Report on Defences in Criminal Law

Monday, 14th December 2009 | 0 comments
Filed under: 2009.


The Law Reform Commission’s Report on Defences in Criminal Law will be launched by Mr Dermot Ahern, TD, Minister for Justice, Equality and Law Reform at the Commission’s offices at 5 pm this evening. The Report makes 46 specific recommendations for reform of the law, and includes a draft Criminal Law (Defences) Bill 2009 to implement these recommendations.  The Report deals with: legitimate defence (self-defence); defence of the home; use of force in law enforcement; the defence of provocation; and the defences duress and necessity.

Main recommendations on legitimate defence generally (self-defence)

  • The Commission recommends that self-defence should be re-named legitimate defence to underline that: (1) a person is justified in using force against an unlawful attack in certain situations; and (2) the defence applies not just to protect the person themselves but also other people, such as their family, and to protect their home.
  • The defence of legitimate defence should be divided into four key elements: (1) a threshold requirement (only certain types of unlawful attack can justify use of defensive force, especially lethal defensive force); (2) the attack must be immediate; (3) the use of defensive force must be necessary (a person should usually retreat if possible); (4) the defensive force must be proportionate to the unlawful attack.
  • The test of whether the use of force is necessary and proportionate is based on an objective standard of a reasonable person (if the person attacked used lethal force, and subjectively believed it was necessary and proportionate but objectively it was not, the person should be found guilty of manslaughter, not murder: this is usually referred to as excessive or disproportionate force).

Main recommendations on defence of the dwelling

  • The Commission recommends that the general requirements for legitimate defence (self-defence) should apply to defence of the dwelling and its vicinity.
  • The Commission recommends that the general rule that a person should retreat where possible does not apply where the attack is in the home.
  • The Commission also recommends that, if all the requirements of the defence are met, use of lethal force would be a complete defence to murder and would lead to an acquittal.

Main recommendations on use of force in law enforcement

  • The Commission recommends that the use of lethal force in law enforcement (to assist in arresting a person, to deal with serious public disorder, such as a riot, or to prevent prison escapes) should be limited to members of An Garda Síochána and prison officers;
  • The use of force, including lethal force, is permitted only when it is necessary and proportionate in the circumstances.

Main recommendations on provocation as a defence in homicide cases

  • The Commission recommends that the defence of provocation should continue to operate as a partial defence, reducing what would otherwise be murder to manslaughter.
  • The defence should be based primarily on whether the provocation (words or acts, such as assault) was such that it was reasonable for the accused, based on the standard of an ordinary person, to have lost self-control.
  • The fact that the killing did not immediately follow the provocation does not, in itself, mean that the defence cannot be raised. Instead, the presence or absence of an immediate response to provocation should be a matter which a jury is to take into account, along with all the other evidence, in deciding whether the accused lost self-control. This could be especially relevant in the context of cumulative violence.

Main recommendations on duress and necessity

  • The defence of duress, which applies where threats of death or serious injury are made (“do this, or else...”), should continue to apply as a defence to most crimes (with the exception of treason, murder and attempted murder), and should also include threatening situations (duress of circumstances).
  • The defence of necessity, which applies in very limited situations (such as where damage to property is committed to save a life, or in cases of medical necessity such as the case of operating on conjoined twins), should continue to develop on a case-by-case basis.


Report on Defences in Criminal Law