Director of Public Prosecutions v Crawford

• Jurisdiction: Ireland
• Judge: Ms. Justice Donnelly,Mr. Justice Gerard Hogan
• Judgment Date: 14 October 2024
• Neutral Citation: [2024] IESC 44
• Docket Number: Record No: S:AP:IE:2023:000047
• Court: Supreme Court

Between/

The People (at the suit of the Director of Public Prosecutions)

Respondent

and

Mark Crawford

Appellant

[2024] IESC 44

Charleton J.

O'Malley J.

Hogan J.

Murray J.

Donnelly J.

Record No: S:AP:IE:2023:000047

AN CHÚIRT UACHTARACH

THE SUPREME COURT

source of law - self-defence - murder - Non-Fatal Offences Against the Person Act 1997

The central issue in this appeal was; whether the law as laid down in the People (AG) v Dwyer [1972] IR 416 or the provision of s.18 of the Non-Fatal Offences Against the Person Act 1997 apply when a person defending a charge of murder claims to have been acting in self-defence?

The appellant appealed against his conviction on two grounds. Ground 1 was that the charge of the trial judge was unsatisfactory in all the circumstances including that:

(a) the trial judge erred in law in her instructions to the jury on self-defences; and in particular on the subjective elements to be considered by the jury in determining whether the prosecution had proved that the killing was not carried out in self-defence;

(b) the trial judge erred in directing the jury that whereas they had to apply a wholly subjective test in considering whether the accused believed he was under threat to his life or person, they had to apply a wholly objective test in considering whether the degree of force used by the accused, in response to any attack or threat he perceived he was under, was reasonable in the circumstances.

Ground 2 was whether in all the circumstances the verdict of the jury was unsafe and unsatisfactory.

Conclusion – The Court concluded that the defence of lawful use of force as provided for in s.18 of the 1997 Act applies to a person who is facing a charge of homicide. In all circumstances this appeal ought to be dismissed

Appeal dismissed.

Judgment of Ms. Justice Donnelly delivered on this 14 ^th day of October, 2024

Introduction

1 . This judgment addresses the source (common law or statutory) of the defence of self-defence (the lawful use of force) to a charge of murder. Thus, the central issue in the appeal is whether the law as laid down by this Court in the case of The People (AG) v Dwyer [1972] IR 416 or the provisions of s. 18 of the Non-Fatal Offences Against the Person Act, 1997 apply when a person defending a charge of murder claims to have been acting in self-defence. For the reasons set out in this judgment, I conclude that the provisions of s. 18 of the Non-Fatal Offences Against the Person Act, 1997 (“the 1997 Act”) apply to both fatal and non-fatal offences where the defence claims lawful use of force. For the reasons set out in the judgment, I also conclude however, that the appellant's appeal ought to be dismissed because his claim that he had an honest belief in the necessity to use the force that he used has already been rejected by the jury in his trial.

Background

2 . Mr. Mark Crawford (“the appellant”) was convicted of murder contrary to common law and as provided by s. 4 of the Criminal Justice Act, 1964 (“the 1964 Act”) by a jury at the Central Criminal Court on 10 September 2020. On 2 October 2020, he was sentenced to the mandatory penalty of life imprisonment following that conviction. He appealed his conviction to the Court of Appeal, which on 31 March 2023, dismissed the appeal on all grounds.

3 . The appellant raised the defence of self-defence (of himself) at his trial and that issue was left to the jury. The appellant submits that the trial judge misdirected the jury by pointing them towards a wholly objective assessment of the degree of force used; the jury had to consider whether the force used was reasonable in the circumstances as they existed rather than the circumstances as the appellant perceived them to be.

4 . The defence was raised in the context of the appellant's perceived threat of an attack rather than an actual attack. The appellant contends that this perception of a threat caused him to stab the victim six times while both were present in a public house. The appellant claimed that the force he used in defence of himself was reasonable force in the circumstances as he perceived those circumstances to be. The charge of the trial judge to the jury was, he claimed, that the jury had to consider whether the amount of force used was reasonable and proportionate in the circumstances as they existed and, if the force was not reasonable and proportionate, they must go on to consider if the force the accused used was no more force than he honestly believed to be necessary in self-defence. If the accused had that honest belief, he was entitled to a partial defence to the charge of murder; meaning that he was not guilty of murder but guilty of manslaughter. The trial judge also said that if the jury was of the view that the prosecution had disproved the defence of self-defence they could only convict of murder if they were satisfied that he had the intention to kill or cause serious injury. The trial judge's charge is discussed in detail below.

5 . The appellant's appeal is based upon the argument that the charge given by the judge to the jury, which was based upon the decision in The People (AG) v Dwyer [1972] IR 416 (“ Dwyer”), was incorrect and that if the correct charge – in accordance with the law as the appellant considers it to be – had been given to the jury he would have had the opportunity to have been fully acquitted of both murder and manslaughter.

6 . In this judgment, the phrases ‘self-defence’, ‘lawful use of force’ and ‘legitimate defence’ appear. At a literal level ‘self-defence’ is the defence of an individual by that individual. On many occasions however, lawyers and judges use ‘self-defence’ as a shorthand for any defence which raises the question of the lawful use of force. Such force may have been used not merely in defence of self but in purported defence of others, to protect the individual's property or the property of others, or to prevent crime or a breach of the peace. The Law Reform Commission in a consultation paper (LRC CP 41-2006) has used the term ‘legitimate defence’ to encapsulate these issues.

The Proceedings Before the Central Criminal Court

Facts

7 . According to the evidence given at trial, the appellant and Mr. Patrick O'Connor spent a significant portion of 7 July 2018 in each other's company at Fitzgerald's Bar, Sexton Street, Limerick. At approximately 11.30pm, there was an interaction between the appellant and the victim, during which the appellant came to fatally stab Mr. O'Connor. Six stab wounds were inflicted by the appellant to the neck, chest, back and arms of Mr. O'Connor; the fatal wounds being those to the neck and the chest. The appellant then fled the scene. There was a dispute at trial as to the nature of the interaction between the deceased and the accused. The defence characterised the event as a fight over money owed by the accused to the deceased and that characterisation being disputed by the DPP who said that the evidence demonstrated that this was a one-sided attack on the deceased by the appellant. The appellant's contention was that as a result of the dispute he “honestly, genuinely, perhaps mistakenly, believed that he was under threat of an imminent attack”. The full buildup to the reason as to why the appellant and the deceased were in the public house and their interactions there is laid out in the Court of Appeal judgment (Edwards J.) [2023] IECA 87 at paras 4–33 thereof.

The Issue at Trial on the Dwyer Test for Self-Defence

8 . Prior to the speeches of counsel to the jury, the defence raised an issue in the absence of the jury, as to the subjective/objective elements in the defence of self-defence. The DPP, who went first in the argument before the trial judge, relied upon the long-standing authority of Dwyer, which sets out the common law defence of self-defence in cases of homicide and contended that there has been no change to the law as stated in that case. The DPP argued that prior to Dwyer if a person used more force than was objectively necessary the defence of self-defence was not available. The law as established by Dwyer recognises a partial defence of self-defence which, where successfully invoked, allows a conviction of manslaughter to be returned instead of a verdict of murder. In cases of homicide, if a person knowingly uses excessive force (assessed by objective standards) leading to a fatality, then regardless of whether the threat they are responding to is merely a perceived one or is real, they cannot avail of the defence. If however, a person mistakenly uses excessive force (assessed objectively), genuinely believing it to have been necessary to use such force in order to defend against a threat, whether that threat is real or perceived, they are still acting unlawfully but, because they held an honest belief that such force as was used was necessary, they must be regarded as having the intention to commit a lawful homicide or to lawfully to inflict serious injury, and therefore not to have the specific mens rea required for murder. In those circumstances the appropriate verdict is manslaughter. The honesty of their belief as to the necessity to use such force as was in fact used, falls to be tested subjectively, although as will be discussed later, there is an issue as to whether Dwyer required that belief to be assessed on the basis of a reasonableness standard.

9 . Counsel for the appellant argued before the trial judge that, while Dwyer makes clear that in assessing whether self-defence provides a full defence to a charge of murder the amount of force used is to be objectively assessed, what Dwyer does not make clear is whether force is to be so assessed with reference to the circumstances as they actually were or with reference, as the appellant submits must be the case, to the circumstances as the accused person believed them to be. It was submitted to...