Law reform - Self-defence laws need change now

WITH aggravated burglary on the rise in Ireland, the vexed question perplexing home-owners up and down the country is whether force can be used in self-defence against intruders — and what constitutes “reasonable” force.

This controversial topic came under the spotlight in the case of Mayo farmer Padraig Nally, who was jailed for six years for shooting traveller John “Frog” Ward, a 42-year-old father of 11 children in the autumn of 2004. The Court of Criminal Appeal has since quashed the manslaughter conviction of Mayo farmer Padraig Nally and ordered a retrial.

Without preempting the retrial in any way, it is fair to say the case convulsed the nation and went to the heart of public debate on the controversial issue of self-defence. Fundamental questions were raised about the degree of force a person is entitled to use in order to defend one’s life or property against attack.

In Britain a similar scenario led to calls for a “Tony Martin law”, so-named after the farmer who was imprisoned for shooting dead a burglar. It led to a ground swell of support for strengthening the rights of people to defend themselves and their property.

In a bid to bring greater clarity to this debate in Ireland, the Law Reform Commission has examined the use of force by householders in a variety of circumstances. In its report, it draws a fine distinction between personal property and one’s dwelling house.

Among its proposals, the Commission recommends that a minimum threshold requirement be imposed on the use of private lethal defensive force.

While it finds that lethal defensive force should not be used in defence of personal property, it does not recommend that any upper limit be placed on the force that may be used to defend one’s dwelling house.

It goes on to argue that a defender should not be required to retreat from an attack in their dwelling home even if they could do so with complete safety.

Otherwise, it suggests innocent defenders may only resort to lethal defensive force in response to a threat where they are unable to retreat with complete safety from the threat.

Moreover, it says lethal force should be prohibited to prevent crimes other than those which are imminent and cause death or serious injury.

Scrutinising the use of force by gardaí — an issue brought sharply into focus by the fatal shooting of John Carthy at Abbeylara — it recommends that the power to use lethal defensive force in effecting arrests should be restricted to law enforcement officers.

It also concludes that unless prison guards are sure an escaping prisoner is not dangerous, they should be entitled to resort to lethal force

While the report is couched in legalistic language, the Commission can be assured of public support for its call for a redefining and a much clearer definition of the circumstances in which householders can resort to force to protect their home or property. This matter is crying out for reform.