It has long been said that “a man’s home is his Castle” implying that he may be justified in the use of force within his own home to protect himself, his family or his property. Our constitution, the bedrock of our legal system, recognises the special constitutional status of a person’s dwelling, stating, at Article 40.5, “the dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with Law”.
However, the lengths to which a home owner may go, in defence of his property, and the legal consequences for him has caused confusion, uncertainty and generated considerable public debate – most people having strong views on their right to safeguard their homes, some adopting curious measures such as an elderly barrister I know who keeps a nine-iron golf club by his bed in the fond hope that it will see off all comers! Or the elderly, somewhat eccentric, neighbour near our home in Galway who had a large sign fastened to the entrance gates to her property stating “this house is protected by shotgun four nights a week – you guess which nights”!
One man who did indeed settle the matter by shotgun was Padraig Nally, a Mayo farmer whose remote farmhouse had been repeatedly broken into and property stolen. On the 14th of October 2004 he shot dead John “Frog” Ward, a traveller trespassing on his property. Ward had a string of convictions the length of your arm many involving the use of Stanley knives and slash hooks. Not the most welcome of uninvited visitors! Mr. Nally was charged with Ward’s murder and a Mayo jury at the Central Criminal Court sitting in Castlebar found him not guilty of murder but guilty of manslaughter for which he was sentenced to six years imprisonment. On appeal the Supreme Court set aside the conviction on the grounds that the jury had not had an opportunity to consider self defence as a complete defence, and ordered a re-Trial. A new jury, this time in Dublin, acquitted Mr. Nally finding him not guilty of manslaughter. So – what was the Law?
To attempt to answer this “the Criminal Law (Defence and the Dwelling) Act 2011” was brought into Law on the 13th of January 2012 and sets out to clear up some of the confusion and uncertainty.
The Act provides that a person may use force against an intruder to protect his dwelling if he believes that the intruder has entered his property to commit a crime and if the force used by him is such as he believes to be reasonable in the circumstances to protect himself, his property or his family. It is immaterial whether that belief is justified or not provided the belief was honestly held by the person using the force and a Court or jury must have regard to the presence or absence, in any given situation, of reasonable grounds for the person believing the force used was justified and to all other relevant circumstances. The extent of force that may be used does not exclude the use of force causing death. The home owner need not have had an opportunity to retreat from his dwelling before using force, as was the position in Law before this Act, nor is he required to do so. He is entitled to stand his ground.
Section 5 of the Act provides a sensible and long overdue provision to the effect that a person using such force as is permitted by the Act will not be liable to the intruder in damages in respect of any injury, loss or damage arising from the use of such force.
Whatever the new Law allows or does not allow common sense should always prevail. Your home may be your Castle but don’t die defending it!