Two recent cases have seen people fight off intruders in their homes or businesses. It may be brave, but it’s not a good idea, gardaí warn
NO SOONER had news broken last week of Dublin jeweller Ken McDonagh fighting off an armed raider than another story emerged of Jim Callely, the elderly father of murder victim Rachel O’Reilly, confronting intruders at his home.
In McDonagh’s case, a three-man gang walked into his business – Dawson Jewellers on Dawson Street in Dublin’s south inner city – intent on robbing it. McDonagh, whose shop had been robbed a number of times in the past, confronted them and one of the men ended up seriously injured in hospital. His two alleged accomplices were subdued outside the shop by a passer-by and gardaí.
Three men who were allegedly involved in the raid have since been charged. The incident was just one in a growing number of attacks involving firearms.
In Jim Callely’s case, he happened upon an intruder at his home just one week after new data from the Central Statistics Office revealed a 27 per cent increase in burglary offences.
Ken McDonagh (and the passer-by who assisted him) and Jim Callely would have the support of many people who believe in "having a go". But taking such action is not encouraged by gardaí. One Garda officer who spoke to The Irish Timessaid people who robustly defend themselves, their family or their property might find themselves under criminal investigation. "If a criminal was injured by somebody acting in self-defence, he could make a complaint to us that he was assaulted, and we'd have to investigate it," said the officer. "And he might try and get compensation from the person who took him on."
Another senior officer said that most gardaí would be extremely uncomfortable about members of the public tackling aggressors, particularly those carrying firearms. “The obvious consequence is that a person could get very badly injured, shot or even killed,” the officer said.
The official line from the Garda Síochána is that fighting crime should be left to the professionals.
THE MOST PUBLICISEDcase of a citizen acting in self-defence, only for it to lead to tragedy, was that of Co Mayo farmer Pádraig Nally, of Funshinaugh Cross, Claremorris, Co Mayo, who shot dead John "Frog" Ward in October 2004. Nally said that Ward, a 42-year-old father of 11 children from the Carrowbone halting site in Galway, had come to his farm to rob him, and that he had shot him in self-defence.
Nally was jailed for six years for manslaughter. He served 11 months of that term before the case was taken to the Court of Criminal Appeal, where he was acquitted after it was accepted that he acted in self-defence.
The case prompted a major public debate about what level of force is reasonable in situations where people act to defend themselves from robbery or attack.
That debate was renewed recently when pensioner Paddy Barry died after an incident at his Waterford home, though it quickly emerged he had not died from an assault, as was first reported.
The legal position on the rights of law-abiding citizens to strike out against intruders is unclear. The Non-Fatal Offences Against the Person Act 1997 makes clear that reasonable force may be applied by somebody seeking to protect themselves or their family from injury, assault or detention. Force can also be used to protect one’s property from “destruction or damage caused by trespass”. However, where a citizen stands legally when simply confronting an intruder in their home in not specifically dealt with.
To further complicate matters, the Act allows for juries to consider whether a person finding an intruder in their home availed of an opportunity to retreat before using reasonable force. This appears to undermine the right to use force.
The Minister for Justice, Dermot Ahern, recently told the Dáil that intrusion into a home “should not be tolerated”. However, he recently rejected calls for the Government to support a Bill that Fine Gael claimed would give clarity to the level of force intruders could be met with. Ahern has said that the Law Reform Commission is currently reviewing the issue of legitimate defence, and that it would be foolish not to wait for that work to be completed. The commission would make its recommendations known within weeks, he said, and would produce draft legislation.
Whatever the recommendations, public debate around the issue is likely to remain emotive.
