This week, the justice secretary and the prime minister announced at the Conservative party conference that the law in relation to rights of homeowners to defend themselves against burglars should be changed.
Chris Grayling MP stated that a homeowner should be protected from prosecution unless he or she uses ‘grossly disproportionate’ force in defending themselves when an invader enters their home. This would offer protection from prosecutions for offences such as murder, manslaughter and causing grevious bodily harm with intent. According to David Cameron, the aim of the law is to be ‘on the side of the householder’, and to provide legal certainty as to what citizens can and cannot do in potentially violent and threatening circumstances.
It is inevitable that such proposals will elicit a huge amount of public support. When asked if the law should be wholly on the side of the householder, 95% of people replied ‘yes’ in an online poll published by the Telegraph. It does however seem likely that the public’s understanding of this issue is clouded by the tabloids’ preoccupation with this issue: the BBC published figures, stating that between 1995 and 2000, there have only been 11 prosecutions for people tackling intruders in any premises, including seven involving homes.
A burglary of one’s home is, without question, a fundamental invasion of privacy and security. It is therefore unsurprising that the new justice secretary has sought to align himself on the side of ordinary, peaceful homeowners. However, the proposals announced by the Conservatives have the capacity of changing the law, such that the disproportionate and unnecessary use of violence will become permissible on the pretext that the right to protect oneself in the home is inviolable, no matter what force is used.
The cases of Munir Hussain and Tony Martin have been widely quoted in support of reform of the law relating to self-defence. What happened to Munir Hussain and his family was terrible – his family was tied up in their home in a planned burglary by a group of men armed with knives and cable ties. However, Hussain's was not a case involving an attack on an intruder during a burglary – let’s be clear – his trial and subsequent conviction for GBH with intent had nothing to do with the right of the householder to defend himself. The burglars had left and Hussain’s family was no longer in danger. Hussain was seen with a group of others to chase one of the burglars down the street. The group, including Hussain, caused serious injury to the burglar using weapons including a cricket bat and a pole.
In 2000, Tony Martin stood trial for the murder of one man, and the attempted murder of another. It was acknowledged that the victims were in the process of burgling Mr Martin’s property when they were shot and because of this, Mr Martin’s case attracted media attention and public sympathy, resulting in calls for the law to be changed at the time. However, the fact that Martin had shot one of the victims in the back was not widely reported. He didn’t have a firearms certificate for the gun that he used, and on a number of occasions at meetings of the local Farmwatch and in discussions with neighbours and the local policeman, Mr Martin was heard to express the view that ‘you know the best way to stop them - shoot the bastards’; he was also said to have suggested that he would recommend putting such criminals in a field and using a machine gun on them.
Given the facts behind the cases of Hussain and Martin, it is questionable whether either of them would have been protected by the planned proposals from the justice secretary, as their actions might still considered by a jury as being ‘grossly disproportionate’. Grayling has yet to outline details of how ‘grossly disproportionate’ should be defined. This is an unknown concept in the area of criminal law.
Judges and lawyers are accustomed to concepts such as reasonableness and necessity as being the appropriate standards to apply in determining whether a defendant’s actions amount to a defence in law. The words of Lord Morris in the case of Palmer (1971) still hold true: ‘If the jury thought that that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought necessary, that would be the most potent evidence that only reasonable defensive action had been taken.’ The law as it stands, protects homeowners who do what they instinctively feel to be right to protect themselves and their family. It is difficult to see how the current proposal on the reform of self-defence is anything more than an attempt to gain voter support.
With only a handful of cases in the last 15 years involving prosecutions of people tackling intruders in their homes, it is clear that the proposals, if implemented, will do little more than invite abuse from those who exert revenge attacks and vigilantism.
Miranda Ching is an Associate at Peters & Peters LLP