ANALYSIS: Defence-of-dwelling laws have generated fierce debate in other jurisdictions

IN PUBLISHING the Criminal Law (Defence and the Dwelling) Bill yesterday Minister for Justice Dermot Ahern said it was intended to “give recognition to the unique circumstances which prevail when an intruder is being confronted in the place we all have a right to feel is a place of safety, that is, our own home”.

These sentiments are widely shared, and some recent prosecutions of those who, in this and other jurisdictions, have killed or injured intruders, have generated intense and emotional debate.

The issue arose here in the case of Co Mayo farmer Pádraig Nally, of Funshinaugh Cross, Claremorris, Co Mayo, who shot dead John “Frog” Ward in October 2004 when the latter came to his house. He was sentenced to six years for manslaughter, serving 11 months before the case was appealed to the Court of Criminal Appeal and his conviction quashed on the basis that the trial judge had misdirected the jury by allowing them to consider self-defence only as a partial defence.

This decision of the Court of Criminal Appeal was cited in a report of the Law Reform Commission last year on the issue as demonstrating that the law acknowledged the right of people to defend themselves and their homes. The commission report contained a draft Bill which provided the basis for the Bill just published by the Minister.

A similar debate arose in the UK last year when Munir Hussain was jailed for2½ years for causing grievous bodily harm with intent when he pursued and beat with a cricket bat a man who had broken into his home and threatened his family with a knife. Mr Hussain was released after a public outcry. Last month the new British justice secretary, Kenneth Clarke, announced plans to examine ways to give increased legal protection to people who defended themselves against intruders.

The Bill published by Mr Ahern deals with the use of justifiable force in the defence of a person and his or her home, in the context of a trespasser entering the home with criminal intent, including to commit murder, rape, kidnapping or damage or destruction.

It clarifies both the criminal and the civil law, meaning that a person cannot be sued in the civil courts for injuries inflicted on a person entering a home with the intent of committing a crime, provided the injuries are proportionate to the perceived threat.

It provides definitions of terms such as “dwelling”, “property” and “curtilage” of a dwelling, to include the area immediately surrounding a home.

Another innovation is that it does not require a person to retreat when defending a dwelling or the people in it against an intruder entering with criminal intent.

Most controversially, a person who uses force causing death against an intruder will not be guilty of murder, depending on the gravity of the threat posed by the intruder and the extent to which the person felt threatened.

The courts will consider the state of mind of the person concerned, rather than the objective level of the threat, though they shall “have regard” to the “presence or absence of reasonable grounds” for holding the belief that the threat was very grave.

This opens the door to the possibility of an innocent trespasser being killed by a nervous homeowner who could argue that they honestly believed the trespasser posed a very serious threat. It could also encourage the increased holding of firearms in people’s homes, with all the risks that entails.

However, the previous unclear state of the law gave rise to the widespread assumption that those living in isolated areas were prey to intruders and liable to prosecution if they defended themselves and their homes. Such an assumption needed to be challenged, and those who feel vulnerable needed to be reassured.

MAIN POINTS DEFENCE AND THE DWELLING BILL



No specific provision for the use of lethal force but the Bill recognises that in circumstances where justifiable force is used such force does not exclude the use of force causing death



A court or a jury decides what is justifiable force but will have regard to the circumstances as the person using the force believed them to be at the time.



It is immaterial whether such a belief is justified or not as long as it is honestly held



No requirement to retreat in the face of an attack in the home



The burglar cannot sue the occupier for damages if injured by the occupier legitimately defending himself or herself, or defending their family or property



Recognition of the special status of the home and the right of people to defend it

