Judge asks about the rights of burglars and homeowners

Heinrich

Taken from the Indo this morning. It's hard to understand ho this guy can claim self defence when he had no business in that house! So the victim was supposed to call the Guards while the burglar and his accomplice were doing their thing.

Maybe we might hear some waffle from the appropriate minister to clarify the matter.

A SUPREME Court judge has asked the DPP for legal clarification on the rights of burglars and the rights of householders who disturb them in action.

Mr Justice Adrian Hardiman said it was "quite a significant issue of law" and he asked for the DPP to provide submissions on it in an appeal by a Waterford man who murdered horse breeder Richard 'Dick' Forristal during a burglary at his farm last year.

Mr Justice Hardiman was presiding at the Court of Criminal Appeal in an appeal by Anthony Barnes against his conviction for Mr Forristal's murder. He said the case was "very unusual" in that the appeal was based on self-defence by a burglar against a householder.

Barnes (20), Clonard Park, Ballybeg, Waterford city, was convicted by a jury last March of murdering Mr Forristal (68) at his home, Carrigavantry Stud, Co Waterford, on July 21, 2005. He was sentenced to life imprisonment.

Mr Forristal's body was discovered shortly after he had returned from the funeral of Tara Whelan (17), who was killed in a terrorist attack in Turkey four days earlier.

Barnes claimed he was defending himself from a knife attack by Mr Forristal when he stabbed him in the chest a number of times. He said he was trapped in the bedroom after being chased there by Mr Forristal, who disturbed him during the burglary.

Barnes's counsel submitted yesterday that Mr Forristal's act in getting a knife was unlawful. He said that Mr Forristal should have contacted the gardai or should have left his house to get assistance. He submitted that Mr Forristal had not used reasonable force in getting a knife and threatening to kill Barnes.

"I am saying that what he did was criminal. It was an unlawful attack. He went beyond what the circumstances demanded," he said. "He went beyond what was reasonable in the circumstances. He might have challenged him in a physical but non-knife-wielding manner."

Counsel for the DPP submitted that self-defence could not be relied on by Barnes as a mitigating factor because the killing of Mr Forristal could never be lawful because it originated from the burglary and could never in law be innocent.

"Reasonable force up to lethal force can be used without the obligation to retreat in defence of oneself or one's dwelling," he said.

Meanwhile, the court also upheld a seven years sentence on another man who took part in the burglary at Mr Forristal's home.

Andrew Halligan (22), Ardmore Park, Waterford, pleaded guilty to trespass with intent to commit burglary last March. Mr Justice Carney jailed him for seven years after hearing that he had 150 previous convictions, 27 for burglary.

Gurgle

Heinrich wrote:

It's hard to understand ho this guy can claim self defence when he had no business in that house! .

Its easy to understand - he has a smart lawyer.

Heinrich wrote:

So the victim was supposed to call the Guards while the burglar and his accomplice were doing their thing.

Of course only the burglar's story is available now, as his victim/'attacker' is dead.

If the burgler wins this one, thats sending the message that the best thing you can do if interrupted during a robbery is stick a knife in the home-owner's chest and claim self-defence.

And this bit:

Andrew Halligan (22), Ardmore Park, Waterford, pleaded guilty to trespass with intent to commit burglary last March. Mr Justice Carney jailed him for seven years after hearing that he had 150 previous convictions, 27 for burglary.

Just shows what the justice department is giving us for our taxes. Nobody should spend enough of their life outside prison to clock up that kind of record.

Just My View

The US view of death during a felony.

http://www.answers.com/topic/felony-murder-rule

Interestingly it is based on old English common law.
Would that also be hidden somewhere in Irish law perhaps like some other inherited stuff?

padser

Gurgle wrote:

Nobody should spend enough of their life outside prison to clock up that kind of record.

I think that sums it up really....


On the issue of self defence I think to properly consider the question of whether a burglar can argue self defence you have to consider the general, rather then the instant case.

So the general question is 'by breaking into someone's house, or by illegally entering someone's property should you automatically lose all of your rights to self defence'.

Personally I think you probably should, however there would be definite problems in trying to apply this in practice.

Consider the following implications
a) I have an elderly neighbour, no one has seen him in ages, wondering if there is a problem, no answer at door, door is unlocked, i enter, get surprised from behind and hit over the head with a saucepan, i turn around and to prevent myself being hit again again I push my assailant away, he falls and hits head and dies.

I have no claim to self defence.

b) I am a petty burglar, I break into someones shed, I see the light go on in the house. I run and as I try to jump over the wall the escape I fall and break my leg. The hosueown comes out with a knife as I lie there helpless and tells me he is going to kill me. He stabs me and in the scuffle that ensues I kill him.

I have no claim to self defence

c) I am a postal worker delivering post. As i walk up someones driveway to their house to delever the post (having missed the sing that says 'No Tresspassing - post deliveries to box at the enterence') I am shot by a shotgun from a window. As i lie injured on the ground the houseowner comes out to 'finish me off'. I manage to grab the gun and shoot him.

Technically, I was a tresspasser, I have no claim to self defence.


That said I believe in general criminals on property that is not theirs should have no rights whatsoever, but there would be serious problems enforcing such a law

Thirdfox

In the 3rd example (I suppose I'm being quite pedantic now) - wouldn't it depend on how visible the sign was? The presumption would be on the postal worker's side that s/he is allowed on the grounds unless rebutted by a clear sign that postal workers are not welcomed...

In regards to this case an interesting legal point is raised but I'm sure (well at least am hoping) that the burgular does not get away with murder.

Gurgle

padser wrote:

So the general question is 'by breaking into someone's house, or by illegally entering someone's property should you automatically lose all of your rights to self defence'.

I suppose you would have to consider an implied threat.
If a burglar breaks into your shed, if someone enters your garden etc. there is no direct threat implied by his presence. Once he breaks into your house, he should lose all rights as he is posing a direct threat to you & your family.

Thirdfox

"posing a direct threat"...what if this burgular was running away from your premises/house (still on your land) and you shot him/her with a shotgun? Does s/he have any rights then? On the face of it there is no "direct" threat from them anymore...

Sparks

He said that Mr Forristal should have contacted the gardai or should have left his house to get assistance.

Bull. There's no duty to retreat in the law on self-defence.

padser wrote:

c) I am a postal worker delivering post. As i walk up someones driveway to their house to delever the post (having missed the sing that says 'No Tresspassing - post deliveries to box at the enterence') I am shot by a shotgun from a window. As i lie injured on the ground the houseowner comes out to 'finish me off'. I manage to grab the gun and shoot him.
Technically, I was a tresspasser, I have no claim to self defence.

Technically, you weren't a tresspasser. To trespass, you need to be on someone's land without either permission or a reasonable excuse to be there. Postmen have reasonable excuses by default when on duty...
(Otherwise, you could charge gardai for trespass if you stole a purse and they chased you home).

That said I believe in general criminals on property that is not theirs should have no rights whatsoever, but there would be serious problems enforcing such a law

Not to mention serious ethical problems. Criminals do not forfeit their rights any more than non-criminals until after due process; because in this country you're innocent until proven guilty in a court of law.
Ergo, you can't shoot someone you think is trespassing unless you honestly believe your life is in immediate danger and shooting them is the only course open to you.

This whole thing sounds like someone using the Nally case to pull a fast one.

hullaballoo

I would have assumed that the usual laws pertaining to self-defence would apply here. The farmer was acting in self-defence against an aggressor (the burglar) when he attacked him with the knife (if he attacked him with the knife). As such, the burglar has no recourse to self-defence because he is the original aggressive protagonist.

If the law was to be applied any other way, then if I wanted to kill someone, all I'd have to do is attack them (or their property), wait for them to defend themselves, and then kill them, claiming I was defending myself.

I would seriously question a decision of the courts where a burglar can claim self-defence where he has killed the owner of a house while he was there illegally.

Edit: incidentally, on the issue of proportionality of using a knife to defend your property against a burglar, I see this as a non-issue. I think any reasonable person in the position Mr Forristal found himself in would reach for some sort of weapon out of fear for their own safety. I mean, a 68-year-old man would be no match on his own against a 20-year-old youth. Add to that the fact that the burglar may have been armed with a knife as well.

hullaballoo

Hold on, is this case ongoing?

Gurgle

Thirdfox wrote:

"posing a direct threat"...what if this burgular was running away from your premises/house (still on your land) and you shot him/her with a shotgun? Does s/he have any rights then?

Yes, s/he has the right not to be shot while running away.

civdef

There's some confusion here between terms.

Burglary is defined as follows:

12.—

(1) A person is guilty of burglary if he or she—

(a) enters any building or part of a building as a trespasser and with intent to commit an arrestable offence, or
(b) having entered any building or part of a building as a trespasser, commits or attempts to commit any such offence therein.

(2) References in subsection (1) to a building shall apply also to an inhabited vehicle or vessel and to any other inhabited temporary or movable structure, and shall apply to any such vehicle, vessel or structure at times when the person having a habitation in it is not there as well as at times when the person is there.

(3) A person guilty of burglary is liable on conviction on indictment to a fine or imprisonment for a term not exceeding 14 years or both.

(4) In this section, "arrestable offence" means an offence for which a person of full age and not previously convicted may be punished by imprisonment for a term of five years or by a more severe penalty.

CRIMINAL JUSTICE (THEFT AND FRAUD OFFENCES) ACT, 2001 SECTION 12

Checking in on your neighbour isn't burglary, neither is delivering the post.

hullaballoo

The offence was trespass with intent to burgle.

digweed

padser wrote:

I think that sums it up really....


On the issue of self defence I think to properly consider the question of whether a burglar can argue self defence you have to consider the general, rather then the instant case.

So the general question is 'by breaking into someone's house, or by illegally entering someone's property should you automatically lose all of your rights to self defence'.

Personally I think you probably should, however there would be definite problems in trying to apply this in practice.

Consider the following implications
a) I have an elderly neighbour, no one has seen him in ages, wondering if there is a problem, no answer at door, door is unlocked, i enter, get surprised from behind and hit over the head with a saucepan, i turn around and to prevent myself being hit again again I push my assailant away, he falls and hits head and dies.

I have no claim to self defence.

b) I am a petty burglar, I break into someones shed, I see the light go on in the house. I run and as I try to jump over the wall the escape I fall and break my leg. The hosueown comes out with a knife as I lie there helpless and tells me he is going to kill me. He stabs me and in the scuffle that ensues I kill him.

I have no claim to self defence

c) I am a postal worker delivering post. As i walk up someones driveway to their house to delever the post (having missed the sing that says 'No Tresspassing - post deliveries to box at the enterence') I am shot by a shotgun from a window. As i lie injured on the ground the houseowner comes out to 'finish me off'. I manage to grab the gun and shoot him.

Technically, I was a tresspasser, I have no claim to self defence.


That said I believe in general criminals on property that is not theirs should have no rights whatsoever, but there would be serious problems enforcing such a law

you would have a claim to self defence in a and c. basically for burglary it would have to be proved that you entered the building as a trespasser with the intent to commit an offence. the four main proofs for burglary are that it is a building, that you are a trespasser, that you entered the building (this includes the curtilage) and that you had intent to commit an offence in the building. if one of these is missing then its not burglary, trespassing maybe but even with trespassing you have to be putting someone in fear.

in the o/p the man entered the house with the intention of committing an offence like the example b, in a and c there was no intention of committing an offence.

there is all the provisions of what counts as reasonable force tho' and i think thats what the judge is trying to determine his findings on. sorry if this post is rambling i'm quite tired

D.

civdef

Barnes's counsel submitted yesterday that Mr Forristal's act in getting a knife was unlawful. He said that Mr Forristal should have contacted the gardai or should have left his house to get assistance. He submitted that Mr Forristal had not used reasonable force in getting a knife and threatening to kill Barnes.

"I am saying that what he did was criminal. It was an unlawful attack. He went beyond what the circumstances demanded," he said. "He went beyond what was reasonable in the circumstances. He might have challenged him in a physical but non-knife-wielding manner."

Is it too much to hope for that someone breaks into this git's house, cleans it out and kicks the crap out of him in the process? It's an immoral, unjust argument to make to try toget some filthy dirtbag off for killing a man who was rightly defending himself and his property.

Trojan911

150 convictions with 27 of them for burglary..... It appears to me that the Criminal Justice System has let the deceased down. With a rap sheet that bad it is obvious Mr Lowlife is an habitual offender, why was he out on the streets in the first place?

(Oh ya, the CJS sucks unless you are scum, silly me)

TJ911...

hullaballoo

Can anybody tell me if this case is ongoing?

padser

hullaballoo wrote:

Can anybody tell me if this case is ongoing?

The OP is a clip from this mornings Indo

hullaballoo

So is this case ongoing? Or has it reached a conclusion?

padser

Ah, I see your point, its not specific at the end. However since the second paragraph states that the judege has invited submissions from the DPP i reckon its a good bet that the case is ongoing

dermot_sheehan

padser wrote:

The OP is a clip from this mornings Indo

The case is ongoing, but it's in front of the Surpeme Court, reporting restrictions do not apply as there is no risk of prejudicing potential jurors since the jury trial has already concluded.

The offence the accomplice was convicted of was s. 14 of the Criminal Justice (Fraud and Theft Offences) Act, namely Burgulary. The irish times got the name of the offence wrong, it can't be trespassing with intent to commit burgulary since the definition of burgulary itself is trespass with the intent of committing a serious offence (i.e. theft, rape, etc).


My personal views are that one should not have the right to use self defence in furthurence of a home invasion. I think the law has historically supported this view. There is no duty to retreat when one is in one's dwelling.

With regard to the examples, they all refer to trespassers. Trespassing is not generally a criminal offence (in the case of the postman he's not even a trespasser since he is an authorised entrant under the Post and Telecommunications Act).

Trespassing becomes a crime when it's with the intent to commit another offence. So if someone breaks into your house in the middle of the night, it's reasonable to assume that they are there with the intention of committing a serious offence, are guilty of burgulary, and therefore you can use reasonable force against them. They would not be able to use self defence back against you.

hullaballoo

Cheers gabhain! I think you knew what I was getting at there!

Gobán Saor

From R v Rashford,[2005] EWCA Crim 3377 http://www.bailii.org/ew/cases/EWCA/Crim/2005/3377.html

There appears to be no direct English authority as to whether and if so in what circumstances an initial aggressor can rely on self-defence. But there is Scottish authority. In particular in Burns v HM Advocate [1995] SLT 1090 at 1093H, the Lord Advocate General said this:

"... it is now clear that the propositions in Hume and Macdonald that the accused must not have started the trouble, or provoked the quarrel, are stated too broadly. It is not accurate to say that a person who kills someone in a quarrel which he himself started, by provoking it or entering into it willingly, cannot plead self defence if his victim then retaliates. The question whether the plea of self defence is available depends, in a case of that kind, on whether the retaliation is such that the accused is entitled then to defend himself. That depends upon whether the violence offered by the victim was so out of proportion to the accused's own actings as to give rise to the reasonable apprehension that he was in an immediate danger from which he had no other means of escape, and whether the violence which he then used was no more than was necessary to preserve his own life or protect himself from serious injury."

In our judgment this passage in the judgment of the Lord Justice General should be regarded as accurately representing English law as well. Indeed, Mr Chambers for the prosecution does not seek to persuade us that what the Lord Justice General said does not reflect our law. We think that this important decision should be more widely known than it appears to be. It is not referred to in Archbold Criminal Pleading Evidence and Practice. There may be a temptation whenever it is open to a jury to conclude that the defendant went to an incident out of revenge or was the aggressor to direct the jury that if they reach that conclusion then self-defence cannot avail the defendant. But if the judge wishes to give a direction along these lines the facts will usually require something rather more sophisticated where the possibility exists that the initial aggression may have resulted in a response by the victim which is so out of proportion to that aggression as to give rise to an honest belief in the aggressor that it was necessary for him to defend himself and the amount of force that he used was reasonable.

However, the court also said

The appellant's case which the jury clearly rejected was that he was swinging or waving the knife in order to warn or ward off the others. In view of the way that he put his case, it is puzzling to us why the judge gave a direction on self-defence in relation to murder at all. On the defence case it seems to us that self-defence was a non-runner. We should add that, even if it had been the appellant's case that he had intentionally stabbed the deceased in self-defence, we do not think that the jury could reasonably have concluded that he acted or might have acted in self-defence. In this connection we refer to what Lord Lowry, Chief Justice, said in R v Browne [1973] NI 96 which is cited in the unreported decision of this court of Balogun [1999] EWCA Crim. 2120. Lord Lowry said this in relation to self-defence at page 106:

"(1) To justify killing or inflicting serious injury in self-defence the accused must honestly believe on reasonable grounds that he is in immediate danger of death or serious injury and that to kill or inflict serious injury provides the only reasonable means of protection."

The appellant's own evidence could not reasonably have justified the conclusion that he honestly believed on reasonable grounds that he was in immediate danger of death or serious injury and that to kill or inflict serious injury was the only reasonable means of protection.

This is a clear statement of the (UK) law which would suggest that a plea of self-defence IS available to an initial aggressor. In this case, Rashford's conviction was upheld as the self-defence plea failed on the facts. If the Supreme Court follows this precedent, it would find that the burglar is entitled to plead self-defence. However, for the defence to succeed, it would be necessary to show that the householder was acting unlawfully, ie had gone beyond "reasonable force". In this case, the householder's use of force appeares entirely reasonable and the defence should fail. However, if the trial judge directed the jury not to consider a self-defence argument, it is likely that a retrial will be ordered. Which should result in a re-conviction on the reasoning above.


BTW, what about the other defendant, 22 years of age, 150 previous convictions, 27 for burglary? Obviously a criminal justice system that allows such a man to be at liberty is seriously flawed. But that's another story....

civdef

he offence the accomplice was convicted of was s. 14 of the Criminal Justice (Fraud and Theft Offences) Act, namely Burgulary.

Section 14 is Robbery. Might have been appropriate in the circumstances. Notable that this carries up to a life sentence - how often is that imposed given that it is a very common offence?

hullaballoo

Here, my discussion enters the world of academics. Surely that analysis of the law in the English courts is plainly wrong. From first principles there's an inherent flaw in the logic there. I pointed out the logical steps in my initial post in this thread so I don't see any need to go through them again.

Just because the Irish courts sometimes follow English decisions doesn't mean that they will do so in every case. This is a perfect example of where the Irish SC shouldn't, in my view, follow the Enlgish courts. The effect would be that a devious person could start a fight with someone s/he wants dead and then kill them if they overreact. Then, what of provocation? Was the deceased not provoked?

If the Irish courts do follow the flawed English decision, then in this case, the conviction should be upheld on the grounds that there's no way you could say that it's a disproportionate level of aggression for a 68-year-old man to approach a 20-year-old burglar armed.

civdef

Between this case, the upcoming Nally retrial and the forthcoming General Election, I can see the issue of use of force by householders against burglars getting a lot of attention in the next few months.

Sparks

civdef wrote:

Is it too much to hope for that someone breaks into this git's house, cleans it out and kicks the crap out of him in the process? It's an immoral, unjust argument to make to try toget some filthy dirtbag off for killing a man who was rightly defending himself and his property.

Is it not an ethical/moral/legal obligation for the defence counsel to make the best argument they can for their client?

Between this case, the upcoming Nally retrial and the forthcoming General Election, I can see the issue of use of force by householders against burglars getting a lot of attention in the next few months.

And that'll be a neat little gathering of some extraordinarily unpleasant opinions. It's like the aftermath of the Martin case in the UK all over again

civdef

Is it not an ethical/moral/legal obligation for the defence counsel to make the best argument they can for their client?

A decent human would walk away from a client like that one.

And that'll be a neat little gathering of some extraordinarily unpleasant opinions.

If the case mentioned at the start of this thread aquits the piece of excrement involved, reform is badly needed.

Gurgle

civdef wrote:

A decent human would walk away from a client like that one.

But this is a lawyer.

Thirdfox

Gurgle wrote:

But this is a lawyer.

That hurts.

Also I had thought that lawyers don't fully know a client's case before taking it on and once engaged are morally obliged to see it through (as leaving your client during a trial makes him/her look very bad in the eyes of the jury).

Remember our system protects the innocent (and sometimes the guilty too unfortunately).

hullaballoo

Civdef, would you mind taking it easy on the old libellous comments there please. Until a court has proven that someone's a "filthy dirtbag" or "piece of excrement", I don't want to see anyone making comments like that.

civdef

I think the previous history of the individual in person settles the issue quite tidily tbh, but point taken.

I shall refer to him from now on as a violent, dishonest, thieving, criminal, morally reprehensible recidivist. Hope he won't sue me (or Boards.ie) for libel over that one.

hullaballoo

Nice attitude, it's good to see you reacted so reasonably to what is just a reasonable request to maintain civility. I don't think he's going to sue boards.ie or you over anything, but that isn't the point.

Gobán Saor

civdef wrote:

...a violent, dishonest, thieving, criminal, morally reprehensible recidivist...

I love it!:D

Our man in Havana

recidivist

I need to look that one up.

recidivist n. a repeat criminal offender, convicted of a crime after having been previously convicted. (See: habitual criminal)

digweed

Thirdfox wrote:

That hurts.

Also I had thought that lawyers don't fully know a client's case before taking it on and once engaged are morally obliged to see it through (as leaving your client during a trial makes him/her look very bad in the eyes of the jury).

Remember our system protects the innocent (and sometimes the guilty too unfortunately).

i think they can ask to be removed from their clients case, and (i'm very open to correction on this one) but if their client tells them that they are guilty then they have to enter a guilty plea, otherwise they have to fight their corner for them. i know its terrible that he might get off but if you were to look at it from you're viewpoint and you were brought before a court innocent, you would hope that the sysetm would work in your favour.

is it the french system that you are guilty until proven innocent???

D.

dermot_sheehan

A few points:
The code of conduct for the bar requires that a barrister must take a brief that is given to him, he can not pick or choice. A barrister must give a criminal brief priority over all others and must defend his client's interests to the best of his abilities with the proviso that he may not lie or mislead the court.

Gurgle

digweed wrote:

is it the french system that you are guilty until proven innocent???

I believe thats China.
Or at least its China as portrayed in Hollywood which may or may not be based on an actual country/legal system.

Thirdfox

I'm studying law in China right now... the legal system has serious problems yes but academics here (and officials) realise this and are trying to deal with them. (well academics moreso than the governmental officials it would seem).

Presumption of innocence is not actually written down anywhere but I understand that it is applied in most cases...

civdef

I hear on the news this morning that the Law Reform Commission reckon the issue of use of force in defence of life or proerty needs clarification.

Gurgle

Thirdfox wrote:

Presumption of innocence is not actually written down anywhere but I understand that it is applied in most cases...

Maybe its just Iraq then.

Thirdfox

And bits of America

Habeas Corpus where art thou???

Victor

http://www.rte.ie/news/2006/1121/law.html

DickDastardly

The Tánaiste and Minister for Justice, Michael McDowell, has confirmed that he intends to change the law to allow home owners defend themselves from intruders as recommended by the Law Reform Commission.

Does anyone see this as a pretty right-wing policy shift regarding self-defence and attitude to firearms for Ireland? McDowell stated that he didn't want to allow it become a "license to kill" and said that homeowners needed to "act responsibly". Surely there's a lot of room for interpretation there?

I imagine this kind of legislation would proliferate a rise in gun culture and ownership, which would in turn increase the number of gun-related crimes. As one of the posters said above, this issue is indeed becoming a political football being exploited here by McDowell.

Is this right-wing policy change to self-defense a good or bad thing? One need only look to America to see how this kind of policy proliferates for the worse.

Sparks

From the Law Review:

CHAPTER 8 PROVISIONAL RECOMMENDATIONS
8.01 The Commission provisionally recommends that a minimum threshold requirement should be imposed on the use of private lethal defensive force. [Paragraph 2.53]

8.02 The Commission provisionally recommends that lethal defensive force may not be used in defence of personal property. However, it does not recommend that any upper limit be placed on the force that may be used to defend one’s dwelling house. [Paragraph 2.94]

8.03 The Commission provisionally recommends that a prison guard should be entitled to assume that every escaping prisoner is dangerous and consequently resort to lethal force, where all the other requirements for legitimate defence are met, unless he or she is aware that the escapee is not in fact dangerous. [Paragraph 2.207]

8.04 The Commission provisionally recommends that the power to use lethal defensive force in effecting arrests should be restricted to law enforcement officers. [Paragraph 2.213]

8.05 The Commission provisionally recommends that the use of lethal force in effecting the arrest of a fleeing suspect should be prohibited except where the arrestee is suspected of an “arrestable offence” or it is necessary to protect a person from an imminent threat of death or serious injury. [Paragraph 2.232]

8.06 The Commission provisionally recommends that lethal force should be prohibited to prevent crimes other than those which are imminent and cause death or serious injury. [Paragraph 2.299]

8.07 The Commission provisionally recommends that the power to use lethal force in preventing crimes should be restricted to law enforcement officers. Instead, it is more appropriate for individuals who use lethal force to protect others to be dealt with under the law on private defence. [Paragraph 2.308]

8.08 The Commission provisionally recommends that the imminence requirement should be retained. [Paragraph 3.112]

8.09 The Commission provisionally recommends that unlawful arrests should be dealt with under the general rubric of self defence and should not be given special treatment. Therefore, a person should be entitled to resist an unlawful arrest which the person realises is unlawful or a lawful arrest which the arrestee believes and a reasonable person would believe due to a mistake is unlawful. [Paragraph 4.106]

8.10 The Commission provisionally recommends that the lack of capacity cases and the mistaken attacker cases be subject to the unlawfulness rule and is committed to conceptually reconciling these cases with the unlawfulness requirement rather than providing for them in specific exceptions. The Commission invites submissions on how this may best be achieved. [Paragraph 4.174]

8.11 The Commission provisionally recommends that innocent defenders may only resort to lethal defensive force in response to a threat where they are unable to retreat with complete safety from the threat. Public defenders should not be required to retreat from a threat in any instance. [Paragraph 5.74]

8.12 The Commission provisionally recommends that a defender should not be required to retreat from an attack in their dwelling home even if they could do so with complete safety. In this regard, all occupants of dwelling houses should be entitled to the benefit of this doctrine, it is irrelevant if the defender is attacked by an intruder or non-intruder and the “dwelling house” should be defined as including the curtillage or the area immediately surrounding the home. [Paragraph 5.133]

8.13 The Commission provisionally recommends that a person, who has provoked or initiated the conflict which is threatening their safety, is only entitled to use lethal defensive force in the face of a disproportionate response from the original victim and where they are unable to retreat in complete safety. [Paragraph 5.221]

8.14 The Commission provisionally recommends that lethal defensive force should be prohibited where it is grossly disproportionate to the threat for which the defence is required. [Paragraph 6.56]

8.15 Accordingly, the Commission provisionally recommends the adoption of both the proportionality rule and the threshold test. [Paragraph 6.56]

8.16 The Commission provisionally recommends that the factors relevant to the assessment of proportionality should be clearly and concisely set down in the legislation. [Paragraph 6.83]

8.17 The Commission provisionally recommends the adoption of the dual model of reform, which would comprise both separate justification and excused based defences. [Paragraph 7.225]

It looks like they're recommending that the existing law simply be restated explicitly instead of actually changing anything. With the possible exception (I think) of the use of force in resisting an unlawful arrest.

civdef

Judgement made in this case:

Man loses murder conviction appeal

21 December 2006 12:52
The Court of Criminal Appeal has rejected an appeal by a Waterford man against his conviction for the murder of a 68-year-old horsebreeder at his home in Waterford last year.

20-year-old Anthony Barnes was convicted of the murder of Richard Forristal and sentenced to life imprisonment in March of this year.

He had pleaded guilty to trespass and burglary. He said he had been defending himself against a knife attack by Mr Forristal when he stabbed him in the chest a number of times.

In a significant judgment dealing with the rights of householders and burglars, the Court of Criminal Appeal said the killing of a burglar by a householder simply for being a burglar is not permitted. But it said burglary was an act of aggression, an attack on the personal rights of the citizen and a violation of him or her.

Mr Justice Hardiman said a person who violates a home is not liable to be killed simply for being a burglar, but he may expect to be lawfully met with retaliatory force. He said there was no legal obligation on the householder to flee or retreat from the dwelling house.

The judge said it was impossible to lay down a formula to calculate the degree of force a householder could use. But he said it would not be just to lay down a wholly objective standard to be judged by the standards of a reasonable person. He said a householder would have been deliberately subjected to an experience which would shock even the most robust and might make many irrational with terror.