A NEW law clarifying the circumstances in which it is legal to use force against an intruder or attacker is likely to be introduced in the Dáil early next year.
This follows the publication of a report earlier this week by the Law Reform Commission (LRC) examining the issue of defence of a dwelling against an intruder as well as other aspects of the law on self-defence and provocation. It was accompanied by draft legislation which would permit the use of force – including lethal force – when a person is defending himself or herself against the threat of violence at their home. Such force would have to be justified by a threat of death or serious injury, rape or aggravated sexual assault, kidnapping, forcible entry or damage to or destruction of a dwelling.
Public discussion of this issue has been framed to a significant degree by the case of Mayoman Pádraig Nally who in 2004 killed John “Frog” Ward whom he suspected of coming to his home to rob him. The justification – or otherwise – for Nally’s actions provoked a major debate when he was first convicted of manslaughter and later acquitted on appeal, citing self-defence. The LRC noted that the decision in the Nally case supported the assertion that killing to protect one’s property and home is lawful in some circumstances.
However, the issue of proportionality is a complex one. This week a court in England jailed two brothers who followed an intruder and inflicted life-changing injuries on him. The court concluded that by taking the law into their own hands and exacting their own vengeance, they were undermining the rule of law.
The case highlights the pitfalls associated with legislating in this difficult area. On the one hand a person is entitled to feel secure in his or her home and, in some instances, the violation of that home can have as severe an impact as a physical assault. A person must be allowed to repel such an intrusion. But the rule of law means that a crime is an offence against the whole of society, not just the individual victim.
As a result it is primarily society, through its law-enforcement agents and the courts, that enforces the law, not private individuals. The death penalty has been abolished in Ireland yet the law recognises that provocation and self-defence are defences to a charge of murder.
In such circumstances, it is welcome that the LRC should seek clarity. The end result must be the passage of carefully calibrated legislation that limits the use of lethal force to only the most extreme situations.