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Elderly Safety Campaign

Monday, 1 March 2010

Raymond Byrne

Raymond Byrne is director of research at the Law Reform Commission which is an independent statutory body whose main role is to keep the law under review and to make proposals for reform.

To date, the Commission has published over 150 documents (Consultation Papers and Reports) containing reform proposals. A large majority of these proposals (about 70%) have led on to reforming legislation.

The Commission launched on December 14th 2009, a report updating the current law on self defence in the home to legitimate defence and it is currently being considered by the Government. By Easter based on this report the government will publish a new law.

Are rights to your home guaranteed under the constitution?

The Constitution declares that the dwelling of a citizen in Ireland is inviolable and shall not be entered forcibly except in accordance with the law. This means that no one may enter the place where you live without a warrant or other legal authority to enter. Your right to inviolability of dwelling is set down in Article 40.5 of the Constitution.

How would you define burglary?

A person is guilty of burglary if they:

(A) Enter any building or part of a building as a trespasser (break's in) and with intent to commit an arrestable offence, this can be day or night.

(B) having entered any building or part of a building as a trespasser, commits or attempts to commit any such offence therein.

(C) A person guilty of burglary is liable on conviction on indictment to a fine or imprisonment for a term not exceeding 14 years or both.

(D) "Arrestable offence" means an offence for which a person of full age and not previously convicted may be punished by imprisonment for a term of five years or by a more severe penalty.

How would you define aggravated burglary?

Aggravated Burglary:-

1. A person is guilty of aggravated burglary if he or she commits any burglary and at the time has with him or her any firearm or imitation firearm, any weapon of offence or any explosive.

Definitions:- Weapons

Firearm means - a lethal firearm or other lethal weapon of any description from which any shot, bullet or other missile can be discharged.

Air gun can include an air rifle or an air pistol, or any other weapon incorporating a barrel from which metal or other slugs can be discharged.

Weapon of offence means - any article which has a blade or sharp point, or any other article made or adapted for use for causing injury to or incapacitating a person, or intended by the person having it with him or her for such use or for threatening such use.

What are the chances of an elderly person being victim to an attack in their home from burglary?

Statistically younger people are three times more at risk than an older person of being attacked in their home. It is important that elderly people are known to their community police, and have the pendant or security alarms from the community support for older people grant from the department of Community, Rural and Gaeltacht Affairs.

What are your rights today if someone breaks into your home and you fight back?

Reasonable Force as a defence can be used, but every case is up to the jury.
It has not been defined with clarity in law according to the law reform commission. The law at the moment is very general in terms of using reasonable force to defend a home dweller against an intruder.

The jury on hearing the evidence would decide if they feel reasonable force was used, or the force used was unacceptable, by the home dweller. The precedent for this case is 40 years old in the Supreme Court, where a man named Dwyer in a provoked attack used a knife as reasonable force.

Does it make a difference if you defend yourself and you are elderly compared to the intruder?

Proportionate:- Sometimes courts rely on whether the self defence is proportionate. This depends on the context of the attack, where you attacked by a young person and you are elderly, or are you young in bad health attacked by a body builder.

Can you use these rights as a plea of self defence?

Self Defence:- Applies when defending your home, it is your castle and cannot be violated; someone can't just come in uninvited. Your home must be under attack, and you must be in fear that your home is under attack. For example: from arson or destroyed.

You must feel that you OR YOUR FAMILY are at risk of being killed or your home is at risk of being severely damaged. Then you would have the right to kill someone if you (or your family) are under attack and feel you are at risk of being killed.

This does not apply to a burglar taking a few items for example: laptop /TV or weddings rings.

A burglar thrashing your house looking for things is a grey area; your home is not really under attack. If your car is stolen from your driveway, it is not within your house so the same rights to defending your house do not apply.

Today if it is proved in the home that reasonable force and in some cases proportionate force is used, the jury can agree with a self defence plea.

If the intruder is killed due to self defence by the home dweller, a guilty verdict normally would result in manslaughter.

In cases today once the jury agrees with the home-dweller that reasonable force used is proportionate, then it is a legitimate defence.

So the jury decide if the self-defence was justified?

The outcome of the case is not based on the home dweller's personal point of view about how much force they used was appropriate. If a home dweller attacked a burglar with a knife in 'self defence' and there was a struggle and the burglar died then it would be up to the jury to decide if using a knife in this instance was reasonable force. They would also decide if the home owner was guilty or not guilt of manslaughter.

What can you not do to defend yourself?

The home dweller can't stand in their front door with a gun waiting for a person to arrive and then shoot them. The law is vague and the jury must be convinced you used reasonable force.

What if the home dweller accidentally kills the burglar?

In current law when you use lethal force (meaning you kill someone) you can be found not guilty for example in the Padraig Nally case. (See additional information) In his first trial the judge offered the jury 2 pleas - murder or manslaughter and he was found guilty of manslaughter. An appeal was made to the criminal court that the jury had only been offered 2 pleas. In an appeal case in the criminal court a third plea of reasonable force was added. The jury found Mr. Nally not guilty by reasonable force. It is up to the Judge to define what the pleas mean to the jury.

In the late 90's in England, an elderly farmer shot the burglar and was found guilty of manslaughter.

If a burglar breaks in and gets injured in the house, or by the home dweller, can they sue for compensation?

No, Raymond has said that it is a myth that if a burglar breaks in and gets hurt in your house that they are entitled to compensation. He says that this is an urban legend and not based on real cases.In real cases 'reasonable force' has to be taken account of by the judge or jury.

Example: - In 1989 in a real case, a burglar named Ross broke into a shop and the elderly shopkeeper Curtis lived over it, and came downstairs. The shopkeeper warned the burglar he was armed, and shot over his head. He grazed Ross' head. He was sued by Ross the burglar, in a High Court compensation case, but the claim was dismissed.

Example:- In Waterford, Anthony Barnes in his 20's broke into 75 year old Mr. Forestall's house after a funeral. Barnes defence was in the criminal appeal that he acted in self defence and killed Forestall. He was found guilty of murder. The judge said that the burglar is an aggressor because they have broken into the person's home and they should be prepared for strong force or attack.

What are your plans to update the law?

The law reform commission has produced a report to government, based on submissions from interested parties. This will update the law on self defence in the home and make it clearer for everyone to understand. It has recommended that the law will be renamed legitimate defence and will have 4 key requirements. This includes killing someone in your home in self -defence.

The government are currently considering the proposal of the report and a new legislation should be approved by Easter.

What are the problems with the current law?

The Law Commission believes that reasonable force and sometimes proportionate force as self defence is not clear enough for juries to make a decision on and for judges to direct them. At present juries could go either way.

Additional Information:

Main recommendations by the Law Reform Commission (in its report to Government), updating the laws on Self Defence in the home during a burglary.

. The Law Reform Commission recommends that self-defence in the home to defend the dwelling and its vicinity, should be re-named legitimate defence.

. Legitimate defence means that a person is justified in using force against an unlawful attack and this will cover defence in the home. This defence includes protecting the person, their family or their home.

. When a person uses a defence of legitimate defence it will cover 4 key elements.

1. Certain types of unlawful attack can only justify use of defensive force, especially when someone is killed. The jury would need to be satisfied that the person had to defend themselves in the attack.

2. The attack that takes place must be an immediate attack. If the person thinks they saw the burglar before at their house, and this time they shoot them, then that is not a defence.

Defensive force must be necessary, a person does not have to retreat when the attack takes place in their home they can stand their ground. The jury must believe what the person did is acceptable behaviour and was necessary. The force must be proportionate a measured response, if you are attacked with a knife you cannot respond with a gun. If a child runs into your garden to collect his football you can't shoot him.

3. The defensive force used by the person must be proportionate to the unlawful attack. In a court case scenario it will be decided by a jury if they feel the use of force was both necessary and objective. If a person while protecting themselves killed the burglar and believed this was necessary and proportionate and the jury believed it wasn't, the person would be found guilty of manslaughter and not murder.

4. If a person kills the intruder during self defence in the home, and can prove in court that the above 4 key requirements are satisfied, then they will get off free.

Padraig Nally's Case:

Padraig Nally (60's) worked as a small farmer in an isolated part of Co Mayo, on October 14, 2004 he saw John Ward going in the back door of his home. He took his gun from his shed, and shot Mr. Ward on the right hip. At this point he said Mr. Ward went straight for him and a fight began.

He kicked Mr. Ward on his back and he said the pair exchanged blows. He said Mr. Ward tried to pull him by the collar and kick him in the stomach and the testicles. Mr. Nally said the deceased had tried to grab the gun, but he said he put him up against the jam in the kitchen door.

He said he then beat the deceased about the head with a piece of ash wood about 20 times. Mr. Ward left and was walking along and Mr. Nally shot him again and he died.

Mr. Nally believed Mr. Ward, who was a member of the Travelling community, had been on his land to commit a burglary and he said he had been living in fear. He had told gardaí at the time: "I was out of my mind for these lads calling to my house all year," and had slept for just an hour the night before the killing as he had expected something to happen. He believed John Ward and his son Tom would kill him

Padraig Nally was first tried and cleared of the murder in November 2005 and jailed for six years for manslaughter. He served 11 months of that term before the case was taken to the Court of Criminal Appeal and a retrial was ordered. The three-judge appeal court ruled that the jury at Mr Nally's original trial, presided over by Mr Justice Paul Carney, sitting in Castlebar, should have been allowed to consider the full defence of self defence.

This is what enabled the jury in the latest trial to bring in its not-guilty verdict in December 2006. Mr. Brendan Grehan SC, defending, told the jury that in an altercation in which an intruder came into a person's home, the homeowner is typically most at risk of finishing off the worst.

The jury had deliberated for a marathon 15 hours and 32 minutes over three days before reaching its verdict tonight."In his closing speech before the deliberations, he told them: "If you act reasonably in self defence you are entitled to acquittal and what is reasonable is determined by the jury."