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Kenneth Clarke says stab a burglar. Is that reasonable?

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David Cameron is a reasonable man. So we know that if, with evil intent, we were to get past the policeman at the door of 10 Downing Street and find ourselves confronting the prime minister on the stairs, he would use no more than reasonable force to deal with us.

But he seems to feel that others, notably judges, are less clear than he about what reasonable force would be. Can you bash a burglar? Can you stab a burglar? Can you kill a burglar as he rifles through your treasures?

Mr Cameron seems to know the answer and has said: “We will put beyond doubt that homeowners and small shopkeepers who use reasonable force to defend themselves or their properties will not be prosecuted.”

Now the UK justice secretary, Kenneth Clarke, transformed from Hush Puppy to Rottweiler after the unpleasantness over halving of prison sentences, has bared his teeth.

We will make it quite clear you can hit a burglar with a poker if he’s in your house and you have a perfect defence when you do so,” he has said. “If an old lady finds she’s got an 18-year-old burgling her house and she picks up a kitchen knife and sticks it in him, she has not committed a criminal offence, and we will make that clear.”

One assumes that No 10 and doubtless the lord chancellor’s residence do indeed possess such retro items as pokers. Most modern centrally heated homes do not. The preferred means of self-defence in the contemporary Englishman’s castle is an American baseball bat hidden under the bed.

In the case of Lee Gapper who used just such a baseball bat on a burglar, he and his lodger were held and questioned for a time when the burglar alleged assault against them. Ultimately no charges were brought against the pair and the judge sentencing the burglar told him he had got what he deserved.

But it is a grey area since a baseball bat, particularly one under a bed, has little purpose within the United Kingdom jurisdiction but to hit people (burglars themselves sometimes use them). Will Mr Clarke’s new law stretch to allowing the keeping of offensive weapons about the place on the off-chance of a burglar’s visit?

What of the feisty old lady, simply resorting to kitchen implements for her defence against that most reviled of human being, an 18-year-old? Will the new law also sanction a 21-stone muscles-in-his-spit bruiser, perhaps also aged 18 or thereabouts, reaching for the cutlery canteen for his weapon of choice?

Those demanding tougher laws (or should that be weaker laws? It depends which way you look at it) may be surprised that current law does answer these and other questions – and generally falls down on the side of the householder, though not regarding the keeping of offensive weapons.

A householder has the right of self defence (and defence of another person) under common law and also some right to defend his property since reasonable force is acceptable to prevent a crime.

The statute law is in the Criminal Justice and Immigration Act 2008 Section 76 This builds on the common law of self defence – that reasonable force can be used against a potential attacker. You can even use such force if you are mistaken about the threat to yourself. The 18-year-old might be a wretched coward who would run for the door at the sight even of a little old lady, but if she genuinely thinks he is a danger, she can defend herself.

We are assuming the lady is not drunk. If her mistaken belief is “attributable to intoxication that was voluntarily induced” (too many port and lemons before bedtime) she would lose the defence against a wimp, though not against an actual vicious brute.

A person’s having only done what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken by that person for that purpose. S.76 (7)(b)

Although you must use only reasonable force, you are not expected to make a perfect surgical strike, enough only to temporarily disable your attacker rather than maim or kill. It is accepted “that a person acting for a legitimate purpose may not be able to weigh to a nicety the exact measure of any necessary action” S76 (7)(a).

The bruiser is also covered. If, rather than a timid old lady, you are just the sort of person who is up for a fight and might relish the ingress of villains to practise your pugilistic skills, you will still have a good legal defence against allegations of assault assuming you act reasonably given an honest belief about the threat you are under.

However, once you have struck a disabling blow or one sufficient to send the burglar scuttling, you cannot follow it up with further beating or stabbing just because you are so angry at the burglar or the state of the law that you simply want to get revenge. Hence the case of Munir and Tokeer Hussain, jailed for chasing a burglar, dragging him back and subjecting him to a “dreadful violent attack”. You do not have a right to kill or maim someone just because that person has burgled you or even threatened you with death (as had the burglars in this case).

Much is made of the Tony Martin case by those calling for “clarification” of the law. If there was ever a bad case (potentially) making bad law then this is it. The farmer was in illegal possession of a shotgun. He became aware of intruders and armed himself with the gun to confront them. He told the court he had been coming down stairs, was blinded by a flashlight, feared whoever was holding it and fired three times. He denied hearing the burglars before they entered his home, arming himself and lying in wait downstairs with intent to shoot them. Forensic evidence, however, suggested two shots could not have been fired from the stairs, though the fatal one might have been. Any self defence claim rested on Martin having come down the stairs, not his being ready downstairs for the intruders.

Ultimately a murder verdict in the Tony Martin case was changed on appeal to manslaughter by reason of diminished responsibility. Martin’s depression “exacerbated his paranoid personality disorder”. It follows that he did not act “reasonably” to defend himself – far from it.

We know that a clarification of the law is coming because the government keeps saying it is coming. This clarification may be in the new justice bill – or not; Downing Street is being unclear on the matter. But, short of a law saying that “anything goes” within the home, nothing is likely to avoid debates in criminal courts and beyond about the reasonableness of a defensive action. Certainly nothing said by Cameron or Clarke should encourage little old ladies or anyone else to tool up ready to waste anyone found on the wrong side of the door.

Note: Since publication of this piece, the government has produced new self defence legislation, discussed here: After Trayvon Martin, Britain’s ‘stand your ground law’

The new Justice Secretary, Chris Grayling, has also had his two penn’orth and is saying he will tighten the law further to allow “disproportionate” force to be used against burglars as long as the householder acts “honestly and instinctively”. This, on the face of it, is exactly the state of the law at present on the basis of the “can’t be expected to judge to a nicety” doctrine on the level of response necessary.

Here is a brief but clear statement of the law from a criminal QC: Self-defence, an idiot’s guide

About alrich

Journalist and blogger on legal and financial/economics issues

2 responses »

  1. I think you’ve got it spot on there. I’m just glad we’re not in America, where I’ve heard stories of burglars suing the homeowners for compensation (and getting it!). Not sure if it’s a myth though, I’ll check it out now.

  2. Pingback: Lord Rennard: Women should avoid the slap in the face for an Old Goat | Alrich Blog

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