THE BEST DEFENCE

20 January 2012 No Comments by The Northern Standard

One of the subjects most passionately debated in this country in recent years has concerned the law with regard to the rights of house and property holders to protect person and possession in the event of criminal intrusion.
The subject, which touches on fundamental moral and constitutional issues, acquired force of feeling and relevance a number of years ago in light of the court proceedings taken against a Co Mayo farmer, Padraig Nally, who shot and killed an intruder he believed was trespassing with criminal intent on his farm.
Mr Nally was ultimately found not guilty of murder, but the issues raised by this and similar incidents, and the need for greater legal clarity to quell the considerable public concerns that had arisen on both sides of the ongoing debate, instigated legislative action that culminated last week in the coming into effect of the Criminal Law (Defence and the Dwelling) Act 2011.
Time will tell whether the Act brings the required clarity to this area.
In that it imparts an assurance to householders that they can exercise what is termed “reasonable force” to protect themselves and their family members and property, the legislation probably merits the broad welcome it has attracted.
The common sense fundamentals of the law in this regard had grown occluded in the public mind to the extent that popular myths were in circulation about the liability a householder could be subjected to if a person present on his property with criminal intent sustained injury.
In making it clear that a person who uses reasonable force in such circumstances cannot be the subject of a civil action by a trespasser or burglar and will not be deemed guilty of a criminal offence, the new Act would seem to definitively banish the misconception that the law in this regard had somehow become skewed in favour of the miscreant.
However, the considerable level of public debate generated by the coming into being of the new legislation on household defence suggests strongly that there are certain circumstances and consequences about which clarity has not yet emerged.
Public engagements on the issue, such as that facilitated by Northern Sound radio on Monday morning and the discussion at the meeting of the Co Monaghan Joint Policing Committee the same day (see JPC report, page one), are very important in teasing out such doubts and ambiguities.
When responsible in conduct, as both forums referred to by and large were, such discussion opportunities accurately measure the public pulsebeat and should be taken careful note of by those whose responsibility it will be to enact and monitor the new legislation.
The need to mitigate the sometimes sensationalist responses that law and order issues evoke with solid fact and reasoned argument is particularly important when it comes to the subject of how a homeowner should respond if they feel themselves subjected to criminal threat.
As this newspaper has had occasion to opine before, crime exercises powerful influences of both fear and fascination on the public mind.
Modern media coverage of violent crime is increasingly interlaced with sensation – and the residue of fear this leaves in the minds of its consumers, particularly those who perceive themselves to be crime-vulnerable, can be magnified to an extent far in excess of the statistical likelihood of their being victimised.
It would be potentially catastrophic if into this volatile mindset of accentuated fear and misconceived risk were added the perception that the law has been changed to allow the homeowner a virtual free hand to deal with whatever real or imagined threat they might be confronted with.
The new law is not a “licence to kill” as some have unwisely branded it.
Anyone who exercises force in the defence of their property to the extent that a serious or fatal injury is inflicted upon an intruder is still likely to find themselves before the courts.
It is in the judicial arena that the now more explicit entitlement of recourse to the defence of “reasonable force” will be determined – with the user of that force being entitled to the protections of the new Act if their belief that the actions they took were justified is deemed by a jury to be honestly, even if mistakenly, held.
Minister for Justice Alan Shatter put the situation neatly when commenting: “The circumstances are largely a matter for the subjective judgment of the occupier; the force used in response to those circumstances is a matter for the objective judgment of a jury.”
There is a depth of cautionary thought to be drawn from the Minister’s succinct statement – it deserves to be lodged as a mantra in the mind, a vital mental reference point should any of us find ourselves in the fraught circumstances alluded to.
In this context we would refer our readers to the very responsible advice imparted by Sinn Féin public representative Matt Carthy at Monday’s JPC meeting, when he counselled those confronted with threats of this nature to contact the Gardai immediately and remain “out of harm’s way” if that option is open to them.
We also find ourselves editorially in close accord with the comments of Garda Chief Superintendent Michael Clancy, who advocated the close support of local communities as the best form of reassurance available to isolated or elderly residents of rural areas who have crime fears.
It is in the spirit of the senior Garda officer’s comments that we offer a suggestion that we feel could make a very practical improvement to the safety or our countryside communities.
Could the Dept of Justice, assisted by the Dept of Agriculture, institute a national audit of the security measures in place at farms and isolated rural dwellings?
With the assistance of our farm organisations, and the Community Alert groups active in many areas, such an exercise could be carried out with reasonable expediency on a townland by townland basis – and backed by a scheme of grant assistance, administered by both Depts, that would enable householders to improve locks and take other practical domestic security precautions that would make their properties more forbidding to the criminal.
Such an initiative, we feel, would leave many of our rural population in a much more secure frame of mind – and present an effective deterrent to the gangs of travelling criminals who sometimes target the countryside.
Ultimately it is local support measures of this nature, and the knowledge of having a supportive Garda force and alert neighbourhood around them, that will deliver much more effectively than any change in the home protection law the peace of mind and sense of security that our countryside communities deserve to enjoy.
It is assuredly the best defence.

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