Reforming criminal defences – the LRC recommendations on Defensive Force

This blog post was contributed by Dr Catherine O’Sullivan, member of the CCJHR.
The Report on Defences in Criminal Law launched by the Law Reform Commission (LRC) in December 2009 has received quite a bit of attention due to recommendations made in relation to the use of defensive force to protect the home. In particular, the LRC’s recommendation that there be no upper limit on the amount of force that can be legally used to defend the home has been criticised for being the equivalent of a “have a go charter” by the Irish Council on Civil Liberties (ICCL).
However, while the ICCL is correct to be concerned about the scope of the LRC’s recommendations, it is perhaps not fair to dismiss the proposals in their entirety. Many of the recommendations regarding the use of lethal force in a home invasion context are sensible and a careful read of the relevant sections in chapter 2 of the Report shows that the LRC situated them within their recommendations for the defence of legitimate defence as a whole. Therefore while lethal force may be legally permitted to defend the home under section 3 of their proposed Criminal Law (Defences) Bill 2009 – proposals that the Minister for Justice has promised to table before the Oireachtas in 2010 in his speech at the launch of the Report – the use of that force must meet to varying degrees the threshold, imminence, necessity and proportionality requirements that the LRC also recommended as integral to the definition of legitimate defence as a whole.
In order to understand the ambit of the LRC’s recommendations regarding lethal defensive force in the home, it is first necessary to examine the LRC’s recommendations regarding lethal defensive force generally. The primary reason that the LRC recommended that these four requirements be part of the general defence of legitimate defence was that under the law on defensive force as currently enshrined in Ireland either in legislative form (for non-fatal offences) or in common law (for cases in which lethal force is used), a vague standard of reasonableness is set. Under this reasonableness test, the degree of the threat faced/threshold, imminence, necessity and proportionality are merely factors which are taken into consideration in order to determine if the accused’s response was reasonable. This, the LRC, felt offended against the legality principle – the idea that citizens need clear guidance as to what they are legally permitted to do and, more importantly, not to do in given situations (paras 2.24-2.26). As such they recommended that lethal force should only be permitted where the threat faced reached a certain threshold (the accused must have faced death, serious injury, rape, aggravated sexual assault or false imprisonment by force), where the threat was imminent (a concept looser than that of immediacy which accordingly allows for the use of pre-emptive force), where the circumstances necessitated the use of force (i.e. safe retreat was not possible and that, if the situation was self-induced, that the response of the original victim was disproportionate) and that the use of force was not grossly disproportionate in light of the threat faced. These requirements are not alternatives. The LRC recommends that all four should be present before someone could lay claim to the defence of legitimate defence in a case involving lethal force.
Under this new definition of the defence the concept of reasonableness is not entirely abolished. In section 2(7) of the proposed Bill 2009, the LRC suggests that regard should be had by the trier of fact to the reasonableness of the accused’s beliefs in his/her determination that the threat was imminent, that the use of force was necessary and that the amount of force s/he used was proportionate. As such, the accused’s honest and reasonable perception of the extent of the threat s/he faced where s/he used lethal force is irrelevant – an entirely objective test applies to the threshold requirement. The implementation of an objective test for this criterion was justified by the LRC with reference to the legality principle (paras 2.44-2.46). Its exclusion from one of four requirements however is arguably inconsistent – the same factors that a jury will consider to determine whether the minimum threshold requirement was met will also arise in their consideration of whether the use of force was proportionate – and may make the application of the four requirements more difficult for jurors to apply.
The threshold, imminence, necessity and proportionality requirements are also relevant to the use of lethal defensive force within the home, although with some modifications. For example is it argued by the LRC that there should not be a safe retreat obligation imposed in a home invasion context given the special status of the home constitutionally (Articles 40.3 and 40.5), physically and emotionally. This recommendation to give legislative status to the Castle Doctrine is in effect the implementation of the Court of Criminal Appeal’s decision in People (DPP) v. Barnes. However there is no explanation offered for the jump from the LRC’s threshold recommendation in para. 2.84 that lethal defensive force may be used to protect “a person’s own safety, the safety of another or the safety of the person’s property” in the context of home invasion to the text proposed in section 3 of the 2009 Bill:

(2) Notwithstanding section 2(2), a person is justified in using lethal force in his or her dwelling, or in the vicinity of the dwelling, by way of defence to the threat of, or use of, unlawful force by another person, but only in order to repel the threat of
(a) death or serious injury,
(b) rape or aggravated sexual assault,
(c) false imprisonment by force,
(d) entry to or occupation of the dwelling (including forcible entry or occupation) that is not authorised by or in accordance with law, or
(e) damage to or destruction of the dwelling.

The offending sub-section is 3(2)(d). Not only is this text broader than the LRC’s recommendation in para. 2.84 but it is also possibly unconstitutional in its range. The extension of the right to use lethal force in a case where the burglar simply enters the property is at odds with the LRC’s statement in para. 2.83 that “[b]y putting these safeguards in place … the constitutional rights to life of both the householder and the burglar or intruder are given protection to an appropriate level, as identified … in the Barnes case … .” However Hamilton J in Barnes was very clear that killing a burglar simply because he was a burglar would be contrary to Article 40.3.1 (the burglar’s right to life). He held: “… a person cannot lawfully lose his life simply because he trespasses in the dwellinghouse of another with intent to steal. In as much as the State itself will not exact the forfeiture of his life for doing so, it is ridiculous to suggest that a private citizen, however outraged, may deliberately kill him simply for being a burgl
ar.” Section 3(2)(d) clearly offends against this constitutional consideration. It is thought that it was this aspect of the Bill 2009 that the ICCL was referring to when it noted that the Bill would be “unlikely to pass constitutional muster.”