Laws governing pleas of self-defence where an attacker is killed need to be tightened up as they are too vague, a Law Reform Commission consultation paper has said.
The paper on legitimate defence, or self-defence, gives provisional proposals on what threshold there should be, the householder's position in defending the home, the imminence of an attack, whether the response is in proportion to the attack, and the need to clarify the type of force that may be used by gardaí in circumstances such as the Abbeylara case.
One of the authors of the paper,Prof Finbarr McAuley, member of the Law Reform Commission and Jean Monnet Associate Professor of European Criminal Law in UCD said: "The citizen in a democracy is entitled to know how far he or she can go."
The commission said there was a compelling need to set out clearly the extent of force, including lethal force, that may legitimately be used to repel an attack.
The paper was launched last night with the Law Reform Commission's report on Prosecution Appeals and Pre-Trial Hearings by Mr Justice Hugh Geoghegan of the Supreme Court.
Prof McAuley said that in Irish law at the moment, legitimate defence and use of lethal force was based on the concept of reasonableness. "We feel in the commission that it is too vague," he said.
The whole requisite of necessity should be specified in much greater detail, he said. In the paper, they discuss the threshold and state that self-defence should be where there was a threat to the life of the person before lethal force was used.
However, the commission recommends that there should be clarification as to whether it could also apply where property of the defender was under attack.
"We should specify in law regarding the minimum level of threat," Prof McAuley said. "We should also think about people defending their home, which is a really vexed question."
A person who used self-defence would be required to show necessity and that they had no possibility of retreat. In respect of a householder, there was nowhere to retreat if the house was being invaded, he said.
Another area the commission wanted specified was that of imminence. The answer to the question of did the attack have to be imminent before the use of defence force must be yes, he said.
However, Prof McAuley said it posed really tough questions, especially in cases where there was a battered spouse, often a woman, who for example waited until the "attacker" was asleep.
Proportionality was also an issue. "We have to examine the link between the gravity of the act and defence of rights." More specified laws would give a judge a much clearer set of guidelines when directing a jury, he said.
The commission examines the scope of legitimate defence in the context of law enforcement, both from the point of view of the use of lethal force and from the perspective of resisting arrest.
The paper said there was a need to clarify the type of force that may be used by gardaí in circumstances such as those in Abbeylara, which was discussed in the Barr tribunal report.
The discussion paper will lead to part of the commission's report on criminal defences.