Dwelling Defence

Dwelling

The Criminal Law (Defence of the Dwelling) Act 2011 seeks to limit the criminal and civil liability of a person regarding the use of force in a dwelling house or other dwelling of which he has a lawful occupant against persons who enter the dwelling to commit a criminal act.  In effect, it changes the law on self-defence in this context.

The legislation applies to a dwelling house and its curtilage.  This is the area immediately surrounding the house, commonly a garden in an urban area.  It does not apply to a public place.  A public place is where the public has access whether as of right with permission, whether free of charge or subject to charge.

A dwelling includes any structure temporary or not which is constructed or adapted for use as a dwelling and is being used for that purpose.  It includes a vehicle or vessel which is constructed or adapted for use as such.

Use of Force

Force may be used if the lawful occupant believes that the person against whom force is used has entered the dwelling for the purpose of committing a criminal act. The force used is lawful if the occupant believes that it is reasonable in the circumstances which he believes to be at the time in order to protect the occupant himself or herself or another from injury assault, detention or death.

Reasonable force may be used to protect the occupant’s property or the property of another from appropriation damage or destruction caused by a criminal act or to prevent a crime from being committed or effect or assist a lawful arrest.

Force may not be used against a Garda acting in the course of its duty or persons assisting a Garda in the course of his duty.  It may not be used against persons lawfully performing a function authorised by law.

Retreat

It is immaterial whether the person using the force had the opportunity to retreat in or from the dwelling before using the force.  This is the principal change relative to the pre-existing common law.  The use of force may extend to the lawful use of force causing death.

A criminal act is such for the purpose of the legislation even if the person would be acquitted by reason of duress, the act was involuntary, the person was in a state of intoxication, or if he were insane.

There is no obligation on the part of a lawful occupant of a dwelling to retreat from his or her dwelling.  The legislation does not prejudice any defence already recognized by law.

A person who uses force as permitted is not liable by way of civil wrong for loss or injury arising.