Bill has nothing to do with home defence

The home defence Bill makes no difference to the law – the Minister is merely bolstering his strong-man credentials. By Vincent Browne.

On July 21 2005 Dick Forrestal, aged 69, a horse breeder, rose, as was his wont, at 5.30am at his home in Carrigavantry, Tramore, Co Waterford. He lived alone, but on that occasion, a friend, Louis Murphy, an octogenarian, was staying with him. They had breakfast together.

They then went to a yard some distance away where Forrestal had horses. They remained at the yard until about midday and they then went to the funeral of a local girl, Tara Whelan, who had been killed in a terrorist bomb attack in Kusadasi, Turkey, six days previously. Louis Murphy then drove Forrestal back to his home at 2.04pm and, without entering the house, left immediately to collect a mutual friend and bring him back to Forrestal’s home, where they planned having lunch. Dick Forrestal was a kind, gentle, eccentric bachelor, very popular in the locality.

Louis Murphy and the friend returned to Forrestal’s home just 20 minutes later and found a horrific scene. The house was ransacked, presses knocked over, tables turned upside down and Dick Forrestal lay amid the debris, mutilated and dead.

On the following day a young local man, Anthony Barnes, went to a Garda station in Waterford and owned up to the burglary and the killing of Dick Forrestal. In his defence Anthony Barnes claimed that when Dick Forrestal returned to his home on the afternoon of July 21 and found him in the house, he (Forrestal) assaulted him (Anthony Barnes) and that he had killed Dick Forrestal as an act of self defence.

Anthony Barnes was convicted of murder by a jury in the Central Criminal Court and the verdict was appealed to the Court of Criminal Appeal. Adrian Hardiman, a judge of the Supreme Court, was the presiding judge and he delivered the judgment of the court in dismissing the appeal (ie in confirming Barnes was guilty of murder). The judgment set out in clear and unmistakable terms what a householder was permitted to do in the face of a burglar who had entered his/her dwelling.

He said that, although under the old British common law system the killing of a burglar was permitted, because of the constitutional protection that is given to a person’s life here “it is ridiculous to suggest that a private citizen however outraged [by the invasion of his/her dwelling by a burglar] may deliberately kill [the burglar] simply for being a burglar”.

However, he went on to note that the offence of burglary committed on a dwelling house is, in every instance, an act of aggression, because of the special significance of one’s home, and therefore the burglar may, lawfully, “be met with retaliatory force”.

He went on to make it clear that the contention that a householder was under an obligation to retreat or flee the dwelling was legal nonsense. Only when he/she uses grossly disproportionate force or where there is evidence of malice will any culpability attach to the householder. That was and is the law.

I draw attention to this case because of the publication by Dermot Ahern on Monday of the Criminal Law (Defence and the Dwelling) Bill, which seems to make no difference at all to the law (if it does, it is almost certainly unconstitutional).

So what then is the point of the Bill, one might ask. The point, I believe, is political and only political. And political in a very nasty way.

On October 14 2004, Pádraig Nally, a farmer in Mayo, shot dead a Traveller, John Ward, in troubling circumstances. In November 2005 Pádraig Nally was sentenced to six years’ imprisonment for manslaughter. The conviction was quashed in October 2006 and in December 2006 he was found not guilty of manslaughter.

John Ward had a litany of convictions dating back 30 years and, very probably, intended to commit another crime when he entered the property of Pádraig Nally. The latter clearly had an entitlement to use force to drive John Ward off his property. The troubling part of the story relates to the scale of the force Nally used against John Ward and when and where that force was used.

According to Nally himself, when he found the intruder at the back of his house, he got a shotgun from a shed, shot and injured John Ward and then beat him repeatedly with a stick, over 20 times. He described hitting Ward thus: “It was like hitting a badger, but you could not kill him.”

John Ward left the property and was limping down the road, badly wounded. Pádraig Nally went to his shed, loaded a shotgun, went down the road after John Ward and then shot him dead at close range as Ward was crouching down below him.

There was uproar when Nally was originally convicted and local politicians, notably, Enda Kenny and Jim Higgins MEP, called for a change to the law which would have legitimised what Nally did. The whiff of anti-Traveller racism was pungent.

Now a Bill has been introduced whose only purpose seems to be to respond to that vibe of five years ago, thereby neutralising any opportunist point-scoring in that arena by Fine Gael, while, incidentally, reminding Fianna Fáil TDs that there is a strong man around, should they be looking for same between now and the election.