Reasonable force?

Goodluck2me

If you wake up and see someone with their hand in your letterbox tryin to steal your car keys, how much force is reasonable?
what are your options, to defend your property?


referring to this post, thought it was interesting.http://www.boards.ie/vbulletin/showpost.php?p=53296020&postcount=7541

seamus

I can't remember that exact terminology, but if someone poses a threat to your person (or another person), then your response may only be proportionate to their threat. That is, if they are threatening to punch you, you can't pick up a baseball bat and hit them.

You don't really have a massive amount at your disposal to defend your property. Currently if someone breaks into your home, you are legally compelled to attempt to escape. If you cannot, then you are entitled to defend yourself using reasonable force.

In this case, if someone sticks their hand in your letterbox, all you can do is move your car keys out of their way, warn them off, and ring the Gardai.

haz

seamus wrote:

you are legally compelled to attempt to escape

I thought that the current position, as stated in several recent judgements is that no person should be compelled to retreat within their own property, but pursuit is is not a lawful component of defence. So yes, you could pick up the baseball bat and use it to fend off an attack, but you could not strike first, could not provoke violence and could not hit an intruder who so much as hinted at escaping. It would be wise to actually PLAY baseball, otherwise there is no excuse for possessing a potential weapon.
Of course anyone injuring another person is open to prosecution unless lawfully injuring that person during the course of their employment.

Turner

If you are in fear of your life you can use any force up to and including lethal force.

You would just have to prove it later in the central criminal court.

haz

Chief--- wrote:

If you are in fear of your life you can use any force up to and including lethal force.

Just to clarify, this would mean that the use of force is still legitimate even when an alternative of escape is readily available to the householder? There is no weight of past judgments that "you are legally compelled to attempt to escape", and recent judgements are legitimising ever greater defensive force.

(My personal opinion - escape is a better alternative whenever it is safe and practical. The mentality of the intruder is likely to include lower inhibitions in forcefully using weapons you would hesitate over. The original poster's "hand through the letterbox" is fair game for a hammer-blow or such like, especially in the dark and subject to a wide range of interpretation of exactly how threatening it might be).

Turner

If a person breaks into your house they are committing an arrestable offence (Burglary). You are allowed arrest that person using force if necessary.

Reasonable force would be allowed in order to effect that arrest.

If the person attacks you with a weapon lethal force would be reasonable force, in the instance where you are attacked with a knife/screw driver or gun.

Fey!

In the world of bouncing, if someone runs at you with a knife, then you can pick up a stool and swat them with it. However, if they drop the knife, you must IMMEDIATLY drop the stool, even if the person is still running at you!

IIRC, in a home intrusion you may not block the way between an intruder and the nearest exit; if you do and you hit them then you are liable for assault.

All of the above is, in my humble opinion, a crock. It's protection of the aggressor. I believe in the theory of "if you break into my families house and I catch you, I will hurt you"

That`said, I also support chain gangs.

jhegarty

The law is an ass......

Any of the election hopefuls promising a change in this area of law ?

Faerie

The abstract theory in this country is as stated by some of the above posters i.e. reasonable force should be proportional to the attack anticipated. This, in my opinion, is the most sensible, fairest approach to self-defence. So if someone hits you, you deflect the attack but you don't then hit them. It's adopted in most common law and civil law countries and is the basis really upon which law is founded - anything that exceeds reasonable surely constitutes taking the law into your own hands? You're not entitled to punish people.
Although this country seems to think that certain people are above the law. For example the recent Nally case, which in my opinion is a disgrace. He certainly exceeded 'reasonable' force and got off. Although maybe if the victim wasn't a traveller national opinion would be different.

mick.fr

Couple of years ago, a female friend of mine, was alone in the family home in the country side. Her father is a cop and has a 357 at home.
So that very same night 2 guys with some kind of mask on the head tried to break in, she took the gun and went on the front of the entry door, that the 2 boyz managed to break, we warned them she would shot, but the 2 guys entered anyway. So she shot one of the guy in the leg, they ran off, and they never came back.
She was only 16!
Never went further.

Another one was 3 guys raping a girl in the middle of the night.
My friend who was on his way back from a nightclub and alone that night, heard the girl crying and yelling for help.
My friend at that time used to work in the "corrida" in the south of France, and was one of the guy who would take care of the big bad cow if it decided to run off or so, so he was pretty big.
So he ran into those 3 guys, punched them in the face and the 3 guys ended in the hospital after one shot each only.
And the girl slapped my friend lol, well the poor she was on shock.

Anyway those 3 bastards made a complain and my friend took 6 months in jail (for real).
And the 3 guys got nothing as the girl was drunk, so there was no way she could prove she actually refused to make sex with those guys.

Justice decisions are sometimes crazy...

Trojan911

goodluck2me wrote:

If you wake up and see someone with their hand in your letterbox tryin to steal your car keys

Drop the three nines and inform the Gardaí there is a burglary in progress... Ask them to make a silent approach as not to disturb.

goodluck2me wrote:

how much force is reasonable?

None really unless you choose to try to arrest this perp for burglary. I personally would remain quiet to give the Gardaí a chance to get to me.

goodluck2me wrote:

what are your options, to defend your property?

You could grab his/her hand whilst it is through your letterbox and hold on tight until the arrival of the Gardaí.

Cheers...

TJ911...

Goodluck2me

AFAIK the law of trespass is, as it is, because if people were allowed to run amok even in thier own home then too many inncent people would get hurt. like a post man or delivery man.
I remember reading a judgement about the mcNally or similar case where the judge said "a sound mind is not expected in the presence of an uplifted knife" or to that effect, that means to me that you shouldnt be expected to act rationally in such a distressing and often defenceless situation.

Its hard to know where the balance should lie though, i dont think it would be right to be able ot shoot anyone who entered your property either, it would reduce crime for a while but surely villains would just arm themselves then?

Another point id make actually is that where is the negative reenforcment for thieves? If i knew that if i broke into someones house and if caught said "i`m leaving dont touch me" then the chances of apprehension are so small and insignificant that it would hardly deter someone from future attempts?

Our man in Havana

Hypothetical situation: Say you arrived home and found an intruder sexually assaulting your wife/girlfriend would force be a reasonable response from the husband?

seamus

Bond-007 wrote:

Hypothetical situation: Say you arrived home and found an intruder sexually assaulting your wife/girlfriend would force be a reasonable response from the husband?

You would be entitled to take whatever action is necessary to defend your partner, perform a citizen's arrest and restrain said person. Namely, pulling him off and holding him on the ground until the Gardai arrive. If he resists, you would be entitled to increase your force proportionately.

Incidentally, if you do end up in such an unfortunate situation, your best move would be to get the person on their belly and sit on them with your full weight just below the shoulder blades. It'll be much more difficult for them to lift themselves up, or cause injury to yourself.

Zambia

Bond-007 wrote:

Hypothetical situation: Say you arrived home and found an intruder sexually assaulting your wife/girlfriend would force be a reasonable response from the husband?

Yes - as you are allowed use force to protect yourself or another from harm or imminent harm.

Personnally he would be head first out the bedroom window.

And if I was asked how it happened would say I puuled him off he saw me and jumped out the window. Which is what happened.

I would of course be charged for peeing on the corpse.

johnnyskeleton

seamus wrote:

I can't remember that exact terminology, but if someone poses a threat to your person (or another person), then your response may only be proportionate to their threat. That is, if they are threatening to punch you, you can't pick up a baseball bat and hit them.

If there is a threat to your person, to another person, to either person's property or it appears that a criminal offence is being or about to be committed, then you are entitled to use such force as you reasonably consider necessary in the circumstances. Proportionality is only a factor to be considered in each individual circumstance. For example, it might be reasonable for a weaker person to use a weapon in defence against a strong person, but not vice versa. For me the dividing line is usually when does an act of self defence become an act of revenge or malice? I might pick up a bat to defend myself against a much stronger person who threatens to cause me injury, and if that person persists and it is my reasonable belief that the only way to defend myself is to hit them with the bat, that would, IMO, pass the test. On the other hand, if I pick up the bat, the other person runs away and I proceed to chase them and beat them because my manhood was threatened by them, then I would not be acting in self defence and the force I used would be unreasonable. But the test is what is subjectively reasonable, having regard to the objective circumstances.

jhegarty wrote:

The law is an ass......

Any of the election hopefuls promising a change in this area of law ?

It may be a bit unclear at times, but it is not an area which can, or should, have hard and fast rules. If a ballerina punched a heavyweight boxer there are completely different rules than if the same heavyweight punched the ballerina. Also, it can be very difficult to say who started it, or who is the aggressor or defender in situations where there is a fight on the street.

There are 2 private memebers bills knocking around in government at the moment, but both are, in my view, illconcieved and unlikely to get anywhere.

Bond-007 wrote:

Hypothetical situation: Say you arrived home and found an intruder sexually assaulting your wife/girlfriend would force be a reasonable response from the husband?

Not if she was having an affair and it would be unreasonable in the circumstances for the husband to assume that the person engaging in sexual activity with his wife was an intruder and was acting against her consent. It is a judgement call, but things that seem perfectly reasonable at the time often seem sinister when they are scrutinised in court.

Stabshauptmann

That is, if they are threatening to punch you, you can't pick up a baseball bat and hit them.

I think the logic of that is a little daft.
What it says is that I can turn it into a fair fight. I dont want a fair fight, I dont want a 50-50 chance of winning.
If I am an innocent victim, I want to take every measure possible to maximise my safety, and the best way to do this is to be in as superior a position as possible. I dont see why I should give my attacker a fair chance.

Victor

johnnyskeleton wrote:

Bond-007 wrote:

Hypothetical situation: Say you arrived home and found an intruder sexually assaulting your wife/girlfriend would force be a reasonable response from the husband?

Not if she was having an affair and it would be unreasonable in the circumstances for the husband to assume that the person engaging in sexual activity with his wife was an intruder and was acting against her consent. It is a judgement call, but things that seem perfectly reasonable at the time often seem sinister when they are scrutinised in court.

Even if she was having an affair, if she was being sexually assaulted, anyone could act to protect her.

Kaptain Redeye wrote:

I think the logic of that is a little daft. What it says is that I can turn it into a fair fight. I dont want a fair fight

Why don't you want a fair fight? You have right on your side. In looking for an unfair fight, you are seeking to punish, an act that is reserved for the courts.

seamus wrote:

You would be entitled to take whatever action is necessary to defend your partner, perform a citizen's arrest and restrain said person. Namely, pulling him off and holding him on the ground until the Gardai arrive. If he resists, you would be entitled to increase your force proportionately.

So, some 'yoofs' try to steal from a shop. The shopkeeper grabs one of them in a solid lock, but the others try to pull him free. How much force is reasonable to restrain the yoof, if push comes to shove.

johnnyskeleton

Victor wrote:

Even if she was having an affair, if she was being sexually assaulted, anyone could act to protect her.

My point is that she might not be sexually assaulted - she might have consented to the sexual act. A husband's belief that his wife is being sexually assaulted by an intruder must be reasonable having regard to the circumstances.

Victor wrote:

Why don't you want a fair fight? You have right on your side. In looking for an unfair fight, you are seeking to punish, an act that is reserved for the courts.

Kaptain Redeye wrote:

If I am an innocent victim, I want to take every measure possible to maximise my safety

Stabshauptmann

Victor I think you missed my point. I dont want a fair fight because theres an equal chance I could loose, ie be badly beaten or killed. Simply having right on my side wont protect me, being in a superior position to my attacker will. That doesnt mean Im going to badly beat or kill my attacker, just that I have a greater chance of not being beaten or killed than if it was a fair fight.

I think a reasonable ammount of force should be whatever the minimum ammount of force necessary to defend oneself is, which would be a greater degree of force than is threatening you.

If an unarmed indruder is in my home, roughly the same size as me, and I have the chance to pick up a hurl or some such I will.
The show of force might be enough to scare him away whereas a one on one betwee two unarmed men might not.
I also dont know anything about this indruder. He might be a champion boxer, or completely off his head on crack.

I dont think picking up a gun and shooting an unarmed intruder without warning would be reasonable force; though pointing it at him and saying stay still or I'll shoot should be.

seamus

Kaptain Redeye wrote:

Victor I think you missed my point. I dont want a fair fight because theres an equal chance I could loose, ie be badly beaten or killed. Simply having right on my side wont protect me, being in a superior position to my attacker will. That doesnt mean Im going to badly beat or kill my attacker, just that I have a greater chance of not being beaten or killed than if it was a fair fight.

I think this is a crucial question which needs to be dealt with soon, as violent crime continues to increase.

My own personal stance is that I will make every attempt to disable an attacker, regardless of what he's attacking me with. If I happen to have a large iron bar at my disposal, then he gets it across the side of his knee. There's no guarantee no matter how hard you fight back with your fists, that an attacker will simply stop. However, knocking them unconscious or breaking a limb will pretty much guarantee that you are safe.

However, the courts may not see it that way. As best I can gather, the law seems to think that the person in the superior position is the "attacker". Which of course, is ridiculous.

Coonagh Cowboy

Generally reasonable force is a grey area issue.The above posted case,if the theif only had his hand in the letterbox looking for keys and not actually kicking the door in or making any attempts to physically cause harm to you or your family,then any physical contact you have with the perpetrator is classified as unreasonable force,and therefore you could be held liable for any physical damage you cause the person.In saying that,if he was trying to break into the house and he was weilding a weapon and you truly feared for your life or someone else's live,then you could defend yourself up to the point where the situation gets dissolved by either the perp running away or you overpowering him and hold him in custody til the police arrive.Now if said perp enters the house alone and you and a family member start beating the nejaysus out of him again thats considered unreasonable force.Reasonable force is considered the force used up to the point of subdueing the aggressor,and like I said its a grey area.The police will generally tell you no dont strike back,lock the door or flee the residence and call them.But I would consult a solicitor about what you can and cant get by with,if your determined to defend your home regardless.

Gobán Saor

Bond-007 wrote:

Hypothetical situation: Say you arrived home and found an intruder sexually assaulting your wife/girlfriend would force be a reasonable response from the husband?

According to Justice Egan (obiter) in AG v X [1992] ILRM 401, lethal force can be entirely acceptable in such a situation:

In People v Shaw Kenny J stated that there was a hierarchy of constitutional rights and, when a conflict arises between them, that which ranks higher must prevail. This cannot be taken to mean that an immutable list of precedence of rights can be formulated. The right to life of one person (as in Shaw's case) was held to be superior to the right to liberty of another but, quite clearly, the right to life might not be the paramount right in every circumstances. If, for instance, it were necessary for a father to kill a man engaged in the rape of his daughter in order to prevent its continuance, I have no doubt but that the right of the girl to bodily integrity would rank higher than the right to life of the rapist.

Stabshauptmann

seamus wrote:

I think this is a crucial question which needs to be dealt with soon, as violent crime continues to increase.

My own personal stance is that I will make every attempt to disable an attacker, regardless of what he's attacking me with. If I happen to have a large iron bar at my disposal, then he gets it across the side of his knee. There's no guarantee no matter how hard you fight back with your fists, that an attacker will simply stop. However, knocking them unconscious or breaking a limb will pretty much guarantee that you are safe.

However, the courts may not see it that way. As best I can gather, the law seems to think that the person in the superior position is the "attacker". Which of course, is ridiculous.

Thanks, I wasnt being particularly articulate.

johnnyskeleton

seamus wrote:

However, the courts may not see it that way. As best I can gather, the law seems to think that the person in the superior position is the "attacker". Which of course, is ridiculous.

If two people are fighting each other, without each other's consent, they are both committing offences and they could both be prosecuted. It is open to both or either of them to raise the defence of self defence. In theory, they could both be acquitted after raising this defence. Being the person who makes the complaint does not make you free from prosecution either (Monaghan).

Coonagh Cowboy wrote:

Reasonable force is considered the force used up to the point of subdueing the aggressor,and like I said its a grey area.

Reasonable force for the purposes of self defence is force for the purpose of protecting yourself, another person, your/their property or to prevent a crime. It does not, I would suggest, include subdueing an aggressor. Force can be used to effect an arrest; however, I would suggest that the force that can be used is of a lesser standard than for self defence - i.e. it might not be reasonable to cause someone serious injury or death just to detain them until the gardai arrive.

seamus

johnnyskeleton wrote:

If two people are fighting each other, without each other's consent, they are both committing offences and they could both be prosecuted.

It would be impossible to argue however that a person who started a fight, the attacker as it were, did not consent to the person fighting back. By instigating the fight, you are by default providing your consent for the other person to fight back.

Hagar

Bond-007 wrote:

Hypothetical situation: Say you arrived home and found an intruder sexually assaulting your wife/girlfriend would force be a reasonable response from the husband?

seamus wrote:

You would be entitled to take whatever action is necessary ... Namely, pulling him off

I think that would only encourage him.;)

johnnyskeleton

seamus wrote:

It would be impossible to argue however that a person who started a fight, the attacker as it were, did not consent to the person fighting back. By instigating the fight, you are by default providing your consent for the other person to fight back.

Consent is a defence to assault e.g. physical sports. It is very difficult to say who started a fight, and in any case it is not a relevant consideration. If you intentionally apply force to the body of another person, without lawful excuse, you commit one kind of assault. If your defence is that you were acting in self defence then it is up to the prosecution to prove that you were not acting in self defence. You are not suggesting that the "attacker" was consenting, the question there would be whether you were acting in self defence or not.

In any case, consent to one type of physical contact is not necessarily consent to another type of physical contact.

Sparks

goodluck2me wrote:

I remember reading a judgement about the mcNally or similar case where the judge said "a sound mind is not expected in the presence of an uplifted knife" or to that effect, that means to me that you shouldnt be expected to act rationally in such a distressing and often defenceless situation.

No, it means you're not expected to have a fully cold and detached rational grasp of the level of threat to your person - if someone takes out a penknife to clean his nails and you think he's going to try to stab you and you hit him, it's still self-defence. The thing is, if you act in excess of what's called for in the situation you think you're in, that's not self-defence.

Its hard to know where the balance should lie though, i dont think it would be right to be able ot shoot anyone who entered your property either, it would reduce crime for a while but surely villains would just arm themselves then?

The "villains will arm themselves" rule doesn't have anything to back it up or disprove it (according to the National Academy of Sciences' review of thirty years of statistical studies on this topic in the US). However, a rule granting you licence to assault like that lends itself to cases where, for example, you surprise a burglar, render him unconcious, tie him up and then decide to set fire to him as punishment. Which has actually happened in the UK. That's why there's no "erra g'wan there lad, get a dig in" rule in Irish law.

newmug

It looks like the "reasonable force" laws have been changed in favour of the property owner from today! About time!!!

Witcher

newmug wrote: »

It looks like the "reasonable force" laws have been changed in favour of the property owner from today! About time!!!

Did you need to bump a 5 year old thread?

Victor

Actually, all it seems to do is change the existing common law concepts into statutory ones. The overall situation doesn't really change.

You may use reasonable force. You may not plan to kill any person entering your property.

ScouseMouse

Victor wrote: »

Actually, all it seems to do is change the existing common law concepts into statutory ones. The overall situation doesn't really change.

You may use reasonable force. You may not plan to kill any person entering your property.

But surely, as you would not know the burglar was going to attack you, you cannot plan anything?

A lot on this forum is based on hypothetical situations, not real ones, so how could you be done for planning something you did not know about?

Sparks

superscouse wrote: »

But surely, as you would not know the burglar was going to attack you, you cannot plan anything?
A lot on this forum is based on hypothetical situations, not real ones, so how could you be done for planning something you did not know about?

There's case law in the UK that illustrates how - Tony Martin is the obvious and most well-known case, but there are others. But honestly, (a) this law does nothing that hasn't been on the case law books in Ireland since the 1300s, and (b) Mark Steel's little article in the Independent a few years back ought to be required reading before considering possible problems with the law surrounding self-defence. They don't give newspapers awards for displaying basic cop-on, but if they did, that article would have won it for the Independent that year...

source

superscouse wrote: »

Victor wrote: »

Actually, all it seems to do is change the existing common law concepts into statutory ones. The overall situation doesn't really change.

You may use reasonable force. You may not plan to kill any person entering your property.

But surely, as you would not know the burglar was going to attack you, you cannot plan anything?

A lot on this forum is based on hypothetical situations, not real ones, so how could you be done for planning something you did not know about?

It's simple really, A reads about new statute and goes out to buy a cricket/baseball bat, keeps cricket/baseball bat beside bed in case of burglary. Burglar breaks in and A beats the burglar with the bat killing him.

The purchase of the bat as a weapon to be used on a burglar is advanced planning for a situation that may or may not occur.

A could mount a defence that he plays on a cricket/baseball team and grabbed his bat as it was the first thing to hand, but would have to prove membership of said team for the duration/majority of the time he owned the bat.

Sparks

I don't think planning ahead like that is what the law tests for source - it tests to see were you acting to defend yourself, or were you trying to teach the other guy a lesson. (Yes, that's not expressed in legalese, but it's a reasonably accurate summation).

source

Sparks wrote: »

I don't think planning ahead like that is what the law tests for source - it tests to see were you acting to defend yourself, or were you trying to teach the other guy a lesson. (Yes, that's not expressed in legalese, but it's a reasonably accurate summation).

Force must be proportional, buying a bat with the intention of giving anyone who comes through the door a hiding. Whether they are armed or not is planning to teach the other guy a lesson.

And that is exactly what the have-a-go heroes will do, without any consideration for proportionality.

Kosseegan

source wrote: »

It's simple really, A reads about new statute and goes out to buy a cricket/baseball bat, keeps cricket/baseball bat beside bed in case of burglary. Burglar breaks in and A beats the burglar with the bat killing him.

The purchase of the bat as a weapon to be used on a burglar is advanced planning for a situation that may or may not occur.

A could mount a defence that he plays on a cricket/baseball team and grabbed his bat as it was the first thing to hand, but would have to prove membership of said team for the duration/majority of the time he owned the bat.

A could have bought a cricket bat with the intention of taking up cricket but never got around to it. He could have been minding a cricket bat for his brother in Australia. The question in all of these case is what threat did A percieve? Was his response proportional to that threat?

Sparks

source wrote: »

Force must be proportional, buying a bat with the intention of giving anyone who comes through the door a hiding.

Proving that that's why the bat was bought (as opposed to playing ball with the kids in the park) would be impossible though.
And frankly, the law has always considered that whatever means the defendant used is relatively irrelevant compared to the defendant's intent at the time (ie. were they thinking "ohgodI'mgoingtodie" or "That fooking skanger, I'm going to learn him good").

If I buy a baseball bat because I'm out in the countryside and scared, well, the law doesn't really care. It's what I did when I was actually attacked that counts. I mean, if I buy a jerry can full of petrol, it's not a crime, it's just prudent planning in case I forget to keep the car topped up. If I use it to set fire to an unconcious and bound burglar to teach him a lesson, well that's something else entirely, and that's the kind of line the law seems to draw. (BTW, that's an actual case from the UK).

This idea of proportional response is a bit misleading - the law doesn't require you to carry out an evaluation and selection of responses while in fear for your life - in fact, it specifically thinks that if you could do that, you weren't in fear for your life. All it says (from my reading of it), is in effect, "did you act honestly"? ie. was it really self-defence, were you really in fear for your life or health, or is this another Tony Martin case?

I'd wager a fair amount of cash that in 99% of cases, this sort of judgement wouldn't be the sort of thing that anyone who acted without malice would have any issues with.

ScouseMouse

This all makes perfect sense the way you have laid it out.

I used to work in a place that had a baseball bat behind the counter and a guard told us to make sure we had a ball.

Corruptable

Indeed, there is a strong subjective element (what was in the defendant's mind) which would have to be taken into account, as well as an objective element (what would be in a reasonable person's mind) which is dependent on the jury's understanding of the facts of the case.

Palmer v The Queen (1971) before the Privy Council covered the classic test:

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.

If an attack is serious so that it puts someone in immediate peril then immediate defensive action may be necessary. If the moment is one of crisis for someone in imminent danger he may have [to] avert the danger by some instant reaction.

If the attack is all over and no sort of peril remains then the employment of force may be by way of revenge or punishment or by way of paying off an old score or may be pure aggression. There may no longer be any link with a necessity of defence... If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonable defensive action had been taken."

Obviously, I'm not in support of people taking the law into their own hands. The first port of call in any intrusion is contacting the emergency services, and then deciding on what the best option is in practical terms. While there is no obligation to retreat, it might be prudent to do so, but the present Act clarifies that there is no obligation to retreat, so you can remain in position and fight if you wish as long as the means of fighting you use is proportionate to the threat.

Sparks

Corruptable wrote: »

the present Act clarifies that there is no obligation to retreat

I don't think you can say it clarifies that, when DPP-v-Barnes very explicitly states:

In the first edition of Halsburys Laws of England (1909), the following appears at p.587:

...A person lawfully defending himself or his habitation is not bound to retreat or to give way to the aggressor before killing him;

and

Statements to similar effect were to be found in various criminal law books of which the 26th edition of Archbold at p.887 may be cited:

“In defence of a man’s house, the owner or his family may kill a trespasser who would forcibly dispossess him of it, in the same manner as he might, by law, kill in self defence a man who attacks him personally; with this distinction, however, that in defending his home he did not retreat, as in other cases of self defence, for that would be giving up his house to his adversary.”

and most relevantly, Justice Hardiman's own comment on the issue:

There are consequences of the special status of the dwellinghouse and of its importance to the human dignity of its occupants. Amongst the most relevant of these is that, as has been held by the Courts of Common Law for centuries, a person in his dwellinghouse can never, in law, be under an obligation to leave it, to retreat from it or to abandon it to the burglar or other aggressor. Thus, Sir Matthew Hale said (I Hale P.C. 486):

“… It seems to me in such a case… H. being in his own house, need not fly as far as he can, as in other cases of se defendendo for he hath the protection of his house to excuse him from flying, for that would be to give up the possession of his house to his adversary by his flight”.

It is of course common experience that there will be occasions when a person might well be advised to flee, but that is a matter for his own discretion and he can never be under a legal obligation to do so. Equally, there will be other occasions when a person might be ill advised to flee, perhaps because of exterior conditions or perhaps because of the fear of meeting an accomplice of the known aggressor, or being pursued by the latter, and attacked when he is outside his dwellinghouse and to that extent in a worse or more dubious position.

It is, in our view, quite inconsistent with the constitutional doctrine of the inviolability of a dwellinghouse that a householder or other lawful occupant could be ever be under a legal obligation to flee the dwellinghouse or, as it might be put in more contemporary language, to retreat from it. It follows from this, in turn, that such a person can never be in a worse position in point of law because he has decided to stand his ground in his house.

Corruptable

Sparks wrote: »

I don't think you can say it clarifies that, when DPP-v-Barnes very explicitly states:

and

and most relevantly, Justice Hardiman's own comment on the issue:

Of course, but I was under the belief that it was an issue, more so in the public mind than in the legal sense, which the Bill (now Act) sought to clarify in the wake of the Nally case.

Sparks

Corruptable wrote: »

Of course, but I was under the belief that it was an issue, more so in the public mind than in the legal sense, which the Bill (now Act) sought to clarify in the wake of the Nally case.

Well, (a) you shouldn't try to clarify the public mind with an Act - that's what public statements by Ministers are for and (b) Nally is about as bad a case to choose as you could find to illustrate anything.

Personally, I don't see anything that DPP-v-Barnes left unclear, I don't see anything that was shakey in law (case-v-statute law doesn't seem to have any practical difference here), and I don't see anything that has really changed from what DPP-v-Barnes laid out. The whole thing seems like a PR stunt to me from soup to nuts.

gizmo555

source wrote: »

It's simple really, A reads about new statute and goes out to buy a cricket/baseball bat, keeps cricket/baseball bat beside bed in case of burglary.

"A" shouldn't be such a wimp and should get one of these instead:

Avatarr

Faerie wrote: »

The abstract theory in this country is as stated by some of the above posters i.e. reasonable force should be proportional to the attack anticipated. This, in my opinion, is the most sensible, fairest approach to self-defence. So if someone hits you, you deflect the attack but you don't then hit them. It's adopted in most common law and civil law countries and is the basis really upon which law is founded - anything that exceeds reasonable surely constitutes taking the law into your own hands? You're not entitled to punish people.
Although this country seems to think that certain people are above the law. For example the recent Nally case, which in my opinion is a disgrace. He certainly exceeded 'reasonable' force and got off. Although maybe if the victim wasn't a traveller national opinion would be different.

The "victim" had approximately 80 convictions from 38 separate court appearances and had convictions for burglary, larceny and assault. in 1999 he threatened a barman with a Stanley knife. The Prime Time Special (RTÉ flagship current affairs programme) brought forward new evidence showing that John Ward had a long criminal record dating back over 30 years and revealed that four bench warrants for John Ward’s arrest were outstanding at the time of his death.

Sparks

gizmo555 wrote: »

"A" shouldn't be such a wimp and should get one of these instead:

To obtain a firearm in Ireland legally, you need to show (amongst other things), good reason to have a firearm.
To quote the Garda Commissioner's guidelines on firearms licencing:

FIREARMS FOR PERSONAL PROTECTION
The protection of life and property is a function of the Garda Síochána and civilians are only entitled to use reasonable force to protect themselves and their property. The combined effect of this means that there is no justification for seeking to possess a firearm for purposes of personal protection or protection of property. When assessing an application for a firearm certificate, a superintendent or chief superintendent should not take into account as part of a ‘Good Reason’ a reference to personal protection. An issuing person should be satisfied that the good reason put forward by the applicant is genuine and no ulterior motive to possess the particular firearm exists.

Sparks

Avatarr wrote: »

The "victim" had approximately 80 convictions from 38 separate court appearances and had convictions for burglary, larceny and assault. in 1999 he threatened a barman with a Stanley knife. The Prime Time Special (RTÉ flagship current affairs programme) brought forward new evidence showing that John Ward had a long criminal record dating back over 30 years and revealed that four bench warrants for John Ward’s arrest were outstanding at the time of his death.

And none of that was relevant.
The test is - are you in fear for your life or are you teaching someone a lesson. Who the attacker is and what their history is doesn't really come into it.

Personally, I would disagree with the quashing of the court's judgement in that particular case because I think that if you've beaten someone nearly unconcious with a stick, broken several bones, shot him then gone away to get more ammunition, reloaded, found he'd left the property and was crawling down the road, chased after him, shot him again at point blank range and dumped the body in a ditch; well, in my personal opinion, that's not really reasonable force.
That being said, the conviction was overturned, so obviously Justice Kearns doesn't hold that opinion, and I think he's probably got the more authoritative opinion here

chopser

Sparks wrote: »

And none of that was relevant.
The test is - are you in fear for your life or are you teaching someone a lesson. Who the attacker is and what their history is doesn't really come into it.

Personally, I would disagree with the quashing of the court's judgement in that particular case because I think that if you've beaten someone nearly unconcious with a stick, broken several bones, shot him then gone away to get more ammunition, reloaded, found he'd left the property and was crawling down the road, chased after him, shot him again at point blank range and dumped the body in a ditch; well, in my personal opinion, that's not really reasonable force.
That being said, the conviction was overturned, so obviously Justice Kearns doesn't hold that opinion, and I think he's probably got the more authoritative opinion here

The conviction was overturned due to a bad direction to the Jury given by the presiding Judge , Justice Kearns did not overturn it because he didn't agree with the outcome.

The law is still the same , proportionate response is still the key.

Unfortunately people read and hear what they want and I can only too well imagine the conversations people will have having half read articles or watched a brief summary on the news.
Most people will now even more so believe it is perfectly fine to shoot someone the moment they enter their home.

Sparks

chopser wrote: »

The conviction was overturned due to a bad direction to the Jury given by the presiding Judge , Justice Kearns did not overturn it because he didn't agree with the outcome.

True, but you'd have to agree that it makes the case somewhat unhelpful as an example illustrating anything in regard to the law and self-defence!

Unfortunately people read and hear what they want and I can only too well imagine the conversations people will have having half read articles or watched a brief summary on the news.
Most people will now even more so believe it is perfectly fine to shoot someone the moment they enter their home.

Yup. Which is why I think this Act wasn't just utterly ineffective, but actually socially harmful.

deisedave

Zambia wrote: »

Yes - as you are allowed use force to protect yourself or another from harm or imminent harm.

Personnally he would be head first out the bedroom window.

And if I was asked how it happened would say I puuled him off he saw me and jumped out the window. Which is what happened.

I would of course be charged for peeing on the corpse.

Did you join the Marines