Legitimate Defence Consultation Paper - Law Reform Commission

should intervene on behalf of others who are in danger and therefore that that
is response which should be encouraged on policy grounds. 91
2.60 However, the issue is whether a third party should only be
allowed to use lethal defensive force where the person being defended was
entitled to use such force. Two competing arguments are usually made here.
On the one hand, it is argued that assistance in these circumstances should be
encouraged and therefore the threshold should be more flexible in the
context of persons defending third parties. On the other hand, it is argued
that third parties have a tendency to overreact when defending others and
should accordingly be deterred from this. 92
2.61 It is suggested that it should only be lawful for a third party to use
lethal defensive force where the person who is being defended could also
have used such force. Any hardship caused in this regard would be
alleviated by allowing for mistakes in this respect. 93 This strikes an
appropriate balance between the two competing arguments.
2.62 It is provisionally recommended by the Commission that private
lethal defensive force should only be permitted to repel threats of death or
serious injury, rape or aggravated sexual assault and false imprisonment by
force and then only if all the requirements of legitimate defence are made
out. Such force is permitted whether it is applied in defence of one self or of
a third party.
E Defence of Property
2.63 Should lethal defensive force ever be allowed in defence of
property when the other threshold requirements are not satisfied, that is, the
defender is not otherwise threatened with death or serious injury (or sexual
offending or deprivation of liberty) Intuitively, many people would not
consider the preservation of property as sufficiently important to warrant the
taking of human life. Yet, historically the common law allowed the use of
lethal defensive force to protect property in certain circumstances.
91
92
93
See Fletcher Rethinking Criminal Law (Little, Brown and Company 1978) at 760-761.
See paragraph 2.46.
Whether the test should be normative or narrative is discussed in detail in the chapter
on mistake. As the Commission noted in its Consultation Paper on Provocation,
“It would be better if the expressions “objective” and “subjective” were avoided in
this context. The first element is better seen as involving nothing more than a
factual enquiry, namely, whether the accused was provoked. The second element
invites an evaluation of the quality of the accused’s fatal response, as judged by the
application of generally accepted norms of appropriate conduct. Accordingly, the first
element may be described as the narrative issue; and the second as the normative
issue.”
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