Updated: Nov 9, 2018
The right to self-defence has been recognised since ancient times. In the first century BC, the Roman, Marcus Cicero (106-53 BC), wrote: “There exists a law, not written down anywhere, but inborn in our hearts … I refer to the law which lays it down that, if our lives are endangered by plots or violence or armed robbers or enemies, any and every method of protecting ourselves is morally right.”
The Irish government last year did “write down” how it defines this ancient right in the Criminal Law (Defence and the Dwelling) Act, 2011. This statute arose out of concerns that the old law was vague, and left people unsure as to what they were allowed to do if their home was attacked. Many also saw the old law’s requirement to retreat as unjust.
What does the new law allow?
The first thing to note about the new law is that it only applies to your dwelling and the private land immediately around it. However, your dwelling can be a house, a boat, a caravan or a vehicle.
The new law says that if you believe “the other person has entered or is entering the dwelling as a trespasser for the purpose of committing a criminal act” you may use “only such force as is reasonable in the circumstances” as you believe them to be in order to protect yourself, another person, or your property.
Ireland’s old law only allowed a person to use force if they could not retreat. This effectively allowed burglars to chase people from their homes. The new law states unambiguously: “Nothing in this Act shall operate to require … a person to retreat from his or her dwelling”.
One striking thing about the new law is that it deliberately makes allowance for the householder to be mistaken as to what’s going on. Imagine, for example, that one dark night a householder believes a burglar is coming at him with a knife and so shoots him dead. Even if it later transpires that the “knife” was in fact merely a feather, the new law would exonerate the householder - provided he was sincere in his mistaken belief. This allowance for mistaken belief shows that the legislature was taking an understanding approach to householders who - often in terror, half-awake and in darkness - must confront an intruder. However, this test is subjective: It’s impossible to conclusively prove what is going on in someone’s mind.
Another area of ambiguity in the new law is the concept of “such force as is reasonable in the circumstances”. The concept of “reasonable force” has been long debated by academics, judges and juries all over the world. Nobody can agree on what exactly “reasonable force” is. Ultimately it will be up to a jury to decide, in all the circumstances, if a person’s defensive action was reasonable. Juries can be fickle, and tend to be far more sympathetic to the householder than the intruder.
Prosecutors won’t even bring charges at all where they are convinced that a householder was acting in self-defence. For example, last year in England, a householder stabbed a burglar to death in self-defence. No charges were brought.
Ireland’s new law gives citizens reasonable latitude of action in self-defence. However, we should always avoid inflicting injury or death on another - unless absolutely necessary.
Interestingly, Ireland’s new law appears to broadly accord with religious views of self-defence, which are rooted in ancient moral thought. Roman Catholic teaching on self defence states: “Someone who defends his life is not guilty of murder even if he is forced to deal his aggressor a lethal blow”. Interestingly, it also states that “legitimate defense can be not only a right but a grave duty for one who is responsible for the lives of others. The defense of the common good requires that an unjust aggressor be rendered unable to cause harm.”
However, St Thomas Aquinas warns us that “If a man in self-defense uses more than necessary violence, it will be unlawful: whereas if he repels force with moderation, his defense will be lawful”. As in Aquinas’ time, the legitimacy of defensive action still comes down to “reasonable force”.