A person should be allowed to use lethal force when defending their home, the Law Reform Commission has said.
In proposed legislation, which it publishes tonight, the commission recommends that a person who kills an intruder should be acquitted of a charge of murder. This should be subject to certain conditions, it says.
The draft Bill is appended to a report on Defences in Criminal Law, which will be launched by the Minister for Justice, Dermot Ahern, tonight.
Mr Ahern recently told the Dáil that intrusion into a home “should not be tolerated”.
The Non-Fatal Offences Against the Person Act 1997 makes clear that reasonable force may be applied by somebody seeking to protect themselves or their family from injury, assault or detention.
Force can also be used to protect one’s property from “destruction or damage caused by trespass”.
However, it is not clear where a citizen stands legally when simply confronting an intruder in his or her home.
The report being launched this evening contains 46 recommendations and includes a draft Criminal Law (Defences) Bill 2009.
The commission also recommends reform of the law so that a person who has suffered from cumulative violence over a period can claim they were provoked. Provocation is already a defence against the charge of murder in criminal law, but refers to the specific incident.
Among the areas the report covers are self defence, defence of the dwelling, the use of force, the use of force in law enforcement, provocation and the defences of “duress” and “necessity”.
It recommends that self-defence should be renamed legitimate defence.
It will indicate that a person is justified in using force against unlawful attack in certain situations to protect themselves, their family or other people and their home.
It will contain a threshold specifying how serious the unlawful attack must be before defensive force can be used; that the attack must be immediate; the person must retreat if possible and the defensive force must be proportionate to the attack.
This will be decided on by considering whether a reasonable person would consider the response to be necessary and proportionate.
Under the commission’s proposals, if a person is defending his or her dwelling, the requirement to retreat would not apply. In this situation, if the attack is serious and immediate, and the force used is necessary and proportionate, a person would be acquitted of murder if the intruder was killed during the incident.
The report also develops the law on provocation, which allows a reduction of a charge from murder to manslaughter if a person who kills another is provoked into losing self-control by the actions of the other person.
The issue of whether a person could use lethal force in defending his or her home arose in the case of Co Mayo farmer Pádraig Nally, of Funshinaugh Cross, Claremorris, Co Mayo, who shot dead John “Frog” Ward in October 2004 in controversial circumstances.