MINISTER FOR Justice Dermot Ahern has rejected suggestions that legislation which would allow householders to use lethal force when defending their home was a licence to kill.
The draft Criminal Law (Defences) Bill 2009, published by the Law Reform Commission and launched by the Minister last night, will be enacted in early 2010.
“I don’t honestly think that it’s a licence to kill anybody,” Mr Ahern said. “It’s clarifying the existing law that somebody is entitled to use force against somebody who comes in with criminal intent into the home,” he said, adding that the force used had to be proportionate and reasonable.
The Minister said the recommendations “tipping the balance” in favour of the homeowner would clarify existing law.
“Every case is decided by the judge and jury on its merits . . . and obviously a jury would have to make their mind up based on what’s put before them.”
He said the Government would also be accepting the recommendation that there will not be a requirement for people to retreat or flee from their homes. “People are entitled to stay in the home and to defend themselves within the home,” he said.
He noted that the Law Reform Commission was also recommending that the dwelling home be defined, not just as the house but the area immediately surrounding the house, adding that this was an issue which would have to be determined.
Mr Ahern added that on his request, the Attorney General had sought that the Law Reform Commission look at the issue of mandatory sentencing, particularly in relation to elderly people who are the victims of aggravated burglaries in their homes.
“The Oireachtas have already done their duty in imposing very substantial sentences, but perhaps if we could go further in relation to the issue of mandatory sentencing . . . to give an even more important signal to the judiciary in relation to the sentencing policy . . . so be it.”
Part-time commissioner Prof Finbarr McAuley dismissed references made by the Irish Council for Civil Liberties suggesting that recommendations on the defence of the home represented a “have-a-go charter”.
“That’s just the kind of froth that you get associated with a measure of this kind. But I think when people have a chance to look at the details of the provisions they won’t think that,” Prof McAuley said.
However, the council’s director, Mark Kelly, said the State had a duty to protect the right to life of householders, including through laws that reduce, not increase, the risks they face.
“That duty is not properly discharged by encouraging people to stand their ground and face violence which they could safely avoid. Nor are murder trials for householders the best means to discourage them from using lethal force unless it is absolutely necessary,” Mr Kelly added.
Fine Gael justice spokesman Charlie Flanagan said the commission’s recommendations must be made law as a “matter of urgency” due to a sharp rise in aggravated burglaries, resulting in many “horrendous and violent ordeals” for occupiers.
Self-defence in the Nally-Ward case
THE MOST high-profile recent Irish case where a citizen said he used lethal force in self-defence involved farmer Pádraig Nally, who shot dead John "Frog" Ward, a 42-year-old father of 11 from the Carrowbrowne halting site, in October 2004.
Mr Nally, from Funshinaugh Cross, Claremorris, Co Mayo, claimed Mr Ward had come to his farm to rob him, and that he had shot him in self-defence.
He was sentenced to six years for manslaughter, serving 11 months of that sentence before the case was appealed to the Court of Criminal Appeal on the basis that the trial judge had misdirected the jury by allowing them to consider self-defence only as a partial defence.
In its report, the Law Reform Commission noted the decision in the Nally case supported the assertion that killing in order to protect one's property and dwelling home is lawful in some circumstances.
Speaking on RTÉ Radio One yesterday, Mr Nally said that people had a right to defend their homes. "Your home is your castle and you have a right to defend it and no one should have the right to say anything to you in it or walk into your home and take anything out of it without your permission," Mr Nally said.
"People are fed up now of being raided and robbed and beat up in their own homes."
When asked about those concerned that the legislation would create "have-a-go heroes", Mr Nally said: "What about the people that has been killed in their own homes? There's no talk at all about them . . . they're trying to blame the homeowner now for protecting their own home – how many homeowners have been killed?"
The proposed legislation
UNDER THE title "Legitimate defence and the dwelling" the draft Criminal Law (Defences) Bill 2009 proposes to implement the following recommendations.
3. -(1) Without prejudice to the generality of section 2, a person does not commit an offence where he or she uses force, including lethal force, in his or her dwelling, or in the vicinity of the dwelling, by way of defence to the threat of, or use of, unlawful force by another person.
(2) Notwithstanding section 2(2), a person is justified in using lethal force in his or her dwelling, or in the vicinity of the dwelling, by way of defence to the threat of, or use of, unlawful force by another person, but only in order to repel the threat of
(a) death or serious injury,
(b) rape or aggravated sexual assault,
(c) false imprisonment by force,
(d) entry or occupation of the dwelling (including forcible entry or occupation that is not authorised or in accordance with law, or
(e) damage to or destruction of the dwelling.
(3) Notwithstanding section 2 (5), the defence provided by this section applies to a person who has a safe and practicable opportunity to retreat from his or her dwelling (or from the vicinity of the dwelling) but does not do so.
(4) In this section -
(a) - "dwelling" means the place where a person ordinarily resides, and includes a house, apartment, building, mobile home, caravan, vessel or other structure ordinarily used for habitation, whether movable or temporary, or a portion of such place or structure.
(b) - vicinity means the area (including another building) near the dwelling, and includes any access path, courtyard, driveway, field, garden or yard which is ordinarily used in conjunction with the dwelling.