News Analysis

Tuesday 16 September 2014

Right to defend your home should not be seen as 'licence to kill'

A Fine Gael bill reignites the debate about how far we can go to protect ourselves from intruders, writes Emer O'Kelly

Published 20/09/2009 | 00:00

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Do you think that you should have the right to batter to death a burglar in your house? What if he's wielding a blood-filled syringe that you suspect is contaminated by the HIV virus, and he has his other hand on the door that leads to the room where your two small children are sleeping? Fine Gael, according to its justice spokesman Charlie Flanagan, wants to give you that right.

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The party is about to introduce a private members bill in the Dail, and Mr Flanagan is hoping that the Government will see fit to support it. It's already been rejected by the government, so it will fail. Therefore, the current law that requires a householder to retreat from an intruder in the home will stand. Many people are outraged by that requirement, and point to incidents like the tragic case of Paddy Barry, grandfather of the entertainer Keith Barry, who lies dangerously ill in hospital after being beaten by a burglar in his own home. He may very well have been feisty enough to take on that burglar, were it not for the law.

But beat the intruder to death, or otherwise "terminate" him? Because, according to Charlie Flanagan, Fine Gael wants the law to presume that any force used in defence of the home is reasonable.

The provisions of the Fine Gael bill would remove the requirement for the householder to retreat from a burglar, and would deny a burglar the right to sue the householder for any injuries received while on the premises. In other words, if the burglar makes a run for it and falls down the stairs, he can't sue for damages for his broken leg. At present, he is perfectly entitled to. Under the proposals, even if the householder pushed him down the stairs and he broke his leg, he still wouldn't be able to sue.

Which most people would see as entirely right and proper.

I know in my heart I wouldn't have the guts to swing a poker at an intruder who presumably would be capable of returning any violence with interest. Although I know a woman in her 80s who confronted a burglar on the stairs at three in the morning and repeatedly swung a golf club at him, berating him in stentorian tones as "a young guttersnipe who should be ashamed of himself for terrorising an old woman". He fled, howling, "Ah missus, ah missus!"

Then she poured herself a congratulatory sherry. She's now 97, and still to the good.

But she wasn't within her rights, as she has a shrewd aim and connected with several vicious swipes (more power to her). Under Charlie Flanagan's bill, she'd have been within her rights.

A lot of people wouldn't have that kind of courage, at least on their own behalf. Protecting children is another matter. I think if I felt that a small child was under threat thanks to the invasion of my or any other household by a burglar, I would be capable of using violence. And if a child was actually in danger, for instance being physically threatened by a burglar, I imagine I would probably see red, and be more than capable of inflicting severe injury. Courage would have nothing to do with it: it would be animal instinct to protect the young. I wouldn't start thinking rationally about "reasonable force". And I suspect that I might continue hitting in a blind rage.

Apparently, a circumstance like that would still count as reasonable force under the Fine Gael bill. And I'm not sure it should.

If blind, protective rage takes over and you injure an intruder so badly that he later dies from his injuries, have you the right to walk free? I don't think so, not if you've been determined to hurt him, and are not worried whether or not you kill him. Because that's manslaughter, and should be treated as such, even though one would hope that the courts would impose the lightest possible sentence for that crime in such circumstances.

In the US, where many householders keep guns for "personal protection", the culture is to shoot first, and shoot to kill.

And the law protects you if you kill an intruder. The theory is that you should kill rather than injure the intruder, because if he merely goes to jail, then he'll come after you when he's released.

It's logical, but brutally cold and unnerving. But then, America has an ingrained gun culture which we still, thank heaven, don't have here.

Of course, the courts here have interpreted the current laws very loosely in some cases. Padraig Nally, the elderly farmer who lived in terror after many months of intimidation by the violent John 'Frog' Ward, a member of the travelling community, shot Mr Ward, who had come into his yard looking for him.

When Ward left, Nally, who had been suffering from severe depression for a long time, followed him into the public lane and shot him in the back. He was sentenced for manslaughter, but was acquitted on retrial. He had not "retreated" from the intruder as the current law requires; in fact, he deliberately followed him out of his premises. But he was set free.

I would fear that there might be many more such cases if the Fine Gael Bill becomes law.

The majority of citizens are in a healthy state of mind and do not live in permanent terror. If they have the right to protect themselves and their families within their own homes, they are unlikely to abuse that right.

Knocking an intruder armed with a knife down the stairs, for instance, if he approaches a child's room, or reaching for something to knock him out with a crack on the head, could hardly be considered unreasonable force.

But if any force used against an intruder is to be deemed "reasonable", we will have a charter for unchecked lethal violence.

And there are a lot of people who are inclined to violence at the best of times (think of road rage). Telling them that they can be as violent as they like inside the walls of their own homes, even against an intruder, is imposing a sea change in a culture which is already far too accepting of violence.

Let's keep our pokers for the fire, and not regard them as a potentially handy weapon.

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