REPORT
Defences in
criminal law
(LRC 95-2009)
REPORT
DEFENCES IN
CRIMINAL LAW
(LRC 95 - 2009)
© COPYRIGHT
Law Reform Commission
FIRST PUBLISHED
December 2009
ISSN 1393-3132
i
LAW REFORM COMMISSION’S ROLE
The Law Reform Commission is an independent statutory body established by
the Law Reform Commission Act 1975. The Commission"s principal role is to
keep the law under review and to make proposals for reform, in particular by
recommending the enactment of legislation to clarify and modernise the law.
Since it was established, the Commission has published over 150 documents
(Consultation Papers and Reports) containing proposals for law reform and
these are all available at www.lawreform.ie. Most of these proposals have led to
reforming legislation.
The Commission"s role is carried out primarily under a Programme of Law
Reform. Its Third Programme of Law Reform 2008-2014 was prepared by the
Commission following broad consultation and discussion. In accordance with
the 1975 Act, it was approved by the Government in December 2007 and
placed before both Houses of the Oireachtas. The Commission also works on
specific matters referred to it by the Attorney General under the 1975 Act. Since
2006, the Commission"s role includes two other areas of activity, Statute Law
Restatement and the Legislation Directory.
Statute Law Restatement involves the administrative consolidation of all
amendments to an Act into a single text, making legislation more accessible.
Under the Statute Law (Restatement) Act 2002, where this text is certified by
the Attorney General it can be relied on as evidence of the law in question. The
Legislation Directory - previously called the Chronological Tables of the Statutes
- is a searchable annotated guide to legislative changes. After the Commission
took over responsibility for this important resource, it decided to change the
name to Legislation Directory to indicate its function more clearly.
ii
MEMBERSHIP
The Law Reform Commission consists of a President, one full-time
Commissioner and three part-time Commissioners.
The Commissioners at present are:
President:
The Hon Mrs Justice Catherine McGuinness
Former Judge of the Supreme Court
Full-time Commissioner:
Patricia T. Rickard-Clarke, Solicitor
Part-time Commissioner:
Professor Finbarr McAuley
Part-time Commissioner:
Marian Shanley, Solicitor
Part-time Commissioner:
Donal O"Donnell, Senior Counsel
iii
LAW REFORM RESEARCH STAFF
Director of Research:
Raymond Byrne BCL, LLM (NUI), Barrister-at-Law
Legal Researchers:
Chris Campbell B Corp Law, LLB Diop Sa Gh (NUI)
Siobhan Drislane BCL, LLM (NUI)
Gemma Ní Chaoimh BCL, LLM (NUI)
Bríd Nic Suibhne BA, LLB (NUI), LLM (TCD), Diop sa Gh (NUI)
Jane O-Grady BCL, LLB (NUI ), LPC (College of Law)
Gerard Sadlier BCL (NUI)
Joseph Spooner, BCL (Law with French Law) (NUI), Dip. French and
European Law (Paris II), BCL (Oxon)
Ciara Staunton BCL, LLM (NUI), Diop sa Gh (NUI)
STATUTE LAW RESTATEMENT
Project Manager for Restatement:
Alma Clissmann, BA (Mod), LLB, Dip Eur Law (Bruges), Solicitor
Legal Researchers:
John P Byrne BCL, LLM, PhD (NUI), Barrister-at-Law
Catriona Moloney BCL (NUI), LLM (Public Law)
LEGISLATION DIRECTORY
Project Manager for Legislation Directory:
Heather Mahon LLB (ling. Ger.), M.Litt, Barrister-at-Law
Legal Researchers:
Margaret Devaney LLB, LLM (TCD)
Rachel Kemp BCL (Law and German), LLM (NUI)
iv
ADMINISTRATION STAFF
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Legal Information Manager:
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Eithne Boland BA (Hons), HDip Ed, HDip LIS
Clerical Officers:
Ann Browne
Ann Byrne
Liam Dargan
Sabrina Kelly
PRINCIPAL LEGAL RESEARCHER FOR THIS REPORT
Verona Ní Dhrisceoil BCL (Dlí agus Gaeilge), LLM (NUI)
v
CONTACT DETAILS
Further information can be obtained from:
Head of Administration and Development
Law Reform Commission
35-39 Shelbourne Road
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Dublin 4
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info@lawreform.ie
Website:
www.lawreform.ie
vi
ACKNOWLEDGEMENTS
The Commission would like to thank the following people who provided valuable
assistance, many of whom attended the Commission"s Seminar on Defences in
th
Criminal Law held at the Commission"s offices on 12 June 2007:
Mr Justice Paul Carney, judge of the High Court
Mr Justice Peter Charleton, judge of the High Court
Ms Alma Clissmann, Solicitor, Law Society of Ireland
Ms Valerie Fallon, Department of Justice, Equality and Law Reform
Mr Maurice Gaffney, Senior Counsel
Mr James Hamilton, Director of Public Prosecutions
The late Mr Justice Kevin Haugh, judge of the High Court
Mr Conor Hanly, Faculty of Law, NUI Galway
Mr Liam Herrick, Irish Penal Reform Trust
Mr Gerard Hickey, Department of Justice, Equality and Law Reform
Mr Justice Nicholas Kearns, judge of the Supreme Court
Colonel William Knott, Department of Defence
Lieut. Colonel Jerry Lane, Department of Defence
Mr Patrick MacEntee, Senior Counsel
Prof. Paul McCutcheon, University of Limerick
Mr TJ McIntyre, School of Law, University College Dublin
Prof. Paul A O"Connor, School of Law, University College Dublin
Mr Seoirse Ó Dúnlaigh, Barrister-at-law
Mr Keith Spencer, Barrister-at-law
Full responsibility for this publication lies, however, with the Commission.
vii
viii
TABLE OF CONTENTS
Table of Legislation xiii
Table of Cases xv
INTRODUCTION 1
A Background to this Report 1
B Codification of the Criminal Law 2
C The role of defences in the criminal law 3
D The connected characteristics of the defences in this
Report 5
E Outline of this Report 6
(1) Overview of defences in the criminal law 6
(2) Legitimate defence (self-defence) 6
(3) Defence of the dwelling 7
(4) Public defence 7
(5) Provocation 7
(6) Provocation and immediacy 8
(7) Duress and necessity 8
CHAPTER 1 CRIMINAL DEFENCES - AN OVERVIEW 11
A Introduction 11
B Classification of defences 11
(1) A Classification Scheme 12
(2) Hierarchy of Defences 13
C Defences based on justification and excuse 13
D Assessing the conduct of the accused; subjective or
objective? 16
E Other Defences 17
(1) Children and the age of criminal responsibility 17
(2) Insanity 18
(3) Diminished Responsibility 20
(4) Automatism 20
(5) Intoxication 21
CHAPTER 2 LEGITIMATE DEFENCE (SELF-DEFENCE) 25
A Introduction 25
B General Principles 26
(1) Legitimate defence as a general defence and
specific issues involving lethal force 26
ix
(2) Justification and Excuse 27
(3) Rights Discussion 27
(4) General scope of the defence 30
C A Threshold Requirement for Legitimate Defence 32
(1) Defence of the Person 34
(2) Defence of Property 40
D The Imminence Requirement 45
(1) The imminence rule and domestic violence 48
(2) Options for Reform 52
E The Necessity Requirement 53
(1) Self Generated Necessity 58
(2) Defence of Property and the Duty to Retreat -
the Castle Doctrine 62
F The Proportionality Requirement 66
(2) The problem of disproportionate, excessive,
lethal force 73
CHAPTER 3 PUBLIC DEFENCE 77
A Introduction 77
B The Use of Force to Effect an Arrest 77
(2) Alternatives to the "Reasonableness Approach" 86
(3) Distinction between Flight and Arrest 91
(4) Restriction on Lethal Force to Law Enforcement
Officers 92
C The Prevention of Crime 95
D The Defence Forces 104
CHAPTER 4 PROVOCATION 107
A Introduction 107
B Historical Overview 107
C What is provocation? 110
D Retention or abolition? 111
E The rationale for the defence of provocation -
justification or excuse 119
F The test for provocation 122
G Elements of the defence 140
(1) Provocative Conduct 140
(2) Sources of provocation 143
(3) Loss of control 144
(4) Proportionality 152
(5) Provocation and Intoxication 154
(6) Self-induced provocation 156
CHAPTER 5 DURESS 157
x
A Introduction 157
B Duress 158
C An Overview 159
(1) R v Hasan 160
D Justification or Excuse 161
E The Threat 165
(1) Nature of the Threats: Death or Serious Injury 165
(2) Target of the Threats 167
(3) The Effect of the Threat and Perception of the
Defendant 168
F The Imminence Rule and Official Protection 174
G Exposure to Risk of Duress - Self-Induced Duress 177
H Duress, Murder and Other Limitations 181
I Marital Coercion 188
CHAPTER 6 NECESSITY AND DURESS OF CIRCUMSTANCES191
A Introduction 191
B Overview 191
C Necessity as a Justificatory or an
Excusatory Defence 194
D Application of the defence 198
CHAPTER 7 SUMMARY OF RECOMMENDATIONS 207
A Legitimate Defence 207
B Public Defence 209
C Provocation 210
D Duress 211
E Necessity and Duress of Circumstances 212
APPENDIX DRAFT CRIMINAL LAW (DEFENCES) BILL 2009 213
xi
TABLE OF LEGISLATION
Children Act 2001 2001, No. 24 Irl
Crimes Act 1961 1961, No. 43 NZ
Criminal Damage Act 1991 1991, No. 31 Irl
Criminal Justice Act 1925 1925, c.86 Eng
Criminal Justice Act 2006 2006, No. 26 Irl
Criminal Law (Insanity) Act 2006 2006, No. 11 Irl
Criminal Law (Rape) (Amendment) Act 1990 1990, No.32 Irl
Criminal Law Act (Northern Ireland) 1967 1967, c. 18 NI
Criminal Law Act 1967 1967, c.58 Eng
Criminal Law Amendment Act (Qld) 2000 2000, No.43 Aus
Homicide Act 1957 1957, c.11 Eng
Non Fatal Offences Against the Person Act 1997 1997, No.26 Irl
xiii
TABLE OF CASES
Re A (Children) [2000] 4 All ER 961 Eng Andronicou and Constantinou v (1998) 25 EHRR 491 ECtHR Cyprus Attorney General for Jersey v [2005] UKPC 23; [2005] 3 All ER 371 Eng
Holley
Attorney General v Whelan [1934] IR 518 Irl Attorney General v X [1992] IESC 1; [1992] 1 IR 1 Irl Beckford v R (1987) 85 Cr App Rep 378 Eng
Bedder v DPP [1954] 2 All ER 801 Eng
Bratty v AG for Northern Ireland [1963] AC 386 Eng Director of Public Prosecutions [1975] AC 653 NI
for Northern Ireland v Lynch
Dowman v Ireland [1986] ILRM 111 Irl
DPP v B [2000] 1 All ER 833 Eng DPP v Beard [1920] AC 479 Eng
DPP v Majewski [1977] AC 443 Eng Kelly v United Kingdom (1993) 16 EHRR CD 20 ECtHR
Lavallee v R (1990) 55 CCC (3d)97 Can
Luc Thiet Thuan v Queen [1977] AC 131 Eng
Lynch v Fitzgerald [1938] IR 382 Irl
Mancini v DPP [1942] AC 1 Eng
Masciantonio v The Queen (1995) 69 ALJR 598 Aus
McCann and Others v United (1996) 21 EHRR 97 ECtHR Kingdom McCluskey v HM Advocate (1959) JC 39 Scot McGregor [1962] NZLR 1069 NZ
Moffa v The Queen (1977) 138 CLR 601 Aus
Owens v HM Advocate (1946) JC 119 Scot Palmer v The Queen [1971] AC 814 Eng
xv
The People (Attorney General) [1954] IR 12 Irl
v Keatley
The People (Attorney General) [1972] IR 416 Irl
v Dwyer
The People (DPP) v Barnes [2006] IECCA 165, [2007] 3 IR 130 Irl The People (DPP) v Clarke [1994] 3 IR 289 Irl
The People (DPP) v Cremin Court of Criminal Appeal, 10 May 1999 Irl
The People (DPP) v Davis [1993] 2 IR 1 Irl
The People (DPP) v Davis [2001] 1 IR 146 Irl
The People (DPP) v Dickey Court of Criminal Appeal, 7 March 2003 Irl
The People (DPP) v Doyle Court of Criminal Appeal, 22 March Irl
2002
The People (DPP) v Kelly [2000] 2 IR 1 Irl
The People (DPP) v Kelso [1984] ILRM 329 Irl
The People (DPP) v McBride [1996] 1 IR 312 Irl
The People (DPP) v McDonagh [2001] 3 IR 201 Irl
The People (DPP) v MacEoin [1978] IR 27 Irl
The People (DPP) v Mullane Court of Criminal Appeal, 11 March Irl
1997
The People (DPP) v Murphy Court of Criminal Appeal, 8 July 2003 Irl
The People (DPP) v Murray [1977] IR 360 Irl
The People (DPP) v Nally [2006] IECCA 128, [2007] 4 IR 145 Irl The People (DPP) v Noonan [1998] 2 IR 439 Irl
The People (DPP) v Central Criminal Court ,18 March 2003 Irl
O"Donoghue
The People (DPP) v Reilly [2004] IECCA 9, [2005] 3 IR 111 Irl R v Baker and Ward (1999) 2 Cr App R 355 Eng
R v Bird [1985] 2 All ER 513 Eng R v Brown [1972] 2 QB 229 Eng
R v Burgess [1991] 2 QB 92 Eng
R v Camplin [1978] AC 705 Eng
xvi
R v Charlebois [2000] 2 SCR 674 Can
R v Clegg [1995] 1 AC 482 NI R v Conway [1989] QB 290 Eng R v Davies [1975] QB 691 Eng
R v Doughty (1986) 83 Cr App R 319 Eng R v Dryden [1995] 4 All ER 987 Eng
R v Dudley and Stephens (1884) 14 QBD 273 Eng
R v Duffy [1949] 2 All ER 932 Eng
R v Duffy [1949] 1 All ER 932 Eng
R v Fitzpatrick [1977] NI 20 NI
R v Hasan [2005] 4 All ER 685 Eng R v Hennessy [1989] 1 WLR 287 Eng R v Howe [1987] AC 417 Eng R v Hudson and Taylor [1971] 2 QB 202 Eng R v Hussain [1999] Crim LR 570 Eng
R v James; R v Karimi [2006] EWCA Crim 14 Eng R v Johnson (1979) 136 CLR 619 Aus
R v Kearney [1983] 2 VR 470 Aus
R v Kemp [1957] 1 QB 399 Eng
R v Kirkham (1827) 8 Car & P 115 Eng
R v M"Naghten (1843) 4 St Tr (ns) 817 Eng
R v Mack [1988] 2 SCR 903 Can
R v Manchuk (1937) 4 DLR 737 Can
R v Martin (2002) 1 Cr App Rep 27 Eng R v Mawgridge (1706) Kel 119 Eng
R v McGregor [1962] NZLR 1069 NZ
R v McKay [1967] VR 560 Aus
R v Morhall [1996] 1 AC 90 Eng
R v Newell (1980) 71 Cr App R 331 Eng
xvii
R v Oneby (1727) 2 Ld Raym 1485 Eng
R v Perka [1984] 2 SCR 232 Can
R v Pommell (1995) 2 Cr App R 607 Eng R v PRFN [2000] NSW CCA 230 Aus
R v Quayle [2005] EWCA Crim 1415 Eng R v Quick [1973] QB 910 Eng R v Ruzic [2001] 1 SCR 687 Can
R v Ryan (1890) 11 NSWR 171 Aus
R v Secretary (1996) 107 NTR 1 Aus
R v Secretary [2000] NSW 230 Aus
R v Smith [2001] 1 AC 146 Eng R v Squire (1975) 26 CCC (2d) 219 Can
R v Sullivan [1983] 2All ER 673 Eng
R v Terry [1964] VR 248 Aus
R v Thibert [1996] 1 SCR 37 Can
R v Thornton (No 2) [1996] 2 All ER 1023 Eng R v Viro (1978) 141 CLR 88 Aus
R v Wang [1990] 2 NZLR 529 NZ
R v Weller [2003] EWCA Crim 815 Eng R v Welsh (1869) 11 Cox CC 674 Eng
R v Willer (1986) 83 Cr App Rep 225 Eng
Reference under s48A of the [1976] NI 169 NI
Criminal Appeal (Northern
Ireland) Act 1968 (No.1 of 1975)
Reniger v Fogossa (1550) 1 Plowd 1 Eng
The State (DPP) v Walsh and [1981] IR 412 Irl
Conneely
Tennessee v Garner 471 US 1 (1985) USA
United States v Holmes 26 Fed Cas 360 (1841) USA
Zecevic v DPP (1987) 71 ALR 641 Aus
xviii
xix
INTRODUCTION
A Background to this Report
1. This Report forms part of the Commission"s Third Programme of Law
Reform 2008-20141 and contains its final recommendations concerning the
following defences in the criminal law: legitimate defence (currently called self-
defence); public defence (including the use of force by law enforcement
officers); provocation; duress and necessity.
2. The Report brings together material discussed in three Consultation
Papers on which the Commission made provisional recommendations: a
Consultation Paper on Homicide: The Plea of Provocation,2 a Consultation
Paper on Duress and Necessity3 and a Consultation Paper on Legitimate
Defence.4 The recommendations made in this Report take into account
developments in case law and legislation since the publication of the
Consultation Papers, as well as submissions received by the Commission
during the consultation process.
3. The primary purpose of this Report is to provide clarity and
consistency to the nature and scope of these defences by setting out
recommendations for reform, and these have been incorporated into the draft
Criminal Law (Defences) Bill contained in the Appendix. By setting these
defences in a legislative framework, the Commission considers that the aim of
greater consistency and clarity can be achieved. The law surrounding these
defences, as with many aspects of the criminal law, has evolved over time. The
nature and scope of these defences have, in the Commission"s view, been
troubled with some inconsistencies, competing rationales and even arguments
as to whether they should be abolished in certain instances. In this Report, the
Commission proposes to provide a more coherent framework for the future
application of the defences.
4. In setting out its final recommendations in this Report, the
Commission revisited the provisional recommendations made in each of the
1
Report on the Third Programme of Law Reform 2008-2014 (LRC 86-2007),
Project 18. This project has involved the completion of work carried out by the
Commission under its Second Programme of Law Reform 2000-2007, in
particular the material dealt with in the three Consultation Papers referred to
below.
2
Consultation Paper on Homicide: The Plea of Provocation (LRC CP 27-2003).
3
Consultation Paper on Duress and Necessity (LRC CP 39-2006).
4
Consultation Paper on Legitimate Defence (LRC CP 41-2006).
1
three Consultation Papers mentioned, and also evaluated the submissions
received during the consultation process and considered recent developments
in the law and literature. The Commission also had the benefit of insights from
interested parties (members of the judiciary, legal practitioners, members of the
academic community and public servants) who participated in the seminar on
this area which the Commission hosted in June 2007. We are extremely grateful
for the assistance of all those who were involved in this process.
B Codification of the Criminal Law
5. This Report complements the recent and current work of the
Commission in other areas of criminal law, notably on murder and involuntary
manslaughter5 and inchoate offences (attempt, conspiracy and incitement).6
This follows the Commission"s long-standing involvement in proposals for
reform of the criminal law.
6. The Commission"s work now also complements the codification of
criminal law being carried out by the Criminal Law Codification Advisory
Committee.7 The Committee"s First Programme of Work 2008-20098 states that,
as recommended in the 2004 Report of the Expert Group on the Codification of
9
the Criminal Law Codifying the Criminal Law, it intends to publish an inaugural
Draft Criminal Code Bill consisting of a General Part and a Special Part. The
General Part will deal with aspects of criminal liability of general application,
such as the physical elements (actus reus) and fault elements (mens rea), and
the general defences, such as self-defence. The Special Part will contain the
principal criminal offences, such as offences against the person, theft and fraud
and offences against property.
7. The Commission anticipates that the defences dealt with in this
Report and the accompanying draft Bill may, ultimately, form part of the
Advisory Committee"s Criminal Code Bill. Separately, of course, the
Commission is conscious that the Government and Oireachtas may decide, in
advance of codification, to implement the recommendations made in this
Report, as incorporated into the attached draft Bill. The Commission has,
5
Report on Homicide: Murder and Involuntary Manslaughter (LRC 87-2008).
6
Consultation Paper on Inchoate Offences (LRC CP 48-2008).
7
The Criminal Law Codification Advisory Committee was established under Part
14 of the Criminal Justice Act 2006.
8
Available at www.criminalcode.ie.
9
Government Publications 2004, available at www.justice.ie.
2
therefore, approached the preparation of the Report and the draft Bill with both
these possible outcomes in mind.
8. The Commission now turns to provide an overview of the purpose of
the defences dealt with in this Report within the criminal law generally. The
Commission then turns to outline briefly the content of each chapter in this
Report.
C The role of defences in the criminal law
9. The primary purpose of the criminal law is to prohibit behaviour that
represents a serious wrong against an individual or against some fundamental
social value in society.10 The criminal law also recognises that certain acts
should not be followed by criminal proceedings, or at least should not lead to a
conviction, because of the presence of some specific factor or circumstance,
such as the legitimate entitlement to defend oneself in the face of unlawful
force. A fundamental reason why the criminal law contains a number of
defences is because it is not a tool for vengeance, but is one of the means of
attempting to ensure the peaceful existence of a community.
10. This Report on Defences in Criminal Law deals with circumstances
where there may be some conditions or circumstances present which suggest
that either no criminal liability should be attached - a complete defence, such as
legitimate defence - or at least that criminal liability should be reduced - a
partial defence, such as provocation.
11. It is important to distinguish between a defence and mitigation.
Where a defendant successfully raises a defence, he or she is found not guilty,
or is convicted of a lesser offence. By contrast, mitigation is a factor that
becomes relevant at the sentencing stage only. On occasion, mitigating factors
can be so persuasive that a nominal sentence only is imposed.11
12. As already mentioned, the purpose of the criminal law is to prohibit
behaviour that is considered a serious wrong against an individual or against
some fundamental moral or social value in society. Thus, the content of the
criminal law and the associated sanctions also reflect the moral or social values
held by a society, and these will inevitably change over time. Punishments for
criminal offences, for example, have been transformed from their place at the
"stock and gallows" in the 17th century to the use of imprisonment, fines and
10 th
Ashworth Principles of the Criminal Law 5 ed (Oxford University Press, 2006) at
1.
11 nd
See generally O"Malley, Sentencing Law and Practice 2 ed (Round Hall Sweet
& Maxwell, 2006); and Herring Criminal Law (Palgrave Macmillan Law Masters
2005) at 355.
3
community service in the 21st century. What was deemed appropriate
punishment 300 years ago is no longer acceptable today. Similarly, the way the
law has viewed criminal defences has changed over the centuries. Over time,
the nature and boundaries of the criminal defences have shifted; and
acceptable behaviour or an acceptable reaction in the 17th century is not
necessarily acceptable today.
13. An American commentator has noted that "defences are an
embodiment of complex human notions of fairness and morality"12 which
change over time because of "change" in opposing dynamics. Such dynamics
include compassion for an accused person, concession to the realities of
human frailty, a consideration of what is appropriate when confronted by the
criminal or unlawful conduct of another party, a policy requiring the criminal law
to be upheld and not avoided by unworthy or insufficient excuses; and, as in
Ireland, "a desire enshrined in the Constitution to do what is just."13 These
opposing dynamics mean that the development of the various defences in the
criminal law has not always involved a cohesive or systematic approach; and
this has contributed to some inconsistency in their application.
14. In the Irish context, it has been noted that, as with so much else in
criminal law, "the defences- were formulated at a time when the accused could
not give evidence on his own behalf and where, in consequence, the jury
judged his actions, in the absence of his own testimony" with the outcome being
that an accused would not escape liability unless they had behaved in an
objectively reasonable manner.14 This objective criterion has remained an
integral part of defences in modern Irish criminal law.
15. Defences in the criminal law can be categorised in a number of ways.
For example, one category would be where the defendant lacked sufficient
capacity to commit the crime, such as because of age or other similar reasons
such as insanity. A second category of defences (which have sometimes been
described as defences in the true sense) arises where the defendant has
engaged in the required physical element (actus reus) and fault element (mens
rea) of an offence but where some justifying or excusing circumstance arises,
15
such as legitimate defence or provocation. A third categorisation is to
distinguish between defences that can lead to an acquittal, such as legitimate
12
Robinson "Criminal Law Defenses: A Systematic Analysis" (1982) Columbia Law
Rev, Vol.82 (2):199 -291 at 203.
13
Charleton, McDermott, Bolger, Criminal Law (Butterworths 1999) at 1021-22.
14
Ibid, at 1018.
15 th
Ormerod Smith & Hogan's Criminal Law 11 ed (Oxford University Press 2005) at
247.
4
defence, and a defence leading to a reduction only in the nature of the crime
involved, such as provocation. A fourth method differentiates between defences
that apply to all crimes (such as legitimate defence), and those which apply to
particular crimes only (such as provocation and diminished responsibility, which
for example only apply to murder and which also involve, as already mentioned,
a reduction from murder to manslaughter only).
16. Thus, the defences can be categorised using a number of factors,
some of which, as we have seen, involve overlaps: whether they are complete
or partial defences; and whether they are general or limited to specific crimes.
One further well-recognised matter is based on the underlying rationale for the
16
defence: whether it is justificatory or excusatory. Indeed, a large amount of the
literature on defences in the criminal law has focused on the distinction between
"justification" and "excuse." The categorisation has long historical foundations17
and the distinction continues to be used to assess the fundamental basis for the
various defences.
17. A defence that is labelled as "justified," such as legitimate defence,
implies that the conduct of the accused was morally right and acceptable;
whereas an "excuse-based" defence, such as provocation, implies that the
conduct of the accused is wrong, but, perhaps in part, forgiven. This distinction
should not be equated with the question of whether a defence leads to an
acquittal rather than merely a reduction in the crime for which a person is
convicted. Where, however, a defence is described as justificatory, such as
legitimate defence, it is extremely important that the precise ingredients of that
defence are clearly set out. While all defences, whether based on "justification"
or "excuse" should be clear in terms of their content and scope, it is crucial that
the nature and scope of a justification-based defence should be set out in the
clearest possible language.
D The connected characteristics of the defences in this Report
18. As already mentioned, the defences discussed by the Commission in
this Report are: legitimate defence (often referred to as self-defence or private
defence); public defence (in particular the use of force by law enforcement
officers; provocation; and duress and necessity. Although in some respects
these defences involve quite different elements, they each have a core
characteristic: they are reactive in nature. Each of the defences concerns
16
See Chalmers Criminal Defences and Pleas in Bar of Trial (Thomson, 2006) at
Chapter 1.
17
See further McAuley & McCutcheon Criminal Liability (Roundhall Sweet &
Maxwell, 2000).
5
situations where a person acts in response to some external factor, whether the
actions or words of another person or the circumstances in which the person
finds themselves. In the case of legitimate defence, defendants act in response
to unlawful force by another person in order to protect themselves, or someone
else (such as a family member) or their home. The defence of provocation
involves a violent response to provocative actions or words, and assumes that
an ordinary person would lose self-control in that setting. The defence of duress
concerns the reaction to threats of death or serious violence by another person;
whereas the defence of duress of circumstances (necessity) involves a reaction
to threats that do not originate from another person, but rather arise from
emergency, or dire circumstances.
E Outline of this Report
(1) Overview of defences in the criminal law
19. In Chapter 1, the Commission explores the nature of the defences
discussed in this Report, in particular the distinction between justification-based
and excuse-based defences. As already discussed, the justification/excuse
dichotomy is a useful classification tool and also provides an insight into the
historical development of the defences. The Chapter also discusses another
major issue: how the law should assess the accused"s reactive conduct. A key
point is whether this should be based on an objective criterion, whereby the
conduct is measured against a community or "ordinary person" standard; or
whether it should be based on a subjective standard, where the particular
person"s circumstances and characteristics are taken into account; or whether it
should be a combination of both. For the sake of completeness, and to place
this Report in the wider context of codification of the criminal law, Chapter 1
ends with a brief overview of the defences not specifically discussed in this
Report.
(2) Legitimate defence (self-defence)
20. In Chapter 2, the Commission examines the law on legitimate
defence (currently referred to as self-defence), building on the provisional
recommendations made in the Consultation Paper on Legitimate Defence.18
Legitimate defence covers the use of force by a person in response to unlawful
force by another person who poses a direct threat to the life and physical
integrity of the person, to someone else (such as a family member) or to the
person"s home.
21. Because the rationale for this defence is justification-based, the
Commission emphasises that it should not be reduced to a single issue of
18
Consultation Paper on Legitimate Defence (LRC CP 41-2006).
6
whether a person acted reasonably in all the circumstances. In this respect, the
Commission"s analysis and recommendations are based on assessing four key
components of the defence: (1) a threshold requirement concerning the type of
unlawful attack on the person, especially where lethal force is used in response;
(2) the imminence or immediacy of the attack; (3) the necessity of the person"s
use of force, including a duty to retreat where it is safe to do so; and (4) the
proportionality of the force used, including where disproportionate lethal force is
used. These four elements form the basis of the relevant provisions that
describe the defence in detail.
(3) Defence of the dwelling
22. Chapter 2 also discusses a particular setting in which legitimate
defence applies, the defence of a person"s own home, including the difficult
questions of the use of lethal force and whether there is a duty to retreat in this
context. The Commission is especially conscious that these issues have given
rise to considerable debate in recent years, both in terms of actual criminal trials
and appeals and in proposals for reform which have been debated in the
Oireachtas. On these questions, the Commission confirms the view it took in the
Consultation Paper on Legitimate Defence that a defendant may, subject to
meeting the other criteria set out for the defence, use lethal force, and should
not be required to retreat from an attack in their own dwelling even if they could
do so with complete safety.
(4) Public defence
23. In Chapter 3, the Commission discusses the law on public defence,
which the Commission had also examined in the Consultation Paper on
Legitimate Defence.19 Public defence deals with the use of force to prevent a
crime or in the context of a lawful arrest. It involves a response to threats to
societal interests rather than personal interests. The use of force to prevent a
crime or to make an arrest is usually associated with public officials such as the
Garda Síochána, but may also include other persons. In this respect, the
Commission"s proposals emphasise the important crime-prevention role of the
Garda Síochána, while at the same time underlining the need for limits on the
use of lethal force in particular.
(5) Provocation
24. In Chapter 4, the Commission discusses the law on provocation, on
which it had made provisional recommendations in the Consultation Paper on
Homicide: The Plea of Provocation.20 Provocation is a partial defence which
19
Consultation Paper on Legitimate Defence (LRC CP 41-2006).
20
Consultation Paper on Homicide: The Plea of Provocation (LRC CP 27-2003).
7
applies only where a person has been charged with murder, and it operates to
reduce murder to the lesser charge of manslaughter. The basis for this is that
the accused lost self control in response to provocation. The defence of
provocation has often been criticised as complex and unclear, and there have
been calls in a number of States for its reform, and even its abolition.
25. Having reviewed the question of whether the defence should be
abolished or retained, the Commission recommends that it should be retained,
but subject to significant reform. In particular, the Commission recommends that
the subjective-oriented approach found in current Irish law should be reformed
and replaced by a, primarily, objective approach. Under the Commission"s
proposals, juries would, however, be allowed to take account of the accused"s
personal characteristics insofar as they affect the gravity of provocation but that,
with the exception of age and sex, personal characteristics should not feature in
relation to the question of self-control.
(6) Provocation and immediacy
26. The Commission analyses in detail a key aspect of provocation, the
requirement of immediate or sudden loss of self-control. This has been
discussed extensively in recent years, notably in the context of domestic
homicides occurring after long periods of cumulative violent abuse, but where
the killing has not occurred immediately after a specific violent incident. The
Commission notes that, while women are often the victims and survivors of
such cumulative violence, it may, equally, apply to men who are in an abusive
relationship, and similarly to parents and children who suffer from domestic
violence and abuse. In the Consultation Paper, the Commission provisionally
recommended that, while the main elements of the defence should apply in
these settings, some allowance concerning the requirement of suddenness or
immediacy should be included in the reformed defence. In the Report, the
Commission refines that approach by recommending that the presence or
absence of a sudden response is an evidential matter to which the jury should
have regard.
(7) Duress and necessity
27. In Chapter 5, the Commission examines the law on duress, on which
it made provisional recommendations in the Consultation Paper on Duress and
Necessity.21 Duress arises when a person is compelled, or constrained, by
threats from another person to do an act, which would otherwise be a crime,
believing that the threats will be carried out. Due to the threats, the defendant is
placed in a situation of having to choose between abiding by the law, and
thereby become a victim of violence, or breaking the law in order to protect
21
Consultation Paper on Duress and Necessity (LRC CP 39-2006).
8
himself or another from the threat of serious assault or even death. The
Commission recommends that, subject to specific conditions, the defence of
duress should be retained.
28. In Chapter 6 the Commission discusses the defence of necessity,
sometimes referred to as duress by necessity (duress per necessitatum). The
Commission had also made provisional recommendations on this defence in the
Consultation Paper on Duress and Necessity.22 The Commission considers that
it is not possible to recommend a general defence of necessity but that those
very limited instances in which it has already developed, such as in medical
necessity, should continue on a case-by-case basis. The Commission
recommends that a defence of duress of circumstances should be given
general recognition because duress by threats, as described in Chapter 5, and
this defence both involve situations in which a person is constrained to do
something that would otherwise be a crime. In the case of duress, the threat
comes from another person, whereas with duress of circumstances the threat
arises from the dire circumstances or emergency situation in which a person
finds himself or herself. Because of the similarities between them, the
Commission recommends that the boundaries of the defence of duress of
circumstances should be the same as those for duress by threats.
29. Chapter 7 is a summary of the recommendations made by the
Commission in the Report.
30. The Appendix to this Report contains a draft Criminal Law (Defences)
Bill which is intended to give effect to the Commission"s recommendations on
the defences discussed.
22
Consultation Paper on Duress and Necessity (LRC CP 39-2006).
9
1
CHAPTER 1 CRIMINAL DEFENCES - AN OVERVIEW
A Introduction
1.01 This Chapter examines the nature of and themes central to criminal
law defences, including their classification, their rationale (whether they involve
justification or merely excuse) and objective and subjective perspectives. This
provides a backdrop against which to analyse the defences discussed in the
Report.
1.02 In Part B, the Commission examines the classification of criminal
defences. In Part C, the discussion surrounding the concepts of justification and
excuse is set out. In Part D, the Commission examines whether defences
should be based on assessing the accused"s conduct from a subjective or an
objective perspective. In Part E, the Commission provides, for the sake of
completeness, a brief overview of other defences to illustrate where the
defences analysed in this Report sit within a broader discussion of defences.
B Classification of defences
1.03 There are many ways in which criminal defences can be classified.
As outlined in the Introduction to this Report, the distinction between
justification-based defences and excuse-based defences has often been used
for this purpose. This method, though useful, is not totally satisfactory as it fails
to encompass all types of defences.
1.04 Robinson,1 in attempting to classify criminal law defences in the
United States, identified five categories: failure of proof defences; offence
modifications; justifications; excuses; and non-exculpatory public policy
defences.
1.05 Chalmers and Leverick2 on the other hand classify the defences
according to whether they are complete or partial; whether they are general or
specific; whether they are common law or statutory defences; whether there are
special procedural rules governing when a defence can be pleaded; and
1
Robinson Criminal Law Defenses (West Publishing Co.1984).
2
Chalmers Criminal Defences and Pleas in Bar of Trial (W. Green: Scottish
Universities Law Institute 2006) at 1.
11
according to the rationale for admitting the defence, in other words the
justification/excuse distinction.
1.06 Other attempts at classification have resulted in just two categories:
one which deals with defences or pleas based on a denial of capacity including
insanity, intoxication, mistake and infancy; and the other which deals with
defences in what might be described as the true sense, that is, where the
defendant had the required physical element (actus reus) and fault element
(mens rea) at the time of the crime but is acquitted of criminal liability because
of some justifying or excusing circumstances.3 The defences discussed by the
Commission in this Report all fall into the second category of this classification
system. Where a defendant raises the defence of legitimate defence,
provocation or duress, both the actus reus and mens rea required to commit the
alleged offence are present.
(1) A Classification Scheme
1.07 To provide a more complete picture, it may be useful to set out a
suggested classification scheme4 that incorporates all defences, including those
not analysed in this Report.
(a) Failure of proof defences
1.08 Failure of proof defences arise where the prosecution is unable to
prove all of the elements of the defence. Defences that could be placed in this
category include those that negate the mens rea (including mistake of law or
fact and non-insane automatism) and defences that negate the actus reus (such
as consent in sexual offences, alibi and incrimination).
(b) Justification defences
1.09 Justification-based defences arise where the conduct of the accused
is considered acceptable - the right action to take in the circumstances.
Legitimate defence could be placed in this category (provided that the force
used is not disproportionate).
(c) Excuse defences
1.10 An excuse-based defence arises where the conduct of the accused is
deemed wrong and unacceptable but for some reason is forgiven. This category
holds the individual morally responsible for his or her actions but does not
3 th
Ormerod Smith & Hogan Criminal Law (11 ed Oxford University Press 2005) at
248.
4
Chalmers and Leverick Criminal Defences and Pleas in Bar of Trial (W. Green :
Scottish Universities Law Institute 2006) at 14.
12
blame them for the act in question. Provocation and duress and are generally
regarded as excusatory defences.
(d) Lack of capacity defences
1.11 As the title suggests, lack of capacity defences arise where the
accused is regarded as incapable of being held accountable for his or her
behaviour at the time of the alleged offence. The primary defence in this
category is that the person has not reached the age of criminal responsibility.
Insanity may also fit into this category. The premise on which such defences is
based is that, in a civilised society, only those who have the intellectual and
moral capacity to understand the significance of their conduct should be judged
by rules of criminal responsibility.
(e) Non-exculpatory defences
1.12 This category caters for defences that for reasons other than
blameworthiness or a lack of capacity, a trial is unable to continue. Included
here are, renunciation of a right to prosecute, entrapment, other pleas in bar of
trial (such as pre-trial publicity or insanity), time bars, delay and res judicata.5
(2) Hierarchy of Defences
1.13 There is no clear analytical basis on which to place in hierarchical
order all the defences that operate within the criminal law. It has, however, been
suggested that justification-based defences are seen as the most preferable
type of defence to claim, followed by excuse-based defences and then lack of
capacity defences.6 This approach is based on the view that it is preferable to
be seen as having been justified in one"s actions as opposed to being "merely"
excused. It has also been argued that it is more acceptable to be excused for
an action than not having the capacity to make a reasoned judgement at all;
although in the case of a defence based on the accused being 7 years of age, it
is at least arguable that an acquittal on that ground is likely to be regarded as
being at least on a par with an adult"s acquittal based on an excusatory
defence.
C Defences based on justification and excuse
1.14 Justification defences and excuse defences are similar in the sense
that the actus reus and mens rea for the offence has been established but they
are distinct in other important respects.
5
See Chalmers Criminal Defences and Pleas in Bar of Trial (W. Green : Scottish
Universities Law Institute 2006) at 14.
6
Gardner "The Mark of Responsibility" (2003) 23 OJLS 157-71; Gardner "The gist
of excuses" (1998) 1 Buffalo Criminal Law Review 575-98.
13
1.15 Justification-based defences imply that the conduct of the accused
was the right thing to do - it was acceptable - even though it satisfied the
definition of the offence. By contrast, excuse-based defences deem the conduct
of the accused as unacceptable and wrong, but there is a reason why the
accused should not be blamed - he or she should be excused or forgiven.
1.16 Ormerod provides two useful hypothetical scenarios to illustrate the
difference between a justification based defence and excuse based defence:
"A nine year old child who deliberately kills is excused but no one
would say he is justified. In contrast, nearly everyone would approve
of the conduct of a man who saves the lives of his family despite
committing a criminal act of criminal damage, say, or self defence".7
1.17 The philosopher HLA Hart refers to justified conduct as "something
the law does not condemn or even welcomes" while excuse is claimed when
"what has been done is something which is deplored, but the psychological
state of the agent when he did it exemplified one or more of a variety of
conditions which are held to rule out public condemnation and punishment of
individuals."8
1.18 Hence, a claim of justification focuses primarily on the act while a
claim of excuse focuses on the conduct of the individual. Fletcher"s work
reflects similar definitions where he asserts the view that:
"Claims of justifications concede that the definition of the offence is
satisfied, but challenge whether the act is wrongful; claims of excuse
concede that the act is wrongful, but seeks to avoid the attribution of
the act to the actor. A justification speaks to the rightness of an act;
an excuse, to whether the actor is accountable for a concededly
wrongful act."9
1.19 In general, few disagree with Fletcher"s definition - disagreement
arises regarding what defences fall into each category. Nowhere is the
justification/excuse debate more prevalent than with the defence of provocation.
Since its origins there has been much debate as to whether the defence
operates as a defence of partial justification or partial excuse. Originally
provocation was defined as a defence of partial justification, in other words, it
was regarded as acceptable behaviour. Over time, however, the rationale for
the defence has shifted to an excuse based defence with the focus on the
7
Ashworth Principles of Criminal Law (Oxford University Press 2006) at 248.
8
Hart Punishment and Responsibility: Essays in the Philosophy of Law (Oxford:
Clarendon Press, 1968) at 212-222.
9
Fletcher Rethinking Criminal Law (Boston: Little, Brown, 1978) at 759.
14
accused"s loss of self-control rather than justifiable retribution. The reaction of
the accused is no longer seen as justified, but rather it is seen as excusable and
forgiven.
1.20 Similarly, there has been much discussion on the issue of whether
the defence of duress is one of excuse or justification. Generally speaking, the
defence is seen as excusatory; although the act was a crime, no criminal
sanction should follow due to the constrained choice the person was faced with.
The defence of legitimate defence is generally regarded as justificatory in
nature; however, where the force used is regarded as excessive force, it is
regarded as an excusatory defence. Furthermore, it should be pointed out that
the category that a particular defence falls into can depend on the way in which
the defence is formulated in a particular jurisdiction. 10
1.21 In summary, defences can be classified in a number of ways. For the
purposes of this Report the defences are distinguished primarily using the
justification and excuse classification whilst acknowledging that the system is
not complete and suffers from a number of drawbacks. Thus, there is no
consensus as to what category each defence fits into and, more importantly,
there seems to be little agreement as to what difference, if any, such
classification has in practical terms.11
1.22 There are conflicting views as to whether it really matters whether a
defence is a justification or an excuse. Robinson notes that there is little
difference so far as the acquittal of the person relying on the defence is
concerned.12 The defendant is not concerned whether the defence is labelled as
a justification or an excuse, but rather is only concerned with whether the
defence frees them of criminal liability.
1.23 However, he also makes the point that, if the law provides a
justification, this in effect changes the law. 13 In the case of a man shooting his
neighbour"s dog following an attack on his child, if the court finds this to be a
justified action Robinson argues that the law should be changed to the extent
that it would be lawful for a person to shoot a dog which was attacking a baby. 14
In contrast, if someone"s action is seen to be excused, this is of no wider
10
Chalmers Criminal Defences and Pleas in Bar of Trial (Thomson 2006) at 9.
11 th
Ormerod Smith & Hogan Criminal Law (11 ed Oxford, 2005) at 248.
12
Robinson "Criminal Law Defenses: A Systematic Analysis" (1982) 82 Col LR 199.
13
Ibid.
14 nd
Herring Criminal Law: Text, Cases and Materials (2 ed Oxford University Press
2006) at 741.
15
significance. Thus the distinction is useful and can be insightful in terms of
viewing how society views particular defences in comparison to others.
1.24 Similarly Horder argues that justification seeks to offer guidance to
defendants while excuses assess the culpability of offenders once they have
acted.15
1.25 Robinson also goes one step further to say that when a jury acquits a
defendant they should be required to make it clear that they are acquitting the
defendant because they thought he was excused or because he was justified or
because the prosecution failed to establish the mens rea or actus reus. This
would clarify the basis of the defendant"s acquittal and enable the law to send a
clear message about the requirements of the criminal law.
D Assessing the conduct of the accused; subjective or objective?
1.26 One of the major issues with regard to criminal defences is how the
law should assess the accused"s conduct. Should it be based on a subjective or
an objective test or criterion? A subjective perspective focuses on the state of
mind of the defendant, the intentions and foresight of the defendant. By
contrast, an objective perspective, while focusing on the state of mind of the
defendant, asks the question whether an ordinary reasonable person would
have behaved in a similar manner. Reasonableness is determined by an
objective test: whether a hypothetical ordinary reasonable person would have
responded in the same way. It has been suggested that purely subjective
standards can result in an increase in acquittals.16
1.27 In general terms, the defences discussed in this Report retain strong
objective elements. With the defence of legitimate defence, for example, the
behaviour of the accused must be -reasonable". In terms of this Report, the
Commission advocates that the defence of legitimate defence follow a number
of strict requirements, including that the threat of unlawful force must be
imminent and that the response of the defendant to this must be necessary and
proportionate. Such requirements are gauged on objective lines. In other words
the defence will not cloak an outrageous assault with the justification that it was
done lawfully.
1.28 In the case of provocation, by contrast, current Irish law has been
based primarily on subjective lines whereby each person is judged by the
standard of what was in their own mind at the time of the offence. In Chapter 4,
the Commission discusses provocation in detail and central to the
15
Ibid.
16
Charleton, McDermott, Bolger Criminal Law (Butterworths 1999) at 1022.
16
recommendations made is that the test for provocation should be reformed on
objective lines.
1.29 Judges and legislators have repeatedly applied restricting
requirements and conditions to the defences and, as Ashworth has noted, there
are strong social arguments for such restrictions.17 Subjective principles have
their foundation in the principle of individual autonomy, and its emphasis on
choice, control and fair warning. However, modern liberal philosophy also
emphasises that individuals should be viewed as members of society with
mutual obligations rather than abstracted and isolated individuals.18 On this
basis individuals have a duty to acquaint themselves with the limits of the
criminal law.
1.30 However, if legislators expect citizens to acquaint themselves with
the contours of criminal law they have a duty to make laws clear and consistent.
The law on defences, as already noted, has been marred by inconsistency and
a lack of clear guidelines. In that respect, the Commission has approached this
Report with a view to providing an increased level of clarity and coherence.
E Other Defences
1.31 The defences of legitimate defence, public defence, provocation,
duress and duress of circumstances (necessity) form the subject matter of this
Report. While constituting a significant group of defences in criminal law, it may
also be useful to provide a brief overview of other defences to illustrate where
the defences discussed in this Report sit within the broader discussion of
defences.
(1) Children and the age of criminal responsibility
1.32 Being under the age of criminal responsibility is a clear example of a
lack of capacity defence, whereby a child under a certain age is held to be
incapable of committing a crime.
1.33 Under the common law, three categories of child offenders were
recognised for the purposes of criminal liability. The first category covered those
who were presumed irrebutably incapable of committing a crime, those
presumed to be incapable of committing a crime but which could be rebutted
and finally those capable of committing a crime.
1.34 The first category, that is the presumption of incapability or doli
incapax applied to children under 7 years of age. The second category was
17 th
Ashworth Principles of Criminal Law (4 ed Oxford University Press 2003) at 250.
18 th
Ashworth Principles of Criminal Law (4 ed Oxford University Press 2003) at 251.
17
occupied by children between the ages of 7 and 14 and the third category was
for children over the age of 14.
1.35 The age of criminal responsibility has been reviewed a number of
times in this jurisdiction, for example, in the 1970 (Kennedy) Report on
Reformatory and Industrial Schools Systems and the 1980 Report of the Task
Force on Child Care Services. Both reports criticised the common law
categorisation. Until recently, the response had been piecemeal in nature. Thus,
section 6 of the Criminal Law (Rape) (Amendment) Act 1990, removed the
presumption that children under 14 could not commit rape.
1.36 More recently, fundamental reform was enacted in section 52 of the
Children Act 2001, as amended by section 129 of the Criminal Justice Act 2006.
Section 52 of the 2001 Act (as amended) provides that, in general, a child under
12 years of age shall not be charged with any criminal offence. In respect,
however, of murder, manslaughter, rape, rape under section 4 of the Criminal
Law (Rape) (Amendment) Act 1990 or aggravated sexual assault, a child aged
10 or 11 years may be charged with those offences. Section 52(3) abolished the
rebuttable presumption under the common law that a child who is not less than
7 but under 14 years of age is incapable of committing an offence because the
child did not have the capacity to know that the act or omission concerned was
wrong. In addition, section 52(4) provides that, in respect of a child under 14
years of age, no legal proceedings (other than remand in custody or on bail)
shall be taken without the consent of the Director of Public Prosecutions.
(2) Insanity
1.37 In Ireland, the defence of insanity has been substantially reformed by
the Criminal Law (Insanity) Act 2006. The 2006 Act not only reforms the
substantive law but also the procedural law in the area, such as the law relating
to fitness to plead, thereby covering the two areas where the defence of insanity
comes into play.
1.38 Broadly speaking, an accused person"s sanity may be relevant to the
criminal law in two ways. Firstly, the accused may claim to be insane at the time
of the commission of the crime. Secondly, the accused may claim to be insane
at the time of the trial and therefore -unfit to plead to the charge". The second
category is technically a matter of procedure but given its close relationship with
the first category it is appropriate that the 2006 Act deals with both.
1.39 The common law defence of insanity was set out definitively in the
English case R v M"Naghten19 in 1843. The accused was labouring under the
belief that he was being persecuted by the Tory party and hence had to kill the
British Prime Minister. At his trial, the judges set down what became known as
19
(1843) 4 St Tr (ns) 817.
18
the M"Naghten Rules. Firstly, it must be clearly shown that, at the time of
committing the act, the defendant was labouring under a defect of reason
caused by a disease of the mind and, secondly, that the defect of reason must
mean that either the defendant was not aware of what he was doing or he was
not aware that what he was doing was wrong.
1.40 The concept of -disease of the mind" has been considered in a
number of cases. In R v Kemp20 the defendant argued that he suffered from
arteriosclerosis which had, on the occasion in question, caused a lack of blood
to the brain, in turn causing a lack of consciousness so that he had no control
over his actions. The prosecution argued that this was not a disease of the mind
as there was no evidence of brain damage and in fact it was a physical
condition. This was rejected by the court, however, which held that the mental
faculties of reason, memory and understanding are engaged by the term
-disease of the mind" and hence this physical condition which affected these
faculties was in fact a disease of the mind. Therefore, any physical or mental
condition that impacted on the working of the defendant"s mind at the time the
act was committed could be classified as a disease of the mind.
1.41 In Bratty v Attorney General for Northern Ireland21 epilepsy was held
to be a disease of the mind, the accused claiming that he had no knowledge of
events due to experiencing a blackout. Similarly in R v Sullivan22, a case also
concerning a person having an epileptic fit, it was held that the effect on the
relevant faculties can be of a temporary nature. In R v Burgess23, sleepwalking
was held to be a disease of the mind.
1.42 This wide definition of insanity means that epilepsy and conditions
caused by diabetes can be classified as forms of insanity. Diabetics however
can also make a person an automaton. The crucial distinction depends on
whether the impairment of mental facilities was caused by an -external factor" or
an -internal factor". In R v Quick24, the accused suffered from hypoglycaemia,
which is a deficiency in blood sugar levels. In order to maintain the appropriate
level of blood sugar he should have taken a certain amount of insulin. In the
event he took too much, which meant the blood level was too low. As a result,
the assault with which he was charged occurred while he was suffering from an
external factor (the injection of insulin) and so the appropriate defence was
20
[1957] 1 QB 399.
21
[1963] AC 386.
22
[1983] 2 All ER 673.
23
[1991] 2 QB 92.
24
[1973] QB 910.
19
automatism. By contrast, in R v Hennessy25, a case that also involved diabetes,
the defendant suffered from hyperglycaemia (when the blood sugar level is too
high). Here, it was held that the offence occurred while the accused suffered
from a purely internal factor, and hence the appropriate defence was insanity.
According to Ashworth, this distinction between external and internal factors,
determining whether someone can plead insanity or automatism, shows that the
policy of social protection has gained the upper hand and that the judiciary is
prepared to overlook the gross unfairness of labelling these people as insane in
order to ensure that the court has the power to take measures of social defence
against them.26
(3) Diminished Responsibility
1.43 The defence of diminished responsibility is a relatively new defence
in Irish law and was introduced by the Criminal Law (Insanity) Act 2006. As As
in other States where it was introduced, this defence is a partial defence to
murder, reducing the verdict of murder to manslaughter. Section 6 of the 2006
Act provides that a verdict of guilty of manslaughter on the ground of diminished
responsibility shall be returned where the jury find that the accused:
did the act alleged;
was at the time suffering from a mental disorder; and
the mental disorder was not such as to justify finding him or her not
guilty by reason of insanity, but was such as to diminish substantially
his or her responsibility for the act.
(4) Automatism
1.44 Automatism occurs where a defendant suffers a complete loss of
self-control caused by an external factor such as being hit on the head and then
losing all awareness of their actions. Essentially automatism involves more than
a claim that the individual lacked mens rea (which he or she did); it involves a
claim that he or she is not acting - it is a complete denial of the actus reus.
1.45 Therefore, in order for a defendant to plead automatism it is
necessary to show that they suffered a complete loss of voluntary control, that
this loss of self-control was caused by an external factor and finally that they
were not at fault in losing capacity.
25
[1989] 1 WLR 287.
26
Ashworth Principles of Criminal Law (Oxford University Press 2006) at 208.
20
1.46 With regard to the first requirement, some commentators argue that
complete loss of self-control appears to be very harsh. It would deny a defence
to a person who had a vague awareness of what was happening. 27
1.47 As mentioned above, the requirement of loss of self control being
caused by an external factor is an important aspect and ultimately distinguishes
inanity from automatism. If the loss of self-control is caused by an internal factor
the person is classified as insane. It can be extremely difficult at times to
distinguish between internal and external factors. Examples of external factors
include a blow to the head or the taking of prescribed medication.
1.48 Finally, as regards, the third requirement, a defendant cannot plead
automatism if he or she is responsible for causing the condition. For example, if
the defendant"s mental state is caused by taking alcohol or an illegal drug he or
she cannot plead automatism.28 Similarly, if the defendant is a diabetic and is
aware that if he or she does not eat an adequate amount of food he or she may
enter a state of lack of awareness, and may still be held responsible for their
actions.29
(5) Intoxication
1.49 Traditionally, the "intoxication excuse" provided no defence for the
criminal offender and, as far back as 1551, it was held in Reniger v Fogossa:30
-if a person that is drunk kills another this shall be a felony, and he
shall be hanged for it, and yet he did it through ignorance, for when
he was drunk he had no understanding nor memory; but in as much
as that ignorance was occasioned by his own act and folly, he shall
not be privileged thereby".
1.50 From this early decision, the rule or defence of intoxication has
evolved and may provide a defence to the committal of a criminal act in
stringent circumstances. As McCutcheon has noted, "the law has evolved from
its original stance where intoxication afforded no excuse for wrongdoing to the
27 nd
Herring Criminal Law: Text, Cases and Materials (2 ed Oxford University Press
2006) at 709.
28
R v Lipman [1970] QB 152.
29 nd
See also Herring Criminal Law: Text, Cases and Materials (2 ed Oxford
University Press 2006) at 710.
30
(1551) 1 Plowd. 1,at 19; 75 ER 1, at 31.
21
current position where the fact of intoxication may give rise to a number of
exculpatory conditions".31
1.51 In the English case DPP v Beard32 it was held that intoxication may
negate intention in an offence involving specific intent, thus laying the
foundations for the modern position of classifying offences for the purposes of
the plea. This approach was confirmed and became settled in the landmark UK
decision DPP v Majewski33. There the UK House of Lords unanimously decided
that the plea of intoxication is available in all crimes of specific intent but,
reaffirming the traditional rule on self-induced intoxication, held that it is
generally no answer to crimes of basic or general intent, for example assaulting
a police officer, as was the case here. It must be noted that in one vital respect
Majewski went further than earlier decisions.34 Until then the plea operated as a
rule of evidence, where evidence of intoxication could negate specific intent. In
contrast, the House of Lords in Majewski made a significant shift to the basis of
the rule, when it held that the rule was one of substantive law not of evidence.
1.52 Although this is an important aspect in the Majewski decision, much
of the debate surrounding the case focuses on the so-called -mysterious
distinction", the differentiation between crimes of specific and basic intent.
According to one commentator, "the specific/basic intent distinction has no
logical underpinning that explains why one crime is afforded the benefit of the
intoxication defence and why another will not."35 The distinction has become the
basis used to convict persons of a lesser or fall-back offence.36 Since it was
decided, commentators have criticised the -inherent illogicality" of the decision
and, indeed, the Commission exposed the decision to critical analysis in its
1995 Report on Intoxication.37 Despite significant criticisms, Majewski has
31
McCutcheon, "Criminal Law and the Defence of Intoxication" in Kilcommins and
O"Donnell (eds) Alcohol, Society and Law (Chichester: Barry Rose Publishers
Ltd) at 212.
32
[1920] AC 479.
33
[1977] AC 443.
34
McCutcheon, "Criminal Law and the Defence of Intoxication" in Kilcommins and
O"Donnell (eds) Alcohol, Society and Law (Chichester: Barry Rose Publishers
Ltd) at 219.
35
Spencer, "The Intoxication Defence in Ireland", (2005) Irish Criminal Law Journal,
Vol. 15(1) at 3.
36
Ibid.
37
LRC 51-1995.
22
proved to be hugely influential, and was applied by the Court of Criminal Appeal
in The People (DPP) v Reilly.38
1.53 In Reilly, the Court held that voluntary consumption of alcohol could
not afford a defence in a homicide prosecution. The Court considered that if a
person, by consuming alcohol, induces in himself a situation in which the
likelihood that he will commit acts of violence is increased, particularly to the
stage where he commits an act which he would not have committed had he not
consumed the alcohol, the courts would be failing in their obligations to the
public if they allowed the cause of his violence, namely the alcohol, to excuse
his actions. The Court stated that it must have regard to the rights of an
accused person, but that it must also have regard to the interest of the public at
large who are entitled to be protected from acts of violence.
1.54 The reasoning of the Court in Reilly has been criticised on the basis
that, while public protection is a laudable goal, empirical evidence does not
support the conclusion that intoxicated violence increases where a Majewski-
like rule is not followed.39 Nonetheless, it appears clear that the Majewski rule is
now part of Irish law.40
38
[2005] 3 IR 111.
39
Dillon, "Intoxicated Automatism is no Defence: Majewski is Law in Ireland" (2004)
Irish Criminal Law Journal Vol. 14 (3) at 9.
40
For a detailed discussion of the defence of Intoxication, see Coonan and Foley
The Judge's Charge in Criminal Trials (Thomson Round Hall 2008) Chapter 20.
23
2
CHAPTER 2 LEGITIMATE DEFENCE (SELF-DEFENCE)
A Introduction
2.01 In the Consultation Paper on Legitimate Defence 1 the Commission
discussed in detail the law surrounding the lawful use of force. To encompass
the wide range of instances where the use of force can be deemed lawful, the
Commission used the term legitimate defence. In this Report, the Commission
also uses the term legitimate defence, which underlines the justification-based
nature of the defence. Legitimate defence, as opposed to the term self-defence
(which is the term currently used in this context), is not specifically limited to the
defence of the person; it also includes the defence of others as well as public
defence. It thus involves the lawful use of force by a person in response to an
unlawful threat to private interests (for example, a person, their family or their
property) or public interests (in particular in the context of law enforcement).
2.02 In this Chapter, the Commission analyses the general scope of
legitimate defence, in particular as it applies to private defence (commonly
called self-defence). In Chapter 3, the Commission discusses the defence in the
context of public interests, notably in the law enforcement setting.
2.03 In Part B of this Chapter, the Commission discusses the parameters
of legitimate defence including its historic background and the rights associated
with the defence, including those protected under the Constitution of Ireland and
the European Convention on Human Rights. The Commission also outlines how
the remainder of the Chapter analyses the defence by reference to two
essential elements, the nature of the unlawful threat - comprising a threshold
and imminence requirement - and the response to that threat - comprising a
necessity and a proportionality requirement.
2.04 In Part C, the Commission examines the threshold requirement, and
the Commission focuses in particular on what threshold is required where lethal
defensive force is used. In Part D, the Commission discusses the imminence
requirement. Part E deals with the necessity requirement, in which there is a
particular focus on what is involved in defending one"s property. In Part F, the
Commission examines the requirement of proportionality.
1
Consultation Paper on Legitimate Defence (LRC CP 41-2006).
25
B General Principles
2.05 Legitimate use of force is a well established defence "embedded in
the ordinary standards of what is fair and just". 2 In past centuries, the use of
force and violence was far more widespread than it is today; the development of
organised police forces has reduced the occasions in which individuals are
obliged or permitted to use force and "take the law into their own hands." The
State"s protection, however, is not absolute; the Gardaí or police force cannot
guarantee protection at every moment and therefore cannot guarantee
everyone"s safety and protection. Accordingly, the law has always recognised
that in certain situations individuals may have to use force: to protect
themselves or others; to protect property; to prevent the commission of a crime
or assist in a lawful arrest. Such force, however, cannot be equated with the
level of force that existed in earlier societies and retribution is not regarded as
acceptable. Legitimate use of force represents a balance between the needs of
an ordered society and the right of individuals to ensure their own protection. 3
By providing for this, the criminal law respects the autonomy of the individual.4
(1) Legitimate defence as a general defence and specific issues
involving lethal force
2.06 The Commission emphasises that legitimate defence operates as a
general defence, in that it applies to all criminal offences. In that respect,
therefore, the Commission"s analysis and recommendations for reform apply to
the entire scope of criminal liability, including all the offences against the
person, ranging from assault through to murder. It is apparent, nonetheless, that
the case law concerning the defence discussed in this Report has often arisen
in the context of homicide charges. In that respect, the discussion of legitimate
defence has often involved determining whether the use of lethal force in a
specific situation was justified. This is, naturally, understandable since the
cases involve life or death situations. It is important to note, therefore, that while
some of the Commission"s focus is on the permissible limits to the use of lethal
force, the defence is one of general scope and also operates where non-lethal
force is used.
2.07 There are two specific examples where the Commission has paid
particular attention to the need for specific rules concerning the use of lethal
force: the minimum threshold of unlawful force required to justify the use of
lethal force; and the use of disproportionate, excessive, lethal force which an
accused honestly believes was proportionate. This second issue involves the
2
R v Zecevic (1987) 162 CLR 645 at 675.
3 nd
Hanly An Introduction to Irish Criminal Law (2 ed Gill & Macmillan 2006) at 121.
4 th
Ashworth Principles of Criminal Law (5 ed Oxford 2006) at 136.
26
need to examine whether a subjective, excuse-based, approach is required in
that situation, an approach favoured by the Supreme Court in The People
(Attorney General) v Dwyer.5
(2) Justification and Excuse
2.08 In Chapter 1, the Commission discussed the classification of
defences by reference to justification and excuse. It was noted that, in general,
legitimate defence is regarded as justificatory on the basis that a person should
not be punished for the commission of a crime for defending himself or others
against an "unjustified attack", for protecting property, or for preventing a crime
or assisting in an arrest.
2.09 As already indicated above where, as in The People (Attorney
General) v Dwyer,6 disproportionate or excessive force was used because the
accused is mistaken in his or her perception of the threat or the use of force he
or she faced, the law cannot justify this, but may take the view that while the
killing is unlawful the force used can, in part, be excused, resulting in a
conviction for manslaughter rather than murder.
(3) Rights Discussion
2.10 In the specific context of the use of lethal force, a strong argument
can be advanced for treating legitimate defence as a justificatory defence by
reference to a rights-based analysis. A number of rights recognised under the
Constitution of Ireland and the European Convention on Human Rights may be
referred to in this context.
2.11 The Constitution of Ireland requires the State to protect, as far as
practicable, the right to life and also the integrity of the person. Article 40.3
provides:
"1. The State guarantees in its laws to respect, and, as far as
practicable, by its laws to defend and vindicate the personal rights of
the citizen.
2. The State shall, in particular, by its laws protect as best it may from
unjust attack and, in the case of injustice done, vindicate the life,
person, good name, and property rights of every citizen." [emphasis
added]
2.12 In addition, in the specific context of one"s home, Article 40.5 states:
"The dwelling of every citizen is inviolable and shall not be forcibly
entered save in accordance with law."
5
[1972] IR 416, discussed at paragraph 2.XX, below.
6
[1972] IR 416.
27
2.13 The provisions of Article 40.3 and of Article 40.5 have direct
relevance to legitimate defence. While the reference to the right to life might
arguably be linked to the use of lethal force only, the right to life should not be
equated simply with the need to protect against death, but also engages with
the quality of life. In any event, Article 40.3 also refers to the right to
personhood, and Article 40.5 is in no sense limited to protecting a dwelling from
lethal attacks.
2.14 The European Convention on Human Rights does not contain directly
equivalent provisions, but Article 2 of the Convention, which deals with the right
to life, contains specific references to the link between that right and the use of
defensive lethal force. Article 2 states:
"1. Everyone"s right to life shall be protected by law...
2. Deprivation of life shall not be regarded as inflicted in
contravention of this article when it results from the use of force
which is no more than absolutely necessary:
a in defence of any person from unlawful violence;
b in order to effect a lawful arrest or to prevent the escape of a
person lawfully detained;
c in action lawfully taken for the purpose of quelling a riot or
insurrection." [emphasis added]
2.15 In the context of this Report, Article 2.2.a refers to private defence,
while Article 2.2.b and Article 2.2.c refer to public defences. It is worth pointing
out that there is no reference to the defence of property in Article 2.2 as a
purpose for which lethal force is permissible and, as a result, it could be argued
that killing to protect property may risk contravening the Convention. Ashworth"s
analysis of the situation in England and Wales suggests that "legislative
provisions on justifiable force are terse and vague, and the appellate courts
have not yet had an opportunity to adapt their reasoning to the requirements of
the European Convention and its jurisprudence". 7 He questioned whether
English law adheres to Article 2 of the Convention regarding the use of lawful
force, on the basis that relevant legislation and judicial decisions analyse the
law in terms of -reasonableness" or -reasonable and necessary" while Article 2
adopts the terms -absolutely necessary and -strictly proportionate". 8
2.16 In Ireland, the constitutional dimension to legitimate defence was
addressed by the Court of Criminal Appeal in The People (DPP) v Barnes,9 in
7 th
Ashworth Principles of Criminal Law 5 ed (Oxford, 2006) at 137.
8
Ibid at 139.
9
[2006] IECCA 165, [2007] 3 IR 130.
28
which the defendant had been charged with and convicted of murder and
burglary, having unlawfully entered the deceased"s home. The defendant
admitted that he had killed the deceased but that this had been by way of self-
defence in response to a violent attack by the deceased. Having reviewed the
circumstances of the case, the Court of Criminal Appeal rejected the
defendant"s appeal against conviction. For present purposes, the Commission
notes that the Court, in addition to reviewing the common law authorities on
self-defence, also made extensive references to the constitutional dimension to
the law. In particular, the Court quoted in full the text of Article 40.3 and of
Article 40.5, already cited.
2.17 As to the position of a person in his dwelling, the Court alluded both
to the personal rights guaranteed by Article 40.3 and to the inviolability
guarantee in Article 40.5:10
"An occupier in the presence of a burglar (whether the burglar knows
that he is there or not), is in a position of very acute difficulty. Firstly, his
dwellinghouse has been violated and this is not merely a crime at law
but an invasion of his personal rights... The offence of burglary
committed in a dwellinghouse is in every instance an act of aggression,
an attack on the personal rights of the citizen as well as a pubic crime
and is a violation of him or her."11
2.18 The Court added that a burglar: 12
"is an aggressor and may expect to be lawfully met with retaliatory force
to drive him off or to immobilise or detain him and end the threat which
he offers to the personal rights of the householder and his or her family
or guests."
2.19 The Court also reinforced the constitutional dimension to the law,
stating:13
"The propositions just set out derive from the nature of the
dwellinghouse itself, and its constitutional standing as a place required
by the dignity of the human person to be inviolable except in
accordance with law."
10
Ibid., at 147, para 52.
11
The emphasis has been added in respect of allusions to the text of Article 40.3
and Article 40.5.
12
[2006] IECCA 165, [2007] 3 IR 130, at 148, para 57.
13
Ibid., at 148, para 58.
29
2.20 In Barnes the Court also examined the position of the burglar by
reference to his or her right to life under Article 40.3. The Court stated:14
"It seems an elementary proposition, in light of such provisions [in
Article 40.3], that a person cannot lawfully lose his life simply
because he trespasses in the dwelling house of another with intent to
steal. In as much as the State itself will not exact the forfeiture of his
life for doing so, it is ridiculous to suggest that a private citizen,
however outraged, may deliberately kill him simply for being a
burglar."
2.21 Therefore even where one"s home is entered by a burglar which the
Court recognised as "an act of aggression", the force one uses in response is
not without any limitation. In this respect the Commission also notes that, for the
purposes of the European Convention on Human Rights, the response of the
victim must "be no more than absolutely necessary."
(4) General scope of the defence
2.22 The general principle of legitimate defence is that the law allows the
accused to use such force against a threat that is -reasonable" and necessary in
the circumstances, as the accused believes them to be. However, this causes a
number of difficulties. What is reasonable? How should "lethal defensive force"
be defined? Should lethal defensive force be defined at all - should a
generalised test of "reasonableness" prevail? How do the elements of
proportionality, imminence and necessity apply?
2.23 In its Consultation Paper on Legitimate Defence 15 the Commission
recommended that lethal defensive force should be defined so as to be
consistent with the intent requirements identified in the Commission"s Report on
Homicide and Involuntary Manslaughter 16 and also to achieve certainty and
precision for the benefit of eventual codification of the law. One way to achieve
this would be to amend sections 18 to 22 of the Non Fatal Offences Against the
Person Act 1997, which set out a number of specific rules concerning the use of
force and how this relates to defences in general. The 1997 Act certainly covers
cases involving non-fatal offences; it is not clear to what extent the 1997 Act
covers homicide, including murder and attempted murder. Because of this,
there is a need for ultimate codification of all the defences. In this Report, the
Commission has concluded that, because its analysis does not extend to all
defences, it is not possible to propose the replacement in their entirely sections
14
Ibid., at 146-7, para 49.
15
LRC CP 41-2006 at paragraph 1.12.
16
Report on Homicide and Involuntary Manslaughter (LRC 87-2008).
30
18 to 22 of the 1997 Act, as this should await full codification. Instead, the
Commission refers, where appropriate to the relevant provisions of the 1997 Act
and adapts them, where appropriate in the draft bill appended to this Report.
Section 7 of the draft Bill contains the necessary saver for those provisions to
the extent that they may apply to defences, such as intoxication or insanity,
which are not dealt with in this Report. Once full codification of the defences
occurs, the Commission envisages that sections 18 to 22 of the 1997 Act would
be suitable for repeal and replacement in their entirety.
2.24 The proposed codification process is important for another reason.
The 2004 Report of the Expert Group on Codification of the Criminal Law17
stated that general principles of criminal liability need to be defined in a manner
which is compatible with the principal of legality and "citizens are entitled to
clear notice as to what the law expects of them and to be given a fair
opportunity to act in conformity with its provisions". This is especially important
for justificatory defences. The lawful use of force should be clearly defined so
that citizens are aware what they may and may not lawfully do. In the words of
Ashworth, "legal certainty is important from the point of view of producing
consistent and principled court decisions, as well as guiding the conduct of
citizens.18
2.25 In general, the current test for the use of legitimate force has been
based on -reasonableness". The general direction for juries has been based on
a question of whether the -response" by the defendant was reasonable. In the
Consultation Paper, the Commission was of the opinion that although this
approach has its merits, in terms of being a term easily understood, it is too
vague and unstructured. The Commission took the view that the substantive
requirements traditionally embedded in the defence, namely a minimum
threshold requirement, imminence, necessity and proportionality must be
incorporated into the law on legitimate defence. In the Commission"s view,
these would help to achieve certainty in this area.
2.26 Placing these requirements on a specific legislative footing will help
guide the courts and ultimately juries; it is the opinion of the Commission that
juries should be provided with direction with regard to these elements rather
than simply being asked to base their decision on a test of reasonableness. By
introducing a more structured test to the defence of legitimate defence and in
particular to the defence of the person, rather than the generalised
17
Codifying the Criminal Law, Report of the Expert Group on the Codification of the
Criminal Law (Department of Justice, Equality and Law Reform 2004), paragraph
2.90.
18 th
Ashworth Principles of Criminal Law 5 ed (Oxford 2006) at 139.
31
-reasonableness" approach, court decisions will prove to be more consistent and
principled, as well as guiding citizens in terms of their conduct.
2.27 The Commission has therefore concluded that, on the basis of the
rights-based analysis above and subject to the specific conditions of the
defence of legitimate defence to be set out below, it should be clearly stated
that a person does not commit an offence where he or she uses force by way of
defence to the use of unlawful force by another person. The Commission also
recommends that, pending the completion of the codification of all the defences
in criminal law, this general statement of the defence should be without
prejudice to the provisions in sections 18 to 22 of the Non-Fatal Offences
Against the Person Act 1997.
2.28 The Commission recommends that, subject to the specific conditions
of the defence of legitimate defence set out below, it should be clearly stated
that a person does not commit an offence where he or she uses force by way of
defence to the use of unlawful force by another person. The Commission also
recommends that, pending the completion of the codification of all the defences
in criminal law, this general statement of the defence should be without
prejudice to the provisions in sections 18 to 22 of the Non-Fatal Offences
Against the Person Act 1997.
2.29 In the remainder of this Chapter (and in Chapter 3), the Commission
analyses legitimate defence by reference to the threat stage and the response
stage, diving these into four specific requirements.
2.30 In addressing the threat stage, the two issues that arise are:
i) whether the threatened interest was of sufficient importance to
warrant a response (the threshold requirement) and
ii) whether the threat was imminent (the imminence requirement).
Under the response stage of the test, the two issues that arise are:
iii) whether the threat of force was necessary to protect the threatened
interest (the necessity requirement) and
iv) whether the use of force was proportionate to the level of harm
threatened (The proportionality requirement).
C A Threshold Requirement for Legitimate Defence
2.31 This Part discusses whether the law on legitimate defence should be
subject to a threshold test.
2.32 Traditionally, before the defence of -self-defence" was deemed
justifiable, the response had to be imminent, necessary, proportionate to the
threat and only to be used against an unjustified attack. Over time, these
32
requirements came to be interpreted according to a general test of
"reasonableness". This approach has been applied in the majority of
jurisdictions.
2.33 Given the inconsistencies that arise due to the varied sources of law
governing self-defence, one of the primary purposes of this Report is to provide
clarity. Certainty and precision can be achieved by clearly setting out rules of
conduct through legislation. The primary recommendation is that we should
move away from a generalised rule and establish clear and concise guidelines
to deal with the law on the lawful use of force whether dealing with the defence
of the person, property, preventing a crime or assisting in an arrest. Citizens
have a right to clear guidance as to their conduct and more specifically; conduct
that will not be tolerated. Everyone in society is aware of the general concept of
-self defence" and that everyone has a right to protect themselves from attack.
However, society is less clear on the boundaries of that right; it is those
boundaries that need to be set down in legislation. Providing clear legislative
guidelines by implementing a threshold test and clearly setting down jury
direction with regard to the elements of imminence, necessity, proportionality
will, hopefully, achieve that aim.
2.34 This view is based on the principle of legality; namely that conduct
should not be punished unless it has been clearly and precisely prohibited by
the terms of a pre-existing rule of law. The legality principle is a foundational
principle of modern criminal law. Legality is usually associated with offences but
can equally be applied to defences, by setting out what a citizen may or may not
do. As with the offences in criminal law, there is a need for greater certainty in
the law of criminal defences. Certainty in law provides security for citizens to
rely on the law to be enforced for their protection and not to their detriment
provided they keep within its boundaries. 19 In this section, the Commission
considers the arguments in favour and against setting a clear minimum
standard for lawful use of force against a threat.
(a) Consultation Paper Recommendation
2.35 In the Consultation Paper, the Commission provisionally
recommended that a minimum threshold requirement should be imposed on the
use of private defensive force, with particular emphasis on the use of lethal
force.
19 nd
See Simmonds Central Issues in Jurisprudence 2 ed (Sweet & Maxwell 2002)
Chapter 7.
33
(b) Discussion
(1) Defence of the Person
2.36 Lawful use of force is primarily used to defend oneself from an attack;
resulting in the term -self-defence". As mentioned above, the law on -self-
defence" is deeply entrenched in concepts of justice and equality. If a person is
attacked or threatened unlawfully, he or she has the right to defend against that
attack. This right is based on the fundamental right to life and physical security,
which as the courts have already noted is protected by Article 40.3 of the
Constitution of Ireland. The idea of physical security is regarded as a -natural
right" and an -absolute right" and without recognition of that right; we would be
unable to live together in society. 20
2.37 The question to be answered here is whether it is possible to identify
a minimum level of threat to the person which would justify, in particular, lethal
defensive force? For example, does the threat have to be one of death or
serious harm or is a threat of confinement for example, a sufficient threat to
justify lethal defensive force? Broadly speaking two approaches to the issue of
physical threats and a threshold requirement can be set out. The first approach
involves defining a threshold test, while the second approach involves a
generalised test of "reasonableness".
2.38 The Irish courts have tried to maintain a minimum threshold
requirement for the lawful use of lethal defensive force, although this test has
varied from time to time.21 In The People (Attorney General) v Keatley22 (a case
involving two brothers in a dispute following a game of pitch and toss), the
Supreme Court approved the direction of the trial judge and held that lethal
defence force to repel "some felony involving violence" or "some forcible and
atrocious attack" was justifiable; an attack amounting to, for example, assault
only would be insufficient.23 In the later Supreme Court decision The People
(Attorney General) v Dwyer24, Walsh J indicated that there must be a threat
endangering life (emphasis added).25
20
Ashworth "Self-Defence and the Right to Life" (1975) 34 (2) Cambridge Law
Journal 282.
21
LRC CP 41-2006, at paragraph 2.13.
22
[1954] IR 12.
23
[1954] IR 12 at 16.
24
[1972] IR 416.
25
[1972] IR 416 at 420.
34
2.39 Similarly, the Scottish courts have sought to impose a minimum
threshold level taking the view that the sanctity of the attacker"s life demands
that lethal defensive force may be resorted to only in the event that the
defender's life is endangered.26 The Draft Criminal Code for Scotland produced
by the Scottish Law Commission also sets a minimum threshold test by
demanding that lethal defensive force is only permissible "for the purpose of
saving one"s life or protection from serious injury". 27
2.40 Statutory threshold tests are also in force in Canada, Queensland
and Western Australia whereby lethal defensive force is only permitted in
response to a threat of death or grievous bodily harm.28 The US Model Penal
Code (developed by the American Law Institute and which has formed the basis
for many of the statutory penal codes in the 50 US states) applies a similar test.
Section 3.04(2)(b) of the US Model Penal Code permits the use of lethal force in
defence of the person only where necessary to repel threats of "death, serious
bodily injury, kidnapping or sexual intercourse compelled by force or threat".
2.41 By contrast, the "reasonableness" approach has been adopted in a
number of States. A classic pronouncement of the approach can be found in the
decision of the UK Privy Council (formerly the final court of appeal from many
British Commonwealth states) in Palmer v R 29:
"Some attacks may be serious and dangerous. Others may not be. If
there is some relatively minor attack it would not be common sense
to permit some action of retaliation which was wholly out of
proportion to the necessities of the situation-Of all these matters the
good sense of the jury will be the arbiter." 30
2.42 This approach was also adopted in the Australian case Zecevic v
DPP31 where no specified lower threshold of violence for legitimate defence was
held to exist. The test in Zecevic was based on whether the accused believed
26
In McCluskey v HM Advocate (1959) JC 39, at 43, Lord Justice Clyde held that
the accused must observe "due restraint" in defending himself and that he must
not use force that was "cruelly excessive."
27
See clause 23 of the Code, published under the auspices of the Scottish Law
Commission A Draft Criminal Code for Scotland with Commentary (2003) at 64-
65.
28
Canadian Criminal Code, section 34(2); Queensland Criminal Code, section
271(2); Western Australia Criminal Code, section 248.
29
[1971] AC 814.
30
[1971] AC 814 at 831-832.
31
(1987) 71 ALR 641.
35
on reasonable grounds that it was necessary in self-defence to do what he did.
If he had that belief and there were reasonable grounds for it, or if the jury is left
in reasonable doubt about the matter, he is entitled to an acquittal. 32 Thus the
approach adopts a subjective element - what the accused believed at the
relevant time.
2.43 The -reasonableness" approach was placed on a statutory footing in
both Tasmania and New Zealand, in the Tasmanian Criminal Code33 and the
New Zealand Crimes Act 196134 respectively. The New Zealand Court of
Appeal held in R v Kneale35 that the threshold requirement had been abolished
in favour of a reasonableness approach whereby the "seriousness of the threat
or attack is relevant at the point of determining the reasonableness of the
response."36
2.44 The Commission"s proposed recommendation to abandon the
generalised -reasonableness" test in favour of a threshold test, was subject to
critique during the consultation process. The principal argument against such a
requirement was that it does not allow a person to react to the prevailing
circumstances, as the person perceives or understands them to be. It was
suggested that a person must be allowed to react reasonably to the threat he or
she perceives or understands it to be, regardless of how another might perceive
or understand the threat to be. Thus a subjective approach should be adopted
on the basis that people"s responses to threats or perceived threats differ.
2.45 Such concerns are also evident in recommendations made by some
of the Canadian law reform bodies who have recommended that a specific
threshold test for lethal defensive force should be abandoned in favour of a
general provision that applies to fatal and non-fatal force.37
2.46 Nonetheless, the Commission believes the argument in favour of
setting a minimum threshold requirement is persuasive. The Commission
believes that limitations should be specified in clear rules rather than based on
a concept of "reasonableness". Citizens are entitled to detailed guidance on the
32
(1987) 71 ALR 641 at 661.
33
Section 46 Tasmanian Criminal Code.
34
Section 48 New Zealand Crimes Act 1961.
35
R v Kneale [1998] 2 NZLR 169.
36
R v Kneale [1998] 2 NZLR 169 at 178.
37
See the Law Commission of Canada Working Paper on Criminal Law: the general
part - liability and defences (No. 29 1982); Law Commission of Canada Report
on Recodifying Criminal Law (No 31 1987).
36
proper limits of what he or she can lawfully do. Setting a minimum threshold to
the law on legitimate defence goes someone to achieving that.
(I) Threats of Rape and other Sexual Offences
2.47 In the Consultation Paper, whilst discussing threats against the
person, the Commission also addressed the threat of rape and other sexual
assaults and whether such threats fall within the same category. Though rape
and other sexual assaults may present a risk of death or serious injury they
could also fall into a category of threats that do not threaten serious long term
physical harm. The Commission acknowledges, however, that very few cases
will arise whereby a threat of rape will not be accompanied by a threat of
serious injury. Where a person is faced with the threat of rape or sexual assault
the person is deprived of calm deliberation and thought and overwhelmed with
the need to escape. Therefore, the Commission believes that lethal defensive
force should be permissible in such a setting.
2.48 Another sub issue that arises under this heading is the question of
whether a person should be entitled to use lethal force to escape from unlawful
imprisonment. In the Consultation Paper the Commission acknowledged that
similar to threats of rape and sexual assault, threats of unlawful imprisonment
rarely arise in isolation. The Commission believes that lethal defensive force is
permissible in such a situation provided that all other requirements are also
present primarily necessity and proportionality.
(II) Defence of Others
2.49 Historically, the use of force to protect another person was restricted
to the protection of those "in a special relationship to the defender such as a
wife, child or master."38 However, such historical limitations are now regarded
as "obsolete" and "irrelevant" at least in this jurisdiction. 39 The language of the
Non-Fatal Offences Against the Person Act 1997 may, however, give rise to
some confusion. Section 18 of the 1997 Act permits the use of force by a
person for the protection of "himself or herself or a member of the family of that
person or another from injury".
2.50 In some jurisdictions, restrictions on the protection of others from
attack continue to be recognised in some form.40 In general, however, the
38
People (Attorney General) v Keatley [1954] IR 12 at 17.
39
Ibid.
40
The Canadian Criminal Code restricts the use of defensive force to those "under
[the defender"s] protection". It must be noted however, that such provisions are of
little practical consequence given the broader provisions relating to the prevention
of crime.
37
defence of others is not limited by any "special nexus" or relationship. Statutory
provisions in New Zealand, Australia and in the American Law Institute"s Model
Penal Code do not require any special relationship between parties to justify the
use of force to protect others.41
2.51 The Commission is of the opinion that there should be no restriction
on the persons whom an individual may defend. Individuals should intervene to
protect others who are in danger where necessary in the interest of crime
prevention and public policy. Such a view is in accordance with the views of the
Court of Criminal Appeal in People (Attorney General) v Keatley.42 However, the
Commission does make the point that lethal defensive force for the protection of
a third party should only be lawful where the person who is being defended
could also have used such force. Any hardship caused in this regard would be
alleviated by allowing for mistakes in this respect. 43
2.52 It should also be noted that in The People (DPP) v Barnes,44 the
Court of Criminal Appeal held that it is "impossible to lay down any formula with
which the degree of force can be instantly calculated". When assessing the
force used by a victim of a burglar, there must be both a subjective and an
objective component in the assessment of that force. In that case, the Court of
Criminal Appeal drew an analogy with the use of non-lethal force in section 18
of the Non-Fatal Offences against the Person Act 1997 and the objective
element of section 1(2) of the 1997 Act which requires a court or jury to have
regard to the presence or absence of reasonable grounds. The Commission
also notes that, in the Government"s Criminal Law (Defence of Life and
Property) Bill 2007 a subjective element was proposed, whereby no offence
would be committed where a person uses force which is reasonable in the
circumstances as he or she believes them to be.
(c) Conclusions and Recommendations
2.53 Despite arguments in favour of a generalised test of
"reasonableness" the Commission recommends that a minimum threshold
requirement should be imposed on the use of lethal defensive force. Members
41
See generally section 48 of the New Zealand Crimes Act 1961; Queensland
Criminal Code, section 273; Western Australian Criminal Code, section 250;
Tasmanian Criminal Code, section 46; Northern Territory Criminal Code, sections
27(g) and 28(f); South Australian Criminal Law Consolidation Act 1935, section
15(3)(a); Commonwealth Criminal Code, section 10.4(2)(a) and (b); Australian
Capital Territory Criminal Code 2002, section 42(2)(a)(i); section 3.05 of the US
Model Penal Code.
42
[1954] IR 12 at 17.
43
LRC CP 41-2006, at paragraph 2.61.
44
[2006] IECCA 165; [2007] 3 IR 130. See paragraph 2.16ff above.
38
of society have a right to clear criteria by which they can judge their conduct
when making "spur of the moment" decisions. The Commission believes that
the general test of "reasonableness", as it currently stands, fails to achieve this.
The Commission recognises that the term -reasonable" has its merits in terms of
a general understanding of the word, when directing a jury, where self defence
is raised. However, without clearly setting out the substantive requirements of
the defence and imposing a minimum threshold test before the defence is
raised, the Commission believes undeserving cases will continue to benefit from
the defence.
2.54 Threshold tests in their own right operate as a useful guide and a
signpost for the whole community (including potential attackers, defenders as
well as those who have to judge the actions of the defendant) as to the types of
conduct that might warrant a lethal defensive response. By implementing a
threshold test, potential defenders are put on notice as to the minimum
requirements for successful pleas; juries are provided with a useful starting
point for assessing claims of legitimate defence; and this supports the
democratic function of drawing a clear line dividing acceptable and
unacceptable defensive conduct.45
2.55 Furthermore, the Commission believes it is important to send out a
clear message regarding the sanctity of life. Imposing a minimum threshold
requirement protects the right to life of the attacker as set out in the Article 40.3
of the Constitution by demanding that lethal defensive force may not be
resorted to in response to minor threats and attacks.
2.56 In line with jurisdictions which have adopted a threshold
requirement46 the Commission recommends that lethal defensive force should
only be permitted in order to repel threats of death or serious injury; rape or
aggravated sexual assault and false imprisonment by force. In all other
situations the Commission recommends that lethal defensive should only be
permissible where all the requirements of the defence are made out. There is
no relationship restrictions imposed; such force is permissible whether it is
applied in defence of oneself or of a third party.
2.57 The Commission recommends that a minimum threshold requirement
should be imposed on the use of private defensive force.
45
LRC CP 41-2006, at paragraph 6.54.
46
Under Sections 3.04 (2)(b) of the US Model Penal Code the use of lethal force is
permitted in defence of the person only where necessary to repel threats of
"death, serious bodily injury, kidnapping or sexual intercourse compelled by force
or threat".
39
2.58 The Commission recommends that lethal defensive force by oneself
or in protection of a third party should only be permitted to repel threats of:
death or serious injury,
rape or aggravated sexual assault,
false imprisonment by force,
and, then only if all the requirements of legitimate defence are made
out.
(2) Defence of Property
2.59 Having dealt with arguments in favour and against a threshold test for
the defence of the person and others, the Commission turns to discuss whether
a minimum threshold requirement should also apply to the law surrounding
defence of property.
2.60 Defence of property can be divided into two types; defence of
personal property and defence of dwelling houses. In the Consultation Paper on
Legitimate Defence the Commission acknowledged that it is generally accepted
that lethal defensive force may not be deployed in defence of personal
property.47 Where lethal defensive force is permissible in order to protect
personal property the threat must be accompanied by a threat of "serious bodily
injury".48
(I) The Defence of the Dwelling-House
2.61 However, the defence of one"s dwelling house is more problematic
and requires a more detailed discussion. On the one hand many people would
not consider that the preservation of property is sufficiently important to warrant
taking a human life. On the other hand, a person"s dwelling house is considered
a place of refuge, a place of safety, and there should be no limitation on the
force which a person may use to protect the place where a person resides.
2.62 The Commission fully acknowledges the need to provide clarity in
this area, in particular against the background of recent high profile cases such
as The People (DPP) v Nally49 and The People (DPP) v Barnes.50
47
See generally LRC CP 41-2006, at paragraphs 2.65-2.70.
48
Section 3.06 (3)(d)(ii) of the United States Model Penal Code. See generally LRC
CP 41-2006, at paragraph 2.68.
49
[2006] IECCA 128.
50
[2006] IECCA 165.
40
(a) Consultation Paper Recommendations
2.63 In the Consultation Paper, the Commission provisionally
recommended that lethal defensive force may not be used in defence of
personal property.
2.64 However, the Commission did not recommend that any upper limit be
placed on the force that may be used to defend one"s dwelling house.51 In other
words, one should be allowed to defend themselves from attack within one"s
dwelling home.
2.65 Furthermore, the Commission provisionally recommended that a
defender should not be required to retreat from an attack in their dwelling home
even if they could do so with complete safety. In this regard, all occupants of
dwelling houses should be entitled to the benefit of the so-called "Castle
Doctrine", it is irrelevant if the defender is attacked by an intruder or non-
intruder and the "dwelling house" should be defined as including the area
immediately surrounding the home.52
(b) Discussion
2.66 As mentioned above, there has been extensive discussion of home
protection since the decision in The People (DPP) v Nally,53 in which the
defendant was ultimately acquitted in circumstances in which he had shot a
person who had entered his dwelling. The trial judge in Nally had noted that it
had been "an exceptional trial in which the people of Ireland divided themselves
on social lines".54
2.67 Section 18 of the Non-Fatal Offences Against the Person Act 1997
provides that a person may lawfully use force:
to protect his or her property from appropriation, destruction or damage
caused by a criminal act or from trespass or infringement;
to protect property belonging to another from appropriation, destruction
or damage caused by a criminal act or (with the authority of that other)
from trespass or infringement.55
51
LRC CP 41-2006, at paragraph 2.94.
52
LRC CP 41-2006, at paragraph 5.133.
53
The People (DPP) v Nally [2006] IECCA 128.
54
The People (DPP) v Nally [2006] IECCA 128, quoting transcript of Central
Criminal Court, 5 December 2005.
55
Section 18(1)(c).
41
2.68 Section 20(4) of the 1997 Act provides, however, that "the fact that a
person had an opportunity to retreat before using force shall be taken into
account, in conjunction with other relevant evidence, in determining whether the
use of force was reasonable". This suggests that a person has to retreat if they
have an opportunity to do so and where a person fails to do so the defence of
self-defence is not absolute.
2.69 As discussed previously the 1997 Act deals specifically with non-fatal
offences thus there is currently no statutory provision to say it is lawful to kill
another person in order to protect one"s property.
2.70 However, case law does suggest that it may be lawful to use a lethal
force response to protect a person"s dwelling house. In the leading Irish case on
self defence, People (Attorney General) v Dwyer56, Walsh J stated:
"A homicide is not unlawful if it is committed in the execution or
advancement of justice, or in reasonable self-defence of person or
property, or in order to prevent the commission of an atrocious crime,
or by misadventure."57
2.71 The decision in The People (DPP) v Nally 58 would also support the
assertion that killing in order to protect one"s property and dwelling home is
lawful in some circumstances. In his first trial, the defendant in Nally was
convicted of manslaughter and sentenced to six years imprisonment. 59 The
defendant"s conviction for manslaughter 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.
2.72 Before the jury had returned a verdict at trial, the trial judge had
directed that he would accept either a verdict of murder or manslaughter, and
would not acquit the accused. The basis for this direction was that the force
used by the defendant was so excessive that it destroyed the notion that it was
reasonable. In doing so, he removed the option of a full self-defence verdict
from the jury leaving them with the option of a partial defence thereby convicting
of manslaughter or else a murder conviction. The Court of Criminal Appeal
quashed the conviction and ordered a retrial. The impact of the Court of
Criminal Appeal decision in Nally cannot be underestimated in terms of
procedural issues regarding self-defence and in terms of the relationship
56
[1972] IR 416.
57
[1972] IR 416 at 420.
58
[2006] IECCA 128, [2007] 3 IR 130.
59
For a more detailed account see LRC CP 41-2006, at paragraph 2.73.
42
between judge and jury,60 but the Commission considers that this is not within
the scope of this Report, which focuses on the substantive content of the
defence.
2.73 In allowing the appeal and ordering a retrial, the Court of Criminal
Appeal held that the trial judge had over-stepped the duties of the jury and, in
effect, directed a conviction. The Court cited the Supreme Court decision The
People (DPP) v Mark Davis61 where it was held that "a fundamental
characteristic of the jury is to deliver a verdict, and that while there was a right
and duty vested in the trial judge, to withdraw the case from the jury and direct
them to enter a verdict of not guilty, there was no corresponding right or duty to
direct a jury to enter a verdict of guilty.62
2.74 The Court also referred to the House of Lords decision in R v
Wang63, where it was decided that the decision of all factual questions, including
the application of law as expanded by the trial judge, was a matter for the jury
and the jury has "a right to be wrong." Thus even where a trial judge is of the
opinion that a certain result would be perverse, he or she has no right to
interfere with the jury"s direction. In a trial by jury it is for the judge to direct the
jury on the law and insofar as he/she thinks necessary on the facts, but the jury
whilst they must take the law from the judge, are the sole judges on the facts. 64
2.75 The Court in Nally concluded that:
"The authorities, both in this and the neighbouring jurisdiction, make
it abundantly clear that the jurors, who swear an oath to deliver a
verdict in accordance with the evidence, must retain the ultimate
power to determine issues of guilt or innocence. That must of
necessity, include the power to return a verdict which conflicts with
the opinion of the learned trial judge, however experienced that judge
may be. The question whether the amount of force used is objectively
reasonable is quintessentially a matter of fact for the jury."
60
See Caplow, S. "The Gaelic Goetz: A Case of Self-Defense in Ireland" (2008)
Brooklyn Law School, Legal Studies Paper No. 114 Available at SSRN:
http://ssrn.com/abstract=1189497.
61
People (DPP) v Davis [1993] 2 IR 1.
62
People (DPP) v Davis [1993] 2 IR 1 at 14-15.
63
[2005] 1 W.L.R.661
64
Joshua v The Queen [1955] AC 121, 129-130. Cited in People (DPP) v Nally
[2006] IECCA 128.
43
2.76 The defendant was subsequently acquitted on the manslaughter
charge.65
2.77 By contrast, the English case R v Martin66 (which involved broadly
similar facts) produced a different result. Here the defendant was a farmer who
lived in an isolated country house. When confronted with burglars one night he
shot and killed one and seriously injured the other. At trial he was convicted of
murder; his plea of self-defence being rejected. On appeal, he sought to adduce
fresh evidence that he was suffering from a paranoid personality disorder
exacerbated by depression and, as a result, it was claimed by his defence
counsel that he would have perceived the breaking into his house as presenting
an even greater threat to his safety. The English Court of Appeal rejected this
argument on the basis that the assessment of the defendant"s response is an
objective matter. Furthermore, the Court held that when considering whether
the defendant"s view about the dangerousness of the act was a reasonable one,
personal characteristics such as personality disorders are to be disregarded.
2.78 It may be noted that the English Court of Appeal in Martin contrasts
with a Privy Council direction on self defence, given a few months earlier. In
Shaw v R67, the Privy Council set out the test for self-defence as follows:
"it is- necessary for the trial judge to pose two essential questions
(however expressed) for the jury"s consideration. (1) Did the
appellant honestly believe or may he honestly have believed that it
was necessary to defend himself? (2) If so, and taking the
circumstances and the danger as the appellant honestly believed
them to be, was the amount of force which he used reasonable?" 68
2.79 This Privy Council decision raises the issue of the appropriate test in
determining what level of force a householder is permitted to use against a
perceived threat.
2.80 In the earlier threshold discussion regarding the defence of the
person, the Commission recommended a minimum threshold test to be
introduced. By contrast, the Commission did not recommend that any upper
limit be placed on the force that may be used to defend one"s dwelling house.
During the consultation process a number of submissions were made to the
Commission regarding the use of the phrase -no upper limit," which suggested
that an analogy could be made with this recommendation and -licences to kill"
65
The Irish Times, 15 December 2006.
66
R v Martin (2002) 1 Cr App Rep 27 at 326.
67
[2001] 1 WLR 1519.
68
Ibid at 1527.
44
legislation from the United States. In response, the Commission suggests that
such a view does not take into account the full scope of the requirements set
out in this Report, notably that the defence is only available where all the
requirements of the defence are present.
2.81 In short, the Commission does not support any such -licence to kill"
legislation. Although the Commission has recommended that no upper limit be
placed on the amount of force that could be used to protect one"s home,
defendants are still required to adhere to the other elements of legitimate
defence namely imminence, proportionality and necessity.
2.82 It is the opinion of the Commission that allowing for no upper limit
simply means that lethal force can be used where it is necessary and
proportionate to protect one"s dwelling-house acknowledging the importance of
the home as a place of refuge. Furthermore, protecting your home in such a
situation will most probably include the protection of yourself or others.
2.83 By putting these safeguards in place, the Commission also considers
that the constitutional rights to life of both the householder and the burglar or
the intruder are given protection to an appropriate level, as identified by the
Court of Criminal Appeal in the Barnes case, discussed above.
(c) Recommendations
2.84 The Commission recommends that lethal defensive force may be
used where necessary and where it is not disproportionate to ensure a person"s
own safety, the safety of another or the safety of the person's property.
2.85 The Commission recommends that lethal defensive force may not be
used in defence of personal property.
D The Imminence Requirement
2.86 The Commission now moves on to discuss the requirement of
imminence. The Commission considers that imminence should form part of the
test of the defence of lawful use of force.
2.87 Historically, the law on self-defence required that before force was
used, an attack was taking place or was imminent. 69 The imminence
requirement is identified as a substantive requirement for the defence of
legitimate defence. It refers to the time period between the harm the accused
was faced with and the defensive action taken by the accused to prevent harm
materialising. In some jurisdictions, a strict approach is adopted to imminence;
the defence will only apply where the harm prevented was imminent.
69
Law Reform Commission of Western Australia, Review of the Law on Homicide
(2007 Project 94) at 166.
45
2.88 From the outset, it should be noted that the term -imminent" is often
used interchangeably with the term -immediate" though their meanings are not
necessarily congruent.
2.89 It should also be noted that the imminence rule is closely related to
the requirement of necessity and the opportunity to retreat. 70 If harm is not
imminent, the accused is likely to have a reasonable opportunity to retreat and
avoid the harm. However, despite the relationship between imminence and
necessity, the requirement of imminence is generally considered as a -stand
alone" rule in the plea of self-defence.
2.90 Furthermore, as with the requirement of immediate loss of control in
the defence of provocation, the imminence rule in self-defence has been widely
criticised because it fails to deal with cases of domestic homicide where women
who have killed their abusive partners in non-confrontational situations.71 Again,
it is important to point out that such situations of domestic violence are not
confined to women and may include men, parents, grandparents or children. In
the Consultation Paper, the Commission discussed those difficult cases. The
Commission revisits this area here and make its final recommendations.
(a) Consultation Paper Recommendations
2.91 In the Consultation Paper, the Commission provisionally
recommended that the -imminence" requirement should be retained.72
(b) Discussion
2.92 The purpose of the imminence rule is to deny the defence of self
defence where there were alternative courses of action available to the
accused. It is assumed that if the threat is not imminent the accused has the
opportunity to retreat, summon assistance or find another means of protection.
The root of the imminent requirement is based on the right to life of all human
beings, including potential attackers.
2.93 Some jurisdictions take a strict approach to the imminence
requirement while other jurisdictions merely view imminence as an element to
be taken into account in assessing whether, in particular, lethal defensive force
can be justified or excused in the circumstances.
2.94 In the Consultation Paper on Legitimate Defence, the Commission
explored the imminence rule in great depth by examining the historic origins of
the rule. As pointed out by McAuley & McCutcheon, "there is an abundant
70
See discussion below.
71
See Chapter 4.
72
See LRC CP 41-2006, paragraph 3.112.
46
authority for the proposition that the use of defensive force must be based on a
reasonable apprehension of imminent danger to life and limb. 73 For example, in
the Scottish case Owens v HM Advocate74, the Court of Session held that self
defence is made out when it is established to the satisfaction of the jury that the
panel believed that he was in imminent danger and that he held that belief on
reasonable grounds.
2.95 This does not, however, mean that an attack must actually be under
way before the accused person is permitted to use force in defence of the threat
accounting for the difference between imminence and immediacy. To cite
Hume, "it cannot be exacted of anyone, to wait till the pistol is in the act of being
fired at him; or if the enemy have drawn, and by rushing towards him, he may
meet him with his fire, before the point be at his breast".75
2.96 In this jurisdiction, however, "there is scant reference to the
requirement of imminence in reported authorities".76 The two leading authorities
on self-defence, People (Attorney General) v Keatley77 and People (Attorney
General) v Dwyer,78 do not mention the imminence rule at all. The imminence
rule did, however, feature in two more recent cases, The People (DPP) v
Kelso79 and The People (DPP) v Clarke80. In Kelso the Special Criminal Court
appeared to indicate that imminence was an absolute requirement for legitimate
defence. The case dealt with the question of whether RUC officers who
ventured across the border into the State for recreational purposes had
possession of their firearms for an unlawful purpose. The officers claimed it was
necessary to carry their guns to protect their lives should the necessity arise. In
contrast to Kelso, the Court of Criminal Appeal in Clarke appeared to indicate
that there was no imminence requirement in this jurisdiction but that imminence
was merely a factor to be taken into account.81 Thus, the views articulated in
Kelso and Clarke appear contradictory.
73
McAuley & McCutcheon Criminal Liability (Roundhall Sweet & Maxwell 2000) at
749.
74
(1946) JC 119.
75 th
Hume Commentaries on the Law of Scotland Respecting Crimes (4 ed 1844).
76
LRC CP 41-2006, at paragraph 3.18.
77
[1954] IR 12.
78
[1972] IR 416.
79
[1984] ILRM 329.
80
[1994] 3 IR 289.
81
For more detailed discussion see LRC CP 41-2006, at paragraphs 3.22-3.23.
47
2.97 In a similar vein, the English courts have also taken contradictory
views on the rule, at times suggesting that imminence is an absolute
requirement, and at other times suggesting that it is merely a factor to be taken
into account in the broader inquiry as to -reasonableness". 82
2.98 Thus, both the Irish and English courts appear to be unclear as to
whether the imminence rule is a requirement or merely a factor to be taken into
account and offer little guidance as to the precise meaning of the rule.
2.99 Furthermore, the Commission also recognised that the majority of
other Commonwealth jurisdictions do not have a unified approach to the role of
the imminence rule.83 With the exception of the United States of America, the
majority of Criminal Code jurisdictions contain no express imminence
requirement. The American Law Institute"s Model Penal Code restricts the use
of defensive force to occasions when it is "immediately necessary". 84 It must be
noted, however, that attempts have been made to provide some definition for
the imminence requirement particularly because of the growing reliance on the
flexible concept of "reasonableness" as well as the challenge presented by
cases involving domestic homicide.
(1) The imminence rule and domestic violence
2.100 As pointed out earlier, the primary purpose of the imminence rule is
to preserve the right to life of all human beings. However, the rule has come
under considerable attack in recent years from those "who feel that it places
undue emphasis on the time measurement between harm and defensive
response at the expense of the underlying principle of necessity. 85 Literature on
this issue focuses primarily on women who have been involved in a violent
relationship. The controversy arises because most women who kill their
partners do so in non-confrontational situations, thus failing to satisfy the
82
In Palmer v R [1971] AC 814, the UK Privy Council held that imminence like the
retreat rule was merely a factor to be taken into account by the jury in determining the
reasonableness of the defender"s actions. In the words of the Court, "everything will
depend upon the particular facts and circumstances- if an attack is serious so that it
puts someone in immediate peril then immediate defensive action may be necessary.
The Court stressed, however, that "of all these good matters the good sense of the jury
will be the arbiter." By contrast, in Devlin v Armstrong [1971] NI 13, the Northern Ireland
Court of Appeal rejected the defendant"s appeal on the basis that the danger she had
anticipated was not "sufficiently specific or imminent."
83
LRC CP 41-2006, at paragraph 3.39.
84
Sections 3.04 (self defence); 3.06 (defence of property); 3.07 (law enforcement).
85
Leverick Killing in Self-Defence (Oxford University Press 2006) at 89.
48
imminence rule. In addition and closely associated with the imminence rule is
the proportionality requirement and the barrier this causes for women who kill.
The proportionality rule suggests that killing in defence is only permissible
where the accused is faced with the threat of death or serious injury. 86 In cases
involving women who kill their abusive partners, this threshold is rarely met.
Women usually kill their abusive partners in situations where the violent partner
is in a vulnerable position for example asleep or intoxicated.
2.101 Thus, as with the arguments against the immediate loss of control
requirement in provocation, some writers suggest that the imminence rule in
self-defence imports sexism into the law.87 Requiring an imminence rule
discriminates against women because it is confined to masculine norms.88
2.102 In the Consultation Paper, the Commission examined the approach
adopted by Canada, Australia, New Zealand and the United States to these
difficult cases.89 From this examination it becomes apparent that the approach
adopted by the common law courts remains ambiguous. On the one hand, it is
suggested that the only option available to a battered woman in a situation of
domestic violence is to kill her aggressor to ensure protection whether the threat
is imminent or not and therefore the defence of legitimate defence should be
available to the female accused. On the other hand, it is suggested that there
are other options available to the female accused and should be sought.
However, the Law Commission of New Zealand, who dedicated a full Paper to
-Battered Defendants" explains that peaceful and effective avenues for self-
defence are not always available to victims of domestic violence. 90
2.103 In a study of the Canadian approach a number of cases indicated
that the -presumption of imminence" may be rebutted in any case where there is
an inequality between the strengths of the parties. In the leading Canadian case
Lavallee v R91 the Supreme Court of Canada held that in the case of a -battered
woman", there was no strict requirement of imminence stating that:
"Imminence is only one of the factors which the jury should weigh in
determining whether the accused had a reasonable apprehension of
86
See below.
87
Leverick Killing in Self-Defence (Oxford University Press 2006) at 89.
88
Law Reform Commission of Western Australia Review of the Law of Homicide:
Final Report at 166.
89
See generally LRC CP 41-2006, at paragraphs 3.41-3.84.
90
New Zealand Law Commission, Battered Defendants: Victims of Domestic
Violence Who Offend: A Discussion Paper (PP41 2000) at paragraph 43.
91
Lavallee v R (1990) 55 CCC (3d) 97.
49
danger and a reasonable belief that she could not extricate herself
otherwise than by killing the attacker."
2.104 However, the more recent case of R v Charlebois92 would tend to
suggest that the Supreme Court of Canada may be retreating from that position.
Charlebois involved a case where the accused was charged with first degree
murder for the shooting of a man in the back of the head while he was sleeping.
At trial, the accused argued that he committed the homicide in self-defence.
His defence was based on an overwhelming fear of the victim that he had
developed over the course of their long and difficult relationship. However, it
was held by the Court that there was no evidence which justified extending the
scope of Lavallee to cases of this kind.
2.105 As with the Canadian position, Australian case law appears to be
inconsistent. In R v Secretary93 the Court adopted a pragmatic approach
whereby the matter of imminence was held to be a matter for the jury
recognising the difficulties that can arise in discriminating between a defensive
response and a response that simply involves a deliberate desire to exact
revenge for past and potential - but unthreatened - future conduct.
2.106 However, in the more recent case R v PRFN94 the Supreme Court of
New South Wales held that self-defence was properly withheld from the jury on
the basis that there was no imminent threat to the appellant in this case.95
2.107 In the leading New Zealand case on the issue, R v Wang96 , the New
Zealand Court of Appeal upheld the appellant"s conviction for manslaughter and
refused to allow self defence to go to the jury. In the Court"s view:
"having regard to society"s concern for the sanctity of human life
requires, where there has not been an assault but a threatened
assault, that there must be immediacy of life-threatening violence to
justify killing in self defence of the defence of another." 97
92
[2000] 2 SCR 674.
93
(1996) 107 NTR 1.
94
[2000] NSW CCA 230.
95
The case concerned a young male who had been raped by his neighbour (the
deceased) at the age of 14 years. Following this, the deceased man continued to
make overtures to the appellant but there was no further sexual contact.
Approximately a year and a half after being raped, the appellant lured the
deceased to his home and fatally shot him.
96
[1990] 2 NZLR 529.
97
[1990] 2 NZLR 529 at 539.
50
2.108 This would suggest that the New Zealand courts demand the
imminence requirement as a prerequisite for self defence. However, elsewhere,
in the Court"s judgment, it was indicated that pre-emptive strikes may be
permissible and the key question is whether there were alternate non-violent
options open to the accused. It would seem that this case turned on the fact that
the deceased was asleep and intoxicated at the time of the attack and the
accused was not being held hostage.
2.109 The New Zealand Law Commission has recommended that
legislative changes are needed to permit force to be used when the threatened
harm is "inevitable" notwithstanding that the threat of harm may not be
imminent.98
2.110 In the United States, the majority of States contain an express
imminence requirement in their penal codes, requiring that legitimate defence
may be resorted to only when "immediately necessary" or in response to an
"imminent" or "immediate" threat. Thus, the primary question in the United
States is not whether there is an imminence requirement, but to what extent the
imminence requirement provides an impediment to a plea of self-defence in
cases of non- confrontational violence such as the "battered woman" scenario.
Some courts have accepted that self-defence may be permitted as a defence to
a killing in a non-confrontational situation; in general, however, the courts are
reluctant to allow self-defence where there is no objective imminent threat. 99
2.111 In a recent report from the Law Reform Commission of Western
Australia, it was recommended that when the defence of self defence is raised
under section 248 of the Criminal Code (WA), the judge shall inform the jury
that "an act may be carried out in self-defence even though there was no
immediate threat of harm, provided that the threat of harm was inevitable." 100
2.112 From this examination, it becomes evident that although there has
been a relaxation of the rule in some jurisdictions to acknowledge cases of the
-battered woman" and other cases where there has been an inequality of
strengths, there is still a strong sense that women who have killed their abusive
partners are unable to plead self-defence successfully. Consequently, there
have been a number of alternative approaches suggested to replace or vary the
imminence requirement to accommodate deserving claims of legitimate defence
98
New Zealand Law Commission Some Criminal Defences with Particular
Reference to Battered Defendants (R73 2001) at paragraphs 23-24.
99
See generally LRC CP 41-2006, at paragraphs 3.78 -3.84.
100
Law Reform Commission of Western Australia Review of the Law on Homicide:
Final Report (Project 97, 2007), at 169.
51
by those who kill in response to threats of non-imminent harm and yet maintain
the integrity of the defence.
(2) Options for Reform
2.113 In the Consultation Paper, seven options for reform101 of the
imminence requirement in legitimate defence to cater for -difficult cases" such as
those of killing in domestic violence were discussed. The first option for reform
mentioned by the Commission was a Presidential pardon, where the President
could grant a pardon where there has been a miscarriage of justice by virtue of
Article 13.6 of the Constitution. The Commission also recognised, however, that
while this approach may be "superficially convenient" it did not involve a change
in the substantive law.
2.114 The second option advocated a broadening of the imminence
definition recognising that imminence is an extremely difficult concept to define
with precision. Leverick in her recent text suggests there are a number of ways
to do this.102 Firstly, it could be presumed that the threat of harm faced by a
battered woman is always imminent. Leverick notes that this is the preferred
view of Diamond but that it has not found favour in the case law of any common
law jurisdiction. In a more reasoned manner, Ripstein asserts that what is
needed is a -different understanding of the concept of imminence". For Ripstein,
the requirement of imminence is itself an expression of an underlying
requirement of unavoidability.103
2.115 This approach is similar to the -inevitability test" addressed by the
Commission in the Consultation Paper. In 2001 the New Zealand Law Reform
Commission, recommended that the requirement of imminence should be
abandoned and replaced with a test of "inevitability". The Commissioners noted
that in many domestic violence situations, further assaults are inevitable, thus
even if help is sought on one occasion or another and -immediate" danger is
avoided it is highly probable that the threat continues; danger is inevitable.
However, such an approach, it is argued sets too high a threshold for any
deserving non-imminent cases to succeed and as a result, the Commission
does not advocate that such an approach should be adopted in this jurisdiction.
2.116 Another option is to abandon the imminence requirement and regard
imminence merely as a factor to be considered in determining whether the force
was necessary. However, with this approach like the -inevitability" test it may be
101
See generally paragraphs 3.85-3.117.
102
Leverick Killing in Self-Defence (Oxford University Press, 2007), at 95.
103
Cited in Leverick Killing in Self-Defence (Oxford University Press, 2007), at 95-96.
52
difficult to screen out the undeserving claims of legitimate defence from genuine
claims.
2.117 The fifth option addressed by the Commission was the -immediately
necessary" approach which modifies the imminence rule to permit defensive
force only where there was an immediate necessity to act, regardless of
whether the threatened harm as imminent or not. This approach focuses on the
proximity of the act, whereas the conventional imminence requirement focuses
on the proximity of the threatened harm.104 The United States of America Model
Penal Code adopts this -immediately necessary" test but it should be noted that
the majority of States have declined to modify their conventional imminence
requirements to adopt this test.105
2.118 In the opinion of the Commission, the most appropriate approach to
imminence would be to retain the requirement for the majority of cases as it
provides a useful guide to the jury but that, in -difficult cases" such as domestic
violence killings, the rule should be adapted to provide that the circumstances
as the accused reasonably believed them to be are taken into account. The
Commission also draws attention in this respect to two related
recommendations made later in this Report. First, that where disproportionate
lethal force is used, this may reduce what would otherwise be murder to
manslaughter. Second, that in the context of provocation, the current
requirement of immediacy should, in future, be solely a matter of evidence for
the jury to consider, rather than an absolute requirement.
(a) Recommendations
2.119 The Commission recommends that the imminence rule should
remain a requirement of legitimate defence. The Commission also recommends
that, in assessing imminence, the court or jury as the case may be may take
account of the circumstances as the accused reasonably believed them to be.
E The Necessity Requirement
2.120 The next requirement to be discussed is the requirement of
necessity, often referred to as the duty to retreat. The necessity rule and the
retreat rule are inextricably linked. Strict interpretation of the necessity rule goes
hand in hand with a strict application of the retreat rule and vice versa. The
basis for the rule is that lethal defensive force should only be used if it is
necessary; if it is not necessary, for example if a person had an opportunity to
escape or get help then he or she should avail of that option. Legitimate
defence cannot be used -as a veil" to disguise an unlawful use of force. This
104
LRC CP 41-2006, at paragraph 3.100.
105
See generally LRC CP 41-2006, paragraphs 3.100 - 3.106.
53
point ties in with the ancillary issue of self-generated necessity, which is also
examined here. The rule regarding "self-generated necessity" asserts that a
person should not be allowed claim the benefit of the defence when the -conflict"
was initiated by that person.
(a) Consultation Paper Recommendations
2.121 In the Consultation Paper, the Commission provisionally
recommended that innocent defenders may only resort to lethal defensive force
in response to a threat where they are unable to retreat with complete safety
from the threat.
2.122 With regard to -public defenders", such as the Garda Siochana, the
Commission recommended that there should be no requirement to retreat in
any instance.
(b) Discussion
2.123 The necessity principle requires that the force used in legitimate
defence must be necessary. Thus if an opportunity to retreat or escape arises
the use of force is considered to be no longer necessary and a defender must
take the opportunity to retreat to avoid the attack. In simple terms, the defender
must adopt the least harmful means of achieving his or her defence; in
particular, lethal defensive force should only be used as a last resort. Although
the rule appears straightforward, it has not escaped controversy. As Leverick
points out, "the question of whether the accused has a duty to retreat before
killing in self-defence is one that has long troubled the law." 106 On the one hand,
it can be argued that the victim of a threatened attack has the right to stand their
ground but on the other hand the criminal law is concerned with minimising
violence and protecting human lives. Thus the victim of a threatened attack
should seek to retreat and escape before using force where possible and a
reasonable, practicable, opportunity of escape exists. On this basis the
necessity requirement forms an integral component of the test for legitimate
defence. It embraces the earlier discussion of the relevant fundamental rights
guaranteed protection by Article 40.3 of the Constitution and under Article 2 of
the European Convention on Human Rights.
2.124 There is no single approach to the interpretation of the necessity rule.
In the Consultation Paper, the Commission examined a number of approaches.
The first was the -absolute retreat approach" whereby defenders would be
obliged to exhaust every non-lethal method of defence including verbal
negotiation and complying with attackers" demands. It has been noted,
however, that although the -absolute retreat approach" accords most closely
with the common understanding of the meaning of the word necessity it
106
Leverick Killing in Self Defence (Oxford University Press, 2007) at 69.
54
arguably sets an unrealistic standard for defenders to achieve and as a result
has not found favour in many common law jurisdictions.
2.125 An alternative approach, tempering the strictness of the absolute
retreat approach, is the -safety retreat approach" whereby defenders are obliged
to exhaust non-lethal options only to the extent that they may do so in safety. In
1903, the American jurist Beale strongly advocated this approach.107 For him,
innocent defenders were required to exhaust all of the safe opportunities of
retreat available to them before using deadly force in defence. However,
Beale"s guiding principle of absolute necessity did not dictate that defenders
retreat in all cases of legitimate defence. Public defence and defence against
burglars were excluded from the duty of the safe-retreat approach.
2.126 As one might expect, Beale"s analysis is not without controversy
primarily because of his position with regard to non-deadly attacks and the
defence of property. In relation to non-deadly attacks he asserts that retreat is
not required because lives are not at stake. According to Beale, "ordinary
defence and the killing of another evidently stand upon different footing." 108
Although this may seem logical it is unclear why the use of non-lethal defensive
force can be labelled as "necessary" in the absence of retreat, when the use of
lethal defensive force in the same circumstances would be "unnecessary".
2.127 For Beale, retreat is not required in the defence of the home (the
Castle doctrine) as it would expose the defender to increased danger. Despite
criticisms, the safe-retreat approach has been adopted in a number of
jurisdictions most notably by a number of US state legislatures who have
adopted the American Law Institute"s Model Penal Code. The Model Penal
Code states that lethal defensive force may not be used if the defender "knows
that he can avoid the necessity of using such force with complete safety by
retreating or by surrendering possession of a thing to a person asserting a claim
of right thereto or by complying with a demand that he can abstain from any
action that he has no duty to take".109
2.128 By contrast, the -stand fast approach" asserts that defenders should
have the right to stand their ground against a threat and fight, except in cases of
self generated necessity which is examined below. This approach is also,
consistently, adopted in relation to the public defences of crime, which involve
assisting or effecting an arrest and preventing a crime. In the words of the
renowned English writer Glanville Williams:
107
Beale "Retreat from a Murderous Assault" (1903) 16 Harv L Rev 567.
108
Ibid.
109
Section 3.04 (2)(b)(ii) of the Model Penal Code.
55
"A person who is arresting a criminal or preventing a crime cannot
retreat without abandoning his purpose." 110
2.129 The American jurist Foster is recognised as one of the first to
articulate the -stand-fast" approach. For Foster, "the right of self defence- is
founded in the law of nature. In cases of necessity the law of society fails: and
the victim is remitted to his natural rights." 111 In his opinion, emphasis should be
placed on the individual"s right to bodily integrity and autonomy (which the
Commission notes are protected by Article 40.3 of the Constitution of Ireland)
as opposed to just the need to uphold the law for public policy reasons. As
recognised in the Consultation Paper, Foster"s analysis and approach to
necessity was adopted by the majority of commentators until the 20th century,
but in terms of the common law courts the retreat issue received very little
attention, with the exception of the United States of America.112
2.130 Despite support for both the safe retreat approach and the stand fast
approach in the United States, the majority of common law jurisdictions have
favoured a less structured "compromise" approach to the issue of necessity and
retreat. This involves the necessity rule being subsumed under the broad
umbrella of the test of -reasonableness," where retreat is not considered
compulsory but merely a factor to be taken into account.
2.131 Examples of the compromise approach can be found in Australia,
Canada and England and were discussed in depth by the Commission in the
Consultation Paper. In the 1985 English decision R v Bird, the compromise
approach was clearly set out, indicating that a court or jury, as the case may be,
merely needs to take -retreat" as one of the factors to be taken into account:
"Evidence that the defendant tried to retreat or tried to call off the
fight may be a cast-iron method of casting doubt on the suggestion
that he was the attacker or retaliator or the person trying to revenge
himself. But it is not by any means the only method of doing that." 113
110
Williams Textbook of Criminal Law (Stevens & Sons 1978) at 459-460.
111 rd
See a summary of Foster"s position in Perkins & Boyce Criminal Law (3 ed
Foundation Press 1982) at 1121, McAuley & McCutcheon Criminal Liability
(Round Hall Sweet & Maxwell 2000) at 737-738. See generally LRC CP 41-2006,
at paragraphs 5.19 - 5.27.
112
For a review of the American approach see LRC CP 41-2006, at paragraph 5.22 -
5.27.
113
R v Bird [1985] 2 All ER 513 at 516.
56
2.132 As regards Ireland"s approach to the retreat rule, the decisions in
People (Attorney General) v Dwyer114 and People (DPP) v Clarke115 are
important as well as the more recent case of the People (DPP) v Barnes.116
Barnes is particularly valuable in terms of discussing the issue of the Castle
doctrine (where there is no duty to retreat in one"s home) and self-generated
necessity. These cases indicate that, as with the majority of other common law
jurisdictions, Ireland has favoured the less structured -compromise" approach.
Indeed, the compromise approach was implemented in Irish law to deal with
non-fatal offences in section 20(4) of the Non-Fatal Offences Against the
Person Act 1997.117
(c) Conclusions and Recommendations
2.133 From this discussion it becomes evident that the principle of
necessity has important implications for the overall test of legitimate defence. In
the opinion of the Commission, the current -compromise" approach is not
satisfactory, offering very little guidance and instruction. The Commission
agrees with Ashworth who advocates "articulating certain general principles
which can be used for the guidance of both individuals and the courts" rather
than relying on vague concepts of reasonableness. 118
2.134 The stand fast approach, founded on the individual"s right to bodily
integrity and autonomy is not favoured by the Commission. Though it is
arguable that this approach most readily recognises that defenders are often
required to act instinctively in dangerous situations, it ignores the attacker"s right
to life and physical security.
2.135 On this basis, the Commission is of the opinion that the safe retreat
approach is a preferable approach. This approach recognises the right to life of
both the defender and the attacker. Furthermore, this approach maintains public
policy considerations by encouraging the avoidance of conflict. This is not to
say that the rule should be interpreted in an unduly strict manner. It is
recognised that many individuals have a tendency to act in the -heat of the
moment" and in such situations are unlikely (and understandably so) unwilling to
114
[1972] IR 416.
115
[1994] 3 IR 289.
116
[2006] IECCA 165, [2007] 3 IR 130.
117
Section 20(4) provides: "The fact that a person had an opportunity to retreat
before using force shall be taken into account, in conjunction with other relevant
evidence, in determining whether the use of force was reasonable."
118
Ashworth "Self-Defence and the Right to Life" (1975) Cambridge Law Journal
282-287.
57
place themselves in further risk. Therefore, the safe-retreat rule only obliges an
individual to retreat where it is completely safe to do so, in other words it is
practicable to do so. The Commission realises that in the majority of situations
of attack, retreat may be inapplicable but nonetheless the Commission believes
that the principle of necessity and the duty to retreat safely is important and
should be incorporated into Irish law.
2.136 As regards public defences and the duty to retreat, the Commission
maintains the view expressed in the Consultation Paper that there should be no
duty to retreat in respect of public defences. It would be impossible for a law
enforcement officer effecting an arrest or preventing a crime to retreat without
abandoning his or her purpose.
2.137 The Commission recommends that the necessity rule should remain
a requirement of legitimate defence. The Commission also recommends that, in
assessing whether the use of force was necessary, the court or jury as the case
may be may take account of the circumstances as the accused reasonably
believed them to be.
2.138 The Commission recommends that innocent defenders may only
resort to defensive force in response to a threat where they are unable, as a
matter of practicability, to retreat without complete safety from the threat. The
Commission also recommends that public defenders are not required to retreat
from a threat in any instance.
(1) Self Generated Necessity
2.139 Self generated necessity as mentioned above is an ancillary issue to
the principle of necessity. Self generated necessity arises where the defender is
wholly or partly to blame for the original conflict. Understandably, in these
circumstances the common law has always been reluctant to allow the full rights
of the defence of legitimate defence and has imposed stringent requirements on
the defender over and above those normally required. The two main
requirements on a defender in a situation of self generated necessity are firstly,
that the person who set the attack in motion is precluded from raising the
defence of legitimate defence unless the reaction from the victim was
disproportionate. Secondly, there is a more onerous duty on the self induced
defenders to retreat from the attack.
(a) Consultation Paper Recommendations
2.140 In the Consultation Paper, the Commission provisionally
recommended that a person, who has provoked or initiated the conflict which is
threatening their safety, is only entitled to use, in particular, lethal defensive
force in the face of a disproportionate response from the original victim and
where they are unable to retreat in complete safety.
58
(b) Discussion
2.141 In the Consultation Paper, it was recognised that, at that time, there
was no clear judicial statement of Irish law on self generated necessity and
therefore much of the discussion involved an analysis of other jurisdictions and
also a study of proposals to impose differing retreat obligations as advocated by
Joseph H. Beale. Since then, the Court of Criminal Appeal considered this issue
in People (DPP) v Barnes.119 Before reviewing the Court of Criminal Appeal
decision, it is necessary to briefly review the Consultation Paper findings.
2.142 Firstly the Commission agrees that there are sound and logical
reasons for making a distinction between provoked attacks and unprovoked
attacks when establishing the boundaries for the duty to retreat. It is clearly
desirable to impose greater retreat obligations on those who create the need to
use self defence than on innocent defenders.
2.143 Assessing the fact that greater clarification was required in this area,
the Commission set out to explore the options for reform. One way to achieve
this would be to draw a distinction between provoked and unprovoked attacks,
through Beale"s classification system.120
2.144 In his writings, Beale outlined three broad categories of cases
involving self generated necessity. The Commission adopted a similar tripartite
distinction in the Consultation Paper. The first category can be referred to as
"deadly original aggressors" and involves cases where the accused has
deliberately initiated or provoked the conflict in order that they might kill their
victims under the pretext of legitimate defence. The second category referred to
as "non-deadly original aggressors" involves cases where the accused has also
deliberately initiated or provoked the conflict but with the intention of using only
less than lethal force. The third category involves cases where the accused did
not necessarily initiate the conflict but has willingly joined in. This category is
referred to as "mutual aggressors".121
2.145 In this system, "deadly original aggressors would be subject to an
absolute requirement of withdrawal, while "non-deadly original aggressors and
"mutual aggressors" would be required to -retreat to the wall" before using lethal
force in their defence. Such approaches impose retreat obligations on
defendants that are commensurate with their original culpability.
119
[2006] IECCA 165, [2007] 3 IR 130.
120
Beale "Retreat from a Murderous Assault" (1903) 16 Harv L Rev 567.
121
For a detailed discussion see Beale "Homicide in Self-Defence" (1903) 3
Columbia Law Review 525 and more generally LRC CP 41-2006, at paragraphs
5.134 -5.221.
59
2.146 Although setting out such categories is a desirable objective, it is
questionable whether such division could ever be achieved in reality. It is
extremely difficult to draw a distinct line between each category of aggressor.
2.147 The Commission noted that another option would be to simply draw a
distinction between provoked and unprovoked attacks whereby there would be
a duty to retreat on those who provoke attacks. This position has been adopted
in the Canadian Criminal Code122 and the Queensland Criminal Code.123 The
Commission does not recommend this approach given that a duty to retreat has
already been imposed in cases involving unprovoked attacks.
2.148 Another approach option that could be adopted is the -compromise
approach". This approach takes into account the original aggression of the
defender as a factor to be considered in assessing the overall -reasonableness"
of the defender"s actions. Again, the Commission believes that this approach
offers little guidance to the jury and draws little distinction between provoked
and unprovoked attacks and accordingly does not recommend its" adoption.
2.149 In The People (DPP) v Barnes124 the Court of Criminal Appeal
considered the issue of self-generated necessity. The Court drew on the Non-
Fatal Offences Against the Person Act 1997 by way of analogy. The Court held
that since a burglary is an act of aggression, analogous to an assault or
trespass to the person, a burglar during the course of the burglary can never be
wholly blameless. The Court held that the killing of a householder by a burglar
during the course of burglary can never be less than manslaughter by reason of
the burglar"s initial grave aggression.
2.150 The Court did, however, allow for one exception to this rule; a burglar
can be permitted to use force in self-defence where there is an attempt by the
householder to kill the burglar simply for being a burglar; in cases where there is
no (perceived) threat to the life of the householder or other residents. The basis
for this argument is grounded in the constitutional right to life of all citizens
(including burglars) enshrined in Article 40.3 of the Irish Constitution.
122
Section 35 of the Canadian Criminal Code. However, this distinction is
undermined by the fact that in lethal defensive force cases, the "provoked
attacks" provision has been interpreted broadly enough to cover cases of
rd
"provoked attacks": see Stuart Canadian Criminal Law 3 ed (Carswell 1995) at
444.
123
Section 272 of the Queensland Criminal Code.
124
[2006] IE CCA 165; [2007] 3 IR 130. See the discussion at paragraph 2.16ff,
above.
60
2.151 This argument has not escaped criticism and it has been argued that
"the conclusion the Court reaches by virtue of this route - that a jury must find a
burglar who kills, guilty of manslaughter, subject to one exception - appears to
contradict explicit and implicit Court of Criminal Appeal jurisprudence."125
(c) Conclusions and Recommendations
2.152 With regard to self-generated necessity, the Commission
recommends that no classification system should be put in place; rather an
aggressor should be entitled to use lethal defensive force only when confronted
with a disproportionate response from the original victim. The defender who
initiated the attack in the first instance can only use lethal defensive force to
defend himself or herself where the response from the victim has been wholly
disproportionate.
2.153 In the Commission"s opinion, this strikes a balance between the
relevant competing rights and interests. In the first place, it upholds the public
policy of avoiding further conflict, as in the case of unprovoked attacks by
ensuring that the lethal defensive force may only be used by the self generated
defender when the response from the victim is disproportionate. Furthermore,
this approach guarantees protection against the person who wishes to kill by
provoking an attack, responding with a lethal blow and then seeking to raise the
defence. Finally, the right to life of both the victim and the aggressor is upheld
through this approach. It safeguards the right to life of the victim by allowing the
victim to respond to the attack without facing prosecution, while in the case of
the aggressor, his or her right to life is protected by allowing the use of lethal
force in reaction to a disproportionate response by the victim.
2.154 The Commission discusses in Part F in the context of the
proportionality requirement the factors that should be taken into account to
assess whether a response is proportionate or disproportionate.
2.155 In conclusion, the Commission recommends that there should be a
differentiation made between attacks of a provoked and unprovoked nature and
further restrictions should be imposed on those who provoke attack while still
upholding their right to life.
2.156 The Commission recommends that a person who has provoked or
initiated the conflict which is threatening their safety is only entitled to use
defensive force in the face of a disproportionate response from the original
victim and where they are unable to retreat in complete safety.
125
O"Sullivan "The Burglar and the Burglarised: Self-Defence, Home-Defence and
Barnes" (2007) Vol. 17 (4) ICLJ 10-14, at 12.
61
(2) Defence of Property and the Duty to Retreat - the Castle
Doctrine
2.157 Necessity and the duty to retreat is central to a discussion on
defence of property and is known generally as the Castle Doctrine. The Castle
Doctrine asserts that defenders are entitled to -stand their ground" when
attacked in their home, and as such represents a significant exception to the
normal obligation to retreat.
(a) Consultation Paper Recommendations
2.158 In the Consultation Paper the Commission provisionally
recommended that a defender should not be required to retreat from an attack
in their dwelling home even if they could do so with complete safety. In this
regard, all occupants of dwelling homes should be entitled to the benefit of the
Castle Doctrine, and it is irrelevant if the defender is attacked by an intruder or
non-intruder and the "dwelling house" should be defined as including the
cartilage, or the area immediately surrounding the home.126
(b) Discussion
th
2.159 The castle doctrine was originally formulated in the 17 Century
Semayne's case to the effect that "the house of everyone is to him as his castle
and fortress, as well for his defence against injury and violence as for his
repose-"127
2.160 In essence, the effect of the castle doctrine is that while there may be
an obligation on a person who is attacked in the street to retreat before they use
lethal force, this obligation to retreat does not exist where the person is in their
own home; defenders are entitled to stand their ground when attacked in their
own home.128 The special status granted to the protection of the home is related
to "[mankind"s] fundamental physical and psychological need for some sort of
shelter and sanctuary."129 Similarly, McAuley and McCutcheon note that the
home is the most important source of personal protection from felonious
attack.130 In The People (DPP) v Barnes 131 the court stated that a person"s
126
LRC CP 41-2006, at paragraph 5.133.
127
(1604) 77 Eng. Rep 194 at 195.
128
For a detailed discussion on the Castle Doctrine see (LRC CP 41-2006),
paragraphs 5.75-5.133.
129
Katheder, "Lovers and Other Strangers - State v Bobbit" (1983) 11 Fla St U L Rev
at 484.
130
McAuley & McCutcheon Criminal Liability (Round Hall Sweet & Maxwell 2000) at
761.
62
dwelling house is far more than bricks and mortar; it is the home of a person
and his or her family, dependants or guests (if any) and is entitled to a very high
degree of protection by the law. However, the Court also made it clear that this
does not mean that a householder has a -licence to kill" with impunity any
person whom he finds in his home.
2.161 The Court acknowledged that many social and historical reasons
could be cited to support this view, but no more than the Constitution was
needed. The protection given to the home by virtue of Article 40.5 could not be
outweighed by the duty of the State under Article 40.3.1 to protect and
vindicate, so far as practicable, the life of every citizen. The Court stated:132
"It seems an elementary proposition, in the light of such provisions,
that a person cannot lawfully lose his life simply because he
trespasses in the dwelling house of another with intent to steal. In as
much as the State itself will not exact the forfeiture of his life for doing
so, it is ridiculous to suggest that a private citizen, however outraged,
may deliberately kill him simply for being a burglar."
2.162 However, the Court accepted that "this is by no means the end of the
matter". In reviewing the relevant case law and having regard to section 20(4) of
the Non-Fatal Offences Against the Person Act 1997, the Court pointed out that
every burglary in a dwelling house is an act of aggression and every burglar is
an aggressor. Although a burglar is not liable to be killed by the householder
simply for being an aggressor, the Court held that force may be used to
immobilise or detain a burglar to end the threat to the personal rights of the
householder or family or guests. The rationale for the acceptance of the castle
doctrine was clearly set out in Barnes when the Court noted that, by virtue of
Article 40.5 of the Constitution, the dwelling house has a higher value, "legally
and constitutionally", than other forms of property. The free and secure
occupation of it is a value very deeply embedded in human kind and this free
and secure occupation of a dwelling house, apart from being a physical
necessity, is a necessity for the human dignity and development of the
individual and the family.
2.163 As a result of the Barnes decision, it would seem that the castle
doctrine now forms part of Irish law. However, the Court stressed that this does
not amount to a licence to kill. The amount of force used must be reasonable in
the circumstances.
131
[2006] IECCA 165, [2007] 3 IR 130. See the discussion at paragraph 1.16ff,
above.
132
[2007] 3 IR 130, at 146-7, para 49.
63
2.164 Arising out of the Barnes case, and influenced by similar cases such
as The People (DPP) v Nally133 and the English case v Martin134 case, the
Commission is conscious that the Oireachtas has debated this matter on a
number of occasions. This has included debates on Private Members Bills in
2006, the Criminal Law (Defence of Life and Property) Bill 2006 and the
Criminal Law (Home Defence) Bill 2006. Both Bills proposed to amend the law
in relation to the protection of those who are faced with confronting intruders or
trespassers home occupiers. In 2007, the Government introduced a Criminal
Law (Defence of Life and Property) Bill 2007, which remains at Second Stage
on the Dail Eireann Order Paper at the time of writing (December 2009).
2.165 The principal provisions of these Bills include the right to use
reasonable force by a person in their dwelling or in the curtilage of the dwelling
in which the person was residing or normally resided to protect their dwelling,
themselves, their family or others. They also proposed amending section 20(4)
of the Non-Fatal Offences Against the Person Act 1997 so that there would be
no duty on householders to retreat from their homes.
2.166 When a further Private Members Bill, the Criminal Law (Home
Defence) Bill 2009, was debated in 2009, the Government indicated that it
would await this Report by the Commission before proceeding further in this
area.135
2.167 A number of critical issues which influence the ambit of the castle
doctrine need to be mentioned. Firstly, in the drafting of legislation in this area,
the question of what constitutes a "dwelling house" is extremely important in
order to avoid uncertainty. Traditionally, the castle doctrine was limited in its
application to the four walls of the home and the "curtilage", namely the area
immediately surrounding the home. In the Consultation Paper, the Commission
noted that it is appropriate that the word dwelling is not defined too narrowly yet
also places some definite limits on what actually constitutes the "dwelling". A
terms such as "curtilage" or "vicinity" is a useful phrase which can be interpreted
with regard to the particular area within which the dwelling is located. Different
considerations need to be taken into account when discussing houses in rural
areas as opposed to urban areas.
2.168 In the Criminal Law (Defence of Life and Property) Bill 2007, a
dwelling was given a broad definition to include permanent and temporary
structures. Curtilage of a dwelling was described as any driveway, access path,
garden, yard, area, space, building, store, garage and passage in the close
133
2006] IECCA 128, [2007] 4 IR 145.
134
R v Martin [2003] QB 1.
135
Vol.689 Dail Debates 586 (17 September 2009).
64
vicinity of the dwelling and usually used in conjunction with it. The Commission
considers that this type of definition is suitable in this context and, for ease of
understanding, considers that the word "vicinity" might be regarded as a more
modern term.
2.169 Another question raised by the Commission regarding the ambit of
the doctrine was whether the doctrine applied to -sanctuaries" other than the
home. In the United States, there is some support for the extension of the
doctrine to include places of work but the Commission submits that the doctrine
should not be extended to places of work. As noted in the Consultation Paper, if
the doctrine is extended to an individual"s place of work, there is no rationale for
not extending it to a defender"s club or organisation. If the doctrine was
extended in this manner, it would be difficult for its precise parameters to be
identified and it could be extended to such an extent that it would no longer
constitute a coherent doctrine.136
2.170 Another important issue is who should be entitled to the benefit of the
doctrine. Should the doctrine be confined to the owners of the house or should
all occupants be entitled to avail of it? In the United States, courts in general
have been content to afford all occupants with the benefit of this doctrine. The
Commission believes this is a sound approach; there is no sensible basis for
distinguishing between householders and occupants in this regard. The true
rationale for the defence is that the home is a place of sanctuary. It is totally
irrelevant if the dwelling is a temporary or permanent one once it constitutes the
person"s sanctuary for the time being.
2.171 Furthermore, the Commission is of the opinion that no distinction
should be placed between an intruder and non-intruder. Again, there is no
logical reason why the doctrine should only apply where the attacker is an
intruder.
(c) Conclusions and Recommendations
2.172 The Commission recommends that a defender should not be
required to retreat from an attack in their dwelling (which should be defined to
include a permanent or temporary structure) even if they could do so with
complete safety.
2.173 The Commission also recommends that this non-retreat rule should
apply to all occupants of dwellings, and that it is irrelevant that the defender is
attacked by an intruder or non-intruder. The Commission also recommends that
"dwelling" should be defined as including the vicinity or the area immediately
surrounding the home, including any access path, garden or yard ordinarily
used in conjunction with the dwelling.
136
LRC CP 41-2006, at paragraph 5.131- 5.132.
65
F The Proportionality Requirement
2.174 The fourth requirement to be discussed with regard to the test for
legitimate defence is proportionality. The concept of proportionality is central to
a discussion of legitimate defence. As the title suggests, the proportionality rule
provides that defensive force may only be used when the response is
proportionate to the harm sought to be avoided.
2.175 Proportionality can be closely associated with the threshold rule
discussed earlier as well as imminence and necessity. As McAuley and
McCutcheon point out, "the rule that defensive force must be proportionate to
the unlawful attack can be regarded as an alternative way of stating the
requirement that force must be necessary in the circumstances." 137 If no more
than necessary force may be used, it adds nothing to say that defensive force
must also be proportionate.138 The role of the proportionality rule, in combination
with the threshold test, is to ensure that defensive force is deployed only where
the threat is sufficiently serious to warrant a deadly response. Therefore,
proportionality is "a balancing of competing interests", the interests of the
defender and those of the aggressor."139
(a) Consultation Paper Recommendations
2.176 In the Consultation Paper, the Commission provisionally
recommended that defensive force, in particular lethal defensive force, should
be prohibited where it is grossly disproportionate to the threat for which the
defence is required.
2.177 Accordingly, the Commission provisionally recommended the
adoption of the proportionality rule and the threshold test.
2.178 To achieve these recommendations, the Commission provisionally
recommended that the factors relevant to the assessment of proportionality
should be clearly and concisely set down in legislation.
(b) Discussion
2.179 As identified in the Consultation Paper, the concept of
"proportionality" has long been intertwined with the test for legitimate defence,
137
McAuley & McCutcheon Criminal Liability: A Grammar (Round Hall Sweet &
Maxwell 2000) at 754.
138
Ibid.
139
Fletcher Basic Concepts of Criminal Law (Oxford University Press 1998) at 136.
66
th
whether in the form of a proportionality rule or a "threshold test". 140 The 19
century Australian case R v Ryan141 demonstrates this aspect well:
"If a man be struck with the fist he may defend himself in a similar
manner, and so knock his assailant down, but he is not justified in
shooting him, or manning him with an axe or other deadly
weapon."142
2.180 However, in more recent times it can also be seen that the rule has
been diluted and it no longer enjoys the status of a stand-alone requirement.143
2.181 The difficulty with the proportionality rule is that although it would
seem relatively straightforward in application, problems arise because of the
balancing process involved. In essence, the proportionality rule is equal to the
"choice of evils" test associated with the defence of necessity (duress of
circumstances).144 Where the interest threatened by the attacker is equal to that
threatened by the defender, for example life; there is little difficulty. The
problems arise when the -threats" differ. For example, how does one gauge the
attacker"s right to life against a defender"s right not to be seriously injured; or in
the case of an attack on property, the defender"s right to defend his or her
home, against the burglar"s right to life? In the case of public defences, the
difference may be between preventing a non-deadly crime and society"s interest
in upholding the law; or in the case of assisting or effecting an arrest, society"s
interest in apprehending criminals. Furthermore what one person deems
proportionate may not be proportionate to another. As a consequence, it is
understandable why giving a clear definition of proportionality has proved
troublesome.
2.182 One approach would be to prohibit the use of lethal defensive force in
all cases in which the threat by the attacker is not life threatening. However, this
approach has been deemed too simplistic. The Commission considers that
determining whether a lethal response is proportionate to the threat can only be
achieved with the assistance of detailed legal guidelines, an approach which
has proved elusive to date.
2.183 For example in Irish law, proportionality was well established in the
vocabulary of the law of legitimate defence up until the 1950s but in the course
th
of the latter half of the 20 century its position became increasingly obscure. In
140
See generally LRC CP 41-2006, at paragraphs 6.09 -6.12.
141
(1890) 11 NSWR 171.
142
(1890) 11 NSWR 171 at 182 per Windeyer J.
143
See generally LRC CP 41-2006, at paragraphs 6.08ff.
144
See generally Chapter 5, below.
67
two of the leading criminal cases on legitimate defence The People (Attorney
General) v Keatley145 and The People (Attorney General) v Dwyer146
proportionality was not referred to at all. In Keatley legitimate defence was
defined solely in terms of "necessity" whilst in Dwyer a test of "reasonable
necessity" was adopted. It should be noted, however, that in Dwyer Walsh J"s
judgment substituted a threshold test in lieu of the proportionality requirement,
thus restricting the use of lethal force to cases of life threatening attack.147
2.184 In later decisions, the position of proportionality appeared to be
elevated to a more prominent role once again. In The People (DPP) v Clarke148
the Court of Criminal Appeal appeared to adopt the approach that had been
taken in the UK Privy Council case Palmer v The Queen149 whereby the jury
was entitled to take into account the defender"s use of grossly disproportionate
force as part of the overall assessment of reasonableness. By contrast, in The
People (DPP) v Cremin150 the Court stated that the issue for the jury was
whether the defender"s response to aggression was a reasonably proportionate
reaction.
2.185 In the Consultation Paper, the Commission took the view that a
negative finding on this point would be fatal to a successful plea. Furthermore, it
could also be said that proportionality was now elevated from being a mere
factor to be taken into account to a stand-alone test because of Cremin.
2.186 Whilst expounding this view, however, the Commission also
acknowledged that this conclusion might involve reading too much into the
wording of the judgment and the fundamental question of what is actually meant
by the "reasonable proportionality" of the Cremin test remains. On the one
hand, it may indicate that proportionality is to be judged by an objective
standard. On the other hand, it may mean that the proportionality rule is not to
be applied in the strictest sense; only grossly disproportionate defensive force
would fail to achieve this standard.
145
[1954] IR 12.
146
[1972] IR 416.
147
[1972] IR 416 at 420.
148
[1994] 3 IR 289.
149
[1971] AC 815.
150
Court of Criminal Appeal, 10 May 1999.
68
2.187 Under section 18 of the Non Fatal Offences Against the Person Act
1997, the role of proportionality is even more obscure. The test for legitimate
defence under the 1997 Act is solely based on reasonableness. 151
2.188 As regards the approach of other common law jurisdictions to the
question of proportionality, it becomes clear that similar to other elements of
private defence, proportionality too has become enveloped into the amorphous
test of reasonableness.
2.189 In the English case Beckford v R152, for example, the test to be
applied in self-defence is "that a person may use such force as is reasonable in
the circumstances." But how is this test of reasonableness is to be interpreted?
2.190 From the Commission"s in depth examination in the Consultation
Paper, it can be seen that this test has been interpreted with varying
approaches. Examples of a broad interpretation, whereby proportionality is not
to be understood in the strict sense but given a rough approximation, can be
witnessed in a number of decisions.153 In Palmer v The Queen154, the UK Privy
Council indicated that the prosecution would need to show something more
than mere disproportionality:
"If there is some relatively minor attack it would not be common
sense to permit some action of retaliation which was wholly out of
proportion to the necessities of the situation." 155
2.191 In Australia, a number of cases also illustrate a "minimising"
approach towards proportionality.156 In the well known case of Zecevic v DPP157,
the High Court of Australia clearly warned against "elevating matters of
evidence to rules of law"; proportionality was only to be a factor taken into
account as part of "the whole of the circumstances".158 In their commentary on
151
Section 18(1) provides: "The use of force by a person for any of the following
purposes, if only such as is reasonable in the circumstances as he or she
believes them to be, does not constitute an offence-"
152
(1987) 85 Cr App Rep 378.
153
See generally LRC CP 41- 2006, paragraphs 6.25- 6.28.
154
[1971] AC 814.
155
Palmer v the Queen [1971] AC 814 at 831 per Lord Morris of Borth-y-Gest.
156
See generally LRC CP 41-2006, at paragraph 6.29 and R v Viro (1978) 141 CLR
88.
157
(1987) 71 ALR 641.
158
(1987) 71 ALR 641 (Wilson, Dawson and Toohey JJ, Mason CJ concurring).
69
this case, O"Connor and Fairall concluded emphatically that "there is no
separate requirement of proportionality in self-defence", other than its
evidentiary significance, "it has no life of its own." 159
2.192 By contrast, proportionality arguably plays a greater role in some
jurisdictions such as Australia, Canada and New Zealand, whether by imposing
a proportionality requirement or alternatively a threshold test. In general
however, the comparative survey demonstrates that the most common
approach to legitimate defence is an amalgam of the "reasonableness" and the
"gross disproportionality" approaches; proportionality is relevant to the question
of reasonableness but only in so far as there has been a gross departure from
the standard.
2.193 A number of possible options for reform were outlined in the
Consultation Paper. Firstly, proportionality as an element of private defence
could be abandoned altogether. The Commission does not approve of this
approach. The proportionality rule like the threshold requirement places a
limitation on the right to use force and in doing so safeguards both the right to
life of the defender and the attacker.
2.194 Whilst the threshold test and the proportionality rule seek to achieve
the same end - ensuring that defensive force is deployed only where the threat
is sufficiently serious to warrant a deadly response - the means by which they
do so differ. A threshold test sets out in advance an exhaustive list of threats,
where (in particular, lethal) defensive force can be used in response. By
contrast, the proportionality rule seeks to calculate the harm that would flow
from the response against the harm that would flow if the attack were allowed to
proceed. As such, the threshold test is cruder than the proportionality rule.
2.195 The Commission takes the view that the implementation of both the
threshold test and the proportionality rule would be appropriate. Threshold tests
in their own right operate as a useful guide and a signpost for the whole
community (including potential attackers, defenders as well as those who have
to judge the actions of the defendant) as to the types of conduct that might
warrant a lethal defensive response. As already noted, by implementing a
threshold test, potential defenders are put on notice as to the minimum
requirements for the successful pleas; juries are provided with a useful starting
point for assessing claims of legitimate defence; and law reformers are squarely
confronted with the democratic function of drawing a clear dividing acceptable
and unacceptable defensive conduct.160
159 rd
O"Connor & Fairall Criminal Defences 3 ed (Butterworths 1996) at 184.
160
LRC CP 41-2006, at paragraph 6.54.
70
2.196 Therefore, adopting both a proportionality rule and a threshold test
would be an important step towards achieving certainty in the law of legitimate
defence, and in doing so would satisfy the principle of legality. On this basis, the
Commission recommended the adoption of both the proportionality rule and the
threshold test.
2.197 The second option for reform involves taking proportionality as just
one factor to be considered in assessing the overall reasonableness, in other
words the current approach of most common law jurisdictions. This approach
does not see proportionality as a requirement in its own right. Undoubtedly the
advantage of this approach is its flexibility in that it allows courts and juries a
broad discretion to tailor verdicts to suit the circumstances of each case.
2.198 In the opinion of the Commission, however, this approach leads to a
greater risk that views will differ in borderline cases. To cite Williams, "in the
absence of rules of law, an element of arbitrariness is unavoidable, offering
defenders little practical guidance when making split-second decisions and
exposes them to the -vagaries of juries" and- gust of public opinion".161
2.199 The two remaining options include "a strict proportionality" or a "gross
proportionality" test. The "strict proportionality" test has its advantages by
incorporating certainty and precision to the law on legitimate defence.
Furthermore, the test is a simple test for the jury to apply; it involves simply
assessing whether the good effects outweigh the bad effects of the force used.
In the Commission"s view, a strict test is also inflexible and unduly onerous.
This approach has no regard for human impulses of panic and fear.
2.200 The "gross proportionality" test in contrast is much less onerous,
offering courts and juries discretion to tailor their verdicts yet still with guidance
and limitation. The gross proportionality test is one which the jury can be
provided with adequate guidance whereby they should be informed that any
force must be proportionate to the threat but that this requirement need not be
interpreted strictly. In the opinion of the Commission the discretion offered by
this approach is necessary to cater for cases in which defenders are
understandably over-exuberant in their response.
2.201 Furthermore, the Commission believes that this test is most
adequately suited to finding the correct balance and also acknowledges
-indeterminate community standards".
2.202 It must be noted however, that the implementation of both the
proportionality rule in the form of the "gross proportionality test" and the
threshold test is not favoured by all. The Commission received a number of
submissions in the consultation process disagreeing with this approach in
161
Williams Textbook of Criminal Law (Stevens & Sons 1978) at 456-7.
71
favour of a more subjective approach. It was argued that the more appropriate
way to deal with such cases is on the basis of a reasonable response to the
circumstances, as perceived or understood by the accused rather than by a
limitation through a proportionality rule and threshold test. Once the use of force
is proportionate in the circumstances (as perceived and understood by the
accused), he or she should not be guilty of an offence. It was argued that to
suggest otherwise does not adequately protect the rights of those in society
who are of a less robust disposition than others.
2.203 In response, the Commission accepts that no two cases regarding
private defence are the same and account must be taken of the individual
circumstances that arise. However, the Commission advocates the view that it
is precisely for this reason that citizens are entitled to clear rules so that they
can be aware of the limitations that arise under the law of legitimate defence. It
is imperative that citizens are aware of the boundaries of their response in
legitimate defence.
2.204 Another issue that requires mention here is the use of
disproportionate defensive force used by a woman in response to domestic
violence. The Commission dealt with this issue under the "imminence
requirement" but proportionality is also an aspect of the defence that causes
difficulties in cases, such as the -battered woman". In a similar approach to the
imminence rule, the Law Reform Commission of Western Australia recently
recommended that a trial judge must direct the jury on these factors. In regard
to proportionality, the recommended jury direction reads as follows:
"a response may be a reasonable response for the purpose of self-
defence under s.248 of the Criminal Code (WA), even though it is not
a proportionate response."162
2.205 In this respect, the Commission also accepts that, as with the
imminence requirement, it is important to assess proportionality from the
perspective of the person as he or she reasonably believes them to be.
2.206 In the Commission"s opinion the implementation of a threshold test
coupled with a general proportionality test, both based on of the circumstances
as the person reasonably believes them to be would best achieve the overall
aim of certainty whilst still allowing for a certain degree of discretion to a court or
jury as the case may be. By implementing such a rule, the Commission is
limiting those cases in which the defensive force is deemed to be excessive; in
cases where the response by the victim is proportionate the defence of
162
Law Reform Commission of Western Australia Review of the Law on Homicide:
Final Report at 169.
72
legitimate defence is available. The Commission considers that this approach
would apply in the case of non-lethal force.
2.207 The Commission recommends that the proportionality rule should
remain a requirement of legitimate defence. The Commission also recommends
that, in assessing whether the use of non-lethal force was proportionate, the
court or jury as the case may be may take account of the circumstances as the
accused reasonably believed them to be.
(2) The problem of disproportionate, excessive, lethal force
2.208 As already mentioned, an example where the Commission needs to
pay particular attention to the use of lethal force is where disproportionate or
excessive lethal force is used. It is important to note in this context that, as a
general rule, legitimate defence acts as a complete defence. When raised
successfully, it results in a justification-based acquittal. Where, however, the
use of force is deemed disproportionate or excessive, in particular where lethal
force is used resulting in a death, many States have taken the view that such
use of force cannot be justified.
2.209 In Ireland, the leading Supreme Court decision on legitimate defence,
The People (Attorney General) v Dwyer 163 involved this argument and the Court
held that, in such cases, an acquittal is not permitted but that a partial defence
applies by which a charge of murder may be reduced to manslaughter. In
Dwyer the defendant had been charged with murder. He and a friend had
become involved in a street fight involving a number of people. At his trial, the
defendant said that at some point in the fight he saw his friend being knocked
down and kicked on the ground. The crucial setting was summarised as
follows:164
The [defendant] himself was afraid of being killed and took a knife from
his inside pocket. He says that he merely brandished the knife. There is
other evidence that he struck with it. When the fighting ended, [the
deceased] had fallen fatally stabbed... While there was evidence which
would justify a jury in holding that the [defendant] came out [to fight]
unnecessarily and acted aggressively with full knowledge of what he
was doing so that a verdict of guilty of murder would be justified, equally
there was evidence that he only reacted to being attacked and because
he feared serious injury or even death."
2.210 The trial judge had directed the jury that if the defendant used "more
force than was reasonably necessary" they should find him guilty of murder, and
163
[1972] IR 416.
164
Ibid, at 427-8.
73
that was the verdict at which they arrived. On appeal, the Supreme Court was
asked to answer this question:165
"Where a person, subjected to a violent and felonious attack,
endeavours, by way of self-defence, to prevent the consummation of
that attack by force, but, in doing so, exercises more force than is
necessary but no more than he honestly believes to be necessary in the
circumstances, whether such person is guilty of manslaughter and not
murder."
2.211 In answering this, the Supreme Court held that, if the jury is satisfied
that the "honest belief" test has been met, the appropriate verdict is
manslaughter rather than murder. In that respect, the Court followed the
approach taken by the High Court of Australia in R v Howe.166 This has been
described as a "half-way house" approach in which, in the case of
disproportionate, or excessive, lethal force, rather than the "reasonable belief"
test which the Commission has just recommended in the case of non-lethal
force, a subjective "honest belief" test is applied which results in a conviction for
manslaughter. In the Supreme Court, Butler J summarised the distinction
between legitimate defence and this "half-way house" position:167
"A person is entitled to protect himself from unlawful attack. If in
doing so, he uses no more force than is reasonably necessary, he is
acting lawfully and commits no crime even though he kill[s] his
assailant. If he uses more force than may objectively be considered
necessary, his act is unlawful and, if he kills, the killing is unlawful."
2.212 Similarly, Walsh J stated:168
"In the case of full self-defence the accused intends to kill or intends to
cause serious injury but he does not commit any offence because the
homicide is a lawful one. Therefore, his intention was to commit a lawful
homicide or lawfully inflict serious injury... Full self-defence permits
such a degree of force, up to and including the infliction of death, as
may be regarded as being reasonably necessary... If [the prosecution
establishes] that the force used was more than was reasonably
necessary it has established that the killing was unlawful as being
without justification and not having been by misadventure. In those
165
Ibid, at 426.
166
(1958) 100 CLR 448.
167
[1972] IR 416, at 429.
168
Ibid., at 423-4.
74
circumstances the accused in such a case would be guilty of
manslaughter."
2.213 In Dwyer the element of -reasonableness" in the accused"s use of
force served as the point of distinction between what may be termed -lawful self-
defence" (or -full self-defence" as Walsh J described it in Dwyer ) and -unlawful
self-defence" (or -partial self-defence" as described in Dwyer).169 This -half-way"
house approach was also adopted in the Court of Criminal Appeal decisions in
The People (DPP) v Nally170 and The People (DPP) v Barnes.171
(a) Conclusions and Recommendations
2.214 The continued use of the -half-way" house approach in recent cases
indicates to the Commission that, where the circumstances give rise to a finding
that, although the force used was disproportionate from an objective,
reasonable, perspective, it is appropriate that while the death cannot be
justified, a court or juries may consider that the defendant"s honest (but
unreasonable) belief that lethal force was required should be given some
weight, even if only to reduce a charge of murder to manslaughter.
2.215 In the specific context of lethal force, therefore, the Commission has
concluded that the -half-way" house approach adopted to disproportionate force
in The People (Attorney General) v Dwyer 172 should be retained in the law
concerning legitimate defence. Once this approach is placed within the
proposed parameters of a minimum threshold, the imminence requirement, and
the necessity requirement, the specific issue of disproportionate lethal force can
only lead to a limited defence: it cannot be seen as justified. The -half-way"
house allows the court or jury, however, to take account of the specific
circumstances of the accused. The Commission therefore recommends that
where the defendant used disproportionate lethal force, but no more force than
he or she honestly believed to be proportionate in the circumstances, unlawful
homicide that would otherwise be murder may be reduced from murder to
manslaughter.
2.216 The Commission recommends that where the defendant used
disproportionate lethal force, but no more force than he or she honestly believed
to be proportionate in the circumstances, unlawful homicide that would
otherwise be murder may be reduced from murder to manslaughter.
169
See Dwyer "Homicide and the plea of Self-Defence" (1992) 2 ICLJ 73-93.
170
[2006] IECCA 128, [2007] 4 IR 145.
171
[2006] IECCA 165, [2007] 3 IR 130.
172
[1972] IR 416.
75
3
CHAPTER 3 PUBLIC DEFENCE
A Introduction
3.01 Public defence is the branch of legitimate defence which regulates
the use of force to effect a lawful arrest or prevent a crime. Public defences
involve a response to threats to societal interests rather than personal interests.
The use of force to prevent a crime or to make an arrest is usually associated
with public officials such as the Garda Síochána and the Defence Forces.
Therefore, in this Chapter, the focus is on situations where private defence or
legitimate defence is not applicable.
3.02 Part B examines the use of force to effect an arrest, while in Part C
the Commission considers the use of lawful force to prevent a crime. In Part D
the Commission examines the law surrounding the lawful use of force in the
Defence Forces. For the reasons discussed there (in particular that this area is
currently under review by the Defence Forces), the Commission recommends
that this aspect of public defence should not, for the present, be included in the
Commission"s proposed legislative framework for legitimate defence. The
Commission nonetheless discusses the current position and guidelines for
members of the Defence Forces.
B The Use of Force to Effect an Arrest
3.03 In essence lawful use of force in the context of public defence is
linked to the principle of welfare, whereas use of force in private defence can be
linked directly to the principle of autonomy and self- preservation.
3.04 In all jurisdictions, law enforcement officials are permitted to use a
level of force when necessary for the purposes of securing the peace, upholding
the law, deterring crime and bringing criminals to justice. Such a position is
permissible given the situations that law enforcement officers are routinely
placed in; situations where there is a high risk of violence. In this jurisdiction law
enforcement officers are for the most part members of the Garda Síochána. The
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Garda force operates with a largely unarmed force. Currently, the only members
of the Gardaí who are armed are the Emergency Response Unit (ERU). 1
3.05 Public defence, however, is not the exclusive remit of law
enforcement officials. As with private defence scenarios, the law recognises that
certain powers also need to be granted to private citizens in order to carry out
public defence; to effect or assist in an arrest or to prevent a crime, where
necessary. Such powers whether granted to a private citizen or a law
enforcement official are greatly intrusive and it is imperative as with private
defences that the law is clear as to the degree of force that can be used by
arrestors and in particular when lethal force can be used.
3.06 From the outset it must also be pointed out that in many cases public
defence scenarios will overlap with those of private defence or legitimate
defence. In many situations the use of defensive force might be categorised as
an example of public defence, for example, to prevent a crime of attempted
murder or even effect an arrest, but may be better understood primarily as a
case of self-defence. In looking at the legitimate use of force, the protection of
the lives of innocent victims is viewed as the paramount consideration while
individual interests in personal property or societal interests in upholding the law
are secondary considerations.
3.07 In relation to the use of force in effecting or assisting in a lawful
arrest, typical cases include those in which force is used to overcome
resistance and secondly where lethal force is used to prevent the flight of a
suspect.
3.08 As noted in the Consultation Paper, the use of defensive force to
overcome resistance is typically governed by the rules of private defence or
self-defence, given that the arrestor would be repelling a threat to his or her
person. As a consequence the problematic cases for the purposes of this
section are those involving fleeing suspects where there is no physical threat
posed to the arrestor and as a result the issue of self-defence does not arise.
(a) Consultation Paper Recommendations
3.09 In the Consultation Paper the Commission made a number of
recommendations with regard to the use of force to effect an arrest.
1
In recent years there have been calls for an armed Garda force to respond to the
increased level of violent crimes and in particular gangland crime. To date,
however, there has been no change in legislation to allow a fully-armed force in
Ireland and the Commission is led to believe that this is to continue. At the 2008
Annual Conference of the Garda Representative Association, the current Garda
Commissioner Fachtna Murphy made it clear that he is "committed to maintaining
an unarmed uniformed presence in our towns, cities and countryside."
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3.10 Firstly, the Commission provisionally recommended that the power to
use lethal defensive force in effecting arrests should be restricted to law
enforcement officers.
3.11 Secondly, the Commission provisionally recommended that the use
of lethal force in effecting the arrest of a fleeing suspect should be prohibited
except where the arrestee is suspected of an "arrestable offence" or it is
necessary to protect a person from an imminent threat of death or serious
injury.
3.12 Thirdly, the Commission provisionally recommended that a prison
officer should be entitled to assume that every escaping prisoner is dangerous
and consequently resort to lethal force, where all other requirements for
legitimate defence are met (namely imminence, necessity and proportionality),
unless he is aware that the escapee is not in fact dangerous.
(b) Discussion
3.13 In the Consultation Paper, the Commission recognised that
historically, the common law placed very little value on the lives of fleeing
felons. Under what became known as the "fleeing felon rule", lethal force was
th
authorised to effect the arrests of felons.2 However, by the end of the 19
century it was suggested that the broad powers to use lethal defensive force
should be curbed3 and elements of the test for private defence should be
incorporated into the test for public defences. Permitting a person to use lethal
force to effect an arrest without any limitations to stop a "fleeing felon" fails to
have any regard for the right to life of the felon.
3.14 To match public perception and shed the harshness associated with
th
the "fleeing felon rule", efforts were made throughout the 20 century to
abandon or alter the rule substantially with alternative approaches being
suggested and legislation implemented. In the Consultation Paper, the
Commission outlined four models that have been used throughout common law
jurisdictions to deal with the -fleeing felon". 4
3.15 The first is the "reasonableness" rule which effectively abandons any
threshold requirement. The second model can be described as the "specified-
crimes" rule which focuses on specific qualifying offences. The "violent-crimes"
rule focuses on the violent nature of the offending and finally the "dangerous
suspect" rule focuses on the future risk of offending posed by the arrestee.
2
LRC CP 41-2006, at paragraph 2.104-2.109.
3
McAuley & McCutcheon Criminal Liability (Round Hall Sweet & Maxwell 2000) at
770.
4
See generally LRC CP 41-2006, at paragraphs 2.111-2.195.
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From the outset it must be pointed out that these tests are not mutually
exclusive and combinations of the tests have been and continue to be
employed in many jurisdictions.5
3.16 In Ireland the preferred approach to deal with the use of lethal force
to effect arrests is the "reasonableness" approach. As mentioned above and as
with the discussion on private defence, the reasonableness rule abandons a
threshold test in that it does not attempt to specify the types of threats that
warrant the use of lethal force. Both case law and legislation in this jurisdiction
illustrate this approach.
3.17 In the Consultation Paper, the Commission recognised that in Ireland
there was little case law outlining the ambit of the power to use defensive force
to effect arrests. Nonetheless, a number of judgments can be referred to which
state that a member of the Garda Síochána, and any citizen, can use such force
as is reasonably necessary to effect or maintain an unlawful arrest.
3.18 In the leading Irish case The People (Attorney General) v Dwyer6 the
Supreme Court stated that lethal defensive force could be used "in the
execution or advancement of justice".
3.19 In Dowman v Ireland7 Barron J explained the test in terms of
reasonableness explaining that:
"An arresting officer is entitled to use such force as is reasonably
necessary to effect an arrest. Once the arrest has been effected,
then he is also entitled to use such force as is necessary to ensure
that the arrest is maintained".8
3.20 Determining whether there is a risk of the suspect attempting to
escape is based on the honest and reasonable belief of the arresting officer.
Therefore, use of force will not necessarily be held to be unlawful where the
arresting officer mistakenly believed the suspect was attempting to escape or
was about to use force to resist the arrest. But merely because the use of force
was necessary to effect an arrest, it does not follow that any degree of force
5
The Model Penal Code employs the violent-crimes rule and the dangerous-
suspect rule as alternative tests for the use of non-lethal force to effect an arrest.
6
[1972] IR 416, at 420. See the general discussion of the case at paragraph
2.209ff, above.
7
[1986] ILRM 111.
8
[1986] ILRM 111 at 115. In this case, it was held that the Garda officer was doing
neither of those things, rather he was denying the plaintiff the right to concern
himself with the welfare of his children who had accompanied him and were in his
care.
80
may be used. Adhering to the reasonableness test, the use of force has to be
reasonably necessary in the circumstances. The use of force must be
proportionate. For example, use of force which causes serious injury or even
death to a suspect "shop-lifter" is totally disproportionate to the gravity of the
crime.
3.21 In summary, the broad principles that emerge from case law are
firstly that the arresting officer may only use such force as is necessary to effect
the arrest and is justified by the need to protect others from violence. This
justification is determined by the honest and reasonable belief of the officer.
Lethal use of force is not permitted where there is no immediate threat of harm
to anyone if the suspect escapes nor where the amount of force used is
disproportionate to the threat sought to be averted. Walsh points out that these
common law principles appear to be consistent with the requirements of the
European Convention for the Protection of Human Rights and Fundamental
Freedoms.9
3.22 The use of force to effect an arrest has been dealt with in section 19
of the Non-Fatal Offences Against the Person Act 1997. However, as with
private defence, it is not clear whether the 1997 Act should be interpreted as a
complete statement of the lawful use of force in this context or only as
statement limited to the offences dealt with in the 1997 Act. By contrast, section
3 of the English Criminal Law Act 1967 states clearly that when the use of force
in the prevention of a crime or in effecting an arrest is considered reasonable,
no civil action or criminal proceedings will lie against the person using it. The
Non-Fatal Offences Against the Person Act 1997 is, of course, concerned
primarily with criminal liability. In addition, it is not clear whether the provisions
are confined to the use of non-lethal force or extends to the uses of lethal
force.10 Section 19 of the 1997 Act states:
"(1) The use of force by a person in effecting or assisting in a lawful
arrest, if only such as is reasonable in the circumstances as he or she
believes them to be, does not constitute an offence-
(3) For the purposes of this section the question as to whether the
arrest is lawful shall be determined according to the circumstances as
the person using the force believed them to be."
3.23 Section 19 thus stipulates that the use of force by a person11 to effect
an arrest shall not constitute an offence in certain circumstances. As with the
9
Walsh Criminal Procedure (Thomson Round Hall 2000) at 189.
10
See Walsh Criminal Procedure (Thomson Round Hall 2000) at 186.
11
It is useful to point out that the 1997 Act refers to person, not law enforcement
officials only. The Commission discusses below, at paragraph 3.XX, whether the
81
common law approach, section 19 provides a test of "reasonableness"; if the
force is reasonable in the circumstances as he or she believes them to be, no
offence is committed. However, this subjective standard approach has been
criticised for lacking precision. Unlike the common law approach there is no
reference to proportionality or necessity in this statutory provision. As Walsh
points out:
"It is by no means clear how far a police officer can go in using force
to effect an arrest. Should there, for example, be some proportion
between the degree of force used and the gravity of the suspected
offence? Should there be some proportion between the degree of
force used and the strength of the grounds for suspecting the
victim?"12
3.24 In the Consultation Paper the Commission recognised that there are
no clear Irish authorities to give an unequivocal answer to these questions. 13
However, it has been argued that an analogy can be made with case law
dealing with the prevention of crime or breaches of the peace whereby "there
must be some proportion between the degree of force used and the importance
of making the arrest."14
3.25 Further analogies can be made with force used during civil
disturbances. In The Garda Síochána Guide15 reference is made to Lynch v
Fitzgerald (No. 2)16 where the Supreme Court examined the use of force during
a civil disturbance. There, the Court expressed the view that the level of force
used must always be moderate and proportionate to the circumstances of the
case.
3.26 Such principles are in line with the requirements of the European
Convention on Human Rights but it has been said that the Convention adopts a
"stricter and more compelling test of necessity". The Commission is of the
opinion that this approach should be adhered to in the Irish context. As pointed
out in Chapter 2, Article 2 of the European Convention on Human Rights
use of force and more specifically lethal force should be limited to law
enforcement officers.
12
Walsh The Irish Police: A Legal and Constitutional Perspective (Round Hall
Sweet & Maxwell 1998) at 150.
13
LRC CP 41-2006, at paragraph 2.210.
14
Walsh The Irish Police: A Legal and Constitutional Perspective (Round Hall
Sweet & Maxwell 1998) at 150.
15 th
The Garda Síochána Guide 7 ed (Stationary Office 2008) Vol.1 at A-191.
16
[1938] IR 382.
82
permits the use of lethal force to effect arrests where such force is "absolutely
necessary". Although the Convention standard does not make any express
reference to the requirement of proportionality, the European Court of Human
Rights has interpreted the test of "absolute necessity" as incorporating both
necessity and proportionality components. In Farrell v United Kingdom17 the
Court held that only moderate and proportionate force may be used in effecting
an arrest.
3.27 The majority of the decisions of the European Court of Human Rights
that have dealt with public defence have concerned the use of lethal force in
response to threats, or perceived threats, of imminent harm. However, a
number of cases have also dealt with fleeing suspects. In Kelly v United
Kingdom18 (a case which involved a shooting by the security s