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LAWFUL USE OF FORCE
Here we are discussing LEGAL defences, as opposed to factual defences. You are always open to dispute the facts and defend yourself on this basis, however Ireland accepts some defences legally:
1. SELF DEFENCE
We don't only have one law of self-defence, we have three.
Three separate regimes, 'almost designed to confuse'
Originally - the common law
COMMON LAW SELF DEFENCE
Ancient - one of the early things that the law recognises
You are allowed to defend yourself and your property
Applied where the person is killed
NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997
Contains all the crimes you can commit without killing someone
Codified the law of self defence
Assault, kidnapping etc.
Deals with cases where you haven't actually managed to kill someone
Problem: only covers scenario where you've injured and not killed, so if you commit a FATAL offence, the act does not encompass this
Thus, forced to resort to common law BUT in practice - after all, the act does just codify what the common law was but still - you must clearly identify in court if you're relying on the 1997 act or the common law - if you are citing an act it is clear and precise. (easier for legal practitioners)
Applied where they're not killed
THE CRIMINAL LAW DEFENCE OF THE DWELLING ACT 2011
If you're defending your dwelling, you rely on this act and not the others.
In many respects its identical to common law and 1997 act but includes some extra protections.
Applied where a dwelling is concerned.
Use of force by someone for any of the following purposes
If reasonable in the circumstances as he or she believes them to be Does not constitute an offence
(a) to protect himself or herself or a member of the family of that person or another from injury, assault or detention caused by a criminal act; or
(b) to protect himself or herself or (with the authority of that other) another from trespass to the person; or
(c) to protect his or her property from appropriation, destruction or damage caused by a criminal act or from trespass or infringement; or
(d) to protect property belonging to another from appropriation, destruction or damage caused by a criminal act or (with the authority of that other) from trespass or infringement; or
(e) to prevent crime or a breach of the peace.
Objective and subjective
Subjective as it is what the accused thought was happening if they genuinely think they're acting in self-defence, they will be judged on this basis
How much force is used?
- Only reasonable force
So objectively judged on 'what would the reasonable man do'
When can we use self-defence?
1. Physical attack
Can defend member of family
Can defend anybody else
Reasonable force - even if you don't know them - you're not obliged to act as there are no bad Samaritan laws in Ireland, but you are allowed to.
2. Trespass to the person.
False imprisonment, assault, battery
Not necessarily an attack
3. To protect your own or anyone else's property
If you see someone damaging someone else's property you may intervene
4. To prevent a crime
5. To prevent a breach of the peace 6. To assist a lawful arrest.
7. If the Gardai are acting within their lawful duties,You may only defend yourself if they are ultra vires their lawful power
If you are in actual genuine fear of being assaulted.
WHAT IS FORCE?
Tereui was in his house all day. The police arrived and said, 'OPEN UP IT'S THE POLICE'. The man did not answer. This happened again. One of the policemen said, 'if you don't open the door ill let the dogs in'. This is a threat. Mr.Tereui replied 'fuck off or I'll shoot you'. He was charged with threatening a constable. He wanted to rely on self-defence - I was about to be attacked I didn't realise it was the police so when I threatened to shoot them, I genuinely thought that my house was in danger.
Had he used force?If it covers force, it logically covers a threat to use force.
Force encompasses words
Anti abortion protest involved a peaceful sit-in in a clinic. They entered and sat on the floor.
They were prosecuted with criminal trespass and sought to rely on self-defence. We were acting in defence of the unborn.
Again, had they used force? If not, the defence does not arise at all.No. they had gone out of their way to be peaceful and simply entered, sat and did nothing.
Did not threaten the use of force either.
A peaceful demonstration is not force.
Protest against the Iraq war in England. Protestor wrote a slogan on the HOL building, on a pillar in felt tip pen.
Accused sought to rely on defence - defending the civilians in Iraq. Had they actually used force?•
Writing on a wall does not constitute the use of force.
Grey areas where self-defence does not arise on a very minor and technical point e.g. the cases above.
The 1997 act covers threat
Keatley 1954 IR
Incident concerned during a game called pitch and toss - A dispute emerges. The deceased pushes one of the brothers. The accused, thinking his brother was being attacked, threw a stone at the deceased who fell and was killed.
Can accused defend his brother if there was no threat whatsoever to himself personally?
SC:You can defend another person
"every man has the right of defending any man by reasonable force against unlawful force"
This lay the basis for the positive law
Beckford v R
Same in England
Such as is reasonable in the circumstances as he or she believes them to be
Section 20(3) provides that:
"A threat of force may be reasonable although the actual use of force may not be."
This is where the subjectiveness arises.
O'Reilly.Quite clearly the test to be applied…is a subjective test.
'It is not a question of whether the jury objectively believed that the A was acting in genuine self-defence, it is a question of whether the A honestly held that belief.'
How does a jury assess this?With regard to whether there was a reasonable ground to belief.
But this is not the deciding factor
Brown v US Holmes J-
"Detached reflection cannot be demanded in the presence of an uplifted knife"
When you're in a jury and considering whether the force was reasonable,
although it's an objective test, you must look at it In light of the circumstances, SUBJECTIVELY
Must have regard to the urgency of the situation.
R v Williams and Davis (taken from criminal liability notes)
In some cases the court said jury must be given direction by explanation of the test by which a voluntary act of the deceased may be seen as a novus actus or a mere consequence of the defendants conduct
1. Was it RF that some harm was likely to result from the threat of the D
2. Whether the deceased's action in jumping from a moving car was a likely response in the situation
Must bear in mind the agony of the moment - they may act w.out thought and deliberation
SELF INDUCED SELF DEFENCE
It's not a defence where the accused created the situation and then claims to have acted in self defence
Does not apply if the accused provoked the person.
Deliberately creating a scenario with a view of then using force to end it
S18 (7) NFOAPO
The defence provided by this section does not apply to a person who causes conduct or a state of affairs with a view to using force to resist or terminate it:
But the defence may apply although the occasion for the use of force arises only because the person does something he or she may lawfully do, knowing that such an occasion will arise.
Two young burglars entered the deceased's house. When he returned home, he was confronted by them. We only have account of the A - Anthony barnes. The other burglar claims to have left before the stabbing. He claimed in his Gardai statement that he and
Halligan had been disturbed by Mr. Forrestal who had (his accounts vary) either come at him with a knife or had come at him and then left the room in which he was
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