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Irish law on self defence

clearz

I always wondered what the law on self defence is here in Ireland. Say I was to be attacked on the street by a scumbag. Have I the right to fight back to the point of putting him in hospital? What would happen if I fought back and accadently killed the other guy? Would I be in trouble in these situations? Have I even the right to fight back at all?

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Sangre

Of course you can fight back. You don't even have to wait for the first attack because verbal intimidation is assault. You're able to do what is reasonable to avoid bodily harm. If incapicating (knocking him out) him is seen by the jury as reasonable then you're ok.

Juries are usually pretty lenient when it comes to self-defence, they always think 'what if it was me?'. But remember it must be reasonable. A huge boxer doesn't need to beat a small man into a coma to escape harm.

dermot_sheehan

Irish law allows for the use of force in reasonable circumstances as a person believes them to be, as permitted by s.18 of the Non-Fatal Offences Against the Person Act for protection of self, others or property or by s. 19 for the effect of an arrest. This applies an objective statutory test with subjective perception of circumstances so allows for someone's mistake as to facts.

I believe there is debate as to whether these statutory provisions apply when you kill someone in self defence, because although the sections don't limit themselves to non-homicide situations, it's part of an act entitled the "non-fatal offences against the person".

In any case Irish Common law allows for reasonable force to be used in self defence which would be in addition to these statutory provisions and would certainly cover when self defence results in homicide. Irish law adopts the reductive approach as per People v. Kealty. What this means is if you thought the force was reasonable, and the jury thought objectively the force was reasonable you get an acquittal. However if you honestly thought the force was reasonable but the jury thinks it was objectively unreasonable you get convicted of manslaughter. If however the jury do not believe you honestly thought the force was reasonable you are convicted of murder.

In using self defence, there is a duty to retreat if this is practicable (R. v. Palmer), for example if you were assaulted in the street and you used self defence, and then circumstances arose where you could safely retreat but chose not to and continued to attack the assailant you would be liable for assault. This duty to retreat however doesn't apply to force used against an unlawful entrant when you are in your own home. (This exception to the duty to retreat is called the castle doctrine, your home is your castle)

Case law (don't have it to hand) also holds that you can not use self defence if you created the situation where violence was employed. (For example you steal from someone, he then strikes out at you, you can not use self defence). Similarly an illegally held weapon (an illegally held firearm or knife in a public area) can not be used in self defence. For example you walk about streets with a knife, someone mugs you, and you stab them, you would be liable for assault causing harm (they would be liable for robbery), since you were carrying an illegal weapon.

Self defence is an affirmative defence, you must raise it with prima facie evidence, then the state must disprove it beyond reasonable doubt to convict.

clearz

Thanks for the replys. Gabhain that clears everything up for me. OK then i'm off to beat some scumbag to death.:p:D

bigdave95

whats the law on mace or pepper-spray?

Aint Eazy Being Cheezy

bigdave95 wrote: »

whats the law on mace or pepper-spray?

Illegal

walrusgumble

In similarish vein to Section 18 there is now the Self Defence and the Dwelling Act 2011 (not the correct citation), and the interesting Supreme Court Case (Hardiman J in particular) of DPP v Barnes

Pat Mustard

dermot_sheehan wrote: »

In any case Irish Common law allows for reasonable force to be used in self defence which would be in addition to these statutory provisions and would certainly cover when self defence results in homicide. Irish law adopts the reductive approach as per People v. Kealty. What this means is if you thought the force was reasonable, and the jury thought objectively the force was reasonable you get an acquittal. However if you honestly thought the force was reasonable but the jury thinks it was objectively unreasonable you get convicted of manslaughter. If however the jury do not believe you honestly thought the force was reasonable you are convicted of murder.

What is your opinion on this from the Criminal Law (Defence and the Dwelling) Act 2011?:

s.2(4) It is immaterial whether a belief is justified or not if it is honestly held but in considering whether the person using the force honestly held the belief, the court or the jury, as the case may be, shall have regard to the presence or absence of reasonable grounds for the person so believing and all other relevant circumstances.

Given a home invasion situation, if a householder (fearing for his life) kills an intruder with an honestly held but unreasonable belief - but with certain reasonable grounds and certain excusing circumstances.

It looks like the legislation is framed to provide a full defence to a homicide charge in that particular situation. Is that correct?

krd

Sangre wrote: »

Of course you can fight back. You don't even have to wait for the first attack because verbal intimidation is assault. You're able to do what is reasonable to avoid bodily harm. If incapicating (knocking him out) him is seen by the jury as reasonable then you're ok.

You are not safe. I was on Talbot street, and I saw two Chinese guys in a internet cafe throw a drunk and violent scumbag out. When he was kicked out, he started swinging at the two Chinese guys, they swung back. I was there the whole time - I saw everything. Then the guards turn up. Out of the crowd on the street who hadn't seen anything - wide eyed knackers were flocking to tell the guards that the Chinese guys had attacked your man for no reason.

The reality, if you're attacked by some junkies, and you fight back - you'll have "witnesses" claim you initiated the attack, and if you seriously hurt or kill them (which is not difficult as they're in terrible health), you could face the prospect of being convicted for murder.

There was a conviction of Chinese man recently for killing a junkie in the city centre. His response may have sounded excessive, but they're getting this crap nearly every day. There is violence in shops in the city centre all the time. Not in Brown Thomas - but internet cafes on Talbot street, yes.

Juries are usually pretty lenient when it comes to self-defence, they always think 'what if it was me?'.

You only get the 'what if it was me?' from a judge and jury who are thinking 'look he's one of us'. If you're from a good family, and have some little monopoly in the aviation business, then of course you were just defending yourself. If on the other hand, you're not a fortunate son, then they may see you as violent dangerous thug who is incapable of self-restraint (that class of people just can't control themselves), who needs locking up for a long time for the good of society.

But remember it must be reasonable. A huge boxer doesn't need to beat a small man into a coma to escape harm.

This is another rough twist. A trained boxer cannot help themselves from hitting very hard when they are trying to defend themselves. It's not fair to expect the boxer to somehow remember to punch lightly.

Someone I know, they had been in the British armed forces - so they had been trained. They were standing outside a pub in England. A homeless drunk, someone who was a local nuisance, clipped them in the back of the ear. He turned, and reflexively punched. He knocked the drunk cold - ambulance and police called. They guy I knew ended up with a six month suspended sentence. The whole attack was caught on the pubs security camera - the drunk was doing this nuisance stuff all the time. But the judge decided one punch was excessive.

The whole excessive force business is very tricky. Someone breaks into your house, you injure or kill them, you will be dragged through the courts.

On the other hand, I know someone who was attacked in their own home, and nearly killed, disturbing a burglary, their was a failure to prosecute the attackers - even though one burglar was injured and incapacitated at the scene (he ran into a sliding patio door in his effort to escape).

If you have to defend yourself, you have to defend yourself - but you cannot count on being safe from prosecution if you do.

Zambia

krd wrote: »

You are not safe. I was on Talbot street, and I saw two Chinese guys in a internet cafe throw a drunk and violent scumbag out. When he was kicked out, he started swinging at the two Chinese guys, they swung back. I was there the whole time - I saw everything. Then the guards turn up. Out of the crowd on the street who hadn't seen anything - wide eyed knackers were flocking to tell the guards that the Chinese guys had attacked your man for no reason.

The reality, if you're attacked by some junkies, and you fight back - you'll have "witnesses" claim you initiated the attack, and if you seriously hurt or kill them (which is not difficult as they're in terrible health), you could face the prospect of being convicted for murder.

There was a conviction of Chinese man recently for killing a junkie in the city centre. His response may have sounded excessive, but they're getting this crap nearly every day.

What was that case and when?

krd

Zambia wrote: »

What was that case and when?

It's very recent.

http://www.independent.ie/national-news/internet-cafe-user-kicked-to-death-over-70c-court-told-3301334.html

He was then found guilty.

http://lite.rte.ie/news/lite//2012/1205/man-sentenced-to-life-over-internet-cafe-row.html

Maximus0007

Well the first rule in all these situations is ensure that you survive the encounter! You can worry about the legal ramifications once you have achieved that. Revenging yourself or continuing to batter a person long after they have ceased being a threat is going to be difficult to sell to a jury of your peers! Generally if possible avoid the situation; if that's not an option then ensure your the last man standing otherwise the legal issues are likely to be the least of your concerns!

Zambia

krd wrote: »

It's very recent.

http://www.independent.ie/national-news/internet-cafe-user-kicked-to-death-over-70c-court-told-3301334.html

He was then found guilty.

http://lite.rte.ie/news/lite//2012/1205/man-sentenced-to-life-over-internet-cafe-row.html

Thanks but in this case he has exceeded a reasonable self defence in spades you cant kick a man to death in that fashion.

Procrastastudy

Zambia wrote: »

Thanks but in this case he has exceeded a reasonable self defence in spades you can kick a man to death in that fashion.

I'm not sure a plea of self defence would be appropriate anyway. It the accused intimated the encounter. Curious as to why this wasn't manslaughter though.

krd

Zambia wrote: »

Thanks but in this case he has exceeded a reasonable self defence in spades you can kick a man to death in that fashion.

I know in the cold light of day - to the genteel folk of the well secured Green Zone - the actions of Zhen Dong Zhao, could seem excessive. But these people consider the actions of a being in an abstract sense - not of the actions of that being-in-the-world. Or the nature of that world. They judge them in the terms of their world - as if Zhen Dong Zhao was running a knitwear shop in Avoca, and not a scuzzy internet cafe in the hood.

I have seen the dogs abuse these Chinese guys have to put up with every single day - death threats and racist abuse. The junkies are trying it on all the time - create a disturbance - paralyse them with fear so they can do a smash and grab of those I-phones. In this context, self-defense becomes more of a rolling strategy than a single event in the abstract. Giving a junky a good kicking over 70c is a good prophylactic against the junky returning a few days later, with his friends and HIV blood filled syringes, set on robbing the shop. Within its' context, Zhen Dong Zhao acted in self-defense. He had no intention of killing Noel Fegan - he just ineptly rained what turned out to be fatal blows on his head - where maybe he should have used a less immediately lethal form of physical education, such as ankle stamps and kidney kicks.

Noel Fegan, was a 40 year-old junky sleeping rough. He did not, as they say, have a bright future ahead of him. Had the encounter with Zhen Dong Zhao not happened, he would be either dead by now, or in the very near future - in a cold snap, after some bad gear. Suburban "liberals" may wring their hands at the brutal fashion in which he died.....But he was going to die brutally anyhow - a silent and convenient death, they would have more complicity in than Zhen Dong Zhao's actions, which were a bad judgment call, where their complicity has the same uncaring precision and indifference as Auschwitz, Belsen or even Treblinka.

They come around early - before the shoppers and office staff start their day. They find them cold and stiff - they scoop them off the street, into a body bag, and zip it up, to spare the gentle souls the horror.

It is Vietnam down there, I tell you. Gooks on the wire 24/7, Garda helicopters in the air, watching your buddies die face down in the mud, Jimi Hendrix on fizzy cassette decks, strains of the Doors slow two note bass signature rise, and that guitar run, "This is the end...beautiful friend, thee end"....The violent junky scumbags of the inner city are not signatories to the Geneva Convention. How can you maintain order, how can you win a war, with one arm tied behind your back.

The horror......The horror.....

The horror

The horror

Zambia

Okaaaaaaaay ........ He would have died anyway is not a defence

Hippo

Zambia wrote: »

Okaaaaaaaay ........ He would have died anyway is not a defence

Honestly, don't even bother!

Pat Mustard

krd wrote: »

It is Vietnam down there, I tell you. Gooks on the wire 24/7, Garda helicopters in the air, watching your buddies die face down in the mud, Jimi Hendrix on fizzy cassette decks, strains of the Doors slow two note bass signature rise, and that guitar run, "This is the end...beautiful friend, thee end"....The violent junky scumbags of the inner city are not signatories to the Geneva Convention. How can you maintain order, how can you win a war, with one arm tied behind your back.

The horror......The horror.....

The horror

The horror

Colonel Kurtz, is that you?

https://www.youtube.com/watch?v=aNUr__-VZeQ

NIMAN

With the increasing amount of house break-ins these days, I was wondering what the situation would be if you got yourself a baseball bat and had it by your bed, and ended up using it on an intruder?

Would you get done because you had already armed yourself with a weapon, and almost prepared for dishing out a beating?
Or would you get off beating a guy with it cos he broke into your home and you could claim self defence?

I guess it may come down to how badly you beat him.

Procrastastudy

NIMAN wrote: »

With the increasing amount of house break-ins these days, I was wondering what the situation would be if you got yourself a baseball bat and had it by your bed, and ended up using it on an intruder?

Would you get done because you had already armed yourself with a weapon, and almost prepared for dishing out a beating?
Or would you get off beating a guy with it cos he broke into your home and you could claim self defence?

I guess it may come down to how badly you beat him.

What statistics are you using? I can only find crime stats upto 2007.

That aside there's absolutely no reason you couldn't be a baseball fan. I'd suggest taking the more civilised approach and having a cricket bat or indeed a hurley. :pac:

It comes down to reasonable force. 90% of burglars are going to leg-it bat or no bat. I really wish people wouldn't do this American thing of perpetuating the false idea we live under siege. The laws in this country are pretty fair to all parties - proportionality is key. The last thing we need is people suggesting we all carry side arms - which is ultimately where you end up when you start allowing people to use leathal force to defend there collection of CDs.

krd

Zambia wrote: »

Okaaaaaaaay ........ He would have died anyway is not a defence

No, it's not really a good defense. But it does effect the context. If you've noticed, junkies tend to have perpetual wounds - cuts, bruises, broken legs. This is because they are constantly fighting with each other, getting the odd beating from Chinese shop keepers, and occasionally pushing each other head first under the wheel of a bus.

They engage in behaviour that either cumulatively or on some occasions, instantaneously leads to their untimely demise.

The newspaper reports really distort the event - some make no mention of the fact that Noel Fegan did strike Zhen Dong Zhao. One newspaper quotes an acquaintance as saying Noel had never been in trouble. The man had been addicted to heroin for over a decade, he had been living on the streets. Of course he was in constant trouble.

Zhen Dong Zhao, obviously as he's in jail, had a poor defense. Was Noel Fegan's lifestyle and behaviour a major contributing factor in his death. If that is so, it reduces Zhen Dong Zhao's culpability.

krd

Procrastastudy wrote: »

It comes down to reasonable force. 90% of burglars are going to leg-it bat or no bat. I really wish people wouldn't do this American thing of perpetuating the false idea we live under siege.

We do not all live under siege. But it depends on where you are living or trying to run your business. If you are in an area of high anti-social behaviour, you are under siege. It's not paranoia. People like Nancy Lanza, living in a well secured wealthy American suburb, that is paranoia.

Without going into hundreds of anecdotes, and naming places, there are people living under siege. The world is not all sitting in a pub in Dalkey, in your jumper, enjoying a few pints with your golfing pals....talking about boating in Youghal.

The siege is stressful. And it can lead to condition that is related to Post Traumatic Stress Disorder: hyper-vigilance. This is a state where you are on a constant look out for danger - you react to strange sounds as if they mean danger. Psychologically you are in a position where you believe you are facing real imminent existential threats.

The laws in this country are pretty fair to all parties - proportionality is key.

In the instance where excessive force is used, you have to ask why excessive force has been used.

A few years back, a neighbourhood watch foot patrol, in west Dublin, came across someone known to them as a career burglar walking down their street. They bludgeoned him to death - I don't know if anyone was prosecuted.

Now, why did these very ordinary people just beat a man to death. I would say hypervigilance. The reason they had a foot patrol in the first place is they were blighted by burglaries - committed by people who did not live that far away. To the extent they knew the names and faces of these people.

They didn't beat him to death to save their CD collections - I believe it was the constant heightened stress of repeatedly being burgled. The force they used was extremely excessive. Like Zhen Dong Zhao, they may have had no intention of killing him, but they were in a state where they would naturally use excessive force. So, there is a diminished responsibility there.

Convincing a judge and jury might be difficult, but I think a defense for Zhen Dong Zhao excessive and lethal use of force would be hypervigilance. The guys in those shops are getting constant aggravation. (and no, it's nothing like working in BT2 in Dunlaoghaire, with some Sorcha giving you lip.) The first or second time they may react reasonably, after the 100th time, you're in a state to kick a junky in the head until he's dead, over a slap in the face.

The last thing we need is people suggesting we all carry side arms - which is ultimately where you end up when you start allowing people to use leathal force to defend there collection of CDs.

The America situation is, you are far more likely to shoot your own teenager, who's sneaking back in after being out late, than you will shoot a burglar.

Nancy Lanza collected guns and trained her son in the use of them, as she believed society was on the verge of collapse. Nancy was going to be prepared - at least she thought so.

The killer awoke before dawn,
he put his boots on.
He took a face from the ancient gallery.

And he walked on down the hall.

big_joe_joyce

clearz wrote: »

I always wondered what the law on self defence is here in Ireland. Say I was to be attacked on the street by a scumbag. Have I the right to fight back to the point of putting him in hospital? What would happen if I fought back and accadently killed the other guy? Would I be in trouble in these situations? Have I even the right to fight back at all?

all depends on the kind of judge you meet in court

i was assaulted by an intruder on my own property several years ago , the fight was pretty harmless , i got a black eye , i merely rugby tackled him to the ground and held him down , he made false allegations that i used a weapon , we were both summonsed but i was the only one convicted of assault , the same idiot judge who convicted me , made an off the cuff remark in court a year later about how he would shoot an intruder who tresspassed onto his property , made the national news , hes a notoriously idiotic and intemperate judge

my point is , no two court sittings are the same ,especially when it comes to relativley minor low profile offenses , you need a good solicitor , i hadnt one and my barrister was a rookie who got stage fright , was a fool not to have appealed what was a stonewall case

krd

Procrastastudy wrote: »

I'm not sure a plea of self defence would be appropriate anyway. It the accused intimated the encounter. Curious as to why this wasn't manslaughter though.

I'm not sure how the process works. Do the Garda suggest the charge, and then the DPP decides. Or the DPP has to make the decision on the basis of the Garda's charge. Or the DPP decides the charge.

I think the distinction between murder and manslaughter is not just premeditation - but also mens rea. If you start a fight with someone in a pub, and some of your drunken blows kill them, without your intention to kill them, that's manslaughter. If you are sober and you repeatedly kick someone in the head who is on the ground, and they die, that could be taken as you had the deliberate conscious aim of killing them. In that instance it's murder.

Probably Zhen Dong Zhao's big mistake was saying to the Garda "I wanted to teach him a lesson", instead of saying, "he hit me, and I lost it"....or even better, "he hit me, then threatened to kill me, and I feared for my life, and just lost it"

Would Zhen Dong Zhao have much chance of an appeal?

On appeal, can the charge be reduced, from murder to manslaughter - or does it stay the same, unless it's struck out?

It's an interesting comparison between how Pádraig Nally, was prosecuted for manslaughter for shooting John Ward - and eventually having the conviction quashed.

Strawberry Fields

krd wrote: »

I think the distinction between murder and manslaughter is not just premeditation - but also mens rea. If you start a fight with someone in a pub, and some of your drunken blows kill them, without your intention to kill them, that's manslaughter. If you are sober and you repeatedly kick someone in the head who is on the ground, and they die, that could be taken as you had the deliberate conscious aim of killing them. In that instance it's murder.

.

What exactly happened so yesterday with Niall Dory?
The DPP accepted a guilty plea to manslaughter and didn't prosecute for murder. I can't make it out.http://www.independent.ie/national-news/courts/thug-gets-13-years-in-jail-for-beating-teen-like-a-rag-doll-until-he-died-3333698.html

krd

godeas16 wrote: »

What exactly happened so yesterday with Niall Dory?
The DPP accepted a guilty plea to manslaughter and didn't prosecute for murder. I can't make it out.http://www.independent.ie/national-news/courts/thug-gets-13-years-in-jail-for-beating-teen-like-a-rag-doll-until-he-died-3333698.html

While Justice Paul Carney said that alcohol does not afford a defence - which it doesn't, but. The court would consider someone under the influence of alcohol not fully in control of their mental faculties. So, there is a distinction - stamp someone to death while you are drunk, it's manslaughter - do it while you are sober, and it's murder.

Mens rea, is latin for guilty mind. If someone can say "I was out of me mind on drink, your honour".....Then they did not have a guilty mind. And that is - unless someone can correct me - is the distinction between manslaughter and murder.

As I was advised by a lunatic acquaintance a few years back, if you absolutely must give someone a savage beating, do it in circumstances where both of you have technically had a drink. Because the presence of alcohol makes it difficult for the courts to decide who is absolutely at fault - the claims of the different parties are unreliable. Most drunken brawls do not result in either a charge or prosecution.

Violence is as Irish as bacon and cabbage.....alcoholism and child sex abuse.

Had Zhen Dong Zhao said to the Garda "Well....I had a few scoops for me dinner, and I was nipin' at bottle of Powers - and when that bosie comes in, eyes spin'in on methdone, gives me a box in gob.. and then he falls down, and I tryin' to help him up, but I kept stepin' on his face by accident on account of the drink. ........♫ curmmm out yee black and tans.. curm out and fight me like a man ♫...."..........Then Zhao would have got manslaugther.

Strawberry Fields

right grand, didn't know he was drunk. was wondering how they circumvented intention like that. Seems a bit farcical considering the level of violence involved, I would much rather legislation in line with the US - extreme indifference to human life.

ResearchWill

krd wrote: »

While Justice Paul Carney said that alcohol does not afford a defence - which it doesn't, but. The court would consider someone under the influence of alcohol not fully in control of their mental faculties. So, there is a distinction - stamp someone to death while you are drunk, it's manslaughter - do it while you are sober, and it's murder.

Mens rea, is latin for guilty mind. If someone can say "I was out of me mind on drink, your honour".....Then they did not have a guilty mind. And that is - unless someone can correct me - is the distinction between manslaughter and murder.

As I was advised by a lunatic acquaintance a few years back, if you absolutely must give someone a savage beating, do it in circumstances where both of you have technically had a drink. Because the presence of alcohol makes it difficult for the courts to decide who is absolutely at fault - the claims of the different parties are unreliable. Most drunken brawls do not result in either a charge or prosecution.

Violence is as Irish as bacon and cabbage.....alcoholism and child sex abuse.

Had Zhen Dong Zhao said to the Garda "Well....I had a few scoops for me dinner, and I was nipin' at bottle of Powers - and when that bosie comes in, eyes spin'in on methdone, gives me a box in gob.. and then he falls down, and I tryin' to help him up, but I kept stepin' on his face by accident on account of the drink. ........♫ curmmm out yee black and tans.. curm out and fight me like a man ♫...."..........Then Zhao would have got manslaugther.

The mens rea for murder is not to have the intention to kill but at a minimum to cause serious harm. In the case quoted the accused while pleading to manslaughter got a sentence closer to murder. While the mandatory sentence for murder is life the usual time served is if I remember is 10 years. The usual for manslaughter is 4 to 6 years a 13 year term is very high.

You are so wrong in saying most drunken brawls do not result in prosecution, have you visited any district court or circuit court in the country. A huge part of the work load is drunken brawls, being drunk is no defence to beating a person or any crime, try and run the sorry I was pissed defence and see how far you get. The court may take it in to account when deciding on punishment not guilt.

Strawberry Fields

reasearch will do you know the above case? What is your take on it?

ResearchWill

godeas16 wrote: »

reasearch will do you know the above case? What is your take on it?

Nothing more than anyone else who read the article. It seems but is not totally clear that the accused pleaded guilty to manslaughter which was accepted by the DPP (that avoids a trial) as sentence for manslaughter goes 16 years wiþh 3 suspended is high by Irish standards.

the_ferreter

Interesting thread. I read the above case in the papers, was surprised by the sentence he got but then on reading the write up in the paper he would have used what i deem as excessive force, whether he wanted to kill him or not ...he did.

Ive been on the receiving end of physical violence here in Ireland and both times no charges brought against my assailants. A chunk bitten out of my leg and he walked free....deemed suitable for an adult caution:eek::eek:. And another fella decide to throw a beer barrel at me ,,,which did get me straight across the legs....again no charges brought by the gardai. But when i have a fella throw 5 or 6 punches at me and i do retaliate and put him on his rear end in a couple of punches the Gardai are all over me wanting to press charges.....not excessive but necessary. Now i am an ex kickboxing champion but only used my fists for defence purposes and i wasnt the instigator but i very nearly got charged over it. So it depends n the gardai at the end of the day ....but the law here is so inconsistent its unreal.

But in the circumstances of someone entering my property and i honestly felt threatened for myself or my family....i got no hesitation using any force to resolve the situation and to hell with the consequences.