The ins and outs of defending your home

The case of Tony Martin - the Norfolk farmer convicted of murder for shooting a teenage burglar - has highlighted confusion in the law of self-defence.

Alan Murdie seeks to clarify the position

Just how far a householder may go in self-defence against a burglar is a question that many lawyers will have been asked.

Unfortunately, the appeal in the case of Tony Martin, the Norfolk farmer convicted of murder for shooting a teenage burglar, has not clarified the issue.

In Martin (Anthony) [2002] WLR 237, the Court of Appeal quashed the murder conviction and substituted a verdict of manslaughter on grounds of diminished responsibility but left the issue of self-defence largely untouched.

Since leave to appeal to the House of Lords has been refused, the law on self-defence in the home - which many considered was at the root of the case - seems to be left in a vague state.

Naturally, cases may turn on particular facts and the jury's view of reasonable force.

But lawyers may be faced with pre-trial decisions on self-defence, including whether a householder should be prosecuted at all.

Fortunately, some principles can be identified even though the last century has seen little authority directly on the point.

At common law, a householder could kill a burglar who broke in at night (Blackstone 4 Commentaries 183-184).

In R v Annie Davis (1905) 69 JP 645, a woman fired a revolver and wounded her husband.

Her defence was she believed she was firing at a burglar.

The Recorder of the Central Criminal Court held if the accused had known it was her husband she was guilty, but if she believed it was a burglar she had a defence.

In Hussey (1924) Cr App R 160, Lord Hewart approved a statement in Archbold's Criminal Pleading, Evidence and Practice (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...'.

The accused had shot and wounded a man during a violent eviction.

But subsequent editions of Archbold have departed from this position, considering homicide of a trespasser can only be justified when very serious personal violence is threatened.

In Ball (1967) JPN 723, a householder fired a shotgun at a crowd that came to attack him.

The judge directed the jury to acquit, stating: 'It has been said that an Englishman's home is his castle and if you accept what has been said you could not possibly say that what Ball did was not done in self-defence.'

The modern test of self-defence is reasonable force, the judgment of Lord Morris in Palmer [1971] AC 814 at 831 providing the standard jury direction.

Two passages are directly relevant: 'If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonable defensive action had been taken'; and 'if the moment is one of crisis for someone in immediate danger, he may have to avert the danger by some instant reaction.'

Both statements are appropriate to householders threatened by burglars.

Nonetheless, the use of force must be reasonable according to the objective standards of the jury.

Crucial issues include:

l The intentions of the householder inflicting force, and;

l The degree of danger the householder believes himself to be in (R v Symondson (1896) 60 JP 645).

As Professor Allan Dershowitz has written in the US: 'What is reasonable in one context may be unreasonable in another.....an elderly weak woman living in an isolated rural setting without a phone might be more reasonable in shooting an unarmed assailant than would a strong young man living next door to a police station' (The Abuse Excuse (1994)).

Reasonable force may encompass using a weapon against an unarmed opponent if there is an apprehension of death or serious violence (R v Weston (1879) 14 Cox CC 346).

Palmer emphasises the person attacked cannot weigh defence to a 'nicety'.

Persons awoken by intruders at night are likely to suffer fear and disorientation.

However, self- defence is not accepted as a concession to emotional states but remains a basic right recognised in law, including the right to launch a pre-emptive strike to prevent apprehended attacks (see Attorney-General's Reference (No 2 of 1982) [1984] 2 WLR 447.

Thus the law grants considerable liberty to a person defending himself from burglars but it does not grant a right to carry out an execution.

As was said in Palmer: 'If the attack is over and no sort of peril remains then the employment of force may be by way of revenge or punishment or by way of paying off an old score or may be pure aggression.'

Distinctions must be made between civil trespassers and those with criminal intent.

A civil trespass will not excuse firing a pistol in sudden resentment or anger (Meade and Belt's Case (1823) 1 Lew CC 184).

Lethal force is not permissible merely for defending property, for example using firearms to protect an allotment shed (Revill v Newberry [1996] 2 WLR 239).

Conduct prior to using force can be relevant evidence.

In Chisam (1963) 47 Cr App R 134, the accused shot a teenager playing a radio and then used a swordstick to inflict a fatal wound when the victim entered the house.

Self- defence was held not to be available where an accused initiated violence.

But in some cases where a householder uses excessive force provocation may arise.

As Mr Justice Holroyd stated in Meade and Belt's Case (1823): 'But the making an attack on a dwelling, and especially at night, the law regards as equivalent to an assault on a man's person; for a man's house is his castle, and therefore, in the eye of the law, it is equivalent to an assault'.

On this basis, burglary might arguably qualify as a provocative act.

However, a clear ruling on these issues by the courts would be welcome, ideally on a reference by the Attorney-General before another case like Martin occurs.

Alan Murdie is a barrister who is writing a book on self-defence