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After Trayvon Martin, Britain’s ‘stand your ground’ law

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Is the UK Parliament about to bolster the law on self-defence with a British version of the US “stand your ground” law implicated in the killing of Trayvon Martin? There is no doubt that the Prime Minister’s commitment to the Big Society would be boosted if he could recruit an army of volunteers willing to bring down criminals by private intervention – and bring down the crime rate too.

So here is clause 149 of the Legal Aid, Sentencing and Punishment of Offenders Bill [now Section 148 of the newly passed Act] which says that when assessing whether the degree of force used by a defendant claiming “private defence” (self-defence, defence of another or prevention of crime) was reasonable:

“a possibility that [he or she] could have retreated is to be considered (so far as relevant) as a factor to be taken into account, rather than as giving rise to a duty to retreat”.

Compare the Florida law cited by Trayvon’s killer, George Zimmerman, which says:

“a person is justified in the use of deadly force and does not have a duty to retreat if … he or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony.”

The new UK provision establishes that if you are attacked and fight back, you do not have to prove you first turned and ran to avoid the attack: you can stand your ground and defend yourself.

Now, most people when faced with a weapon-wielding crazy-man intent on doing serious physical harm would, in fact, retreat – and retreat as far and as fast as possible. But not in the Wild West Big Society have-a-go-hero fixated minds of the proponents of “stand your ground”. Instead it goes something like this: a swift upper-cut to the chin of the villain of the piece; a neat move to pinion him to the floor with a hand to the throat; the other hand pressing the cold barrel of a Colt 44 to his temple; give him over to the custody of the sheriff; get the girl in the final reel.

But legal powers don’t necessarily give you super powers. A more realistic scenario is that in R v Bird (1985), a leading case on self-defence. Here there was an argument between Debbie Bird and her ex-boyfriend; she poured a glass of Pernod over him; he responded by attacking her; she hit him in the face with a glass leading to the loss of an eye. The trial judge suggested that to rely on self-defence she should have shown evidence of not wanting to fight – not necessarily running away but certainly seeking to “temporise” in some way.

Bird was convicted but the conviction was quashed on appeal on the basis that the trial judge had got it wrong: there is no requirement for a defendant claiming self-defence to show she had “temporised”. So you can, indeed, stand your ground and respond with reasonable force. Lord Lane made the point thus: “Evidence that the defendant tried to retreat or tried to call off the fight may be a cast-iron method of casting doubt on the suggestion that he was the attacker or retaliator or the person trying to revenge himself. But it is not by any means the only method of doing that.” Some proof will be needed that you didn’t want to fight, but not necessarily “temporising” or running away.

The issue goes right to people’s hearts. They feel that they are entitled to defend their home or their shop, and we owe it to them to make it crystal clear that we absolutely support them in defending themselves, their families and their property  – Crispin Blunt

But it’s not just a matter of standing your ground. You may also, literally, walk into trouble – go anywhere it is lawful to go even though you know there is some ne’er-do-well ready to pounce on you. That principle was established in R v Field (1972). Despite the claim by Tim Larkin, US self-defence “guru” banned from Britain, that UK laws are lax on self-defence, in fact they are pretty strongly supportive of the victim who fights back.

So why is the new law needed?

The short answer is that it isn’t. The longer answer would involve looking at the pressing requirement politicians have to find problems in society so that they can then pass laws and say they have solved those problems.

As well as the self-defence issue, another such perceived problem is the notion that property is wholly naked and undefended by our laws. There is a folk memory of the Tony Martin case (R v Martin (Anthony) 2001), a feeling that his booby traps and shooting of intruders with a pump action shotgun should somehow have been allowed.

So the Legal Aid Bill adds a new “legitimate purpose” to the private defence provisions in s.76(10)(a) of the Criminal Justice and Immigration Act 2008 (CJIA). As well as self defence, defence of others and prevention of crime, it will be possible to plead private defence for “the purpose of defence of property under the common law”.

This, as the Bill’s sub-clause itself says, is already part of common law – but it is also part of statute law since s.76(10)(a)(ii) of the CJIA is about the right to use force to prevent crime. The right to “defence of property” is merely another way of saying the right to prevent crime involving property – whether theft, damage or burglary.

So, again, why is the new law needed?

When MP Elfyn Llwyd asked this question in the House of Commons, Crispin Blunt, Under-Secretary of State for Justice, said: “The issue goes right to people’s hearts. They feel that they are entitled to defend their home or their shop, and we owe it to them to make it crystal clear that we absolutely support them in defending themselves, their families and their property … we must send a clear signal from this place about whose side we are on.”

So the resources of Parliament, at great expense of time and money, have been put to the use, not of reforming the law (which does not change) but for sending a message, surely a matter far more suited to the no doubt highly competent government publicity machine.

But there is another interesting (and perhaps disturbing) twist to this story. There is a change regarding the defence of property: squatting of residential properties is being criminalized (as explained here.)

What once was a sometimes complex civil procedure for removing squatters from unoccupied residential property will now be a criminal matter.  So does that mean, armed with Mr Blunt’s crystal clear message of “defence of property” and “stand your ground”, an owner observing this criminal act in commission can go “where it is lawful to go” – into his own property – take a posse with him and use physical force to turf out the squatters?

In fact such action would require the assumption that the new law supersedes the law against such behaviour (in s.6 of the Criminal Law Act 1977). But presumably someone “defending property” against criminal squatters will have the blessing of Mr Blunt and his government since, in Wild West/Big Society Britain, he will be saving taxpayers’ money on expensive court services and policing. And after all, in this world, sometimes a man’s gotta do what a man’s gotta do.

Note: In R v Hussey (1924) a tenant was charged with wounding after his landlady and others armed with a hammer, poker and chisel attempted to illegally evict him by smashing down his door. Hussey shot through a broken panel of the door and wounded his landlady’s accomplices.
The Lord Chief Justice, granting Hussey’s appeal against conviction, said: “No sufficient notice had been given to the appellant to quit his room, and therefore he was in the position of a man who was defending his house.” A tenanted home is as much an Englishman’s castle as an owner’s home, after all.
He quoted Archbold (26th edition): “In defence of a man’s house, the owner or his family may kill a trespasser who would forcibly dispossess him of it, in the same manner as he might, by law, kill in self-defence a man who attacks him personally; with this distinction, however, that in defending his home he need not retreat, as in other cases of self-defence, for that would be giving up his house to his adversary.”

The new law on squatting gives no guidance about whether squatters should be given notice to leave their illegally occupied properties nor of what level of force might be acceptable in their removal or whether the police must do the job (though arrest will come under the Police and Criminal Evidence Act 1984 and will be limited to a uniformed officer – s.17(2)(a)). It may even be that squatters fighting back against private persons evicting them could claim  private defence. Particularly if they do not know they are squatters because some one has given them a fraudulent tenancy.  The possibilities for legal and physical wrangling are endless.

See also: Kenneth Clarke says stab a burglar. Is that reasonable?

And: Criminalisation of squatting will cause problems, not solve them

A good US legal analysis of “stand your ground” and “castle principle” laws is here: Sherry F Colb

Note: This piece was written before the Legal Aid &c Bill was enacted. It received royal assent on 1 May 2012 and is here

The law on self defence has been further amended by Section 43 of the  the Crime and Courts Act 2013. It adds this: “(5A) In a householder case, the degree of force used by D is not to be regarded as having been reasonable in the circumstances as D believed them to be if it was grossly disproportionate in those circumstances.” (Emphasis added)

This, in effect, allows a person defending his/her home from a trespasser to act disproportionately – raising the bar before they can be successfully prosecuted to grossly disproportionate behaviour. For non-residential cases the bar remains “disproportionately” viz as per Section 76 (6) of the Criminal Justice Immigration Act 2008 as now amended (in italics) thus:

“(6) In a case other than a householder case, the degree of force used by D is not to be regarded as having been reasonable in the circumstances as D believed them to be if it was disproportionate in those circumstances.”

The Florida law:
Code 776.012: Use of force in defense of person. – A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat if:
(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony.

UK statute on private defence regarding prevention of crime
This is contained in common law, the 2008 Act and also the Criminal Law Act 1967, s.3:
(1) A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.

R v Bird 1985
Judge at first instance: “You cannot wrap up an attack in the cloak of self-defence and it is necessary that a person claiming to exercise a right of self-defence should demonstrate by her action that she does not want to fight. At one time it was thought that in order to demonstrate that, that the person seeking to raise a question of self-defence had to retreat. That is not so any longer at all, but there is an obligation to see whether the person claiming to exercise the right of self-defence should have demonstrated that she does not want to fight at all.”

Lord Lane, on appeal, said the trial judge “put too high an obligation upon the appellant”. He approved the following passage from Smith and Hogan Criminal Law 5th Edition 1983:
“There were formerly technical rules about the duty to retreat before using force, or at least fatal force. This is now simply a factor to be taken into account in deciding whether it was necessary to use force, and whether the force was reasonable. If the only reasonable course is to retreat, then it would appear that to stand and fight must be to use unreasonable force.  There is, however, no rule of law that a person attacked is bound to run away if he can … A demonstration by [the defendant] at the time that he did not want to fight is, no doubt, the best evidence that he was acting reasonably and in good faith in self-defence; but it is no more than that. A person may in some circumstances so act without temporising, disengaging or withdrawing; and he should have a good defence.”

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About alrich

Journalist and blogger on legal and financial/economics issues

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