Legitimate Defence Consultation Paper - Law Reform Commission

kidnapping (together with threats of death, serious bodily injury and forced
sexual intercourse) in an exclusive list of offences that may justify the use of
lethal defensive force. 58
2.36 There is little case-law in the US considering this issue, 59 and the
few cases that there are generally deal with kidnapping in combination with
other threats such as death, rape, or other injury. 60
(4) Defence of Others
2.37 It is generally considered an uncontroversial proposition that the
defence of others is an extension of the right to defend oneself. It is
consistent with the argument that legitimate defence, as a justification, is a
“universal” defence that is available to everyone because it is the “right”
thing to do. 61 However, surprisingly this view is of relatively recent origin
and, in some jurisdictions, has yet to be formally adopted.
2.38 Historically, the use of force in defence of the person was
restricted to the protection of those “in a special relationship to the defender
such as a wife, child or master.” 62 It has been suggested that defence of
others was restricted in this fashion because it was treated as a variation of
the defence of property; that is, a man was entitled to protect what was “his”,
namely his wife, his children and his servants. 63 Gradually reciprocal rights
were recognised such that any member of a family could protect another, and
a servant could protect his master. 64
2.39 In People (AG) v Keatley, 65 the Court of Criminal Appeal took the
view that the historical limitations on the defence of the person were
“obsolete” and “irrelevant” given that the defence of others is in any event
58
59
60
61
62
63
64
65
Section 3.04(2)(b) of the Model Penal Code.
Diamond “To Have But Not to Hold: Can ‘Resistance Against Kidnapping’ Justify
Lethal Self-Defense Against Incapacitated Batterers” (2002) 102 Columbia Law
Review 729 at 746-750.
See for example the case of State v French 2001 Wash App LEXIS 1651 (Court of
Appeals of Washington 27 July 2001) where it was held that self-defence should have
been put to the jury in circumstances where the appellant feared that her son was
being kidnapped and where she feared for the safety of her son and of herself.
Fletcher Rethinking Criminal Law (Little, Brown and Company 1978) at 760-761.
For further discussion, see Chapter 7 below.
People (AG) v Keatley [1954] IR 12 at 17.
Boyce & Perkins Criminal Law and Procedure (7th ed Foundation Press 1989) at
819.
Ibid.
[1954] IR 12.
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