grant homeowners immunity from prosecution. Finally, the Commission proposed that a trespasser, who has initiated the conflict which is threatening his safety, is only entitled to use lethal defensive force in the face of a “...disproportionate response from the original victim and where they are unable to retreat in complete safety.”40 This is a mere parroting of the current law on the matter. As Spencer phrased it, the current law sets out that the burglar's scope for defending himself against an attack by the householder is limited to defence against an attempt by the householder to kill the burglar simply for being a burglar.41 The Commission's recommendation (like many others) seems to be protecting the criminal. To suggest that a burglar may lawfully kill an innocent homeowner in self defence is repugnant to the very idea of justice. Yes, a disproportionate response by an innocent homeowner is currently illegal, but at the very worst it should result in manslaughter. This suggestion seems to act against the fundamental purpose of law, to protect the innocent, as well as the precedent laid down by Barnes. The Commission also upheld the current application of the Castle Doctrine in its recommendations, stating that a defender should not be under an obligation to retreat from an attack in their dwelling, even if they could do so in complete safety. 42 The Castle Doctrine is a legal doctrine of common law origin, that is based on the principle that one should never be required to retreat from one's place of refuge.43

39 40

ibid. at 107. Law Reform Commission, Report on Defences in Criminal Law, LRC 95-2009 (Dublin, 2009) at 61 para. 2.156. Spencer, "Self Defence and Defence of the Home" (2007) 17(2) Irish Criminal Law Journal 17 at 19. Law Reform Commission, Report on Defences in Criminal Law, LRC 95-2009 (Dublin, 2009) at 65 para. 2.172.

41
42

43

O'Sullivan, "The Burglar and the Burglarised: Self-Defence, Home-Defence and Barnes", (2007) 17(4) Irish Criminal Law Journal 10 at 10.

Changing the Law:
The high profile case of People (DPP) v Nally44 demonstrates that the law is beginning to 'tip the balance' back in favour of the victim. The case involved a farmer from County Mayo, Pádraig Nally, who shot dead John “Frog” Ward in October 2004. Mr. Ward was attempting to burgle Mr. Nally's home prior to being shot dead by a shotgun. This controversial decision supports the belief that killing in order to protect one’s property and dwelling is lawful, in some rare circumstances. As well as this, the Law Reform Commision's report indicates that the Oireachtas is listening to the cries of the people and wants the law altered to protect them. As Mr. Nally emphatically said in an RTE Radio One interview, “People are fed up now of being raided and robbed and beat up in their own homes.”45

Despite this, more often than not the current law on the use of self defence seems to victimise the
criminal and criminalise the victim. When a trespasser trespasses with criminal intent he shows reckless disregard for the victim's personal rights, the victim's property rights and superiority of the law in general, so why is it that the law stands up for the criminal? It would seem that the reason is that the courts are afraid of victims taking the law 'into their own hands’, however, they fail to realize that the law is currently failing the victim. By attacking a trespasser in self defence, a victim is not 'taking the law into his own hands', he is taking justice into his own hands. In this respect, the law governing the use of self defence should be changed. As well as changing many aspects of law, the courts should change their interpretation techniques in relation to equality. Ireland's courts use Article 40.1 to place criminals and victims on an even grounding and many academic writers argue that granting homeowners immunity from prosecution unjustly diminishes trespassers' constitutional rights. However, Article 40.1 is there to prohibit arbitrary, unreasonable or unjust discrimination.46 This fact was also pointed out in de Búrca and Anderson v. A.G. By Walsh J..47 Granting

44
45 46

[2006] I.E.C.C.A. 168. Duncan, “Ahern denies law is a 'licence to kill',”The Irish Times, December 15, 2009. O’B. v. S [1984] IR 316. [1976] IR 38.

47

homeowners immunity from prosecution is simply agknowledging the difference between an innocent homeowner and a criminal in terms of social function, it is obviously not arbitrary discrimination. The Law Reform Commissions recommendations are an attempt to push the law back in favour of the homeowner, however, the push is not a powerful one, it is more of gentle nudge. Its suggestion that a person does not commit an offence when he uses force in defence is a very good one and probably its best because it gives homeowners confidence in the law, but this suggestion alone is not a sufficient. There are many self defence theories which if incorporated into Irish law would be of great benefit to the people of Ireland. Fletcher outlined two dominant American theoretical approaches to self defence law.48 The first being the 'lesser-evils' model. It means that the defender must compare the harm caused by successful self defence with the injury avoided and act in a manner that minimizes the net harm. The second approach is the 'protection of autonomy and social order', this means that the victim is fully justified in using force in self defence because by doing so he is protecting autonomy and the greater social order. In Ireland, it is currently the first theory that prevails but as Schopp explained, if a jurisdiction were to follow the second approach, it would remove many of the requirements that make the law on self defence so complicated.49 For example there would be no such thing as disproportionate force because by defending his legally protected rights, he would be defending the larger social order, therefore any force used against a trespasser would be justifiable. This not only protects the victim from being prosecuted, it also gives confidence to homeowners when defending their dwellings, as famously quoted by Waddington, “Shooting to wound is rarely a practicable option.”50 As expounded by Schopp, Fletcher's second theory places an emphasis on the victim’s rights and the overall social order. It also explains why innocent victims may “...justifiably inflict more severe injuries on aggressors rather than absorbing less serious harm from aggressors.”51 Phillip Montague's 'harm
48 49

Fletcher, Rethinking Criminal Law (Boston, 1978) at 857. Schopp, Justification Defenses and Just Convictions (Cambridge, 1998) at 57. Waddington, “Overkill or Minimum Force?” (1990) Criminal Law Review 695. Schopp, Justification Defenses and Just Convictions (Cambridge, 1998) at 59.

50

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distribution principle52 is similar to Fletcher's second theory because it places a great emphasis on the victim's rights. It states that an innocent victim can justify the use of force against an aggressor as a decision to distribute an unavoidable harm to the person who created the situation. Irish criminal defence law should be moving in a direction of change that agrees with Fletcher's second theory and Montague's 'harm distribution principle'. These American theories, if incorporated into Irish law, would give protection to the innocent homeowners that do not currently have it. It would also remove the laws current protection of trespassers. Self defence law in England53 favours the homeowner more so than the Irish law does. It has been set out in English law that an accused person should be judged on the facts as he believed them to be, whether they be objectivity reasonable or not.54 The Crown Prosecution Service issued a report called ‘Householders and the use of force against intruders’55 to help deal with peoples concerns about the law and its protection. It stated that as long as you do what you honestly and instinctively believe is necessary at that moment you will not be prosecuted. Also, English defence law states that if your reasonable self defence has the end result of the trespasser dying, your self defence is still legal. Earlier this year a decision was passed that indicates the direction English defence law is moving in. It was the decision in the case of R. v Hussain.56 The case involved a burglary in Munir Hussain's home. The burglar, Walid Salem, and his accomplices entered Munir Hussain's home, tied up his family and him and began removing his possessions. Mr. Hussain escaped along with his son and they chased Mr. Salem down the street and began to beat him. This case is an important one because on appeal, Mr. Hussain got a sentence of two years and six months' imprisonment reduced to a twelve month suspended sentence. Although Munir Hussain was clearly acting in revenge, the courts did not punish

52 53 54 55

Montague, “Self-Defense and Choosing between Lives” (1981) 40 Philosophical Studies 207 at 216. This is primarily governed by the Occupiers' Liability Act , 1984, and the Criminal Justice Act , 2003. Beckford v. R. [1988] A.C. 130. http://www.cps.gov.uk/publications/prosecution/householders.html

56

[2010] E.W.C.A. Crim 94

him because he was “...provoked beyond endurance.”57 This decision indicates that the law, in England at least, may begin to protect the victims of burglaries. It is clear that the English law concentrates more on the rights of the homeowner than the trespasser's rights than Irish law. Although not yet as developed as American defence law, English defence law is a step closer to what Irish law should be.

Conclusion:
The following quote from Lanham's book explains vividly the current situation in Ireland.
“When the householder finds himself in the presence of a burglar in the still of the night, his position is exactly the same as it was for his nineteenth, eighteenth or even sixteenth century ancestors. The police force is of no service. If he has a telephone, the noise made in operating it will probably alert the burglar, who may well be of a violent disposition. The householder knows that he must make the choice between attempting to arrest or scare off the burglar in which case he may find himself in serious danger, if the burglar turns out to be violent, and attacking the burglar first without a warning and possibly by inflicting death thus ensuring the safety of himself and his family.”58

The use of self defence is governed by many sources of law, each with different purposes and levels of importance. These laws, along with case law, have lead to the undesirable situation in Ireland whereby homeowners have very little confidence when it comes to using force against trespassers. The need for legal certainty in this area of law caused the Law Reform Commission to produce its report on criminal defences. This report made many recommendations, some beneficial and others minor. If these recommendations are acted on, they would move the law in the right direction, however, the suggestions are too minor in nature to greatly improve the current situation in Ireland. For the homeowner to be given full protection Irish law should follow in the footsteps of Colorado and similar states in America, and grant immunity from

57

R. v Hussain [2010] E.W.C.A. Crim 94 at 99.
Lanham, Defence of Property in the Criminal Law (1966) Criminal Law Review 368.

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prosecution by trespassers. Naturally, this would lead to many 'taking the law into your own hands' and 'right to kill' debates, but at least innocent people will no longer be prosecuted. The Law Reform Commission's report indicates that the Irish Law with regards the use of force will slowly be changed. At the end of the Commission's report is a draft Criminal Law (Home Defence) Bill 2009 which was launched by the Minister for Justice on Monday, December the 14th, 2009.59 This bill would have brought many of the Commission's recommendations into law and as stated by Deputy Charles Flanagan in the Dail, would have “...emphatically [tipped] the balance of rights in favour of the homeowner and away from aggressors who would seek to violate the dwelling and commit the act of burglary.”60 Unfortunately the bill was defeated at the second stage.61 This attempt to change the law is pleasing to see, however, it will be a long time before the law is changed sufficiently enough to grant innocent defenders the protection they deserve. During the law's long journey for the protection of homeowners, it stumbled on the rights of the criminal and is currently disorientated. This stumble has caused the law to forget its primary purpose, that is, to protect the innocent. Once it regains its balance and sense of purpose, the law will once again see that victims should be protected not prosecuted. It would appear that the law's stumble has caused it to confuse the meanings of these two words.

Thank you for reading

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Coulter, “Lethal force should be legal if defending home, says law body,” The Irish Times 14th December 2009. Dail Debates Volume 689 number 2 (17th of September 2009). Http://www.oireachtas.ie/viewdoc.asp?fn=/documents/bills28/bills/2009/4209/document1.htm

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