How it must gall his opponents. Every time Michael McDowell, the justice minister, stands in front of a microphone he invariably manages to conjure up a contender for quote of the week.
With Casino Royale in the cinemas, McDowell couldn’t resist the opportunity to piggy-back on James Bond last week. Commenting on new Law Reform Commission (LRC) recommendations on the legal rights of homeowners facing armed intruders, the minister declared that, while the recommendations would certainly beef up householders’ rights, they would not amount to, “some 007 licence to kill”.
It was a snappy soundbite, but I suspect that McDowell is wrong. In fact the commission’s report, if carried through into legislation, could confer precisely that licence under certain circumstances. The hitch is that the licence to kill could be conferred on the intruder as well as on the unfortunate householder who takes him on.
The vexed question of what householders can and can’t do when confronted by burglars has been a live one since Patrick Nally was jailed last year for the manslaughter of John Ward. That controversial conviction has since been overturned and a retrial ordered.
The first trial judge ruled out the possibility that Nally could be acquitted on grounds of self-defence. In practical terms, he told the jury to convict Nally of either murder or manslaughter. The judge felt self-defence simply didn’t apply in circumstances where Nally followed Ward — long after the trespasser had ceased to be a threat — and shot him dead.
But the law on self-defence, as it currently stands, permits the jurors to view the circumstances of each particular case through the eyes of the householder in the fraught crisis of a showdown with a dangerous intruder. The amount of force he uses can be considered objectively, but his intention “falls to be tested subjectively”.
So it appears that if a householder genuinely believes he is using reasonable force when he kills an intruder, and his intention amounts to nothing more than protecting himself from a potentially deadly attack, then he could walk free from court.
It is a clever pre-election strategy on the part of the justice minister to empathise with householders who feel besieged by an increasingly ruthless, cavalier and gun-toting generation of thugs. But given those realities, the most responsible course of action for both the minister and the LRC would have been to counsel caution and restraint on the part of householders.
Instead, we got a set of recommendations that provoked a predictable response from parts of the media, who greeted the news with gung-ho, have-a-go headlines. They weren’t necessarily wrong, because householders may well get the 007 imprimatur. The LRC recommended that the defence of legitimate force, incorporating a limited licence to kill, should be set out in a criminal statute.
The law at present states that the householder should retreat from a confrontation with a burglar where retreat is at all possible. The LRC has questioned the continued wisdom of this provision. So the obligation on the householder to flee while the going is good, as enshrined in law by the John Bruton’s rainbow coalition, looks likely to be repealed. If McDowell has his way, citizens will have official approval to tackle intruders in their home and with as much force as they believe necessary.
It is difficult to see how this legal mandate could make householders rest easier in their beds. As matters stand, it is unlikely that anybody awakened in the night by the sounds of a prowler will stop to recall the law on confronting such visitors. Regardless of what we imagine we might do in the cold light of day, our adrenaline-fuelled responses in the small hours, with a sleeping family to think of, will be entirely different.
If making a racket to scare somebody off seems like a better idea than going downstairs in your pyjamas armed with a lavatory brush, then that’s what you’re likely to do. But if fear and tension ends up with you pulling the trigger of your legally held shotgun on a young drunk who’s just blundered through the wrong back door thinking he’s home, you will do that, too.
Logic doesn’t usually come into play when you’re surprised, terrified and vulnerable. And there is sufficient provision in our existing laws to take account of that. The fact that the Nally case has been remitted for retrial proves that point. Cut and dried as the circumstances may have seemed, the Court of Criminal Appeal found the Nally jury should have had the right to set the farmer free without a stain on his character.
We already enjoy a well-established body of law on self-defence. In a “kill-or-be-killed” situation, the householder who takes the law into his own hands doesn’t always get a court’s sympathy. However, given that guns are now used in the most trivial crimes, it is hard to imagine any jury ruling that a householder is obliged to calculate the calibre of a burglar’s weapon, or even wait to see if he’s got one, before using his own.
So a law that would increase the rights of householders to go on the offensive is likely to have only one outcome — there will be more shootings, stabbings and beatings, but the victims won’t all be baddies.
Petty burglary is not a capital offence. But if any change in the law empowers the householder to strike first with lethal force, it will become open season on burglars.
The other side of the coin is that intruders will then anticipate extreme prejudice as they go about their work. And since burglars have the upper hand — wide awake, armed, fully dressed and psyched up — they are likely to pre-empt any such attack with lethal force of their own. Result? Householders may well be murdered before they get to lift a finger because burglars will fear for their own lives.
If the proposed law is passed then a burglar will be in a deadly situation, the legislation having provided householders with a limited licence to kill, above and beyond what exists at present. And if your life is in realistic danger, then you can kill to save it, whether you’re the good guy or not.
You’d have to be 007 himself not to be pretty shaken and, indeed, stirred by the implications therein.
