Defences to Trespass
There are various defences to the various types of trespass.
Consent is a defence to trespass. Entry onto land should be within the terms of the consent. An entry on land in breach of consent which may cause the person, the trespasser to be deemed trespasser from the moment of entry.
Questions may arise as to the terms of consent. Consent may be limited to part of the premises, to a particular type of use etc. A person may become a trespasser by exceeding authority, such as by doing things which are outside the scope of the 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.
Necessity constitutes a defence. Necessity is a circumstance of immediate and urgent danger. Actions must be reasonable and proportionate. For example, Gardai or firefighters may enter a property to prevent the spread of fire. There must be proportionality between the risk being protected and the action taken.
Where the circumstances are such that there is an emergency which would justify the person taking the action concerned, the defence may be available. Necessity may be a defence in an emergency. The emergency must not be caused by the defendant.
Necessity is narrowly interpreted. Social or economic necessity does not suffice.
Even if a person can rely on a defence of necessity, he may be obliged to compensate the landowner or person in possession for loss actually incurred. It is not clear if this is necessary where the action is done in the public interest.
Even if a trespasser is justified by necessity, it may be necessary to compensate the owners of the land, if damage is caused. This is so unless the action is for the benefit of the land concerned or possibly the public generally.
Self-defence and the defence of other persons and property may justify what would 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 must 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. The defence of certain third parties with whom the person has a 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
At common law, the person invoking a self-defence of person or property cannot do so if he had the opportunity to retreat. The Criminal Law (Defence of the Dwelling) Act 2011 provides that a person who uses force against a trespasser is not liable in tort in respect of injury, loss or damage caused arising from the use of such force.
The force used must be such as is reasonable in the circumstances as he or she believes them to be
- to protect himself or herself or another person present in the dwelling from injury, assault, detention or death caused by a criminal act;
- to protect his or her property or the property of another person from appropriation, destruction or damage caused by a criminal act; or
- to prevent the commission of a crime or to effect, or assist in effecting a lawful arrest.
The above provisions do not apply where
- the person uses force against a member of the Garda Síochána acting in the course of his or her duty, a person assisting a member of the Garda Síochána acting in the course of his or her duty, or a person lawfully performing a function authorised by or under any enactment;
- where the person using the force engages in conduct or causes a state of affairs for the purpose of using that force to resist or terminate an act of another person acting in response to that conduct or state of affairs;
- if the occasion for the use of force arises only because the person using the force concerned does something he or she may lawfully do, knowing that such an occasion will arise.
It is immaterial whether a belief is justified or not if it is honestly held but in considering whether the person using the force honestly held the belief, the court or the jury, as the case may be, shall have regard to the presence or absence of reasonable grounds for the person so believing and all other relevant circumstances. It is immaterial whether the person using the force had a safe and practicable opportunity to retreat from the dwelling before using the force concerned.
A person shall be regarded as using force in relation to another person if he or she—
- applies force in relation to or causes an impact on the body of that other person;
- threatens to apply force in relation to or cause an impact on the body of that other person, or
- detains that other person.
A person shall be regarded as using force in relation to property belonging to another person if he or she—
- applies force to that property;
- causes an impact on that property, or
- threatens to apply force to or cause an impact on that property.
The use of force shall not exclude the use of force causing death.
Constitutional Right and Police Powers
Trespass covers ownership of all property. In the context of a dwelling house, there is constitutional protection. The Constitution provides that the dwelling of every citizen shall be inviolable and shall not be forcibly entered, save in accordance with law. This has been interpreted in many cases to the effect that judicial process is required to mandate entry into a dwelling house without the owner’s consent, in the absence of extraordinary excusatory circumstances.
Entry without prior consent may be justified where there is a risk of an immediate need to secure vital evidence or to rescue a victim. There may be other extraordinary circumstances, where common sense and necessity justifies entry into a dwelling house without court process, due to an urgent and legitimate need.
At common law, a search warrant was required to search a dwelling house. This principle has been reflected in most legislation, which allows entry into a dwelling house. The High Court has suggested that powers in a mortgage which purport to give the mortgagee a right to re-enter a dwelling house on default, may not be exercisable in the case of a dwelling house, without a court order.
It is assumed that a householder gives an implied authority to others, including State authorities to enter onto the forecourt of a premises for the purpose of enforcement of the law. However, this express consent may be withdrawn.
Police Powers I
Under Road Traffic legislation, a member of an Garda Síochána may enter, without warrant if need be and use reasonable force, any place including the curtilage of a dwelling but not the dwelling itself, for the purpose of arresting a person, where the member with reasonable cause, suspects him of having contravened the prohibition legislation in relation to intoxicated driving. The statutory formulation does not preclude the possibility that any further more extensive powers of entry at common law remain.
The Criminal Law Act 1997 provides that for the purpose of arresting a person on foot of a warrant, a member of an Garda Síochána may, if need be by force, search any premises including a dwelling house, where the member with reasonable cause suspects the person to be and the search warrant may be executed accordingly.
For the purpose of arresting a person without warrant for an arrestable offence, (i.e. one which carries a penalty of more than five years), a member of Garda Síochána may enter, if need be by the use of reasonable force and search any premises including a dwelling where that person lives or where the member with reasonable cause, suspects the person to be.
Where the premises is a dwelling, the member shall not, even when acting with the consent of the occupier or another person who appears to the member to be in charge of the dwelling, enter that dwelling unless
- he or such another member has observed the person entering the dwelling; or
- he with reasonable cause suspects that before a warrant for arrest could be obtained, the person will abscond for the purpose of avoiding justice or would obstruct the course of justice; or
- he with reasonable cause suspects that before a warrant of arrest could be obtained, the person would commit an arrestable offence, or
- the person ordinarily resides at the dwelling.
This general provision in the Criminal Law Act 1997 is expressed not to prejudice any other enactment or rule of law relating to powers of search, arrest and entry.
Police Powers II
Many other pieces of legislation, including the Criminal Damage Act and Domestic Violence Act, give powers to members an Garda Síochána to enter any place where they reasonably believe a person to be for the purpose of arresting him, without a warrant. For example, this applies under the Domestic Violence Act, in the case of suspected domestic violence.
A person who enters land with consent, must not go outside the terms of the consent. If he is given consent to enter for one purpose, an entry may become unlawful, in some cases retrospectively, if he misuses the consent. If he intends to enter for another purpose, then he may have abused the terms of consent and may be deemed to trespass.
Officers of the State who enter land without lawful authority, are trespassers. Accordingly, a person invalidly appointed, a receiver or public officials, Gardai or public officials acting in excess of their authority are trespassers and may be liable for damages to the person against whom they have trespassed.