Minister for Justice Brian Lenihan has "no plans" to publish legislation dealing with the use of force in defence of one's home. It may be a matter of priorities.
The issue of lethal force and when it can be used under the law is a complex matter. Members of the Garda Síochána, the Prison Service and the Defence Forces could be directly affected. Because of that, any legislation should be comprehensive; err on the side of restraint and avoid the emotional baggage of home defence.
There is, however, a need for greater precision. The Law Reform Commission published a detailed consultation paper last November that found the law to be "very uncertain" and said that clarification was required on what constituted legitimate self-defence. Specifically, it argued that the force used must be proportionate to the harm which is sought to be avoided. In burglary situations, it suggested a householder should not be required to retreat before an intrusion into the home. It considered a range of official and other circumstances where lethal force might be justified. It recommended, also, that factors in the assessment of proportionality should be set down in law.
Announcing he had no plans to publish the Criminal Law (Defence of Life and Property) Bill, approved by the Cabinet under his predecessor Michael McDowell, Mr Lenihan observed there was a danger of legislating too much in areas where definitions had always been supplied by the courts. That is a disturbing attitude for a Minister to adopt, particularly in view of the comments and recommendations made by the Law Reform Commission. A greater danger may threaten if nothing is done.
The use of force is a highly emotional issue, especially where the defence of self, family and property are concerned. The Law Reform Commission considered the situation following the trial of Pádraig Nally for the manslaughter of John Ward, in Co Mayo, in 2004. The consultation paper was published before Mr Nally was found not guilty of manslaughter, following an appeal, in 2006. Subsequently, Mr McDowell announced that a Bill would set out the extent to which force could be used by a householder.
Work on drafting that legislation may have been disrupted by the election. There is, however, a need for greater clarity. That applies to the use of force against an intruder; a "threat-to-life" defence by a wife or partner where the perceived attacker has been drunk or asleep; or the use of lethal force by State agents. Any change in the law should take as its starting point the protection of human life.