R The Law Reform Commission is an independent statutory E P O body established by the Law Reform Commission Act 1975. RT The Commission’s principal role is to keep the law under review and to make proposals for reform, in particular by recommending the enactment of legislation to clarify and modernise the law. DEFENCES IN This role is carried out primarily under a Programme of REPOrt Law Reform. The Commission’s Third Programme of Law Reform 2008-2014 was prepared and approved under the 1975 Act following broad consultation and discussion. The DEFENCES IN C Commission also works on specific matters referred to it RIMINAL by the Attorney General under the 1975 Act. Since 2006, CRIMINAL LAW the Commission’s role also includes two other areas of activity, Statute Law Restatement and the Legislation L AW Directory. Statute Law Restatement involves incorporating all amendments to an Act into a single text, making legislation more accessible. The Legislation Directory (previously called the Chronological Tables of the Statutes) is a searchable guide of legislative changes. LRC 95-2009 €15 AddrEss TELEPHONE FAX EMail WEBsitE (LRC 95-2009) 35-39 Shelbourne Road Dublin 4 Ireland +353 1 6377600 +353 1 6377601 [email protected] www.lawreform.ie The Law Reform Commission is a statutory body established by the Law Reform Commission Act 1975 110177 - LRC Defences in C law.indd 1 17/11/2009 18:08 www.lawreform.ie 110177 - LRC Defences in C law.indd 2 17/11/2009 18:08 REPORT DEFENCES IN CRIMINAL LAW (LRC 95 - 2009) © COPYRIGHT Law Reform Commission FIRST PUBLISHED December 2009 ISSN 1393-3132 i LAW REFORM COMMISSION‟S ROLE The Law Reform Commission is an independent statutory body established by the Law Reform Commission Act 1975. The Commission‟s principal role is to keep the law under review and to make proposals for reform, in particular by recommending the enactment of legislation to clarify and modernise the law. Since it was established, the Commission has published over 150 documents (Consultation Papers and Reports) containing proposals for law reform and these are all available at www.lawreform.ie. Most of these proposals have led to reforming legislation. The Commission‟s role is carried out primarily under a Programme of Law Reform. Its Third Programme of Law Reform 2008-2014 was prepared by the Commission following broad consultation and discussion. In accordance with the 1975 Act, it was approved by the Government in December 2007 and placed before both Houses of the Oireachtas. The Commission also works on specific matters referred to it by the Attorney General under the 1975 Act. Since 2006, the Commission‟s role includes two other areas of activity, Statute Law Restatement and the Legislation Directory. Statute Law Restatement involves the administrative consolidation of all amendments to an Act into a single text, making legislation more accessible. Under the Statute Law (Restatement) Act 2002, where this text is certified by the Attorney General it can be relied on as evidence of the law in question. The Legislation Directory - previously called the Chronological Tables of the Statutes - is a searchable annotated guide to legislative changes. After the Commission took over responsibility for this important resource, it decided to change the name to Legislation Directory to indicate its function more clearly. ii MEMBERSHIP The Law Reform Commission consists of a President, one full-time Commissioner and three part-time Commissioners. The Commissioners at present are: President: The Hon Mrs Justice Catherine McGuinness Former Judge of the Supreme Court Full-time Commissioner: Patricia T. Rickard-Clarke, Solicitor Part-time Commissioner: Professor Finbarr McAuley Part-time Commissioner: Marian Shanley, Solicitor Part-time Commissioner: Donal O‟Donnell, Senior Counsel iii LAW REFORM RESEARCH STAFF Director of Research: Raymond Byrne BCL, LLM (NUI), Barrister-at-Law Legal Researchers: Chris Campbell B Corp Law, LLB Diop Sa Gh (NUI) Siobhan Drislane BCL, LLM (NUI) Gemma Ní Chaoimh BCL, LLM (NUI) Bríd Nic Suibhne BA, LLB (NUI), LLM (TCD), Diop sa Gh (NUI) Jane O„Grady BCL, LLB (NUI ), LPC (College of Law) Gerard Sadlier BCL (NUI) Joseph Spooner, BCL (Law with French Law) (NUI), Dip. French and European Law (Paris II), BCL (Oxon) Ciara Staunton BCL, LLM (NUI), Diop sa Gh (NUI) STATUTE LAW RESTATEMENT Project Manager for Restatement: Alma Clissmann, BA (Mod), LLB, Dip Eur Law (Bruges), Solicitor Legal Researchers: John P Byrne BCL, LLM, PhD (NUI), Barrister-at-Law Catriona Moloney BCL (NUI), LLM (Public Law) LEGISLATION DIRECTORY Project Manager for Legislation Directory: Heather Mahon LLB (ling. Ger.), M.Litt, Barrister-at-Law Legal Researchers: Margaret Devaney LLB, LLM (TCD) Rachel Kemp BCL (Law and German), LLM (NUI) iv ADMINISTRATION STAFF Head of Administration and Development: Brian Glynn Executive Officers: Deirdre Bell Simon Fallon Darina Moran Peter Trainor Legal Information Manager: Conor Kennedy BA, H Dip LIS Cataloguer: Eithne Boland BA (Hons), HDip Ed, HDip LIS Clerical Officers: Ann Browne Ann Byrne Liam Dargan Sabrina Kelly PRINCIPAL LEGAL RESEARCHER FOR THIS REPORT Verona Ní Dhrisceoil BCL (Dlí agus Gaeilge), LLM (NUI) v CONTACT DETAILS Further information can be obtained from: Head of Administration and Development Law Reform Commission 35-39 Shelbourne Road Ballsbridge Dublin 4 Telephone: +353 1 637 7600 Fax: +353 1 637 7601 Email: [email protected] Website: www.lawreform.ie vi ACKNOWLEDGEMENTS The Commission would like to thank the following people who provided valuable assistance, many of whom attended the Commission‟s Seminar on Defences in Criminal Law held at the Commission‟s offices on 12th June 2007: Mr Justice Paul Carney, judge of the High Court Mr Justice Peter Charleton, judge of the High Court Ms Alma Clissmann, Solicitor, Law Society of Ireland Ms Valerie Fallon, Department of Justice, Equality and Law Reform Mr Maurice Gaffney, Senior Counsel Mr James Hamilton, Director of Public Prosecutions The late Mr Justice Kevin Haugh, judge of the High Court Mr Conor Hanly, Faculty of Law, NUI Galway Mr Liam Herrick, Irish Penal Reform Trust Mr Gerard Hickey, Department of Justice, Equality and Law Reform Mr Justice Nicholas Kearns, judge of the Supreme Court Colonel William Knott, Department of Defence Lieut. Colonel Jerry Lane, Department of Defence Mr Patrick MacEntee, Senior Counsel Prof. Paul McCutcheon, University of Limerick Mr TJ McIntyre, School of Law, University College Dublin Prof. Paul A O’Connor, School of Law, University College Dublin Mr Seoirse Ó Dúnlaigh, Barrister-at-law Mr Keith Spencer, Barrister-at-law Full responsibility for this publication lies, however, with the Commission. vii viii TABLE OF CONTENTS Table of Legislation xiii Table of Cases xv INTRODUCTION 1 A Background to this Report 1 B Codification of the Criminal Law 2 C The role of defences in the criminal law 3 D The connected characteristics of the defences in this Report 5 E Outline of this Report 6 (1) Overview of defences in the criminal law 6 (2) Legitimate defence (self-defence) 6 (3) Defence of the dwelling 7 (4) Public defence 7 (5) Provocation 7 (6) Provocation and immediacy 8 (7) Duress and necessity 8 CHAPTER 1 CRIMINAL DEFENCES – AN OVERVIEW 11 A Introduction 11 B Classification of defences 11 (1) A Classification Scheme 12 (2) Hierarchy of Defences 13 C Defences based on justification and excuse 13 D Assessing the conduct of the accused; subjective or objective? 16 E Other Defences 17 (1) Children and the age of criminal responsibility 17 (2) Insanity 18 (3) Diminished Responsibility 20 (4) Automatism 20 (5) Intoxication 21 CHAPTER 2 LEGITIMATE DEFENCE (SELF-DEFENCE) 25 A Introduction 25 B General Principles 26 (1) Legitimate defence as a general defence and specific issues involving lethal force 26 ix (2) Justification and Excuse 27 (3) Rights Discussion 27 (4) General scope of the defence 30 C A Threshold Requirement for Legitimate Defence 32 (1) Defence of the Person 34 (2) Defence of Property 40 D The Imminence Requirement 45 (1) The imminence rule and domestic violence 48 (2) Options for Reform 52 E The Necessity Requirement 53 (1) Self Generated Necessity 58 (2) Defence of Property and the Duty to Retreat – the Castle Doctrine 62 F The Proportionality Requirement 66 (2) The problem of disproportionate, excessive, lethal force 73 CHAPTER 3 PUBLIC DEFENCE 77 A Introduction 77 B The Use of Force to Effect an Arrest 77 (2) Alternatives to the “Reasonableness Approach” 86 (3) Distinction between Flight and Arrest 91 (4) Restriction on Lethal Force to Law Enforcement Officers 92 C The Prevention of Crime 95 D The Defence Forces 104 CHAPTER 4 PROVOCATION 107 A Introduction 107 B Historical Overview 107 C What is provocation? 110 D Retention or abolition? 111 E The rationale for the defence of provocation – justification or excuse 119 F The test for provocation 122 G Elements of the defence 140 (1) Provocative Conduct 140 (2) Sources of provocation 143 (3) Loss of control 144 (4) Proportionality 152 (5) Provocation and Intoxication 154 (6) Self-induced provocation 156 CHAPTER 5 DURESS 157 x A Introduction 157 B Duress 158 C An Overview 159 (1) R v Hasan 160 D Justification or Excuse 161 E The Threat 165 (1) Nature of the Threats: Death or Serious Injury 165 (2) Target of the Threats 167 (3) The Effect of the Threat and Perception of the Defendant 168 F The Imminence Rule and Official Protection 174 G Exposure to Risk of Duress – Self-Induced Duress 177 H Duress, Murder and Other Limitations 181 I Marital Coercion 188 CHAPTER 6 NECESSITY AND DURESS OF CIRCUMSTANCES191 A Introduction 191 B Overview 191 C Necessity as a Justificatory or an Excusatory Defence 194 D Application of the defence 198 CHAPTER 7 SUMMARY OF RECOMMENDATIONS 207 A Legitimate Defence 207 B Public Defence 209 C Provocation 210 D Duress 211 E Necessity and Duress of Circumstances 212 APPENDIX DRAFT CRIMINAL LAW (DEFENCES) BILL 2009 213 xi TABLE OF LEGISLATION Children Act 2001 2001, No.