Stand and Deliver: The Criminal Law (Defence and the Dwelling) Act 2011

The castle doctrine is an idea within law that every person has a right to defend their home from any sort of attack, without fear of any legal intrusion. This idea finds its fullest expression in the ‘stand your ground’ laws found in the US. A controversial example of this is the Justifiable Use of Force Statute (Ch. 776).

In Ireland, this subject received little amount of consideration until the cases of DPP v Barnes and DPP v Nally. Both of these cases, decided months apart, involved violent force being used on trespassers. DPP v Nally had actually resulted in fatality. Hardiman J, in the judgment of DPP v Barnes, noted that at that time no statute existed which dealt with a problem that had plagued courts ‘since time immemorial’. Later in the judgment he further stated that ‘a person can never be in a worse position in law because he has decided to stand his ground’. This judgment would form the bedrock of the statute that outlines the Irish position on the castle doctrine. This statue was the Criminal Law (Defence and the Dwelling) Act 2011.

The Law

The 2011 Act clarifies the Irish legal position on the castle doctrine. It provides that the Act may only apply within someone’s home (specifically ‘dwelling’ or ‘curtilage’). The Act also provides that you may use force against any intruder in the following circumstances: you believe someone is entering your property to commit a crime, or you have to defend yourself or another person from injury or death. The Act has some subjective components contained within, in order to discern whether the force used was reasonable. Section 2(4) provides that the court must look at whether the owner of the property honestly believed they were in danger. Section 2(5) emphasises that an owner has no duty to retreat. Interestingly, this applies even if they are presented with an opportunity to safely retreat. However, the most notable section is section 2(7) which explicitly says that the 2011 Act shall apply in cases even where the owner of a property kills an intruder. Thus, if you kill someone in your own home, no homicide law need be applied. All the courts have to do is assess whether you honestly believed you were in danger.

Issues with the Act

Ever since its inception, this legislation has inspired much debate. A notable example of this statue being controversially applied was after the death of 21 year old, Kieran Monahan, in Kilkenny. Monahan was stabbed at a party on Valentine’s Day in 2012. The incident was never prosecuted as a man originally arrested at the crime scene asserted that he was defending his home.

Another criticism of the statue is that it does not act as a sufficient enough deterrent upon criminals intruding onto properties. Last year at Independent Talks at the National Ploughing Championships, Karen Walsh, a solicitor from Cork, criticised the Act for placing too much of the burden on the property owners. Farmers would have to show that the trespasser was a trespasser, they were in a reasonable state of mind and then that they honestly believed they were in danger. She stated that the law ‘ultimately put the farmers before the judge and the jury’. In short, the 2011 Act would be difficult to execute due to its high standard of proof.

One final complaint that could be levied against the 2011 Act is that it’s unconstitutional. If read in a certain light the Act appears to endorse the murder of intruders. This contradicts Articles 40.3 (1) and (2), which provide that the State will protect and vindicate the personal rights and life of each citizen. Intruders are still citizens of this nation and while they may deserve punishment that does not mean they should be shot on sight, nor should this duty be placed in the hands of every property owner. As few cases have come under this Act, little attention has been paid to its potential problems. However if it gains wider prominence that may change.

Conclusion

Holmes J famously said ‘detached reflection cannot be demanded in the presence of an upturned knife’. It is incredibly difficult to set boundaries over how much force is and is not permissible. Property owners should be allowed to defend their homes, but should they be allowed to murder? This is a question that has plagued legal systems for centuries. We are unlikely to find an answer anytime soon. But the law’s purpose is to answer difficult questions, and here we must stand our ground.


Daniel Forde – Legal Editor

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