Private Defence of Property

In one line

Private defence of property protects movable and immovable property, the defender's own or anybody else's, against four named offences and attempts at them, and it extends to causing death in only four listed situations.

The four sections that make the limb

Section 35(b) gives the right. Every person has a right, subject to the restrictions in section 37, to defend the property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit any of those.

Section 41 says when that right extends to causing death.

Section 42 says what the right extends to otherwise: any harm short of death.

Section 43 says when the right begins and, for each of the four offences separately, when it ends.

The first narrowing: four offences, not a class

The body limb runs against "any offence affecting the human body". The property limb does not run against any offence affecting property. It runs against four named offences and no others.

• theft
• robbery
• mischief
• criminal trespass

and an attempt to commit any of them.

This is the single most examinable contrast between the two limbs, and it produces a result students find surprising. A man who discovers that he is being cheated out of a large sum has suffered an offence against his property, but cheating is not one of the four, and the right of private defence of property is not available to him however great the loss. He has the courts, and section 37(1)(c) tells him to use them where there is time to do so.

The property protected is as wide as the offences are narrow. It is movable or immovable, and it is his own or any other person's. A neighbour may defend a neighbour's shop.

The second narrowing: four descriptions for death

Section 41 opens exactly as section 38 does. The right extends, under the restrictions specified in section 37, to the voluntary causing of death or of any other harm to the wrong-doer, if the offence committed or attempted is of one of the descriptions enumerated. There are four.

Clauses (a) to (c) are defined by the offence itself. Clause (d) is the one that carries the weight, because it lets an ordinary theft or trespass rise to the level at which death may be caused, but only when the circumstances reasonably raise an apprehension of death or grievous hurt. In substance clause (d) is the point where the property limb turns back into the body limb: the reason death becomes permissible is that a person is now in danger.