Consultation Paper on Legitimate Defence

By Órla Gillen, Monday, 20th November 2006 | 0 comments
Filed under: 2006.




Monday, 20 November 2006:  The Law Reform Commission’s Consultation Paper on Legitimate Defence will be formally launched by the Hon Mr. Justice Hugh Geoghegan, judge of the Supreme Court, at the Commission’s offices at 6pm today.


This Consultation Paper on Legitimate Defence – which deals with self-defence and the use of lethal force – is the last of a series of three on defences to criminal charges, which form part of the Commission’s Second Programme of Law Reform 2000-2007.  The two previous papers were: the Consultation Paper on Homicide: The Plea of Provocation (2003) and the Consultation Paper on Duress and Necessity (2006).  These Papers are also being published against the background of the establishment of an Advisory Committee on the Codification of the Criminal Law under the Criminal Justice Act 2006.  As with many other areas of criminal law, the nature and scope of legitimate defence is almost exclusively judge-made (common law), so that the Commission’s proposals could lead to the first statement in legislation of this defence. 

Legitimate defence as a justification and the need for a clear statement of the law

A critical feature of legitimate defence is that it provides a complete defence – a justification – for what would otherwise be unlawful actions.  Where a person who is charged with murder can show that they come within the boundaries of self-defence, the verdict is one of not guilty. Because of this, the Commission emphasises that there is a compelling need to set out clearly and precisely the extent of force – including lethal force -– that may legitimately be used to repel an attack.  The principle of legality requires that persons are given clear advance notice of the parameters of such a full defence.

The essential components of legitimate defence

In the Consultation Paper, the Commission concludes that, in order to provide as much clarity as possible on the scope of legitimate defence, it should be broken down into five components: (1) a threshold requirement concerning the type of attack on the defender; (2) the imminence of the attack; (3) the unlawfulness of the attack; (4) the necessity of the defender’s use of force; and (5) the proportionality of the force used. In this respect, the Commission notes that the defence should not be reduced to a single issue of whether a person acted reasonably in all the circumstances.

The Commission discusses in detail the relevant requirements that apply under each of these headings and recommends that, where necessary, their precise scope should be clarified. Among the specific issues discussed under these headings are the following.

The threshold requirement

The Commission examines in detail the leading decision of the Supreme Court People v Dwyer (1972), in which it was made clear that self-defence applies if the defender themselves or their family is under threat by the attacker. The decision in Dwyer is, arguably, less clear about whether it can also apply when any property of the defender is under attack, and the Commission recommends that this should be clarified in the context of codifying the law.

Imminence and emerging new cases

The Commission acknowledges that the requirement of imminence has caused immense difficulty in relation to certain newly emerging cases, including those in a violent domestic setting (sometimes referred to as Battered Women’s Syndrome). The Commission examines various reform options in this context, which it acknowledges must be done in the wider context of other defences, including Provocation.

Lethal force and law enforcement officers

The Commission explores in detail the scope of legitimate defence in the context of law enforcement, both from the point of view of the use of lethal force by law enforcement officials and also from the perspective of resisting arrest. The Consultation Paper emphasises the need to clarify the type of force that may be used by the Gardai in circumstances such as those in the Abbeylara case, which was discussed in the recent Barr Tribunal Report.

Legitimate defence and the home.

The Consultation Paper examines the necessity element of legitimate defence against the general background of considerable international debate of the related rules on retreat, the ‘castle doctrine’ and the principle of self-generated necessity. The question of what force can be used by a person when they are subject to an attack in their own home is discussed in light of the recent decision of the Court of Criminal Appeal in People v Nally. Because the Court ordered a re-trial in that case – which is still pending – the Commission cannot comment on its precise details, but it examines the nature of the special plea of excessive defence which exists in Irish law, which allows a jury to find the defendant not guilty of murder but guilty of manslaughter where the defender has responded to an attack using disproportionate force.


The Law Reform Commission was established by the Law Reform Commission Act 1975 as an independent statutory body whose main aim is to keep the law under review and to make practical proposals for its reform.  To date, the Commission has published over 130 documents containing proposals for law reform. These are available on the Commission’s website:

The Commission usually publishes in two stages: first, a Consultation Paper and then a Report.  A Consultation Paper is intended to form the basis for discussion and accordingly the recommendations, conclusions and suggestions are provisional.  Submissions on the provisional recommendations in this Consultation Paper are welcome by 30th April 2007. The Commission hopes to publish its final Report on Criminal Defences by the end of 2007, incorporating the defences discussed in the three Consultation Papers in this series.