Legitimate Defence Consultation Paper - Law Reform Commission

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INTRODUCTION A Background 1. This Consultation Paper addresses the law relating to the criminal defence of legitimate defence in the context of homicide. Legitimate defence is the lawful killing of another person in response to a threat to “private” or “public” interests. “Private defence” covers the use of force for the protection of the person or of property. “Public defence” covers the use of force for the prevention of crime or to effect arrests. 2. This is the fourth in a series of papers which is intended to provide a comprehensive review of the law of homicide in this jurisdiction with the eventual aim of codification. 1 It follows the Commission’s Consultation Papers on Homicide: The Mental Element in Murder, 2 and Homicide: The Plea of Provocation, 3 and the Commission’s Report on Corporate Killing. 4 The law of homicide is included in the Commission’s Second Programme for Law Reform, approved by the Government in 2000. 3. One of the values underpinning codification is the principle of legality. The principle of legality is described as “the idea that conduct should not be punished as criminal unless it has been clearly and precisely prohibited by the terms of a pre-existing rule of law.” 5 A failure to specify rules of acceptable conduct clearly exposes accused persons to “the vagaries of juries” and to “gusts of public opinion”. 6 The principle of legality is of the utmost importance in cases of homicide. 1 2 3 4 5 6 See the Report of the Expert Group on the Codification of the Criminal Law: Codifying the Criminal Law (Department of Justice, Equality and Law Reform 2004). Law Reform Commission Consultation Paper on Homicide: The Mental Element in Murder (LRC CP 17-2001). Law Reform Commission Consultation Paper on Homicide: The Plea of Provocation (LRC CP 27 – 2003). Law Reform Commission Report on Corporate Killing (LRC 77- 2005). McAuley & McCutcheon Criminal Liability (Round Hall Sweet & Maxwell 2000) at 42. This principle is expressed in the judgment of Henchy J in King v AG [1981] IR 233 at 257. See also Ashworth “Self-Defence and the Right to Life” [1975] CLJ 282 at 307; Ashworth Principles of Criminal Law (2nd ed Clarendon Press 1995) 136 at 150. Williams Textbook of Criminal Law (Stevens & Sons 1978) at 457. 1
Page 1 and 2: CONSULTATION PAPER LEGITIMATE DEFEN
Page 3 and 4: LAW REFORM COMMISSION Background Th
Page 5: Contact Details Further information
Page 8 and 9: (6) Warnings and Less-Than-Lethal-F
Page 10 and 11: (1) Introduction 311 (2) Models for
Page 13 and 14: TABLE OF CASES Alberty v United Sta
Page 15 and 16: R v Browne [1973] NI 96 Eng R v Cha
Page 17: State v Gordon (1924) 128 SC 422 US
Page 21 and 22: B Outline of this Paper 9. The form
Page 23 and 24: 1 CHAPTER 1 OVERVIEW OF LEGITIMATE
Page 25 and 26: 1.09 It is submitted that a simply
Page 27 and 28: 1.16 On the one hand, both the Shor
Page 29 and 30: 2 CHAPTER 2 THE THRESHOLD REQUIREME
Page 31 and 32: 2.08 The public and private defence
Page 33 and 34: 2.16 The broad nature of the propor
Page 35 and 36: notwithstanding the typical thresho
Page 37 and 38: liberty, privacy, dignity and honou
Page 39 and 40: kidnapping (together with threats o
Page 41 and 42: 2.42 The English Courts have held a
Page 43 and 44: force should not be resorted to so
Page 45 and 46: should intervene on behalf of other
Page 47 and 48: The Canadian Criminal Code 100 does
Page 49 and 50: Ross v Curtis, there is no support
Page 51 and 52: that the decision is not in keeping
Page 53 and 54: where there is no suggestion that a
Page 55 and 56: injury and consequently, that letha
Page 57 and 58: injured or killed is a judgment mad
Page 59 and 60: century that the broad powers to us
Page 61 and 62: Ireland 165 Barron J preferred to s
Page 63 and 64: there is a potential risk to life,
Page 65 and 66: an arrest who was not believed on r
Page 67 and 68: “The use of lethal force to kill
Page 69 and 70:
“In this context the Commission r
Page 71 and 72:
prevent a non-violent theft. 203 Ho
Page 73 and 74:
test to the facts, the Court asked
Page 75 and 76:
having committed an offence punisha
Page 77 and 78:
2.175 This approach was adopted by
Page 79 and 80:
that they will be improperly motiva
Page 81 and 82:
2.192 The majority concluded that d
Page 83 and 84:
is in the process of committing a f
Page 85 and 86:
to violence”. 286 The drafters of
Page 87 and 88:
of innocent life more probable. Thi
Page 89 and 90:
for which a person of full capacity
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is little point in applying public
Page 93 and 94:
force was permissible to arrest a p
Page 95 and 96:
into a cordon of Gardaí and crashe
Page 97 and 98:
doing of which may be prevented at
Page 99 and 100:
shooting might have satisfied the p
Page 101 and 102:
“[T]he question for the House, as
Page 103 and 104:
may be used to prevent unspecified
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(c) The Dangerous-Suspect Rule 2.28
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2.292 It is also arguable that the
Page 109 and 110:
to effect arrests or to prevent esc
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3 CHAPTER 3 THE IMMINENCE REQUIREME
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then surely the actor can take step
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the call for a re-examination of th
Page 117 and 118:
imminence requirement, and at other
Page 119 and 120:
himself on day eight provided he st
Page 121 and 122:
others who kill in the belief that
Page 123 and 124:
epercussions. 38 Assuming that the
Page 125 and 126:
3.56 The Court did not accept that
Page 127 and 128:
which justified extending the scope
Page 129 and 130:
3.71 In the High Court of Australia
Page 131 and 132:
when the threatened harm is “inev
Page 133 and 134:
esponse to threats of non-imminent
Page 135 and 136:
that further assaults are inevitabl
Page 137 and 138:
3.102 The United States of America
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3.108 Essentially, this is the appr
Page 141:
indistinguishable from those covere
Page 144 and 145:
ule has already been examined. Seco
Page 146 and 147:
cases this belief would amount to a
Page 148 and 149:
used force to carry out an arrest i
Page 150 and 151:
4.27 The 1997 Act, although at firs
Page 152 and 153:
(4) Other Jurisdictions (a) Evoluti
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legislatures and academic literatur
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4.46 The first case of major import
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circumstances (citing with approval
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(f) Canada 4.62 In Canada defensive
Page 162 and 163:
Notwithstanding the rights or wrong
Page 164 and 165:
unnecessary violence in the name of
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alternative remedies is unlikely to
Page 168 and 169:
cases where an arrestee wrongfully
Page 170 and 171:
4.98 However, arguably a strict pre
Page 172 and 173:
are assessing the lawfulness of the
Page 174 and 175:
lawfully, even if he or she is enda
Page 176 and 177:
(3) The Law in Ireland 4.123 How wo
Page 178 and 179:
person even though these acts are n
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(4) The Law in Other Common Law Jur
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4.143 Ultimately, a majority of two
Page 184 and 185:
Viro, 173 both stated that an unlaw
Page 186 and 187:
factor to be taken into account acc
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In addition to that, it was observe
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4.172 As has been discussed, the al
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(necessity and proportionality) req
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5.13 If the ambit of the necessity
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society fails; and the victim in re
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according to Beale, required innoce
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develop a separate castle doctrine.
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Beale’s analysis. 53 However, he
Page 204 and 205:
5.48 There were two other notable f
Page 206 and 207:
5.54 Butler J’s judgment is even
Page 208 and 209:
(5) Summary and Conclusions 5.62 It
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5.69 Ironically, Perkins and Boyce,
Page 212 and 213:
forth &c… and killed the other &c
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intruders to their homes. Section 5
Page 216 and 217:
5.92 Some US courts have gone furth
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“[A]ll co-occupants, even those u
Page 220 and 221:
scenario is illustrated by the case
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that the appellant, who shot the de
Page 224 and 225:
5.120 In contrast it has been argue
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5.131 However, the Commission submi
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generated necessity under the compr
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5.148 Given the care with which Bea
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esult in physical violence does not
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“In case of mutual combat neither
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5.169 In Dwyer the appellant might
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from death or grievous bodily harm
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safe-retreat was absolute (as under
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ob him. However, the deceased pulle
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of murdering his neighbour. Relatio
Page 246 and 247:
5.209 Proponents of Beale’s appro
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considerations at issue. First, it
Page 250 and 251:
and physical security. In some case
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“[A]n assault with an umbrella or
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threshold test in lieu of proportio
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that a person may use such force as
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However, whilst accepting this stan
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for a requirement that defensive fo
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ather than use the force necessary
Page 264 and 265:
of Criminal Appeal in People (DPP)
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law of legitimate defence and, in d
Page 268 and 269:
6.68 The Commission provisionally r
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generated necessity” cases discus
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given to the social utility of leth
Page 274 and 275:
7.05 Consider the following scenari
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However, this paper deliberately se
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accountable for a concededly wrongf
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would amount to “a legally author
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(4) Arguments from Utility 7.37 The
Page 284 and 285:
attacker and defender, then it seem
Page 286 and 287:
(1) A Brief History of the Problem
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plank of their argument is that put
Page 290 and 291:
moral judgment about him, should no
Page 292 and 293:
order to define the instances in wh
Page 294 and 295:
common law) and by a number of comm
Page 296 and 297:
which, unknown to the actor, was ne
Page 298 and 299:
7.100 Advocates of the Dadson princ
Page 300 and 301:
to the nature of the threat or the
Page 302 and 303:
(2) Normative-Based Excuse 139 7.11
Page 304 and 305:
that would be the most potent evide
Page 306 and 307:
in the belief that the infliction o
Page 308 and 309:
7.135 The primary argument in favou
Page 310 and 311:
attack. 187 The High Court held exc
Page 312 and 313:
distinction between mistakes of law
Page 314 and 315:
7.153 Walsh J’s reasoning differe
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“The assumption is fine if mansla
Page 318 and 319:
7.169 Whether defensive force was j
Page 320 and 321:
(d) The Flexible Test of Reasonable
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species of voluntary homicide - tha
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Imprisonment in which it argued tha
Page 326 and 327:
“an offence” on the basis that
Page 328 and 329:
alternative - increasing judicial d
Page 330 and 331:
(2) Models for Reform 7.216 Broadly
Page 332 and 333:
stricter approach to errors of law.
Page 334 and 335:
conduct. 303 In contrast, the norma
Page 336 and 337:
For example, the “reasonable batt
Page 338 and 339:
allow a putative defender to kill a
Page 340 and 341:
illustration, the man who shoots hi
Page 342 and 343:
greater appreciation of the jury’
Page 344 and 345:
has used more force than was necess
Page 346 and 347:
7.285 The deeds-based approach is g
Page 348 and 349:
7.291 The second method of resolvin
Page 350 and 351:
e given special treatment. Therefor
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