Grayling’s opportunism

Surely when you are asleep in your house and you wake up and realise that there is someone else with you in the building although you don’t know how many of them are but are fully aware that you have a wife and a couple of kids the question of dealing with things proportionate falls to the back of your mind.

What are you going to do when pushed to the edge? Would you ask the burglar whether he is over 18, armed and full of intent? Or would you try as much as possible to surprise the surpriser who most likely knew full well that you and your family were in the house when him and possibly his gang entered. I reckon that in terms of surviving the second option may drive you further.

I quote:

Do we really want one where householders are encouraged to use violence?

My reply: To defend themselves - Yes please.

Anyone who spoke with any “intruder” would know that one of the first things, if not the first, an intruder does is to verify whether there is anyone in. If an “intruder” knew that there is someone in then why would they also intrude and risk to be spotted unless he or she plans to leave no one behind.

The simple argument that on hearing of this provision intruders would arm themselves is ... Is anyone really saying that until now intruders were intruding unarmed but from now on they will take things seriously? This argument is unqualifiable.

I personally think that there should be more freedom in respect to owning a gun in the UK simply becasue if a burglar is to have one he will not make sure that it is registered or that he passed all the psychological tests or that he keeps the bullets locked in a little safebox and the gun locked in another when he enters your house. It is quite simple a bad guy can get an unregistered gun from wherever bad guys get their guns from while a victim can only get a gun but even so once such gun is obtained with all the tests and all the records being filled in by way fo registration the law ensures that one cannot use it in self defence unless he is the cross between catwoman - so no one hears him open the two safes and load - and superman - so he can get the gun, the bullets and load in record time.

I rather like the American ideology on this and I hope they make it for export.

Dear Dan,

Are you serioulsy suggesting we should be allowed to bear arms (and follow america's lead) solely for the purpose of protecting ourselves against burglars??

That is INSANE!! Do you think this will stop the burglar, or do you think that, if this came to pass, every burglar would make sure they have a gun knowing that most of the house owners will have one as well?

I can see you might be the type to sit up waiting quietly in dark, gun loaded, hoping someone breaks into your house - you would probably even leave a big pot of money on the window sill to tempt people in just so you can do your civic duty!

If you like the american system - MOVE THERE!!!

kind regards

Tom

Charles Krieg makes the point about the effect on the victim very well. It adds insult to injury for traumatised victims of burglaries to be treated as suspects from the outset. Imagine the outcry if it were suggested that any woman who fought off an attempted rape sucessfully, should be arrested and treated as a suspected attacker.

To return to the point I made earlier, once firearms are mentioned, the arguments become silly. For a start, I know of no responsible person arguing for people in the UK to have weapons for self defence. Those who want them are invariably the sort who shouldn't have them in the first place.

Secondly, the argument that if some householders have guns (held legitimately for sporting or target purposes) then this encourages burglars to get guns, just does not hold water. For a start, it is relatively difficult for burglars to get illegal firearms - these tend to be the preserve of drug gangs who are not interested in burglary. Furthermore, burglars tend to avoid premises where there are likely to be guns. They want easy targets, not ones where a farmer might blast them with a shotgun.

Dealing with your points one by one, John:

1. The argument about arming the police is rather different. Criminals possess guns to intimidate rivals and members of the public. They don't plan to get into gun battles with the police, because they know they will lose out. The police will have lots of back up and any shoot out is going to become very one sided.
2. Drugs gangs do carry out burglaries, but it tends to be to recover/obtain drugs from other drug dealers. It tends not to involve members of the public.
3. Burglaries of country homes tend to involve reconnaisance to ascertain times when the owners are likely to be away. There are of course cases of armed and totally ruthless gangs who target very wealthy people. However, the anecdotal evidence is that they avoid houses where the occupiers are likely to possess firearms. Let's face it - which is the softer target, the wealthy retired couple with no connection with shooting, or the couple who are keen clay pigeon shooters? Farmers are the most dangerous target, because they often use guns very regularly for pest control and are likely to have them close at hand. Certainly, where I live it's the outbuildings that tend to be targetted, not the houses themselves.

I have felt for some time that the proportionate self defence test is misguided. The question should be what level of defence is needed to reduce the risk to the householder to the pre intruder level. Asleep in your bed at four in the morning the risk of injury or loss is minimal. On the entry of a criminal intruder the risk escalates considerably. Why should the householder be required to bear any of that increased risk? He should therefore be entitled to take such steps as are reasonably necessary to reduce the risk level.

The danger is of course escalation; if burglars can be met with a knife in the back, they will arm themselves, and possibly take other precautionary measures, as they already do in some places by using knock out gases on sleeping householders.

May be one answer is grants and tax allowances for decent household security; better locks and alarms, window shutters, and reinforced doors.

There are some excellent arguments above, and this can be an emotive subject. Especially when we picture ourselves dealing with a burglar. Would we flee, defend ourselves, or even deal out punishment to the person who entered our home?

That aside, this is the sort of crass populist announcement that we get at every party conference. Instead of discussion about the economy we end up having theoretical discussions about burglaries than haven't happened yet.

If a politician breaks into my house I'm burying him in the garden.

This makes no difference in practice.

The press have been saying that it will prevent people being arrested and investigated. No it won't.

Guidance to the police / ACPO telling them not to arrest people in these situations may prevent people being arrested. But given that the only requirement for an arrest is reasonable suspicion of any offence being committed and that it is necessary to arrest for the prompt investigation it is INCONCEIVABLE that there could ever be a circumstance where police come across a dead person, and a person holding a shotgun and say "I tell you what, I'll do some enquiries and come round and visit you in a couple of weeks".

Arrest is inevitable. All the PC has to go on is a body and a smoking gun. At that stage we don't know if it's a burglar, we don't know if it's a householder. So the holder of the gun is going in for questioning, the house is being sealed off and forensics undertaken meanwhile.

And this would not (and should not prevent that).

The way I see this point is very simple.

Will such a change have any effect on peoples actions, on the whole, within their own home protecting their family.
No it will not.
The effect it will have is not sending those distressed individuals protecting their loved ones into our countries custody system unnecessarily as a result of their actions.

In terms of ‘It’s policy decided by the polls and Grayling should be ashamed.' This is ridiculous. Have we somehow forgotten the basic and fundamental principles of our Government and legal system in that it is there to reflect and protect the views of the people in its majority? If it does in fact win the votes as a side effect then this clearly shows the will of the people and the development of our legal system.

In terms of intruders arming themselves in self defence those whom are committing these actions under the vast majority are not of the highest IQ margin and never the less if they wish to be armed they will at present anyway as any proposed change in the law will not change peoples actions. Further still the individuals committing these crimes are looking for an easy steal. Such a change would act as a deterrent and for those, like myself, who hold firearms legally it is more likely than not that a prospective burglar will simply transfer to the next house down the street for an easy steal.

If there is seriously a suggestion that people confronted in a panic in their own home would stop to consider the legality of the situation and their actions then I am afraid you are truly out of touch with reality.

In addition your references to outside sources such as the 'stand your ground law' show very little research and reference as this is a blanket law not specifically for homeowners on their property as in this case but across the public domain and the issues that have arisen from it are largely as a result of gang feuds and drug deals in the street. I have to say that i enjoy reading your articles and i am usually impressed but this one in particular seems to be very biased and a little bit of an off topic rant.

Tom

1. It’s not about arming everyone. There are certain tests which you need to pass to get a gun in addition to certain restrictions on keeping one. All you needed to do is a bit of research.

2. You don’t get the point to which I was replying with “HA, HA, HA,” – the point is that a burglar would not care whether his victim has a gun or not. A burglar would not decide not to have a gun on the basis that the victim does not have one either. You are implying that burglars have fairness standards. That leads me to believe that they may also accept a fair duel once surprised by you in your house and would probably allow time for you to recover from your sleep and do a bit of stretching. Maybe some would even allow you to get a hole-puncher. Again same answer – HA, HA, HA

3. You expect proportionality from a burglar too? Is he standing on trial as to whether he used proportionality or is he there for burglary, murder or GBH depending on circumstances? How can you even put your point across like this?

This does make for interesting reading!

My understanding is that the two high profile cases that usually get everyone's gander up in public house situated debates - namely Tony Martin the farmer with the gun, and the Hussain brothers who beat a burglar with a bat - would be completely unaffected by this change, obviously because they took it that step too far and attacked when the attacker was fleeing.

There is a lot of obsession above with the hypothetical waking up in bed with a stranger in the room scenario, but as Will indicates, this very rare. The level of force used in ones own bedroom is covered under current legislation, so the question indeed is - What on earth is the point of Graylings proposals?

The only answer that I can think of is that this is yet another of those rather empty, crowd pleasing soundbites that Mr Grayling is already proving himself so adept at.

Great article John!

The "waking up" scenario - is it really obsesive?

Question: If you were a burglar when would you enter one's premies?

A. when the person is cooking diner

B. when the person is welcoming guests

C. when the person is asleep or you believe that he/she is so

Please try harder.

The discussion was centred around a victim and a burglar not around a burglar on his own so far. I am sure you can catch up.

But if it makes you happy you can start one about whether a burglar has the right to commit suicide. I promise that I will not disturb you on that one.

I really do not see why (political points aside) the law needs to be changed. The law is very clear and favourable to the householder already although the Justice Secretary does not seem to understand it. You are entitled to use reasonable force in the defence of yourself, another person or property. Whether that force is reasonable is assessed subjectively. That means that it is assessed against the facts as you believed them to be, even if that belief was an unreasonable one. Therefore if I believe that the figure I attack is a burglar who is threatening to harm me then I will be judged as though it was true - even if the facts turn out to be otherwise.

Of course if you seriously injure someone or kill them you will be arrested. The police have to investigate a very serious incident. If they charge you with an offence you will be judged by a jury, who it should be remembered, have homes and in my experience will do all they can to acquit on the basis of "there but for the grace of God..."

Pretty much the only thing you cannot do is to attack someone who has surrendered to you or is running away. Shooting the burglar in the back as he runs down the drive is still murder and rightly so.

The only step which the politicians could do is to declare all burglars outlaws who can be killed on sight with impunity.

I wonder if the unspoken message from the politicians is really this; "We cannot afford a police force any more. Fend for yourselves and whatever you do will be OK" In which case they should make handguns legal again and we will all sleep with a brace of pistols to hand.

If the Tories were serious about this they would bring in a Castle Law -
http://en.wikipedia.org/wiki/Castle_doctrine
- otherwise they're just blowing smoke.

The concept of "reasonable force" has been deliberately misused disarm the general public. What matters isn't the amount of force used or the weapon used but whether you behaved as an ordinary reasonable man would in the circumstances pertaining.

It seems transparently obvious to me what when someone has invaded your home whilst you are there, particularly at night, it is entirely reasonable to assume they are ready to kill you as part of their nefarious business and therefore you are entirely justified in killing them in self defence. So far as I can tell, such has been the common law since time immemorial.

Use of "reasonable force" only applies when you are the initiator of the aggression, such as a policeman making a lawful arrest.

An Englishman's home is his castle or so the saying goes. The law on reasonable force has been much written about and debated with a number of juducial guidance stemming from case law, with that in mind does the new initiative help us understand the issues any clearer?

The current reform proposed by the Justice Secretary does two things aside from the semantic changes:

First, if the householder is given the benefit of the doubt when using force or is presumed to have been given the green light to use un/ 'reasonable' and disproportionate force or indeed, un/ reasonable but disproportionate force, then it follows that the burden of proof must have changed from the home owner to the burglary to show that the former used 'grossly disproportionate' force;

Secondly, if we accept that premise, then it would also mean importantly that the standard of proof would have also shifted from one of reasonableness (balance of probability) to grossly disproportionate (beyond reasonable doubt).

What impact does this have on the current law, in my mind the proposed changes sets a mind set with a huge presumption in favour of the home owner to use active force then would otherwise be the case perhaps. I accept home owner's are asked to confront an unreasonable situation, but does it give them the green lights to use force with disproportionate consequences?

The blogs above remind me of Deutsch's Law : Every problem that is interesting is also soluble

The last blog is a nice summation of what jurisprudence is all about. This will evolve in this emotive area as the courts reflect current public attitudes in their decisions and make that fitting adjustment to the current law's application. That is what lawyers are paid to do.

This is why solicitors are at the heart of any democracy, since they must deal with the fall out of the collision between the politics of the day sub-atomic and the law and all the tensions produced thereby.

Bit like that sub-atomic collider under the mountains in Europe solicitors get to see C'est l'essentiel.