Legal query: Force allowed in protecting oneself and property from an intruder

“There has been a lot of coverage in the media about rural crime of late. Thankfully, I have not been broken in to, but my neighbours have, and I fear it will only be a matter of time. I have a shotgun which I keep under my bed and would intend to use it if needs be. What is the law if I shot someone and injured them?”

The issue of whether you may legally use lethal force when defending your property has been the subject of much debate in recent months with the perceived vast rise in rural crime. In 2004, Mayo farmer Padraig Nally was convicted of manslaughter after shooting dead John Ward, a trespasser who allegedly terrorised him in his home over a long period of time. However, his conviction was overturned and there was a public outcry afterwards to introduce legislation to clarify a householder’s rights and duties where he faces an intruder.

Uncertainty in the law

While the Non-Fatal Offences Against the Person Act 1997 allowed for reasonable force to be used when protecting oneself or one’s family from injury or in the protection of the home from trespass, this related to non-lethal force only. The law was not clear on whether it was legally permissible to use lethal force where there was an attack on the home or a life-threatening attack on a person.

Another related issue was the extent of the home – did it cover the garden or an adjacent farm? Was there an obligation to retreat before a person could resort to lethal force, if the householder could do so safely? While common law provided that there was no obligation to retreat where a person was under attack in the home, could it be argued that by not retreating where it was possible to do so, there could be grounds for a claim of excessive force? What was reasonable force versus excessive force?

Clarity following 2011 act

The Criminal Law (Defence and the Dwelling) Act 2011 came into effect on 13 January 2012 and clarifies the law concerning defence of the dwelling. Dwelling includes curtilage of the dwelling, an area immediately surrounding or adjacent to the dwelling which is used in conjunction with the dwelling; so arguably this 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. The intruder will not be able to subsequently claim damages for any injury caused to him by the use of reasonable force. Also, the Act states positively that a householder is not under any obligation to retreat before using the force concerned.

Extent of force

The law may be summarised as allowing the use of reasonable force which can extend to lethal force in protecting oneself or others in a dwelling but this does not extend to using lethal force in protecting one’s property. In relation to force used outside the dwelling, the common law position can be said to still apply.

In the old common law, 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. However, since the case of Nally it is questionable whether there is such a duty to retreat as the jury acquitted him in circumstances where Mr Ward did not pose any imminent danger to Nally and he could have retreated safely to his house. Notwithstanding this, the jury acquitted him based on the reasonableness criteria laid out in the Dwyer case. Consequently, it is arguable that once the use of force against another in protecting oneself or another person is reasonable, it can extend to the use of lethal force outside the dwelling.