The Law Reform Commission is to be complimented on a discussion paper involving the use of legitimate force in self-defence and on the need to bring greater clarity to a situation where public opinion can be at variance with legal decisions.
There is a difficult balance to be struck between the rights of an aggressor and a would-be victim and the courts should be provided with transparent and comprehensive guidelines.
As things stand, a person is entitled to use "such force as is reasonable in the circumstances" in responding to an assault or an imminent physical threat. But court judgments have created legal precedents that have had unforeseen consequences.
The Law Reform Commission takes the view that the law is too vague in relation to the use of lethal force against an intruder into the home. It questions the validity of a "threat to life" defence where a wife or a partner waits for the perceived attacker to be asleep or drunk before assaulting them. And it calls for clarity concerning the use of lethal force by the Garda Síochána.
The deliberate and premeditated taking of life is not acceptable in a civilised society. And slow but steady progress has been made in giving effect to that concept, culminating in an end to the death penalty in Ireland. Any change in the law should reflect that ethos. Circumstances arise, however, where death or serious injury can result as an unintentional consequence of defensive actions. In those specific cases, greater clarity should be introduced into the legal system.
Public emotions run high when individuals are charged with using excessive force in defence of themselves or their property. Such cases are at the extreme end of the spectrum. But they can give rise to situations where the perceived "victim" becomes a guilty party and the perpetrator is awarded damages for injuries sustained. A direct response to raw public emotion would make bad law. What is required is a calm and measured discussion of the long-term changes required to address the particular problems that have emerged in recent years.
The current legal requirement on a householder to retreat from a burglar who has entered their home appears perverse to many. The situation is also fraught in relation to a defence of property. There should, however, be a minimum level of threat before the use of force becomes acceptable in self-defence. In that regard, violence should be imminent and life-threatening to justify a lethal response. These are difficult and complex issues. They will require careful consideration by the legal profession, the general public and the Government.