Karen Walsh: Retreat and call the gardaí if you encounter a home intruder

What are your legal rights when defending yourself from intruders on your home?

In 48% of home burglaries, residents were in their houses while they were being burgled. Their rights in defending themselves or their dwelling have been clarified in the Criminal Law (Defence and the Dwelling) Act 2011.

Recent figures from the Central Statistics Office show that there was somebody present in the house when 48% of burglaries were taking place.

That is a staggering percentage.

And that is why one should know the law, in the unfortunate event that you are faced with defending yourself, someone else or your property in your own home.

What protection does the law afford homeowners, and what rights are contained under the law regarding defending yourself from intruders?

The law in this area was put on statutory footing by virtue of The Criminal Law (Defence and the Dwelling) Act 2011, and clarifies the law regarding defence of the dwelling.

In the Act, the dwelling includes the curtilage of the dwelling, which is an area surrounding or adjacent to the dwelling.

Does it include a farm?

Arguably it may not. It is not clear.

The legislation makes it clear that a person who is in his or her dwelling may use force against another person to protect themselves, others, their property or to prevent the commission of a crime.

However, the force used must be reasonable in the circumstances.

The defender must believe that the trespasser is present for the purposes of committing a crime.

Basically, the Act would suggest that if a person uses force that is not objectively justified, given the circumstances of the situation, and a person is fatally injured, then it would follow that this person would be guilty of manslaughter.

The rationale for this logic is found in a decision of DPP v Dwyer, where Judge Butler stated that “A person is entitled to protect himself from unlawful attack.

”If in doing so, he uses no more force than is reasonably necessary, he is acting lawfully and commits no crime, even though he kills his assailant.

“If he uses more force than may objectively be considered necessary, his act is unlawful and, if he kills, the killing is unlawful.

“His intention, however, falls to be tested subjectively, and it would appear logical to conclude that, if his intention in doing the unlawful act was primarily to defend himself, he should not be held to have the necessary intention to kill or cause serious injury.

“The result of this view would be that the killing, though unlawful, would be manslaughter only”.

So, what is reasonable force?

That is the tough question.

Every situation will be assessed based on its specific facts and circumstances, and such a situation will obviously occur during a time of great tension and anxiety.

In determining what is reasonable force, the test is whether the householder believes the intruder has entered for the purpose of committing a crime.

It is immaterial whether the belief is justified or not, if it is honestly held.

While the legislation states that “the use of force shall not exclude the use of force causing death”, legal commentary would suggest that it can rarely, if ever, be reasonable to use deadly force merely for the protection of one’s property.

Interestingly, the Act specifically states that there is no obligation on the dweller to retreat.

He can stand his ground if faced with an intruder, even if he has an opportunity to retreat.

While this Act is both welcome and helpful for clarifying the law as best it can in such a delicate and difficult area, my advice to everyone if faced with such an event is to retreat immediately, and call the Gardaí, because anyone hoping to avail of the protection in the Act will ultimately be before a judge and jury, and it is they who will decide your fate.

Caution needs to be exercised, as one will need to satisfy the court that he or she believed that the person entering the dwelling was a trespasser for the purpose of committing a criminal act and that the force used against that person was reasonable in the circumstances.

Karen Walsh, from a farming background at Grenagh, Co Cork, is a solicitor practicing in Walsh & Partners, Solicitors and Commissioners for Oaths, 17, South Mall, Cork.

  Telephone: 021-4270200 

  Email: info@walshandpartners.ie 

  Web: www.walshandpartners.ie 

While every care is taken to ensure accuracy of information contained in this article, solicitor Karen Walsh does not accept responsibility for errors or omissions howsoever arising, and you should seek legal advice in relation to your particular circumstances at the earliest possible time.


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