Can I shoot over the head of possible intruders?
Our resident solicitor Karen Walsh tackles this issue
Last week I came home from town and found a jeep parked in the yard. The driver and another man were having a look around my yard until I challenged them and they said they were just waiting for someone as they had called in to ask directions. I don’t believe them and think they were checking the place out and might come back.
The farmyard doesn’t have that much valuable stuff, a chain saw, an angle grinder, cattle trailer, two (old) tractors – the usual farm equipment. The main shed has a padlock which is locked at night.
I have a gun and that’s kept in the house – if I find them on my property am I within my rights to shoot over their heads to warn them?
Dear reader, rural crime is an issue that has been on the rise in Ireland in recent years and is a genuine fear for persons living in rural areas and the issue of trespassers or suspected trespassers being on somebody’s land is a real problem for landowners.
The criminal offence of trespass is committed where a person wilfully trespasses on land and refuses to leave after a warning to leave is given and Sections 11 and 13 of the Criminal Justice (Public Order) Act 1994 set out the offences. In summary it is an offence for a person, without lawful excuse, to trespass on any building or on the curtilage of the building in such manner as to cause, or is likely to cause, fear in another person.
So, in the event that a trespass occurs and you ask somebody to leave the land or the curtilage, and they do not, then the offence is being committed. It is advisable as to when you suspect a person has entered your dwelling or lands to trespass or commit an offence to ask them to leave and perhaps indicate that you will call the Gardaí immediately.
If it is a case that such an offence has been committed, then that is a matter for the Gardaí to investigate. You should take a detailed description of the parties, the vehicle they are travelling in, including the registration number, and report the incident to the Gardaí. It is also important to say that a victim of trespass cannot take the law into their own hands to deal with what they deem as trespassers.
In relation to the security of the premises and property, as a practical solution, there are many measures that may be taken that could at least prevent or deter such persons from entering upon your land. Perhaps investment in an alarm, electronic gates or barriers, security cameras, security lighting, signage and perhaps a guard dog are all measures that can be made at different levels of expense but can serve to at least deter potential trespassers from entering the land.
It may be an idea to engage a security firm to assess the risks in relation to your own property and suggest a series of small or medium investments in tightening measures that may assist in that regard. There may be an additional benefit of a reduction in home insurance and farm insurance payable in the event of such measures being taken also.
Then there is the issue of taking the law into one’s own hands. You should bear in mind that it is an offence to have possession of a firearm with intent to endanger life and the courts have found that pointing a loaded gun at a person establishes the required intent for the offence. Pointing a loaded gun in the direction of somebody and discharging it could result in injuring or killing somebody and would amount to an offence in of itself endangering the life of another. Therefore, it is not at all advisable to do so.
The law in relation to the defence of one’s home changed by way of the Criminal Law (Defence and the Dwellling) Act 2011 and in this Act, the legislature recognised that a person’s dwelling has a constitutional status and a person may use reasonable force to defend themselves from an intruder who was unlawfully in their dwelling to protect property or to make a lawful arrest.
The amendment to the law explicitly provides that a person is not under an obligation to retreat from their home during an intrusion. However this has to be considered in light of what an intrusion actually is.
In the scenario that you set out while you found two persons walking around the yard that is not to say that they did not have a legitimate purpose to be in the property. The 2011 Act effectively provides for a defence in criminal proceedings to the person who uses force to defend his or her home.
The combination of increased security measures may of course not act as a deterrent and therefore trespassers may seek to enter the lands anyway. Taking the law into one’s own hands is not at all advisable and has inherent dangers within that. The law has to protect all persons, and if it is the case that innocent persons drive on to somebody’s land for a legitimate reason, then a reaction by the homeowner in violent or excessive manner may involve the commission of an offence or offences in itself.
Karen Walsh, from a farming background, is a solicitor practicing in Walsh & Partners, Solicitors, 17, South Mall, Cork (021-4270200), and author of ‘Farming and the Law’. Walsh & Partners also specialises in personal injury claims, conveyancing, probate and family law.
Disclaimer: While every care is taken to ensure accuracy of information contained in this article, solicitor Karen Walsh does not accept responsibility for errors or omissions howsoever arising, and you should seek legal advice in relation to your particular circumstances at the earliest possible time.
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