Wednesday 16 January 2019

Time to clear up self-defence law

WHEN is a householder entitled to use extreme force against an intruder who threatens him, his family or property? This is no academic question, but one that has figured in controversial trials, puzzled juries and given rise to retrials and reversal of verdicts.

On the face of it, the existing law should present no difficulty. A person is entitled to resist with appropriate force, even to kill, in self-defence. But that is not really the situation in practice, and for obvious reasons.

Three years ago the Court of Criminal Appeal put it well when it said it was "impossible to lay down any formula with which the degree of force can be instantly calculated." A person under attack, regardless of his or her age, strength, combative tendency or the lack of it, cannot reasonably be expected to make fine calculations of the degree of the danger or the appropriate response.

Moreover, in the real world of the 21st century victims and potential victims have to take other sad facts into account.

Nobody can ignore the growth of cruel and gratuitous violence. In recent days, for example, we have seen a vicious attack on an elderly couple, marked by a threat to cut off their fingers. We have also seen feeble old men beaten, tied up and left to die. Submission to an assault may not even ensure survival.

The Law Reform Commission believes that the time has come to clarify the law. It proposes that a plea of self-defence should be replaced by "legitimate defence" which includes protection of family and property.

This is not a "licence to kill". Action must be immediate, necessary and proportionate. But it recognises that, as under the existing law, necessary force may indeed mean lethal force in some instances.

Judges and juries, as well as those caught up in unfortunate situations, should benefit from reform. It is assumed that Justice Minister Dermot Ahern will move swiftly to enact the commission's proposals into law and that he will find a sympathetic audience in the Oireachtas.

In the end, it will be up to juries to decide on the basis of the facts, applying common sense and putting prejudice aside, and to judges to explain the law. Both will be helped, and justice served, by increased clarity. The main deterrent has still to be the likelihood of apprehension and punishment. But wrongdoers will have had a warning.

Irish Independent

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