Q and A: Self defence and burglars
- 9 October 2012
- From the section UK
The Justice Secretary has proposed amending the law in England and Wales on self-defence to protect householders who over-react when confronted by a burglar or intruder. What is the law on self defence in the home - and where do victims stand if confronted?
What force does the law allow?
In England and Wales, anyone can use "reasonable" force to protect themselves or others, or to carry out an arrest or to prevent crime. Householders are protected from prosecution as long as they act "honestly and instinctively" in the heat of the moment. "Fine judgements" over the level of force used are not expected, says the Crown Prosecution Service.
What this means in practice is that someone can claim they attacked in self-defence if they genuinely believed they were in peril - even if in hindsight they were clearly wrong.
Victims do not have to wait to be attacked if they are in their home and fear for themselves or others. These guidelines also apply if someone, in the spur of the moment, picks up an item to use as a weapon. The law very clearly says that a householder is not expected to weigh up the arguments for and against in the heat of the moment - but they have to show that their actions were reasonable in the moment.
Can the intruder be chased if they run off?
It all comes down to the fundamental question of what was proportionate in the moment and what the householder genuinely believed. If an intruder flees the scene, then at that moment they might not be presenting a threat to the householder any longer. This means that a householder who chases and attacks could no longer be considered to be acting in self-defence. Reasonable force can still be used to recover property or make a citizen's arrest.
The Crown Prosecution Service (CPS) has suggested in the past that "a rugby tackle or a single blow would probably be reasonable" because these are designed to stop the criminal, rather than to inflict grievous harm.
What is the situation if the intruder dies?
It is still lawful to act in reasonable self-defence, even if the intruder dies as a result. However, prosecution could result from "very excessive and gratuitous force", such as attacking someone who is unconscious. For instance, the CPS decided not to prosecute one woman who snatched a baseball bat from an intruder and smashed him over the head. Had the woman continued to beat the man to a pulp, after he had already fallen and posed no threat, that would probably be considered as unlawful.
So the law is quite complicated?
It depends which way you look at it. Defenders of the current position argue that self-defence is exactly the kind of debate that should be left up to juries. In each case, the precise facts will be different and may justify a different response.
But that's not very clear, is it?
That's the argument from the other side. The Conservatives have repeatedly argued that the law needs to be shifted in favour of the householder to give them certainty that they will not be prosecuted. Most cases that have come before the courts have tended to divide public opinion.
How likely is prosecution?
There have been very few prosecutions in these circumstances. Between 1990 and 2005 there were 11 prosecutions of people who attacked intruders. Seven of them related to domestic burglaries. One of the cases that was prosecuted involved a man who lay in wait for an intruder and then beat him, threw him into a pit and set him alight.
Buckinghamshire businessman Munir and Tokeer Hussain were jailed in different circumstances. Hussain had returned home to find that three intruders had tied up his family. He escaped and, with the help of his brother, chased one of the intruders, Walid Saleem. Hussain caught Saleem and hit him so hard with a cricket bat that he inflicted permanent brain damage.
Saleem was incapable of entering a plea at trial and received a lesser sentence than the man whose house he broke into. It's important to note that the brothers did not plead at trial that they acted in self-defence when they chased and attacked the intruder. The Court of Appeal reduced their sentences but emphasised that the case was very unusual - and included an eyewitness who pleaded with the men to stop attacking the intruder.
What about if someone shoots?
The most recent case was that of Andy and Tracey Ferrie. They were in bed when two burglars entered their home. Mr Ferrie fired his (legally-held) shotgun at the men. The couple were arrested but then released without charge.
The judge at the intruders' trial said: "If you burgle a house in the country where the householder owns a legally held shotgun, that is the chance you take. You cannot come to court and ask for a lighter sentence because of it."
The most well-known case is Tony Martin. In 1999, the Norfolk farmer shot dead an intruder in his home. He was jailed for life for murder but the Court of Appeal then reduced that to manslaughter. He served three years in jail.
What do top judges think?
Lord Judge, the Lord Chief Justice, said in his 2012 press conference that he thought the law was sound.
He said: "I suspect if any of you have come home to find a burglar in your home, or have been in bed at night -- or indeed having an afternoon snooze and found a burglar in your home - you are not calmly detached. You are probably very cross and you are probably very frightened - a mixture of both -and your judgment of precisely what you should or should not do in the circumstances cannot, as another predecessor of mine, Lord Lane, said, you cannot measure it in a jeweller's scale. You have to face the reality of how people are and how people react to these situations - and justifiably react.
"The householder is entitled to use reasonable force to get rid of the burglar and that in measuring whether the force is reasonable or not, you are not doing a paper exercise six months later. You have to put yourself in the position of the man or woman who has reacted to the presence of a burglar and has reacted with fury, with anxiety, with fear, and with all the various different emotions which will be generated, and who has no time for calm reflection