I am a landowner and a neighbour notified me that two men were in my field with two dogs. He could see the dogs worrying the sheep, but not attacking. The men’s car blocked the gate and wasn’t moved all day. They were not carrying guns to indicate they were hunting. They ran off when approached and we fear that they were scoping out the place for a robbery. What should I do if I encounter this again?”

Situation in brief

Generally, farmers are happy to facilitate members of the public going for a walk. Under Irish law, in the absence of a right of way, access is at the discretion of the landowner and he/she may prohibit access or withdraw consent without prior notice. If someone is not taking due care or causing interference while on your property, you should ask them to leave. If they refuse to do so, you should call the gardaí.

People using property for shooting

Hunters have no right to enter privately owned land without permission. The owner/occupier can demand names and addresses of a person hunting on land without permission or indeed present on land without permission. The onus of proving that they have authority to be present on the property rests with the person claiming to be on the land.

The occupier is not under any duty of care under the Occupiers’ Liability Act to a trespasser present for the purpose of committing an offence. You can put a preservation notice in the local paper and signs on the land to deter trespassers.

Use of force to protect persons and property

The Criminal Law (Defence and the Dwelling) Act 2011 clarified the law concerning defence of the dwelling. Dwelling includes curtilage of the dwelling, ie an area immediately surrounding or adjacent to the dwelling, which is used in conjunction with the dwelling, so arguably may not extend to the farm.

The legislation makes it clear that a person who is in his or her dwelling may use force against another person to protect themselves or others or their property or to prevent the commission of a crime. However, the force used can only be such force as is reasonable in the circumstances. In determining what is reasonable force, the test is whether the householder believes the intruder has entered for the purpose of committing a crime; it is immaterial whether the belief is justified or not, if it is honestly held. In considering whether the person in using the force honestly held the belief, the court or the jury shall have regard to the circumstances of the incident.

While the legislation states that “the use of force shall not exclude the use of force causing death”, legal commentary would suggest that it can rarely, if ever, be reasonable to use deadly force merely for the protection of property.

The legislation provides that a householder is not precluded from using reasonable force by virtue of the fact that the intruder was drunk or insane or acting under duress.

Further, it clarifies that the intruder will not be able to subsequently claim damages for any injury caused to him by the use of reasonable force. Further the householder is not under any obligation to retreat before using the force concerned.

In relation to force used outside the ‘dwelling’, the common law position applies. Certain duties were imposed on a claimant of self-defence in order to justify or excuse the use of defensive force, one of these requirements was a duty to retreat.

Damage to property

If a landowner believes that someone is illegally occupying their land to the extent of committing an offence, they should contact the gardaí. Under the Criminal Justice (public order) Act 1994 as amended, it is a criminal offence for anyone to enter, occupy or bring anything on to privately owned land or land owned by local authorities if that act is likely to:

  • Substantially damage the land.
  • Substantially damage any amenity on the land or prevent any person from making reasonable use of that amenity.
  • Render the land or any amenity on it unsanitary or unsafe.
  • Substantially interfere with the land or an amenity on it.

    • An Garda Síochána are empowered to visit the land and if they find any person on the land, they can demand that the person gives them their name and address and that they leave the land and remove any objects under their control from the land. If the person refuses to comply with a garda’s directions, that person is liable to prosecution. You may be asked to give a statement in relation to bringing a case for prosecution by the DPP.

    Disclaimer: The information in this article is intended as a general guide only. While every care is taken to ensure accuracy of information contained in this article, Aisling Meehan, Agricultural Solicitors does not accept responsibility for errors or omissions howsoever arising. E-mail aisling@agrisolicitors.ie