Defence to Personal Trespass
There are a number of defences to Trespass.
Consent is a defence to trespass. It may be express or implied. Some cases turn on a defective consent. Some medical claims are based on inadequate explanation or consent .
Consent must not be obtained lawfully. It must not be obtained by duress or by fraud. The person giving consent must have the capacity to understand the matter consented to and its consequences. If a person is deceived as to the nature of the act concerned, then the apparent consent may be invalidated. Medical claims may be based on inadequate explanation and lack of informed consent.
Consent procured by fraud or distress is not valid. The person who consents must have capacity to do so. It appears that parents may consent on behalf of children. Older minors may have sufficient capacity, where it can be shown that they have the requisite maturity.
Under the Non- Fatal Offences Against the Person, the consent of a minor, who is 16 or over to surgical, medical or dental treatment is effective.
Self-defence may be a defence to assault and battery. The force used must be reasonable and proportionate in the circumstances. The right defend third parties may depend on the circumstances and the relationship with the person defended.
Self defence and the defence of other persons and property may justify what would be a otherwise be a trespass. Reasonable force may be used for the protection of persons and property. What is reasonable, depends on the circumstances. The force msut be proportionate to the threat.
Greater force may be used to resist a violent act. If unreasonable force is used, this might itself constitute a battery. Self defence may be, is the defence to assault and battery . the force must be reasonable and proper in the circumstances about the sense of certain third parties with a little mum has relationship is generally good defence .
A person may exercise force and violence to defend property from an intruder. Where the entry was without force or violence, it is necessary to request the trespasser to leave before resorting to physical measures
Necessity is a circumstance of immediate and urgent danger. Actions must be reasonable and proportionate. For example, Gardai or firefighters may enter property to prevent the spread of fire. There must be proportionality between the risk being protected and the action taken.
Necessity may be a defence to assault. The steps taken must be proportionate to the risk. A person exercising lawful authority, may commit what would be otherwise assault or battery. Members of the Garda Siochana have powers of arrest without warrant, where they have reason to believe that an arrestable offence has been committed.
Necessity is a circumstance of immediate and urgent danger. Actions must be reasonable and proportionate. For example, Gardai or firefighters may enter property to prevent the spread of fire. There must be proportionality between the risk being protected and the action taken.
Person exercising lawful authority, may commit what would otherwise be assault, battery, false imprisonment or trespass to land. Gardai have powers to arrest without warrant, where they reasonably believe that arrestable offence (carries five or more years imprisonment) has been committed. Members of the public have more limited rights of arrest without
An arrestable offence” means an offence for which a person of full capacity and not previously convicted may, under or by virtue of any enactment, be punished by imprisonment for a term of five years or by a more severe penalty. It includes an attempt to commit any such offence;
Any person may arrest without warrant anyone who is or whom he or she, with reasonable cause, suspects to be in the act of committing an arrestable offence. Where an arrestable offence has been committed, any person may arrest without warrant anyone who is or whom he or she, with reasonable cause, suspects to be guilty of the offence.
An arrest other than by a member of the Garda Síochána may only be effected by a person under the above powers where he or she, with reasonable cause, suspects that the person to be arrested by him or her would otherwise attempt to avoid, or is avoiding, arrest by a member of the Garda Síochána. A person who is arrested by a person other than a member of the Garda Síochána shall be transferred into the custody of the Garda Síochána as soon as practicable.
A person may sue force and violence to defend his person and property from an intruder. Where the entry was without force or violence, it is necessary to request the person who has entered should usually be requested to leave before resort may be had to physical measures. The person who uses force must be entitled to possession or occupation of premises and be entitled to take proceedings against the person concerned. The property protected must be that of the person concerned or other occupiers of the property.
A tenant may take a trespass action against his landlord which he has excluding possession as under the lease or otherwise as tenant
There are a number of defences to trespass. Consent is a defence. It must be freely given,
Necessity is a defence, to trespass, where what is done is reasonable in the circumstances. Where a person does something necessary to save another’s property, he is not generally entitled to compensation. In some limited categories of case, he may be entitled to claim monies by way of salvage.