Juries left to decide how much force is reasonable in murder cases where ‘self-defence’ is pleaded

Yet Mr Bento, who had spent more than 500 days in custody, was found not guilty of murder after claiming he acted in self-defence when he was attacked by a gang as he and his friend tried to retrieve a stolen bicycle in the East Wall area of Dublin on January 26 last year.

A full acquittal on the basis of self-defence is rare in the Irish courts, and Mr Bento’s trial brought a number of issues into focus.

Chief among these are what a defence needs to prove when making a claim of self-defence.

A second key issue the case raised was what exactly amounts to reasonable force when a person seeks to defend themselves.

For a defence of self-defence to prevail, a jury must accept it is a reasonable possibility the accused acted in defence of themselves or another person and that no more force was used than was necessary.

However, there is no definition of what amounts to reasonable force, and jurors must decide what is reasonable in the circumstances.

In Mr Bento’s case, the facts of the incident were complex and the jury had a great deal to consider.

He claimed he and another delivery cyclist chased a man on a moped in a bid to retrieve a stolen bicycle and that, in reaction to a perceived threat from that man, he produced but did not use a utility knife he carried for cutting fruit.

Mr Bento claimed he and his friend decided to leave but were prevented from doing so when a group of teenagers, including promising young soccer player Josh Dunne, arrived on the scene.

Two of the teens were said to have attacked Mr Bento and his friend. The prosecution case was that the knife was again produced as the teens were backing away and neither Mr Bento nor his friend was being assaulted.

Josh Dunne did not get involved until he saw one of his friends being stabbed. He reacted by punching Mr Bento repeatedly before being stabbed himself. He received two stab wounds to the chest, one of which was fatal.

The incident came against the backdrop of previous attacks on Deliveroo cyclists, with one witness saying working in the Dublin 3 area was “dangerous”.

The prosecution alleged Mr Bento exaggerated the danger he faced and knew at the time the force he used was not necessary to repel the attack.

But Mr Bento told gardaí he only took out the knife with the intention of intimidating the teens and making them go away. He said he stabbed the first and second males who attacked him as he was scared and wanted to protect himself.

Criminal barrister Tony McGillicuddy told the Irish Independent that in cases where self-defence is raised, the defendant has to be able to point to some evidence that would support their claim but does not have to prove the defence.

“[In the Bento case] it was reported the jury accepted the defendant’s claim of self-defence. That isn’t really strictly true,” he said. “What actually happens is the defendant says, ‘Look at fact A and fact B and fact C. I am raising a claim of self-defence’.

“It is up to the prosecution then to overcome that, and they must overcome it to the criminal standard of beyond a reasonable doubt. The defendant doesn’t have to prove the defence.

“So, the jury doesn’t have to necessarily believe the person was acting in self-defence. But if they decide the prosecution hasn’t done enough to negate the defence raised by the accused, then they are obliged to deliver a verdict of not guilty.”

Mr McGillicuddy said another point to note was that there was no real definition of reasonable force.

“A jury will be told to look at the facts of the case and assess what they think is reasonable,” he said. “It will always depend on the facts of the case. What is reasonable depends on the circumstances, context and nature of the case.

“That is why we have juries. You have 12 people giving their own view of the evidence and their own view of common sense, and you mix it together and let them decide on it.”

Mr McGillicuddy said that in such cases there were three options open to the jury when looking at a verdict.

“Option A: They could find the person not guilty if they accept the defence case or if the prosecution has not negatived the defence to the criminal standard of beyond reasonable doubt,” he said.

“Option B: They could decide that the defendant was acting in self-defence but went too far – that the force used was disproportionate in the circumstances. In those circumstances, the jury can return a verdict of manslaughter.

“Or Option C: If the jury rejects completely that the defendant was acting in self-defence, the jury should return a verdict of murder.”

It emerged during Mr Bento’s trial, in the absence of the jury, that his lawyers had questioned the evidential basis for a murder charge in advance of the trial, arguing that he should have been charged with manslaughter.

The defence team asked the Director of Public Prosecutions to review the charge, but the case proceeded as a trial for murder.

The prosecution had argued there was no question but that murder was the appropriate charge as the case involved the death of an unarmed 16-year-old who received two stab wounds to the chest.

The Bento case was the second in recent weeks in which a claim of self-defence appears to have been the main factor in the defendant being acquitted of murder.

Sarah Doyle (32) was cleared of the murder of her husband, Philip Doyle (33), in the course of an incident during the early hours of January 26, 2020.

Mr Doyle was found outside their home in Gorey, Co Wexford, having received two stab wounds to his chest. He died a short time later.

The defence had argued there was a “history of abuse” in the relationship and that Ms Doyle “producing a knife was a last resort”.

Ms Doyle had told gardaí her husband had “dragged” her down the stairs by the hair when she returned home on the night of the incident and punched her.

The prosecution had argued it was an unlawful killing that could not be justified on the basis of a proportionate use of force.