Report backs use of lethal force in defence

By Noel Baker

Monday, December 14, 2009

PEOPLE should be allowed to use lethal force if necessary when defending themselves against intruders in their homes, according to a report published today.

The recommendation is included in the report Defences in Criminal Law, published by the Law Reform Commission.

On the defence of a dwelling, the report states the general rule that a person should retreat where possible should not apply when the attack is in the home. Furthermore, if all the requirements of defending oneself are met, the use of lethal force would be a complete defence in the courts and would lead to an acquittal.

Prof Finbarr McAuley of the Law Faculty in University College Dublin said the proposed new laws would not give people a "green light" to use excessive or disproportionate force, but would help clarify the issue regarding the use of force to defend oneself and one’s home and family.

"We think it should be written into law that there is no retreat requirement, that someone has the right to stand their ground," said Prof McAuley.

The report will be launched by the Minister for Justice Dermot Ahern.

Under the recommendations, any use of force, non-lethal or lethal, would still have to satisfy three criteria outlined in the draft Criminal Law (Defences) Bill 2009 which is attached to the report. It states: "The jury or court, as the case may be, shall have regard to all of the circumstances, including... whether the threat of, or use of, unlawful force by another person was imminent; the use of force was necessary; and, the force used was proportionate."

Prof McAuley said: "It was not so much that the law was toothless, it was that people could not see its teeth – it was too vague."

The recommendations are likely again to raise the issues surrounding the infamous Nally case, in which Co Mayo farmer Padraig Nally shot dead 42-year-old John "Frog" Ward in 2004.

Other recommendations in the report include that the defence of provocation continue to operate as a partial defence, but that, on a case-by-case basis, a defence of provocation should not be ruled out simply because there is a time lag between the act of provocation and the subsequent violent act, such as in a case of domestic violence.

The report also allows for the defence of duress to be extended to take in the person’s circumstances, as well as an explicit threat made to someone’s safety, or to that of their family, and for the defence of necessity where, in very limited situations, someone might break a law to prevent a greater disaster.

The report also states that only gardaí and prison officers should have powers to use lethal force for arrest, serious public disorder, riot or prison escapes, if and when necessary.

Mr Ahern will comment on the report later today. Last September the Government rejected a Fine Gael bill that would have protected householders who attack burglars in their home.

This story appeared in the printed version of the Irish Examiner Monday, December 14, 2009