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Legitimate Defence Consultation Paper CONSULTATION PAPER LEGITIMATE DEFENCE (LRC CP 41-2006) IRELAND Law Reform Commission 35-39 Shelbourne Road, Ballsbridge, Dublin 4 © Copyright Law Reform Commission 2006 First Published November 2006 ISSN 1393-3140 ii LAW REFORM COMMISSION Background The Law Reform Commission is an independent statutory body whose main aim is to keep the law under review and to make practical proposals for its reform. It was established on 20 October 1975, pursuant to section 3 of the Law Reform Commission Act 1975. The Commission’s Second Programme for Law Reform, prepared in consultation with the Attorney General, was approved by the Government and copies were laid before both Houses of the Oireachtas in December 2000. The Commission also works on matters which are referred to it on occasion by the Attorney General under the terms of the Act. To date the Commission has published 79 Reports containing proposals for reform of the law; 11 Working Papers; 40 Consultation Papers; a number of specialised Papers for limited circulation; An Examination of the Law of Bail; and 26 Annual Reports in accordance with section 6 of the 1975 Act. A full list of its publications is contained on the Commission’s website at www.lawreform.ie 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 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 Secretary/Head of John Quirke Administration: iii Research Staff Director of Research: Raymond Byrne BCL, LLM, Barrister-at-Law Legal Researchers: John P. Byrne BCL, LLM (NUI), Barrister-at-Law Áine Clancy BCL Philip Flaherty BCL Caren Geoghegan BCL, LLM (Cantab), Barrister- at-Law Cliona Kelly BCL Joanne Lynch BCL, LLM (NUI) Margaret Maguire LLB Jane Mulcahy BCL, LLM (NUI) Tara Murphy BCL, LLM (Essex) Richard McNamara BCL, LLM (NUI) Catherine Ellen O’Keeffe LLB, LLM (NUI) Charles O’Mahony BA, LLB, LLM (Lond) David Prendergast LLB, Barrister-at-Law Sinéad Ring BCL, LLM (NUI) Keith Spencer BCL, LLM (Dub), BCL (Oxon), Barrister-at-Law Nicola White LLB, Attorney-at-Law (NY) Administration Staff Project Manager: Pearse Rayel Executive Officer: Denis McKenna Legal Information Manager: Conor Kennedy BA, H Dip LIS Cataloguer: Eithne Boland BA (Hons), HDip Ed, HDip LIS Information Technology Officer: Liam Dargan Private Secretary to the President: Debbie Murray Clerical Officer: Ann Browne Legal Researchers on this Publication Simon Barr, LLB (Hons), BSc Roberta Guiry, BCL, LLM (NUI) Eadaoin Rock, LLB, LLM (Cantab) Jennifer Schweppe, BCL (Euro), LLM (NUI) iv Contact Details Further information can be obtained from: Secretary/Head of Administration Law Reform Commission 35-39 Shelbourne Road Ballsbridge Dublin 4 T: +353 1 637 7600 F: +353 1 637 7601 E: [email protected] W: www.lawreform.ie v TABLE OF CONTENTS Table of Legislation xi Table of Cases xiii INTRODUCTION 1 CHAPTER 1 OVERVIEW OF LEGITIMATE DEFENCE 5 A Introduction 5 B Reasonableness and The Principle of Legality 5 C “Lethal Defensive Force” 6 D The Non-Fatal Offences against the Person Act 1997 8 CHAPTER 2 THE THRESHOLD REQUIREMENT 11 A Introduction 11 B The Threshold Requirement 11 C The Categories of Legitimate Defence 12 D Defence of the Person 13 (1) Threats of Physical Harm (Excluding Rape) 13 (2) Threats of Rape and other Sexual Offences 16 (3) Protection of Liberty 18 (4) Defence of Others 21 (5) Summary and Conclusions 24 E Defence of Property 27 (1) The Defence of Personal Property 28 (2) The Defence of Dwelling-Houses 29 (3) Summary and Conclusions 35 F The Use of Force to Effect Arrests 37 (1) Introduction 37 (2) Resisting Arrest 39 (3) Fleeing Suspect Cases 39 (4) The Emergence of Alternative Approaches to the Fleeing Felon Rule 41 (5) The Reasonableness Rule 42 (6) Options for Reform 56 (7) Distinction between Flight and Escape 63 (8) Restriction on Lethal Force to Law Enforcement Officers 66 (9) Requirement of Warnings or Less-Than-Lethal-Force 68 (10) Summary and Conclusions 69 G The Prevention of Crime 72 (1) Introduction 72 (2) Historical Evolution 73 (3) The Modern Law of Crime Prevention 75 (4) Summary and Conclusions 88 (5) Prohibition on the Use of Lethal Force by Civilians 90 vii (6) Warnings and Less-Than-Lethal-Force 92 CHAPTER 3 THE IMMINENCE REQUIREMENT 93 A Introduction 93 B The Imminence Rule 93 (1) History 96 (2) The Imminence Rule in Ireland and England 97 (3) Preparatory Cases 100 (4) Overview of Comparative Analysis 101 C ‘Difficult’ Cases 102 (1) Canada 106 (2) Australia 109 (3) New Zealand 111 (4) United States of America 113 D Options for Reform 114 (1) Presidential Pardon 115 (2) Broader Definition of ‘Imminence’ 116 (3) An ‘Inevitability’ Test 116 (4) Abandoning the Imminence Requirement 117 (5) The ‘Immediately Necessary’ Approach 118 (6) Removing the Imminence Requirement in Specific Cases 120 (7) A New Defence? 122 CHAPTER 4 THE UNLAWFULLNESS RULE 125 A Introduction 125 B Resistance to Unlawful Arrest 125 (1) Introduction 125 (2) Lawful and unlawful arrests 127 (3) The Current Law in Ireland 130 (4) Other Jurisdictions 134 (5) Policy Considerations 143 (6) Options for Reform 149 C Lack of Capacity and Mistaken Attacker Cases 153 (1) Introduction 153 (2) The Unlawfulness Rule and Criminal Liability 156 (3) The Law in Ireland 158 (4) The Law in Other Common Law Jurisdictions 162 (5) Options for Reform 163 CHAPTER 5 THE NECESSITY REQUIREMENT 173 A Introduction 173 B The Principle of Necessity 173 C The Retreat Rule 176 (1) The Foster Analysis 177 (2) The Beale Analysis 179 (3) The Compromise Approach 183 (4) Current Law in Ireland 187 (5) Summary and Conclusions 190 viii D The Castle Doctrine 193 (1) Scope of the Castle Doctrine 196 (2) Current Law in Ireland 204 (3) Summary and Conclusions 204 E The Principle of Self-Generated Necessity 208 (1) The Categories of Aggressors 210 (2) A Partial Defence of Self-Generated Necessity 216 (3) Self-Generated Necessity in Ireland 217 (4) Self-Generated Necessity in other Jurisdictions 219 F Summary and Conclusions 226 CHAPTER 6 THE PROPORTIONALITY RULE 231 A Introduction 231 B The Proportionality Rule 231 C History 233 D Modern Developments 234 (1) The Law in Ireland 234 (2) The Common Law Jurisdictions 237 (3) The German Approach 243 E Discussion 244 F Summary and Conclusions 246 (1) Factors Relevant to the Assessment of Proportionality250 CHAPTER 7 MISTAKE 255 A Introduction 255 B Mistake 255 (1) Nomenclature 257 (2) “Justification” and “Excuse” 259 (3) Legitimate Defence as a Justification or Excuse? 262 (4) Arguments from Utility 264 (5) The Principle of Double Effect 264 (6) Variation of Lesser Evils 265 (7) Autonomy 266 C Putative Defence 267 (1) A Brief History of the Problem of Mistake at Common Law 268 (2) Justification-Based Defences 269 (3) Excuse-Based Defences 274 (4) A Partial Defence? 277 (5) The Problem of the Unknowingly Justified Actor 277 D Excessive Defence 281 (1) Deeds-Based Justification 283 (2) Normative-Based Excuse 284 (3) Reasons-Based Excuse 287 (4) A Partial Defence? The Plea of Excessive Defence 289 (5) The Emergence of the Plea 290 (6) Excessive Defence and the Fixed Penalty for Murder 309 (7) The Ambit of the Plea of Excessive Defence 310 E Options for Reform 311 ix (1) Introduction 311 (2) Models for Reform 312 (3) The Role of the Partial Defences 313 F Conclusions 313 (1) Mistakes of law and mistakes of fact 313 (2) Models for Reform 315 (3) Justification-Based Defence 315 (4) Excuse-Based Defence 316 (5) A Partial Defence? 323 (6) The Scope of this Partial Defence 325 (7) The Problem of the Unknowingly Justified Actor 326 CHAPTER 8 PROVISIONAL RECOMMENDATIONS 331 x TABLE OF LEGISLATION Commonwealth Criminal Code Act 1995 Aus Crimes Act 1961 1961, No. 43 NZ Criminal Justice Act 1984 1984, No. 22 Irl Criminal Law Act (Northern Ireland) 1967 1967, c. 18 NI Criminal Law Act 1967 1967, c. 58 Eng Criminal Law Act 1997 1997, No. 14 Irl Criminal Law Consolidation Act 1935 Aus Non-Fatal Offences Against the Person Act 1997 1997, No 26 Irl xi TABLE OF CASES Alberty v United States (1896) 162 US 499 USA Alexander v State (1982) 52 Md App 171 USA Bad Elk v United States (1900) 177 US 529 USA Baker v Commonwealth (1947) 305 Ky 88 USA Beard v United States (1895) 158 US 550 USA Beckford v R (1987) 85 Cr App Rep 378 Eng Bivens v Six Unknown Named (1971) 403 US 388 USA Agents of the Federal Bureau of Narcotics Blackburn v Bowering [1994] 3 All ER 380 Eng Boyle v HM Advocate [1993] SLT 577 Scot Brown v United States (1921) 256 US 335 USA Burns v HM Advocate [1995] SLT 1090 Scot Butler v State (1893) 92 Ga 601 USA Cockcroft v Smith (1705) 2 Salk 642 Eng Commonwealth v Grove 363 Pa Super 328 USA Commonwealth v Higgs (2001) 59 SW 3d 886 USA Danford v State (1907) 53 Fla 4 USA Daniels v Terrell (1992) 783 FSupp 1211 USA Devlin v Armstrong [1971] NI 13 NI Dowman v Ireland [1986] ILRM 111 Irl DPP v Kelso [1984] ILRM 329 Irl DPP v McCreesh [1992] 2 IR 239 Irl DPP v Morgan [1976] AC 182 Eng DPP v O'Carroll [2004] IECCA 16 Irl Dullaghan v Hillen and King [1957] 1 Ir Jur Rep 10 Irl Elliot v HM Advocate (1987) SCCR 278 Scot Evans v Hughes [1972] 1 WLR 1452 Eng Gregan v Sullivan [1937] 1 Ir Jur Rep 64 Irl HM Advocate v Robertson and High Court of Justiciary October 1945 Scot Donoghue Hopkin Huggett’s Case (1666) 84 Eng Rep 1082 Eng Jahnke
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