Criminal - Self Defence

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Self Defence - Introduction

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This defence is most relevant in homicide and assault-based offences.

As a general rule, any use of force is not lawful; this defence creates exceptions based on certain fact scenarios.

Lawful use of force is now governed by ss. 18 – 20 NFOAPA 1997; there is an ongoing debate as to whether this applies only to non-fatal use of force, or to all lawful use of force; generally, however, it is accepted that it applies only to the former, primarily for the following reasons: (a) the Act’s scope is non-fatal offences, thus suggesting by corollary that it regulates only non-fatal defences; (b) s. 20 defines force as threats, detention, or impact on a body – no mention of fatal force is made.

Thus, lawful use of fatal force is probably still governed by the common law.

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Lawful use of fatal force

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People (AG) v. Keatley (1954):

CCA set out the following test for lawful use of fatal force:
i. The use of force was necessary;
ii. The force used was not more than necessary;
iii. The applicant was not acting in a spirit of revenge, retaliation, or with a desire to fight.
iv. Lawful use of force encompasses protection of oneself, of others (not just special relationship), or of property.

People (AG) v. Dwyer (1972) – leading case: Point of law for SC – does honest belief in necessity of force = murder or manslaughter? Walsh J. set out our test:

i. If the fatal force used is (objectively) reasonably necessary, it is lawful > acquittal.
ii. If the fatal force used is (objectively) more than necessary, it is unlawful > conviction.
iii. However, in case of objectively excessive force, (subjectively) honest belief in its necessity reduces the offence to manslaughter.

Our law differs significantly from the English law here (R v. Clegg); in England, any objectively excessive use of force renders the offence murder.

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People (AG) v. Keatley (1954)

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Game of pitch and toss; fight broke out between Def’s brother and the deceased; in his brother’s defence, the Def struck the deceased, who fell and whose head hit a stone; CCC convicted the Def of manslaughter; he appealed; CCA set out the following test for lawful use of fatal force:

i. The use of force was necessary;
ii. The force used was not more than necessary;
iii. The applicant was not acting in a spirit of revenge, retaliation, or with a desire to fight.
iv. Lawful use of force encompasses protection of oneself, of others (not just special relationship), or of property.

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People (AG) v. Dwyer (1972)

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Leading case: Def involved in violent fracas outside a chip-shop; was hit on the head with an instrument from behind; his friend was kicked on the ground; the Def then brandished a knife and fatally stabbed three people. He claimed he was in fear of his life - It is stated that the facts do not disclose circumstances of proportionality.

Convicted of murder; point of law for SC – does honest belief in necessity of force = murder or manslaughter? Walsh J. set out our test:

i. If the fatal force used is (objectively) reasonably necessary, it is lawful > acquittal.
ii. If the fatal force used is (objectively) more than necessary, it is unlawful > conviction.
iii. However, in case of objectively excessive force, (subjectively) honest belief in its necessity reduces the offence to manslaughter.

Conviction upheld on the facts.

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Non-Fatal Offences Against the Person Act 1997, Section 18(1)

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s. 18(1) sets out the 5 situations where non-fatal force is lawful: in short, they are
(a) protection of a person – including himself – from injury/assault/detention/trespass to the person (or, s. 18(4),
the continuation of any of these;
(b) protection of property;
(c) prevention of crime.

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Non-Fatal Offences Against the Person Act 1997, Section 18(3)

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s. 18(3) provides that the prevention of crime is still valid as a defence, even where the “criminal” would not be criminal liable because that person would have a defence, e.g. infancy, insanity.

Amended and narrowed in scope by the Criminal Law (Defence and the Dwelling) Act 2011:

(3) For the purposes of this section an act is ‘criminal’ notwithstanding that the person doing the act—

(a) if charged with an offence in respect of it, would be acquitted on the ground that—

(i) he or she acted under duress,

(ii) his or her act was involuntary,

(iii) he or she was in a state of intoxication, or

(iv) he or she was insane so as not to be responsible according to law for the act,

or

(b) was a person to whom section 52 (1) of the Children Act 2001 applied.

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Non-Fatal Offences Against the Person Act 1997, Section 18(6)

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s. 18(6) provies that the defence is considerably weaker for force used against a Garda in the course of his duties; the person had to show that he believed the force to be immdiately necessary to prevent harm to himself or another.

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Non-Fatal Offences Against the Person Act 1997, Section 18(5)

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s. 18(5) holds that the existence or the Def’s honest belief in the existence of one of the situations both count equally.

“Belief” in terms of s. 18 is judged subjectively: “honestly held”, but honest can be assessed with regard to objective factors.

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Non-Fatal Offences Against the Person Act 1997, Section 20

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s. 20: “Force” = applying force to or causing impact on another’s body, including threats and detention.

s. 20(2) implies that it is lawful to possess a weapon for self-defence, provided this is reasonable in respect of the Def’s perception of events.

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Non-Fatal Offences Against the Person Act 1997, Section 18(7)

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s. 18(7) holds that the defence is not open to a person who sets out to create a situation which later necessitates force.

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Non-Fatal Offences Against the Person Act 1997, Section 19

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s. 19 allows force to be used to effect or assist in a lawful arrest (including an arrest the Def believes to be lawful).

People (DPP) v McGinty (2003)

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People (DPP) v McGinty (2003)

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It is permissible to use force in order to affect a lawful arrest under s 19. Again, this force must be reasonable in the circumstances as the accused believed them to be. As with s 18, the belief need not be reasonable once it is honest, but the presence or absence of reasonable grounds for a belief will be factors in deciding whether it is honest. This was at issue in People ( DPP) v McGinty.

Here the trial judge stated in his charge to the jury that the test which should be applied is "Did Mr. McGinty have reasonable grounds to believe that a needle or syringe was held by Jason?" This charge was faulty and a re-trial was ordered.

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People (DPP) v Commane (1975)

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The accused hit the deceased over the head with a bottle of whiskey. He then proceeded to strangle him. This act of strangulation was both unnecessary and disproportionate, and so not a lawful use of force.

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People ( DPP) v Ceka (2004)

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Restated the point that the accused cannot knowingly use excessive force.

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R v Mclnnes (1971)

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There is no longer any burden on the accused to take an opportunity to retreat if the
opportunity presents itself.

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People (AG) v Coffey (1967)

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If the motive for the use of force is anything other than self-defence, the defence cannot be raised.

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DPP for Northern Ireland v
Browne (1973)

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if the accused created the situation in which he was attacked, he is unable to rely on the defence.

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People (DPP) -v- Doran (1987)

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Establishes that it may be possible for such an accused to raise the defence if the deceased themselves acted disproportionately.

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Approaches in other jurisdictions

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It should be noted that the UK courts have rejected the concept of a "half-way" house in this area, as adopted by the Irish courts. It was accepted in Palmer -v- R (1971), where it was held that the accused charged with murder who raised self defence will be either guilty or acquitted completely. This was followed in R -v- Clegg (1995). *NORTHERN IRELAND, CHECKPOINT*

It is also interesting to note that Australia initially favoured an approach similar to Ireland, Viro v The Queen (1978) being the case intended to clarify the position. However this was abandoned as it proved extremely difficult to operate in practice as the directions became too complex. The approach was abandoned Zecevic v DPP (1987).

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R -v- Clegg (1995)

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The appellant, a soldier, was on duty with a patrol in Northern Ireland. The purpose of the patrol was to catch joyriders, but that had not been explained to the appellant. As a stolen car approached at speed, the appellant fired three shots at its windscreen.

After the car had passed him, he fired a fourth shot into the back of the car. It struck and killed a passenger. The appellant was charged with murder.

The judge, sitting without a jury, accepted the appellant's defence that he had fired the first three shots in self-defence or in defence of a colleague. He found, however, that the fourth shot had been an aimed shot fired with the intention of causing death or serious bodily harm and that the appellant could not have fired it in self-defence or in defence of his colleague since, the car having passed, they had no longer been in danger. He convicted the appellant.

The Court of Appeal in Northern Ireland dismissed the appellant's appeal against conviction, holding that the firing of the shot that had killed the passenger had been, on the facts found by the judge, a grossly excessive and disproportionate use of force. They certified as a point of law of general public importance the question whether a soldier on duty who killed a person with the requisite intention for murder but who would have been entitled to rely on the defence of self-defence but for the use of excessive force was guilty of murder or manslaughter.

On appeal by the appellant:-

Held , dismissing the appeal, that where a person used a greater degree of force in self-defence than was necessary in the circumstances he was guilty of murder; that there was no distinction to be drawn between the use of excessive force in self-defence and the use of excessive force in the prevention of crime or in arresting an offender; and that it made no difference that the person using it was a soldier or police officer acting in the course of his duty (post, pp. 488H-489B , 493G-494B , 496C-D ,E-G , 498C-D , 500H-501A ).

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The People (DPP) v Barnes (2007)

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Barnes, a burglar, was attacked by the householder. In self-defence, he used fatal force.

The Court of Criminal Appeal held that that Barnes would be guilty of at least manslaughter even if it was necessary
for him to use fatal force in self-defence.

Hardiman J, for the Court of Criminalal Appeal, reasoned:

"... since a burglary is an act of aggression analogous to an assault or trespass to the person, a burglar, during the course of the burglary can never be regarded as wholly
blameless in the killing of a householder or other lawful occupant. His act of burglary is
the first (and very grave) wrong

.. . . [T]here is some scope for self defence by a burglar. That scope, however, is very limited, to defence against an attempt by the householder to kill the burglar simply for being a burglar. But the killing of a householder by a burglar during the course of the burglary, can never be less than manslaughter,
burglar's, by reason of the burglar's initial, grave aggression ..."

Hardiman J further pointed to constitutional factors, both vindicating the right to life of the burglar, and the inviolability of the dwelling place, confirming that there is no obligation on the home-owner to retreat, and raising a possibility, obiter, of the burden of proof devolving to the burglar to prove self defence, in circumstances where the home owner is deceased, and he is the sole witness to events.

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The Criminal Law (Defence of the Dwelling) Act 2011

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Restates the Common Law position, furthermore, per section 4 "Nothing in this Act shall operate to prejudice any defence recognised by law as a defence to a criminal charge."

Section 2.—(1) Notwithstanding the generality of any other enactment or rule of law and subject to subsections (2) and (3), it shall not be an offence for a person who is in his or her dwelling, or for a person who is a lawful occupant in a dwelling, to use force against another person or the property of another person where—

(a) he or she believes the other person has entered or is entering the dwelling as a trespasser for the purpose of committing a criminal act, and

(b) the force used is only such as is reasonable in the circumstances as he or she believes them to be—
(i) to protect himself or herself or another person present in the dwelling from injury, assault, detention or death caused by a criminal act,
(ii) to protect his or her property or the property of another person from appropriation, destruction or damage caused by a criminal act, or
(iii) to prevent the commission of a crime or to effect, or assist in effecting, a lawful arrest.

(3) Subsection (1) shall not apply where the person using the force engages in conduct or causes a state of affairs for the purpose of using that force to resist or terminate an act of another person acting in response to that conduct or state of affairs, but subsection (1) may apply, if the occasion for the use of force arises only because the person using the force concerned does something he or she may lawfully do, knowing that such an occasion will arise.

(4) It is immaterial whether a belief is justified or not if it is honestly held but in considering whether the person using the force honestly held the belief, the court or the jury, as the case may be,
shall have regard to the presence or absence of reasonable grounds for the person so believing and all other relevant circumstances.

(7) The use of force shall not exclude the use of force causing death.