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New Bill: Justifiable use of force may lead to death


He3

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Oct 1, 2008
Messages
17,094
Bill just published on this - what if any effect will this have on the burglar's mindset?

Criminal Law (Defence and the Dwelling) Bill 2010 relating to the liability of a person regarding the use of force by him or her in his or her dwelling or in a dwelling in which he or she is a lawful occupant against a person who enters the dwelling; to amend the Non-Fatal Offences Against the Person Act 1997; and to provide for related matters.

http://www.oireachtas.ie/documents/bills28/bills/2010/4210/B4210D.pdf


The key Section 2 provides-


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.

(2) Subsection (1) shall not apply where the person uses force
against—

(a) a member of the Garda Síochána acting in the course of
his or her duty,
(b) a person assisting a member of the Garda Síochána acting
in the course of his or her duty, or
(c) a person lawfully performing a function authorised by or
under any enactment.

(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.

(5) It is immaterial whether the person using the force had a safe
and practicable opportunity to retreat from the dwelling before using
the force concerned. [...]

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

roc_

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Dec 5, 2009
Messages
6,467
Hmmm. That rules out calling around to the houses of the bankers and politicians and their minions then to try and reclaim their ill-gotten gains? The timing of this bill might make someone more cynical than I think that sovereign default or terrible austerity measures may be around the next 'corner' we will be turning!
 
B

Boggle

In general it seems fair enough to be honest. Don't know if it will effect burglars at all but at least occupiers need not worry that they could end up in prison for defending their home.
 

loaf

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Sep 2, 2009
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I'm very uneasy about b (ii).

Unless I'm misinterpreting this, it is a statutory right to use force purely in the defence of property (ie without any need for a person to believe they are physically threatened)?

I'd be interested to see what a jury deems 'reasonable force' would be in that kind of case.

And can any of the law buffs on here explain how this changes the current legislation? Is b (ii) a radically new concept, or just a more difinitive version of current legislation?
 

Biffomania

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May 7, 2010
Messages
788
In general it seems fair enough to be honest. Don't know if it will effect burglars at all but at least occupiers need not worry that they could end up in prison for defending their home.
Would I be okay if I board Ivor's Serendipity II and if he tries to stop me from repossessing the €K80 he stole from all of us, can I defend myself by slinging him overboard in his Ralph Lauren kimono , or am I only covered if I call on him in one of his bricks and mortar principal residences?
 

Abacus

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Jan 23, 2008
Messages
763
In Defence of Your Home - New Law

Min for Justice has just been on the 1 o'clock RTERad1 News trying to explain the ramifications of the new law concerning home protection and what a bad job he made of it. The Min rambled on and on with halfhearted confusing explanations as to the extent and limits of the use of permissible force now available to householders under criminal attack.

Minister:.....what you need to say unequivocally is that the householder cannot ATTACK intruders but they can DEFEND their families, themselves and their homes against such attack.
You also need to clarify that if the intruder is fleeing that the best option is to let them go and not to ATTACK as that will place the householder in a difficult position and quite possibly leave them open to charges of assault. This legislation is designed to enable homeowners to defend their homes and should not be seen as enabling homeowners to attack intruders.
There will be Round-about discussions and arguments aplenty but the people need to be advised that this is primarily about DEFENCE and not ATTACK.

In evaluating the new legislative provisions, it is important to set aside populist considerations such as "they get what they deserve".....or....if they come into my place by J...I'll do this, that...etc. The clarification is need because some people may consider that they are now empowered to do things and invoke sanctions and that is not the case.
 

thebig C

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Jun 19, 2008
Messages
856
Not that the media ever mention this, but FG published a nearly identical private members bill several years ago. Brian Lenihan, Justice Minister at the time, castigated it! Not for the first time, FF are the slow learners of Ireland!
 
B

Boggle

Would I be okay if I board Ivor's Serendipity II and if he tries to stop me from repossessing the €K80 he stole from all of us, can I defend myself by slinging him overboard in his Ralph Lauren kimono , or am I only covered if I call on him in one of his bricks and mortar principal residences?
As long as you are acting lawfully then he cannot touch you. If he refuses to comply, call the guards.

Re loaf - good spot and it's arguable what to say here. I reckon that you should be allowed to stop them using force and if they get hurt in the process then so what?
 

corelli

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Joined
Jun 13, 2007
Messages
4,478
That is new ?

cYp
Well, the previous provisions are "new" and the subsection just removes anyone attacking a Garda or member of the public assisting, or anyone preventing a crime taking place, from the provisions. It merely removes that defence from them.

It's utter nonsense anyway. The only thing actually new is that now one does not have to attempt retreat before using force. It also extends the property you are allowed defend to the curtilage of the home.
 

meriwether

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Dec 1, 2004
Messages
12,604
I'm very uneasy about b (ii).

Unless I'm misinterpreting this, it is a statutory right to use force purely in the defence of property (ie without any need for a person to believe they are physically threatened)?

I'd be interested to see what a jury deems 'reasonable force' would be in that kind of case.

And can any of the law buffs on here explain how this changes the current legislation? Is b (ii) a radically new concept, or just a more difinitive version of current legislation?
Is it possible to feel unthreatened by the presence of a burgular in your home?

Logically, in my mind, if a criminal enters your home to commit theft, you should feel physically threatened. It is after all a criminal, and criminals have a prediliction for violence. We aren't talking about Jehovah Witnesses knocking on your door.

I hasten to add that as I don't believe in the death penalty, I therefore don't believe in the death penalty for theft, and therefore I don't agree that houseowners can shoot on sight.

But I do believe that the burden of blame should not be on a homeowner who defends his/her property, as we should be starting from ther line of logic that a potentially dangerous criminal was uninvited on their property, stealing from them, and quite likely willing to use violence against them.

I'd need to see some pretty compelling evidence that the motives of the burgler were non-violent, and I'd struggle to see how that logically could be presented.
 

Tomas Mor

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Its obvious Ahern is making a pitch for leader, after Civil Partnership Bill became law. This type of bill was reviously rejected by FF when FG introduced it - no obligation to retreat etc, in the wake of the Padraig Nally affair.
 

corelli

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Messages
4,478
Is it possible to feel unthreatened by the presence of a burgular in your home?

Logically, in my mind, if a criminal enters your home to commit theft, you should feel physically threatened. It is after all a criminal, and criminals have a prediliction for violence. We aren't talking about Jehovah Witnesses knocking on your door.

I hasten to add that as I don't believe in the death penalty, I therefore don't believe in the death penalty for theft, and therefore I don't agree that houseowners can shoot on sight.

But I do believe that the burden of blame should not be on a homeowner who defends his/her property, as we should be starting from ther line of logic that a potentially dangerous criminal was uninvited on their property, stealing from them, and quite likely willing to use violence against them.

I'd need to see some pretty compelling evidence that the motives of the burgler were non-violent, and I'd struggle to see how that logically could be presented.
The differentiation is already present in our legislation with the concepts of burglary, simpliciter, and aggravated burglary.
 

LeDroit

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Mar 11, 2010
Messages
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What is section 3 about?! It's indiscipherable.
 
B

Boggle

Is it possible to feel unthreatened by the presence of a burgular in your home?

Logically, in my mind, if a criminal enters your home to commit theft, you should feel physically threatened. It is after all a criminal, and criminals have a prediliction for violence. We aren't talking about Jehovah Witnesses knocking on your door.

I hasten to add that as I don't believe in the death penalty, I therefore don't believe in the death penalty for theft, and therefore I don't agree that houseowners can shoot on sight.

But I do believe that the burden of blame should not be on a homeowner who defends his/her property, as we should be starting from ther line of logic that a potentially dangerous criminal was uninvited on their property, stealing from them, and quite likely willing to use violence against them.

I'd need to see some pretty compelling evidence that the motives of the burgler were non-violent, and I'd struggle to see how that logically could be presented.
You'd also have to show that the occupant who used force knew this though.
 

corelli

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What is section 3 about?! It's indiscipherable.
It would appear to remove the defence from someone who goads the intruder/sets it up, then seriously injures him/her and tries to avail of the defence.

Just as a point of clarity, Nally could still have been charged under the new legislation, and on my reading of it, could not have availed of the opt-outs. Not saying that a Jury would convict him or anyone else of shooting a traveller, mind you.
 

farnaby

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May 15, 2006
Messages
1,967
Bill just published on this - what if any effect will this have on the burglar's mindset?
There's a risk it will increase the propensity of burglars to threaten or use violence against their victims to prevent violence against themselves. But I doubt it is a significant risk. Anyone who is physically capable of defending themselves and property would probably attempt to do so already without this bill; those who aren't, won't, despite the bill.

The real question is whether the law will encourage intended victims of burglary to be over-zealous in attacking burglars and cause permanent injury or fatality.
 

Odyessus

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May 16, 2007
Messages
12,987
I'm very uneasy about b (ii).

Unless I'm misinterpreting this, it is a statutory right to use force purely in the defence of property (ie without any need for a person to believe they are physically threatened)?

I'd be interested to see what a jury deems 'reasonable force' would be in that kind of case.

And can any of the law buffs on here explain how this changes the current legislation? Is b (ii) a radically new concept, or just a more difinitive version of current legislation?

Why should you feel uneasy? Are you a burglar?
 

loaf

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Joined
Sep 2, 2009
Messages
1,248
Is it possible to feel unthreatened by the presence of a burgular in your home?

Logically, in my mind, if a criminal enters your home to commit theft, you should feel physically threatened. It is after all a criminal, and criminals have a prediliction for violence. We aren't talking about Jehovah Witnesses knocking on your door.

I hasten to add that as I don't believe in the death penalty, I therefore don't believe in the death penalty for theft, and therefore I don't agree that houseowners can shoot on sight.

But I do believe that the burden of blame should not be on a homeowner who defends his/her property, as we should be starting from ther line of logic that a potentially dangerous criminal was uninvited on their property, stealing from them, and quite likely willing to use violence against them.

I'd need to see some pretty compelling evidence that the motives of the burgler were non-violent, and I'd struggle to see how that logically could be presented.
Why should we proceed from an assumption of violence when the vast, vast majority of burglaries do not involve violence?

Anyway, my original point was that this legislation explicitly states that force is justifiable in the defence of property WITHOUT the condition of being physically threatened - so the argument we could have re the violent intentions of burglars is irrelevant.

The legislation does not, qualitively speaking, distinguish between the protection of property and the protection of a person (although admittedly a jury will, presumably, do this).
 
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