lethal force to protect home?

NoQuarter

just covering this subject in college and wondering what all your opinions are on the subject? i have to say id be against it, ya cant take the law into your own hands in my opinion! what was the case on it a few years back??

Lockstep

What about having the following etched onto your windows and doors:
"By entering into this house uninvited, I am allowing myself to be subject to whatever force the owner deems necessary in defence of their home"


Lethal force as a rule=wrong, but there's circumstances.

Tom Young

One would be entitled to defend ones property to some extent. Recent and relevant cases cited below. I am also interested in this area given the 2007 Nally case.

Statute is of certain interest also:

Section 18 [also Ss. 20 - 23] of the Non Fatal Offences Against the Person Act 1997.

Cases:

R. v Wang [2005] 1 W.L.R. 661
Joshua v The Queen [1955] A.C. 121
DPP v Mark Davis [1993] 2 I.R. 1
Chandler v DPP [1964] A.C. 763
DPP v Stonehouse [1978] A.C. 55
DPP v. Nally http://www.courts.ie/80256F2B00356A6B/0/C11AC1AFE2F4AB1D80257205003CB715?Open&Highlight=0,Nally,~language_en~

NoQuarter

kickoutthejams wrote: »

"By entering into this house uninvited, I am allowing myself to be subject to whatever force the owner deems necessary in defence of their home"
.

Wouldnt that be similar to making a contract about something illegal which immediately makes it void!?

Nally, thats the one! thanks tom.

its such a tough position, i suppose once theres a clear distinction of the term "lethal", perhaps similar force should be attempted to be matched with the burglars, but as kickoutthejeans said a lot would be circumstancial!

johnnyskeleton

My opinion is that the law is perfectly stated as is - a person is allowed to use such force as they subjectively believe is necessary, having regard to the objective circumstances of the case and the reasonableness of the belief. The determination of this is the preserve of the jury, and, even if I would have convicted a certain person on a certain unusual set of facts, the jury is king in these matters.


DPP v Anthony Barnes is worth a look too.

I think there is a massive difference between the lethal force which cannot reasonably be predicted e.g. a blow to the head of an egg shell skull and that which can be e.g. taking a gun and shooting someone in the back. In that regard, the fact that the force actually turns out to be lethal is not as significant as the intetion or recklessness as to whether the force is lethal.

dK1NG

Hardiman's judgment in Barnes is well worth a read. Cf the ICCL website, who have done a lot of work on this area recently.

If its for college, then it might be worth taking a look at the recent Bill designed to allow lethal force, but which has now been discarded. There was an article about it in the Gazette and ICLJ earlier in the year.

UrbanFox

Although slightly off topic the English Court of Appeal decision in Revill -v- Newbery (1996) 2 WLR 239 is worth a look to see what can happen on the civil side of such a domestic encounter.

NoQuarter

done some more research on the topic and found these two links for anyone interested :

http://scripts.ireland.com/newspaper/breaking/breakingnewspoll.cfm?pollid=2567&pageno=5

http://www.freerepublic.com/focus/f-news/1757474/posts

EdgarAllenPoo

Yep when in doubt turn to the net to do your work for you. You seem to be having more luck than me. I may just stand up, say titty sprinkles or something and walk out.

johnnyskeleton

king-stew wrote: »

done some more research on the topic and found these two links for anyone interested :

http://scripts.ireland.com/newspaper/breaking/breakingnewspoll.cfm?pollid=2567&pageno=5

http://www.freerepublic.com/focus/f-news/1757474/posts

I think it's really funny that people have this almost universal misconception of what the law is. They think there are hard and fast rules. There are not. It is a basic principle, and it is for the jury to decide what is reasonable in the circumstances.

Asking people should homeonwners be allowed to defend themselves is essentially asking should they obey the law?

There were some great, outraged articles in the paper around the time of the second nally case, although they didn't seem to realise that there was no change in the law.

There was even a laughable bill called the home defence bill, until someone politetly informed the politician (i think it was an opposition seanador) that his proposal didn't change the law one whit.

rubadub

kickoutthejams wrote: »

What about having the following etched onto your windows and doors:
"By entering into this house uninvited, I am allowing myself to be subject to whatever force the owner deems necessary in defence of their home"

I have wondered about the legality of certain signage, and also if you have to maintain your house to a certain safety level in case a trespasser injures themselves.

You hear of stories of burglars injuring themselves and trying to sue the houseowner. Do you really have to keep a safe house to prevent this? and conversely are you allowed to boobytrap your house? Or would you have to have adequate signage. -People have signs saying "beware of the dog", if a burglar is bit can he sue? must the sign be adequate size, font, colour etc, similar to industrial warning signage.

I was thinking it would be a good idea, even if it was totally false. A sort of certificate in the window with stamps on it "these premises are protected with concealed mechanisms designed to inflict serious injury or death, trespassers enter at their own risk, all lethal devices confom with blah-blah Act 2005 section 4 etc, under section 8 the householder cannot be held responsible for any deaths or injury occuring from illegal trespassing.

Might be enough to make them just climb over the wall and rob your neighbour instead.

Tom Young

Covered under Occupiers Liability Act - 1995, Section 4.

4.—(1) In respect of a danger existing on premises, an occupier owes towards a recreational user of the premises or a trespasser thereon ("the person") a duty—

( a ) not to injure the person or damage the property of the person intentionally, and

( b ) not to act with reckless disregard for the person or the property of the person,

except in so far as the occupier extends the duty in accordance with section 5.

(2) In determining whether or not an occupier has so acted with reckless disregard, regard shall be had to all the circumstances of the case, including—

( a ) whether the occupier knew or had reasonable grounds for believing that a danger existed on the premises;

( b ) whether the occupier knew or had reasonable grounds for believing that the person and, in the case of damage, property of the person, was or was likely to be on the premises;

( c ) whether the occupier knew or had reasonable grounds for believing that the person or property of the person was in, or was likely to be in, the vicinity of the place where the danger existed;

( d ) whether the danger was one against which, in all the circumstances, the occupier might reasonably be expected to provide protection for the person and property of the person;

( e ) the burden on the occupier of eliminating the danger or of protecting the person and property of the person from the danger, taking into account the difficulty, expense or impracticability, having regard to the character of the premises and the degree of the danger, of so doing;

( f ) the character of the premises including, in relation to premises of such a character as to be likely to be used for recreational activity, the desirability of maintaining the tradition of open access to premises of such a character for such an activity;

( g ) the conduct of the person, and the care which he or she may reasonably be expected to take for his or her own safety, while on the premises, having regard to the extent of his or her knowledge thereof;

( h ) the nature of any warning given by the occupier or another person of the danger; and

( i ) whether or not the person was on the premises in the company of another person and, if so, the extent of the supervision and control the latter person might reasonably be expected to exercise over the other's activities.

(3) ( a ) Where a person enters onto premises for the purpose of committing an offence or, while present thereon, commits an offence, the occupier shall not be liable for a breach of the duty imposed by subsection (1) (b) unless a court determines otherwise in the interests of justice.

( b ) In paragraph (a) "offence" includes an attempted offence.

(4) Notwithstanding subsection (1), where a structure on premises is or has been provided for use primarily by recreational users, the occupier shall owe a duty towards such users in respect of such a structure to take reasonable care to maintain the structure in a safe condition:

Provided that, where a stile, gate, footbridge or other similar structure on premises is or has been provided not for use primarily by recreational users, the occupier's duty towards a recreational user thereof in respect of such structure shall not be extended by virtue of this subsection.

Defintion of a recreational user:

"recreational user" means an entrant who, with or without the occupier's permission or at the occupier's implied invitation, is present on premises without a charge (other than a reasonable charge in respect of the cost of providing vehicle parking facilities) being imposed for the purpose of engaging in a recreational activity, including an entrant admitted without charge to a national monument pursuant to section 16 (1) of the National Monuments Act, 1930 , but not including an entrant who is so present and is—

( a ) a member of the occupier's family who is ordinarily resident on the premises,

( b ) an entrant who is present at the express invitation of the occupier or such a member, or

( c ) an entrant who is present with the permission of the occupier or such a member for social reasons connected with the occupier or such a member;

"trespasser" means an entrant other than a recreational user or visitor;

So I think the answer your looking for is no, but it would certainly mitigate risk if you had signage in place.