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.”

Judicial Diversity: Strategies for Change

Posted below are details of an Evening Seminar on judicial diversity organised by the Irish Council for Civil Liberties (ICCL) and the Centre for Criminal Justice and Human Rights, Law Faculty, University College Cork (UCC). Please note the seminar will take place in Dublin.

Keynote Speaker:
Baroness Usha Prashar CBE, Chairman, Judicial Appointments Commission, United Kingdom

6 – 8pm, Thursday, 18 September 2008

Venue: The Atrium, Law Library, Distillery Building, Church Street, Dublin 7

Chair: Justice Bryan McMahon, Judge of the High Court

Judicial Diversity: Strategies for Change

The Irish Council for Civil Liberties (ICCL) and the Centre for Criminal Justice and Human Rights at University College Cork are organising an evening seminar on judicial diversity. The purpose of the event is to open up a discussion about the possibilities of achieving greater judicial diversity in Ireland.

This seminar is aimed at members of the judiciary, practitioners, parliamentarians, policy makers, academics, non-governmental organisations (NGOs), students and anyone interested in judicial diversity.

The event is scheduled to take place from 6-8pm on Thursday, 18 September 2008 in the Atrium, the Law Library, Distillery Building, Church Street, Dublin 7.

Baroness Usha Prahsar CBE, Chair of the United Kingdom’s Judicial Appointments Commission is the keynote speaker for this event. Other speakers include: Professor Kate Malleson, School of Law, Queen Mary University of London and Dermot Feenan, School of Law, University of Ulster

If you are interested in attending this event please RSVP to Joanne Garvey, ICCL Administrator by 5pm on Monday, 15 September 2008, Tel: (01) 799 4504 or Email:

The Speakers

Baroness Usha Prashar CBE is Chairman of the United Kingdom’s Judicial Appointments Commission, a Governor of the Ditchley Foundation, a non-executive Director of ITV, Trustee of Cumberland Lodge, non-executive Director of the Cabinet Office, a Governor of Ashridge College, President of the Community Foundation Network, President of UK Council for International Student Affairs and a Patron, The Runnymede Trust.

Her previous posts include First Civil Service Commissioner, Chairman of the Royal Commonwealth Society, Chancellor of De Montfort University, Executive Chairman of the Parole Board for England and Wales, Director of the National Council for Voluntary Organisations, Chairman of the National Literacy Trust and Director of the Runnymede Trust. She sits in the House of Lords as a cross-bencher.

Professor Kate Malleson joined the Queens Mary School of Law in 2005. Before coming to QM she taught at the London School of Economics. Her main research interests are the judiciary, the legal system and the constitution. She is currently working with colleagues at UCL on a three-year AHRC funded project on the selection process of the international judiciary. The project will identify and analyse the criteria and procedures by which judges are nominated and elected to the international courts.

She has a particular interest in the current constitutional reforms in the UK and acted as a specialist adviser to the House of Commons Constitutional Affairs Select Committee assisting it in its review of the provisions of the Constitutional Reform Bill. She also gave oral evidence to the House of Lords select committee on the Bill and last year was asked by the House of Lords Constitution Committee to provide a written report on the effect of the Constitutional Reform Act 2005 on the relationship between the judiciary, Parliament and the executive. In 2006-7 she chaired a JUSTICE committee on ‘A Bill of Rights for Britain’ which reviewed the problematic legal and political issues involved in assessing whether or not there is a case for creating a specific British bill of rights.

Dermot Feenan is a Lecturer in the Law School, University of Ulster. He was Co-chair of the International Research Collaborative on Gender and Judging, 2006-2007, set up under the auspices of the Law and Society Association, which hosted sessions at the Society’s Annual Meeting in Baltimore, 2006, and its joint meeting in Berlin 2007 with several other socio-legal associations worldwide. He has held visiting positions at a number of universities, including: Cornell, Keele, Melbourne, Monash, Oxford, and Trinity College, Dublin.

He is currently completing a paper for publication on the topic of women’s experiences as judges, as revealed in his research on Northern Ireland and as reported in the literature, in order to enhance knowledge and understanding of law, legal authority and diversity. He is also designing a research project on women judges’ experiences in three common-law countries, which will lead to further publication.

Shadow report highlights concerns about Ireland’s compliance with UN human rights standards

The Irish Council for Civil Liberties, the Free Legal Advice Centre and the Irish Penal Reform Trust today published a Shadow Report on Ireland’s compliance with the International Protocol on Civil and Political Rights. The report was launched by Justice Michael Kirby of the Australian High Court is timed to coincide with the third periodic report by Ireland to the UN Human Rights Committee. In addition to the report of the member state on its human rights situation the procedure also allows NGOs and national human rights institutions to present their own views on the national human rights situation. For NGOs, the opportunity to present shadow reports to the committee amounts to a key opportunity to voice their human rights concerns and criticisms at an international level.

The Shadow Report to the Third Periodic Report of Ireland under the International Covenant on Civil and Political Rights highlights what the organisations say are significant gaps in the country’s human rights performance. Particular attention is drawn to the following issues:

  • Collusion regarding extraordinary rendition of prisoners by the CIA, the government is criticised for its failure to carry out searches of flights suspected of carrying unlawful prisoners
  • The failure to provide for full equality for all families, with legal status only being accorded to those families based on marriage ignoring non-traditional families
  • Ireland’s policy on abortion, in particular the Government’s failure to protect the health of women by not introducing legislation aimed at clarifying the legal implications of the various constitutional referendums is the cause of concern
  • Poor conditions of detention in prisons, including the continued use of slopping-out in four prisons, increasing overcrowding in Mountjoy and the Dochas Centre, and the fear that a new prison at Thornton Hall will result in an increase in the prison population
  • The persistence of imprisonment for debt, reform of the law is called for to amend the law on contempt
  • The absence of universal child benefit, attention is drawn to the fact that the ‘habitual residence’ condition in the child benefit system has a significant negative impact on children of asylum seekers.

The report was presented to the Human Rights Committee whose members raised questions regarding abortion, imprisonment and sentencing, immigration, religious control of education, and ethnicity and travellers.

Justice for Victims initiative poses a challenge to the law on double jeopardy

The Minister for Justice announced yesterday a ‘major new’ Justice for Victims initiative. The announcement caused a furore in the Dáil because the press conference clashed with a scheduled debate on the renewal of the Offences against the State Act. Fine Gael claimed that the Minister was trying to ‘dodge’ the debate and was setting out a victims initiative at the same time as planning to reject its proposed legislation on victims due for debate next week. The timing of the announcement was clearly inadvisable and the opposition repeatedly accused the Minister of “arrogance” and “contempt for the house”.

The initiative, however, raises some fundamental concerns regarding the substance of the measures. The Minister announced that there would be legislation introduced in 2009 which would:
Reform the victim impact statement mechanism in order to give victim status to next of kin in homicide cases.
Introduce new mechanisms to deal with an acquittal where compelling evidence of guilt emerges after the acquittal
Allow cases to be re-opened where an acquittal arises from an error in law by a Judge.
Provide for new prosecutions where there is evidence that the original acquittal was tainted by interference with the trial process.
Introduce measures to restrict unjustified and vexatious imputations at trial against the character of a deceased or incapacitated victim or witness.

The Irish Council for Civil Liberties immediately responded to the initiative stating that victims rights would be not be strengthened by removing the rights of the accused, noting that it recently proposed a Charter of Rights for the Victims of Crime, based on human rights principles.

The government’s provisions relating to the re-opening of cases could undermine the fundamental principle of double jeopardy preventing a person being tried for the same crime twice. The double jeopardy principle is meant to ensure that prosecution is not used by government to harass or oppress people and ensure finality in the criminal justice process. It is enshrined in many human rights documents including the UN International Covenant on Civil and Political Rights (Article 14(7)) and the Seventh Protocol of the European Convention on Human Rights which states

“No one shall be liable for be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.”

This provision may cause problems for the government’s proposals as Ireland has ratified the protocol and will at the very least need to be taken into account in the drafting of the provisions.