Tuesday, December 15, 2009

More on Self Defence Law

There has been considerable confusion following the publication of the Ireland Law Reform Commission's recommendations about the right to use lethal force in self defence. Hopefully someone will organize a good seminar to clarify the very difficult questions that the use of lethal force raises and identify the contours of legally permissible force. There is danger that ill-informed individuals will mistakenly assume that the proposed law authorizes vigilantism. In this backdrop, the Law Minister has sought to clarifiy that the proposed self defence law is not a license to kill. He is quoted by the Irish Times:
“I don’t honestly think that it’s a licence to kill anybody ...It’s clarifying the existing law that somebody is entitled to use force against somebody who comes in with criminal intent into the home.”
As I pointed out in my blog post yesterday, there are legal requirements for the use of force in self defence - it has to be proportionate and reasonable.
The Minister is quoted further as saying that “[e]very case is decided by the judge and jury on its merits . . . and obviously a jury would have to make their mind up based on what’s put before them. [The change in the law means that ] [p]eople are entitled to stay in the home and to defend themselves within the home
The article also provides the relevant portions from the proposed legislation:
3. -(1) Without prejudice to the generality of section 2, a person does not commit an offence where he or she uses force, including lethal force, in his or her dwelling, or in the vicinity of the dwelling, by way of defence to the threat of, or use of, unlawful force by another person.

(2) Notwithstanding section 2(2), a person is justified in using lethal force in his or her dwelling, or in the vicinity of the dwelling, by way of defence to the threat of, or use of, unlawful force by another person, but only in order to repel the threat of
(a) death or serious injury,
(b) rape or aggravated sexual assault,
(c) false imprisonment by force,
(d) entry or occupation of the dwelling (including forcible entry or occupation that is not authorised or in accordance with law, or
(e) damage to or destruction of the dwelling.
(3) Notwithstanding section 2 (5), the defence provided by this section applies to a person who has a safe and practicable opportunity to retreat from his or her dwelling (or from the vicinity of the dwelling) but does not do so.
(4) In this section - (a) - “dwelling” means the place where a person ordinarily resides, and includes a house, apartment, building, mobile home, caravan, vessel or other structure ordinarily used for habitation, whether movable or temporary, or a portion of such place or structure.
(b) - vicinity means the area (including another building) near the dwelling, and includes any access path, courtyard, driveway, field, garden or yard which is ordinarily used in conjunction with the dwelling.

It is hard to believe that the rationale for the provision is deterrence as some of the quotes in the article seem to imply. The more likely theoretical justification appears to be some variant of the Kantian notion of personal autonomy. The idea is that because the attacker violated the victim's right of personal autonomy, he is justified in using force to reestablish autonomy. This raises several problematic questions about the autonomy of the attacker - does the attacker lose his right of life and liberty because he encroached on the autonomy of the victim? For how long? To what extent? Presumably, the attacker does not lose his rights absolutely because the law insists that the use of force be reasonable and proportionate. What rights do the victim and the attacker have against the state?
The Irish Independent editorializes about the need for clarifying the law on self defence but assumes that the Law Reform Commission's recommendations achieve that. I am not convinced.