#5816 - Defences Defence Of Self, Others And Property - Irish Criminal Law

Self-Defence

Non-Fatal Offences Against the Person Act 1997

s.18 (1) The use of force by a person for any of the following purposes, if only such as is 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 from a criminal act or trespass or infringement, or D) to protect property belonging to another from appropriation, destruction or damage from a criminal act, or trespass or infringement, or E) to prevent the crime of a breach of the peace

People v Keatley (CCA 1953)

Facts

• The accused was convicted of manslaughter after he attacked a man in defence of his brother and killed him.

• The judge directed that he could only avail of the defence of defending another if a felony rather than a misdemeanour were committed against that person.

Issue

• Self-Defence – Defence of another

Judgment (Maguire CJ)

• Defence of another is a defence to a crime, even where the crime that one is defending the other from is a misdemeanour.

• One can not avail of this offence where the act is carried out with a motive other than defence – e.g. revenge, spite or a desire to fight.

• On the evidence, it would be open to the jury to hold that the accused had used no more force than was necessary to defend his brother from assault.

• The use of force is lawful for the defence of oneself, of another or of property but the justification is limited by the necessity of the occasion and the use of unnecessary force is an assault.

People v Dwyer (SC 1971)

Facts

• The accused was convicted of murder having entered the defence of justifiable force.

• He had used a knife during the course of fight which occurred after he had been attacked by two men.

Issue

Judgment

• Ó Dálaigh CJ (concurring - agreed with Butler J)

• Walsh J (concurring)

• In the case of full self-defence an acquittal may be secured even though it was the intention of the accused to kill or cause serious injury – the defence of self-defence allows the use of such force as is reasonably necessary up to and including killing.

• Where the defence has been raised, it is for the prosecution to show that the accused knew that the degree of force used was unnecessary.

• However, even where the accused subjectively believed the force to be necessary, if, when viewed objectively, he has made a grossly negligent error of judgment in so believing, he is guilty of manslaughter.

• For the purposes of this case, these remarks only apply to the victim of a felonious and violent attack.

• Budd J (concurring -agreed with Walsh J)

• Fitzgerald J (concurring)

• Butler (concurring)

• If the accused is found to have used no more force than was reasonably necessary for his defence, he commits no crime.

• The killing is unlawful if objectively, he uses more force than necessary, though the question of whether he commits manslaughter or murder depends on his state of mind.

• Where the defence made to a charge of murder is self-defence against a violent and felonious attack, if the jury find that the accused used more force than necessary but no more than he honestly believed to be necessary, then should return a verdict of guilty of manslaughter.

• In this case, where the jury were not so directed, the accused is entitled to retrial.

Followed by Clarke (CCA), Connolly (CCA), O'Connolly (CCA),

R v Palmer (PC 1971)

Facts

• The defendants had been convicted of murder by the Supreme Court of Jamaica.

• On appeal to the Privy Council they tried to rely on a halfway house defence similar to that in Dwyer.

Issue

• Self-defence – Effect of a subjective belief of necessity

Judgment (Lord Morris of Borth-y-Gest)

• There is no rule of law that requires that every case where the issue of self defence is left to the jury that they had to be directed that if excessive force were used in defence they must return a verdict of manslaughter.

• If a jury believe that in a moment of peril a person had only done what they honestly and instinctively thought was necessary that would be extremely strong evidence that the accused had only used what force was...