Legitimate Defence Consultation Paper - Law Reform Commission

force should not be resorted to so as to repel minor threats and
correspondingly, protects the right to life of the attacker. Given that it is
generally accepted that certain threats do not justify the use of lethal
defensive force, it seems practical and coherent to state this in the
legislation.
2.53 The Commission provisionally recommends that a minimum
threshold requirement should be imposed on the use of private lethal
defensive force.
2.54 As the discussion of the comparative law has illustrated, some
jurisdictions which have adopted a threshold requirement have required a
threat of death or serious injury to be imminent before there can be resort to
lethal reactive force.
2.55 It is accepted that the use of lethal force should be permissible
when an individual is subject to the threat of death or serious bodily injury.
The justifications for giving the defender’s right to life some priority over
that of the attacker are discussed in the final chapter of this Paper. 83 Where
an individual is confronted with the real threat of death or serious injury, it is
accepted that the defender may have in essence no choice but to kill the
attacker. 84 In addition to this, enabling a defender to use lethal force in this
dire instance is a vindication of the individual’s autonomy. 85 Where an
individual faces a threat of such seriousness, the use of lethal defensive force
is justified as the lesser of two evils. In this respect the life of the attacker is
in essence “discounted” given that the aggressor created the circumstances
making the defence necessary. 86 Accordingly, it is accepted that the use of
lethal defensive force to repel a threat of death or serious injury may be
justifiable if the other stages of the test for legitimate defence are satisfied.
2.56 However, should a threat of death or serious injury be the
threshold requirement for lethal defensive force or should less serious threats
be accommodated within this threshold For example, should it be
permissible to use lethal defensive force when confronted with the threat of
rape or aggravated sexual assault The Commission is aware that only a
handful of cases will arise where a person will be subject to the threat of rape
but not serious injury. However, should these cases, albeit limited, be
provided for, and if so, how As discussed above, in a number of
83
84
85
86
See paragraphs 7.31-7.51.
See Fletcher Rethinking Criminal Law (Little, Brown and Company 1978) at 856.
See the arguments of Schopp in Justification Defenses and Just Convictions
(Cambridge University Press 1998) at 59.
See Fletcher Rethinking Criminal Law (Little, Brown and Company 1978) at 857-858.
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