Home Defense Bill - Opinions

2011

Has the new home defense bill made any difference? I heard a barrister on the radio describe it as "window dressing". From what I can see (I have no legal training) it makes no real difference as a homeowner still has to demonstrate that he/she has used reasonable and proportionate force when confronting an intruder. Perhaps I am missing something ?

seamus

It's window dressing for barristers in that it is unlikely to reduce the number of cases coming before the courts. It does change one key thing though.

At present, if you are confronted by an intruder (or you are aware that there is one in your home), your primary obligation is to retreat. This instantly puts the householder at a disadvantage because it's quite easy to show that someone failed to retreat.
So by and large, if you confront an intruder and come to blows, you can be charged with assault because you failed to retreat.

This new bill removes that obligation, making it much more difficult for the intruder to press assault charges. However, it's not the "Nally's law" that the media were speculating on.

It's a bill which introduces some quite new concepts in Irish legislation - Irish legislation tends largely err on the side of pacifism. If someone trespasses on your home (but not necessarily into your garden), you are permitted to use reasonable force to protect anyone else in the home, to protect any property in the home or to effect an arrest on the intruder.

It will be jury-based trialling, so unless you beat the guy black and blue, then I imagine the use of any kind of non-fatal weapon will be justified - juries tend to be very anti-intruder. This is so long as you give the intruder a chance to retreat or do not continue to use the weapon once you have detained the intruder.

Another change is that you cannot be sued for attacking an intruder (provided you use reasonable force). If you damage any of the intruder's property, you also cannot be sued.

FreudianSlippers

I found the media to be very sensationalist with the Nally situation (surprise surprise!).
There was outcry about defending yourself in your home and how could this man be charged with anything - I know I was bombarded with questions from my outraged grandfather who reads the rag papers.

What these papers failed to mention and what most people were unaware of is that Nally shot Ward, beat him repeatedly with a stick, then proceeded to go out to a shed (?) and reload his shotgun and return to deliver the fatal shot to Ward.

In other words and as seamus pointed out, Nally was going to be guilty of at least manslaughter even if the CL (Home Defence) Bill was enacted.

seamus

OisinT wrote: »

In other words and as seamus pointed out, Nally was going to be guilty of at least manslaughter even if the CL (Home Defence) Bill was enacted.

Even with this law in place, Nally would have found himself in trouble even before the fatal shot - he shot Ward before giving him a chance to leave. Though he claimed that first shot was accidental to be fair.

2011

So by and large, if you confront an intruder and come to blows, you can be charged with assault because you failed to retreat.

Suppose someone becomes aware that an intruder is in their home. Are there circumstances that they could use a legally held firearm to force the intruder to retreat or to detain the intruder until gardai arrive?

2011

This new bill removes that obligation, making it much more difficult for the intruder to press assault charges.

So can I take it that the general consensus is this bill is a good thing?

seamus

2011 wrote: »

Suppose someone becomes aware that an intruder is in their home. Are there circumstances that they could use a legally held firearm to force the intruder to retreat or to detain the intruder until gardai arrive?

Under current laws, you would have to prove that you had no option except to confront the intruder - i.e. you couldn't lock your bedroom door and hide or you couldn't escape via a window or door.

Under this new bill, it's still a bit of a grey area IMO. Pointing a weapon at someone in order to detain them or ask them to leave falls under the definition of "force" in this bill because you are threatening to use force.

However, is it reasonable? I would say so. Provided that the court is satisified that you did not intend to fire the weapon (if it was unloaded, that would be great), or you didn't use it unjustly*, then I don't see why any jury would say it was unreasonable either.

2011 wrote: »

So can I take it that the general consensus is this bill is a good thing?

The camps will be divided on this. There is always the statistic that a massive number of people in the U.S. confront an intruder with a weapon and end up having that weapon used on themselves. Likewise, knowing that they are more likely to encounter resistance, intruders may be more likely to carry weaponry than previously.

The best part of this bill IMO is the inability of the intruder to sue for damages. That kind of thing has always made a mockery of our court system.

*Such as taunting the intruder after he's surrendered, holding it to his head and making vicious threats, etc

Was there not a judgment a while back that compared breaking into a home tantamount to an assault and that, accordingly, using reasonable force to repel it was a legal course of action?

I am TOTALLY willing to admit I may be wrong with this but it's the first thing that came to mind when I read this thread.

cushtac

seamus wrote: »

At present, if you are confronted by an intruder (or you are aware that there is one in your home), your primary obligation is to retreat.

That is not and never has been the case. To quote the court of criminal appeal in the case of DPP V Barnes "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."

This bill only puts into statute what has existed in common & case law.