The prosecution of Pádraig Nally, and his subsequent six-year sentence, have caused a wide debate over the circumstances in which a private individual is entitled to employ lethal force to defend himself and his home, writes Conor Hanly
Mr Nally lived alone in a rural area from which a Garda presence has apparently been largely withdrawn. He had been the victim of a number of burglaries and had for several months been living in a heightened state of fear and insecurity.
When Mr Ward tried to break into Mr Nally's home, Mr Nally reacted violently and ultimately killed Mr Ward. Mr Nally's supporters believe that the law should be changed to ensure that criminal sanctions will not be imposed on someone like Mr Nally who defends his home against an intruder.
The State has for centuries claimed a near-monopoly on the use of violence; a private right to employ violence is limited only to extreme situations in which it would be impractical and dangerous to await assistance from the Garda. Thus, the current law in Ireland permits an individual to use force only if it is reasonably necessary to meet an imminent threat, and only the degree of force that is reasonably necessary to defeat that threat may be employed.
The use of force by a private individual within these parameters does not constitute a criminal offence. Mr Nally's supporters argue that this is insufficient, especially in the light of the fear and frustration that many of them feel.
Attitudes such as these are not limited to people living in rural Ireland. Similar attitudes have resulted in legislative changes in several US states. Known popularly as "Make My Day" laws after Dirty Harry's famous challenge, these new laws were pioneered in Oklahoma in 1987.
A dentist living in the city of Tulsa, Oklahoma, heard two intruders in his garage late at night. He fired at the intruders, killing one. Even though the district attorney decided not to press charges, state legislators felt the need to protect people in situations such as this. Within several weeks the Oklahoma state legislature had enacted a new law to allow homeowners wide latitude in employing lethal force against intruders, along with extensive immunity from civil suits.
Similar laws have since been enacted in Colorado, Arizona and, as of April this year, Florida. These laws, and the changes being sought by Mr Nally's supporters, are born of the importance we attach to our homes.
Some years ago my home was burgled. It was a relatively minor incident; no damage was caused, and all that was taken was my mobile phone. Nevertheless, I felt outraged, not because of the loss of my property, but from the knowledge that someone had violated my home.
A home is not just a house, and an intrusion into a home is not just a violation of bricks and mortar. Our homes are our castles, and in a climate of fear the security of our castles assumes a greater importance.
When state officials are seemingly powerless to prevent intruders from violating that security or to punish them for committing such violations, demands for the right to deal with intruders privately will flourish.
I believe these demands are misplaced and should be resisted. Society has a legitimate interest in limiting as far as possible the use of lethal force. The law as it stands allows for the use of reasonable force against a threat. If lethal force is reasonable in the circumstances, then it may be used.
Nor does the law expect a precisely calibrated response to a threat. In the heat of the moment, a defender might misjudge his response and the law makes some allowance for this; as the great American judge, Oliver Wendell Holmes, famously said, "Detached reflection cannot be demanded in the presence of an uplifted knife". It is only when the defender goes beyond these parameters that his actions become illegal.
Mr Nally committed a homicide. not because he did not have the right to defend himself or his home, but because he employed lethal force when Mr Ward no longer posed a threat.
Mr Ward's attempt to gain entry to Mr Nally's house had been defeated; Mr Ward was wounded and was attempting to escape. Where was the threat? It would surely be morally unconscionable to enact legislation that would prevent a conviction for a killing carried out in these circumstances. Such legislation would not be enacting a right of defence; rather it would be creating a right to kill, which is a very different prospect.
Aside from the questionable morality of such legislation, it is not difficult to foresee the potential for tragedy that would arise. A person who mistakenly enters the wrong house while drunk or a stranger who approaches a house to seek directions, for example, could both be placed in mortal peril. Further, creating a right to kill is unlikely to deal with the sense of insecurity that exists in many rural communities.
It is worth remembering that the fact that Mr Nally was armed and willing to use his weapon did not in any way lessen his fears or improve his quality of life.
Mr Nally is in prison today because his fear and paranoia got the better of him. I do not believe his neighbours and supporters want a change in the law because they are especially violent or have a desire to embark on a killing spree. Rather, they see no other viable way to protect themselves. This is the true tragedy of the Nally case.
The paring down of the Garda presence in rural areas needs to be reconsidered. Citizens in such areas have as much right to access Garda services and protection as citizens living in other parts of the country. A failure to provide this access inevitably calls into question the State's continued monopoly on the use of force.
It is clearly unreasonable for the State to demand that citizens only seek redress through its agencies while simultaneously making access to those agencies more difficult. Unless this situation is reversed, demands for a legal right to kill will grow and the potential for violence will continue.
Conor Hanly is a lecturer in law at NUI Galway, where he teaches criminal law and jurisprudence