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LRC Report on Criminal Defences

(from http://www.lawreform.ie)

The Law Reform Commission’s Report, Defences in Criminal Law was published yesterday and is available on their website. The lengthy Report is the result of extensive research and consultation, including a seminar and three consultation papers. The Report deals with the defences of legitimate defence; public defence; provocation and duress and necessity. The main recommendations of the Commission’s Report are available in the Commission’s press release here.

The Irish Times reports that the Minister for Justice Dermot Ahern intends to enact the draft Criminal Law (Defences) Bill 2009, which is attached as an appendix to the Report.

While space does not permit a detailed analysis of the recommendations, this blog discusses the recommendations relating to legitimate defence and provocation. For the rest of the recommendations, see here.

Legitimate Defence:

The Commission recommends a new defence of ‘legitimate defence’ to replace that of self-defence. The new term reflects the justificatory (as opposed to excusatory, as the partial defence of provocation) rationale underlying the defence; in other words, society is not condemning the defendant’s actions, because they are viewed as being in some way justified or required by the exigencies of the situation facing the defendant. It is therefore a full defence to a charge of murder.

The Commission’s recommendations are grounded in 4 key requirements, designed to help jurors navigate a path around discriminatory and biased assumptions and wholly subjective standards. These core requirements are:

(1) A threshold requirement concerning the type of unlawful attack on the person, especially where lethal force is used in response

(2) The imminence or immediacy of the attack

(3) The necessity of the defendant’s use of force including a duty to retreat where it is safe to do so.

(4) The proportionality of the force used, including where disproportionate lethal force is used. Crucially, the test of whether the use of force is necessary and proportionate is based on an objective standard of a reasonable person. Excessive self-defence is retained for cases in which the force used was not objectively necessary and proportionate.

In and of themselves, these recommendations are not particularly revolutionary. The case-law developed in relation to the defence of self-defence contains all of these requirements. The problem however is that they were bundled up into the rather confusing concept of “reasonable in all the circumstances”, thus forcing trial juries with the difficult takes of unpacking the meaning of reasonable and applying it to the defendant in the case before them.

The most newsworthy recommendations in the Report are likely to be those relating to the defence in the home. According to the Commission:

The Commission recommends that the general requirements for legitimate defence (Self-defence) should apply to defence of the dwelling and its vicinity.

The Commission recommends that the general rule that a person should retreat where possible does not apply where the attack is in the home.

The Commission also recommends that, if all the requirements of the defence are met, use of lethal force would be a complete defence to murder and would lead to an acquittal.”

This recommendation enshrines the castle doctrine – in other words, the defendant does not have to retreat when faced with an unlawful attack in his or her home. In this recommendation the Commission is echoing the judgment of the Court of Criminal Appeal in DPP v Barnes [2006] IECCA 165.  There the Court confirmed the constitutional protection afforded to the dwelling house by Article 40.3.3. Furthermore, under section 8 of the Non-Fatal Offences Against the Person Act 1997 the use of force is lawful in order to protect property. The issue of course is the amount of violence employed and its relation to the threat posed. Indeed the Court in Barnes stressed, “it is ridiculous to suggest that a private citizen, however outraged, may deliberately kill [a burglar] simply for being a burglar.”

Commissioner and Professor of Criminal Law at UCD Finbarr McAuley identifies the need for clarity in the law in this area:

“The current law leaves everything caught up in a vague rubric of reasonableness. We need to codify the law and set out limits in terms that give substance to overarching legal concepts,” he said.

“Shooting a man in the back as he flees in retreat can hardly be described as necessary. But on a vague reasonableness basis, who knows what a jury might think?”

Crucially, the changes proposed in section 3 of the Draft Bill in relation to the use of lethal force against an intruder, are prefaced by the words “ Without prejudice to the generality of section 2”. Section 2 contains the requirements of imminence, threshold, (which are repeated in section 3); necessity to retreat, where it is safe to do so (this is even in the case of the home) and proportionality.

If a person is attacked in their own home, it is highly likely that the requirement of imminence will be satisfied without any recourse to arguments about the importance of the dwelling home. Simply put, if the homeowner faced an imminent threat to his or her life or bodily integrity, then a proportionate and necessary response would quite possibly be the use of lethal force. In reality the threat to the home often also encompasses the threat to the homeowner’s personal safety. However, in cases where the intruder merely threatens the homeowner’s property interests- for example by simply entering the house, unarmed, to steal the car keys, the jury would surely not be expected to find that the use of lethal force was justified? This is the kernel of the controversy raised by the Commission’s recommendations. There is a dissonance between the Commission’s recommendations and the provisions of the Draft Bill. While the Report and the recommendations emphasise that the force used in defence of property should be subject to the requirements of imminence, necessity and proportionality,(p.45)  these factors are not made clear in the provisions of the Draft Bill. Section 3 sets out that a person is justified in using lethal force in his dwelling-or in the vicinity  of the dwelling- if that force is by way of a defence to the threat of or the use of serious personal harms,(eg rape, death)  but importantly, also to repel the entry or occupation fo eth dwelling or damage or destruction of the dwelling. It would therefore appear that the Commission’s Draft Bill goes much further than the CCA  did in Barnes and seems to be placing the right to defence of property above the right to life of the intruder. The constitutionality of such a move is doubtful. Indeed the courts will be vigilant to ensure that homeowners do not cross the line from defence  to revenge, as happened in a recent case in Britain. The ICCL has criticised the provisions  as a “have a go charter” that will place homeowners at increased risk of , by encouraging them to stand their ground even when it is safe to escape. However it is precisely this didactic function of the criminal law reform that Minister Ahern is keen to stress. He is cited on the Irish times website as saying that:

“This is putting burglars on notice that if they do go into houses in this way that the person in the house is given more protection than here-to-fore.”

In light of the predictable rise in property crime that tends to accompany recessions, it will be interesting to see what the courts, and more importantly, what jurors will make of  this defence, if enacted. Certainly while its instrumental character is consonant with current cultural narratives surrounding property crime and crimes against the elderly, it remains to be seen if the government will see fit to place on a clear statutory footing the requirements of necessity, proportionality and imminence, when considering the draft legislation.

In this regard it is also important to remember the case of DPP v Nally [2006] IECCA 128, which raised interesting questions about the role of the jury in the legitimacy of the criminal justice process. In that case the defendant’s first conviction for manslaughter was quashed by the Court of Criminal Appeal because the trial judge had failed to allow the full defence of self-defence to go to the jury, holding instead that the evidence supported a conviction for murder or for manslaughter, but not an acquittal. The trial judge’s insistence on a “truncated” version of self-defence was fatal, essentially because it undermined the legitimating function of the jury in the criminal justice system. In its report, the Commission notes that “The impact of the Court of Criminal Appeal decision in Nally cannot be underestimated in terms of procedural issues regarding self-defence and in terms of the relationship between judges and jury” (at p.42). However the Commission stressed that it was concerned with the substantive content of the defence.


The Commission also makes a number of recommendations relating to the defence of provocation. Space does not permit a detailed analysis here. However the key issue to note is that the Commission seems to be keen to inject an element of objectivity into the assessment of the defendant’s response to the allegedly provocative act.

“The defence should be based primarily on whether the provocation (words or acts,

such as assault) was such that it was reasonable for the accused, based on the

standard of an ordinary person, to have lost self-control. “

This is a most welcome development in light of the excessively subjective bias of the provocation defence under the current law. Indeed, in People (DPP) v Davis [2001] 1 IR 146,157- The Court of Criminal Appeal accepted that it is virtually impossible to disprove evidence of provocation once it has been introduced under the rubric of the subjective test established under DPP v MacEoin People (DPP) v Mac Eoin [1978] IR 27

In relation to cumulative provocation, the Commission emphasises that the focus should not solely be on the temporal link between the allegedly provocative act and the defendant’s actions. Instead ” the the presence or absence of an immediate response to provocation should be a matter which a jury is to take into account, along with all the other evidence, in deciding whether the accused lost self-control. This could be especially relevant in the context of cumulative violence.”

While the defence of Battered Women Syndrome has not been embraced in Irish law, a not dissimilar version was accepted by the Central Criminal Court in People (DPP) v Hennessy (Finnegan J) October 2000 and April 2001, where it appears to have been accepted that evidence of the “surrounding circumstances” leading to the killing could go to the jury on the issue of provocation. (Irish Times 11 October 2000 at 4 “Husband Killed wife in a moment of rage”).  Given that the circumstances in question were that the accused was suffering from stress occasioned by the fact that he had been suspended from his job on suspicion of embezzlement, and that the trial judge acknowledged the deceased’s contribution to his violent out burst – she had told him he was “no good” and had “slapped him across the face” – appeared to be of a very low level., the trial judge still allowed the appeal to go the jury. The jury found that there was a sudden temporary loss of self control. It was noted that the accused suffered from a very sever stress when the embezzlement began, but that he was responsible for the stress thus created.  He was sentenced to 8 years for manslaughter.

Last Friday a jury accepted a plea of diminished responsibility (a relatively new partial defence, created by the Criminal Law (Insanity) Act 2006) and acquitted a woman of the murder of her husband and found her guilty of his manslaughter.  The Irish Times Report is here.

The defendant hit her husband on the head 23 times with a hammer. Over six days the jury heard “harrowing evidence’ of an extremely violent and abusive marriage. The Sunday Tribune carries an evocative portrayal of the litany of abuse endured by the defendant and her children at the hands of the deceased.  Two psychiatrists who gave medical evidence on behalf of both the defence and prosecution agreed that the defendant was suffering from a mental disorder, i.e. severe depression, at the time of the killing.

From a critical feminist perspective, the construction of female anger and violence as occurring in circumstances of diminished responsibility is consonant with traditional legal systems construction of women defendants as mad or bad. The hystericisation and medicalisation of female defendants is in stark contrast to the male conception the defence of provocation.  Furthermore, quite apart from the issues of gendered binaries, is that of the medicalisation of women’s stories of lethal violence, where the ‘truth’ is filtered through a series of professional discourses, including psychiatric and legal discourses, that distances the public and the jury from the reality of violence against women and the reasons why they might use lethal violence.

While the Commission does not deal directly with these issues, it opens the door to a broader conception of the meaning of ‘relevant circumstances’, stressing that “[t] he fact that the killing did not immediately follow the provocation does not, in itself, mean that the defence cannot be raised. Instead, the presence or absence of an immediate response to provocation should be a matter which a jury is to take into account, along with all the other evidence, in deciding whether the accused lost self- control. This could be especially relevant in the context of cumulative violence.”

It remains to be seen whether this recommendation signposts a movement towards a broader conception of provocation, or whether women defendants will have to continue to resort to medicalised discourses in pleading mitigating circumstances.

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