Gun law: Property defender must behave reasonably

Gun law: You cannot obtain a firearm in Ireland for personal protection

The Constitution declares that the State will vindicate the property rights of every citizen, writes Karen Walsh.

Article 40.5 of the Constitution provides that: “The dwelling of every citizen is inviolable, and shall not be forcibly entered save in accordance with law.”

The Criminal Law (Defence and the Dwelling) Act 2011 is an effort to afford protection to home owners by allowing them to act to defend their homes against those who enter illegally.

The 2011 Act recognises that even force which causes death can, in certain circumstances, be justified.

However, to gain the protection afforded by the legislation, the defender must believe that the person against whom the force is used is a trespasser who intends to commit a crime.

Furthermore, the defender must behave reasonably.

What I propose to focus on for this article is the use of guns in protecting oneself in this situation.

There are a number of issues to discuss.

Firstly, it is a criminal offence to trespass on the property of another and to refuse to leave when asked by the landowner.

In the event that a trespasser enters your dwelling, a person may use reasonable force to defend themselves from an intruder who was unlawfully in their dwelling, in order to protect themselves, their property, or to make a lawful arrest.

Does this include the use of a firearm?

From a legal perspective, the first issue to deal with is the fact that the gun you keep in your property is legally held by way of a firearms certificate. The right to own a gun is restricted in Ireland. The law states that one must have a valid licence to hold or possess any firearm.

Even then, you will only be able to obtain a firearm licence for certain purposes.

You cannot obtain a firearm in Ireland for personal protection.

Certificates are issued by a Garda Superintendent for a maximum period of three years. When making an application for a firearm certificate, one must give written permission for the police to consult a doctor, psychiatrist or psychologist, to confirm the applicant’s good physical and mental health, and one must nominate two additional referees to attest to the applicant’s character.

Minimum qualifications for character referees are set out in the Garda Commissioner’s Guidelines as to the Practical Application and Operation of the Firearms Acts, 1925-2009.

Firearms are regulated by Section 3 of the Firearms Act 1925 as amended. It is illegal for any civilian to use, carry or possess a firearm or ammunition without a valid firearm certificate which correctly specifies the owner, the weapon, the ammunition and its maximum permitted quantity. So it is imperative that the firearm is legally held, with a valid permit.

You should bear in mind that it is an offence to have possession of a firearm with intent to endanger life, and the courts have found that pointing a loaded gun at a person establishes the required intent for the offence.

You are also not within your rights to shoot over their heads with your gun, as many rural landowners might argue. Pointing a loaded gun in the direction of somebody and discharging it could result in injuring or killing somebody, and would amount to an offence in and of itself, endangering the life of another.

Therefore, it is not at all advisable to do so.

It could result in, at a minimum, the firearms certificate being revoked, or conditions being imposed upon the holder of the permit, or being charged with an offence.

The use of a firearm against another may only be considered reasonable in certain circumstances, where a court would have to investigate the matter entirely and decide on foot of all the evidence.

However, it is extremely advisable to avoid this route, as there are very high thresholds required to defend yourself from a murder or manslaughter charge.

In conclusion, it is advisable that when you suspect a person has entered your dwelling or lands to trespass or commit an offence, to ask them to leave, and perhaps indicate that you will call the Gardaí immediately.

If it is a case that such an offence has been committed, then that is a matter for the Gardaí to investigate.

You may not use a firearm with the intention of injuring or killing another person.

To defend your home, you may use reasonable force, which is particular to each case’s own set of individual circumstances and facts.

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