In a significant judgment dealing with the rights of burglars and householders who disturb them, a senior judge has warned that burglary of a person's home is always "an act of aggression" and burglars may legally be met by retaliatory force by householders who are unlikely to be liable unless they either deploy "grossly disproportionate" force or act maliciously.
However, Mr Justice Adrian Hardiman also stressed it was "ridiculous" to suggest that a private citizen, "however outraged", may deliberately kill a person simply for being a burglar. The law "does not permit" the killing of a burglar by a householder "simply for being a burglar".
He made the observations yesterday when delivering the judgment of the three-judge Court of Criminal Appeal dismissing an appeal by Anthony Barnes against his conviction for the murder of Richard Forristal, a horse breeder, during a burglary at Mr Forristal's farm last year.
Barnes (20), Clonard Park, Ballybeg, Waterford, was jailed for life last March after being convicted of the murder of Mr Forristal (68) at his home, Carrigavantry Stud, Co Waterford, on July 21st, 2005.
Barnes had claimed that when he stabbed Mr Forristal in the chest a number of times, he was defending himself from a knife attack by Mr Forristal. He gave varying accounts to gardaí of what happened.
Barnes appealed against conviction on the basis that he had stabbed Mr Forristal in self-defence after the dealer allegedly attacked him.
Giving the appeal court's judgment yesterday, Mr Justice Hardiman said that, given the State's obligations under the Constitution to vindicate the right to life and personal rights of citizens, it "seems an elementary proposition" that a person cannot lawfully lose their life simply because they trespass in the home of another person with intent to steal.
However, this was "by no means the end of the matter". Every burglary in a dwelling house "is an act of aggression", no matter what the other circumstances. A person who committed such a violation exposed themselves to various legal penalties, if detected and convicted, but that was not the limit of their exposure.
"Although he is not liable to be killed by the householder simply for being a burglar, he is an aggressor and may lawfully be met by retaliatory force," the judge said.
It was impossible, he stressed, to lay down any formula with which the degree of force can be instantly calculated, nor would it be just to lay down objective standards to be judged by the criteria of a hypothetical "reasonable person".
A burglary victim was not in the position of an ordinary person contemplating what course of action was best in particular circumstances, he said. A victim may be, as Mr Forristal was, alone and confronted by much younger assailants. Victims were almost always taken by surprise, shocked and perhaps terrified out of their wits.
Every burglar is an aggressor and a burglar must take the householder as he finds them, the judge said. Burglars must expect to be lawfully met with retaliatory force to drive them off and there was no legal obligation on a householder to retreat from their home.
Dealing with the position of the burglar, Mr Justice Hardiman said that, given the heinous and inherently aggressive nature of the crime of burglary, there was an air of improbability about the burglar, the initial aggressor, relying on self-defence when he had violently killed the householder.
The appeal court took the view a burglar could "never be regarded as wholly blameless" in the killing of a householder or other lawful occupant. Such a killing during a burglary could never be less than manslaughter because of the burglar's initial grave aggression via the act of burglary.
The court also rejected arguments that the nature of the trial judge's charge on self-defence had rendered the trial unsafe and unsatisfactory.
