Under the current law, homeowners are permitted to use "reasonable force" against intruders.[3] However this standard is criticised for being unclear and weighted too much in favour of the intruders.[4] Under the proposed law, homeowners would be convicte

Pre-emptive attacks and the duty to retreat

Householders are not required to wait to be attacked before using defensive force against the intruders. The apprehension of an attack justifies the use of force to defend oneself if it is reasonable under the circumstances. 

Householders are also under no duty to retreat as far as possible, although the failure to retreat is relevant in determining whether the householders are acting within the lawful boundary of defence or are crossing the line into revenge or retribution. 

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The CIJA is silent on these two matters.

Criticism of the current law

Criticism of the current law can be grouped into two broad themes: (a) the law is unclear and (b) the law is unfair.

Is the law clear?

It is argued that the law is insufficiently clear as to the position of the householder, in that there is still no exact definition as to what constitutes “reasonable force”. As suggested by John Denham, the codification of what level of force is reasonable is only an academic issue and juries are unlikely to bear such principles in mind when determining if force is reasonable. Instead, juries are more likely to apply their common sense. 

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However, in my view, this criticism is unwarranted. The consolidated single test of “reasonable force” as set out in s.76 of CIJA, together with guidelines published by the Crown Prosecution Service on the position of householders when they are confronting with intruders, mean that householders should have no difficult in understanding what constitutes “reasonable force”. That is to say, the test for “reasonable force” is clear and unequivocal. However, further clarification on the point of pre-emptive force and the duty to retreat is needed.

A second aspect of this criticism is that it is suggested that in practice, juries are often unclear as to how to consider the disparity of strength and vulnerability between householders and intruders. Palmer v R and s76(8) of the CJIA provide that such disparity should be considered, but not all judges direct juries to this effect.

However, this criticism is aimed at how the law has been administered rather than at the content of the law itself, and accordingly, cannot be fixed by simply amending the law. If judges are falling short on their duties, perhaps the courts should consider circulating a directive to ensure judges adequately direct the jury to consider the necessary points.

Is the law fair?

It is argued that under the current law, the balance between householders and intruders is weighted too far in favour of intruders. Instead, home invasions should be regarded as an exceptional case in this balancing act in that when an intruder enters a house, they essentially leave their rights outside the door. It is argued householders who act in self-defence should not be at risk of being prosecuted. However, instead they can receive sentences that are far more severe than the sentences received by the intruders. It is this criticism that formed the basis of the public outcry following the cases of Tony Martin and Munir Hussain.

However, in my view such criticism risks failing to appreciate that the householders have indeed committed an act which met the elements of a criminal offence. While of course, the law of self-defence confirms the right of householders to defend their home and family with reasonable force, does it mean that we should give no respect to the intruders’ right to life? As Lord Thomas pointed out in a House of Lords debate in October 2011, the death of a person is extremely important. Shouldn’t a person who killed someone be arrested and questioned? If that person did act in self-defense, his view and his account will no doubt be taken into account by the police when they decide whether to charge the person or by the jury when they consider whether the person had acted reasonably. It is fair that a suspected killer, though also a victim of crime, be arrested, questioned or even prosecuted. However, I support that a charge should only be laid when the police, throughout investigation, have reasonable believe that the householders had acted far beyond the limits of self-defence.

Moreover, if one were to support the effective immunity from prosecution of householders, it would mean that the law permitted householders to exercise extra-judicial punishment on intruders and the law encouraged vigilantism. However, retributive punishment should never be exercised by householders. It should remain the prerogative of the state.

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In my view, the law should not be rebalanced further in favour of householders. The current law works well in balancing the right of householders to defend themselves and their family and the necessity of upholding justice. If householders act genuinely in self-defence with reasonable force they will be protected by the law. Householders will only be found guilty if they are found to have not acted genuinely in self-defence or if the force they used was excessive. This was the case with Tony Martin and Munir Hussain, and the rarity of such cases suggests the current law works well. Householders who are charged with a non-fatal offence can mitigate their sentence on the grounds of mistaken assessment of the appropriate degree of force. 

The proposed law

The new law proposed by the conservative party would provide an absolute defence to householders against intruders in a building unless the force used was grossly disproportionate and had been apparent. 

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This "grossly disproportionate" test does not constitute a new license to kill. Indeed, even under the current law, there are examples of acquittal or withdrawal of cases in which the householders have killed the intruders. Only cases where the act of self-defence is found to be unreasonable but also not grossly disproportionate will be affected by the new law.

The proposed law does not effectively address the criticism of the current law. It is no clearer than the current law. Nor would it have remedied any perceived cases of injustice. Neither the Tony Martin nor the Munir Hussain case turned on whether the act of self-defence was disproportionate and so would not have been decided differently under the proposed law. Tony Martin was convicted because the jury found that the force he used was unreasonable and that he was trying to put justice in his hands to punish the intruders. Likewise, Munir Hussain's attack on his intruder was found to be retribution rather than self-defense. 

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A perplexing feature of the proposed law is that only allows householders to use force in the building or part of the building when they are in the prevention of crime or in self-defence. The effect of this is that disproportionate force is acceptable within the confines of a building but only reasonable force is permitted outside the building. Stepping into a building would like stepping into the colosseum, as once you step in you may risk yourself any kind of unreasonable force.

In addition, the law does not apply to self-defense in other contexts, such as shopkeepers defending their commercial premises, battered women defending themselves against their abusive husbands or police dealing with offenders. 

The proposed law is also likely have a number of unwanted consequences. Firstly, it may result in intruders being more heavily armed so as to encounter any possible disproportionate force. Secondly, in permitting a degree of disproportionate force, the law would to an extent, permit householders to exercise extra-judicial punishment on intruders and would encourage vigilantism. This is because householders may have a legitimate argument claiming that it was their right to inflict such an unreasonable degree of force on the intruders while they are defending themselves. 

Conclusion

As stated by Medelle, ‘the law should encourage people to be reasonable, not unreasonable, to be proportionate, not disproportionate’. The current law works well and does not need to be amended, and the criticism of it is unwarranted. Changing the standard of acceptable degree of force would not solve the perceived problems of the current law, but instead would lead to a series of unwanted consequences.

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BIBLOGRAPHY

Primary Sources: Statutes

Section 3 of Criminal Law Act 1967

Section 76 of Criminal Justice and Immigration Act 2008

Primary Sources: Cases

Attorney-General for Northern Ireland’s Reference (no. 1 of 1975) [1977] A.C. 105, 137, 138

Beckford v R [1988] A.C. 130

Bird [1985] 1 W.L.R. 816

DPP v Morgan [1976] A.C. 182

Field [1972] Crim L.R. 435

Mclnnes [1971] 1 W.L.R. 1600 CA

Palmer v R [1971] A.C. 814

R v Hatton [2005] EWC Crim 2951

R v Khan [1995] Crim L.R. 78

R v O’Grady [1987] QB 995

R v Owino [1998] 2 Cr pp R 128, 134

R v Martin (Anthony Edward) [2001] EWCA Crim 2245

Williams (Galdstone) [1987] 3 All E.R. 411

Secondary Sources: Books

Michael J. Allen, “General Defences”, Textbook on Criminal Law 11th ed. (Oxford University Press, 2011)

J.C. Smith, Justification and Excuse in the Criminal Law, London, Stevens & Sons, 1989

Boaz Sangero, Self-Defence in Criminal Law, US, Hart Publishing 2006

Christina Mcalhone and Rebecca Huxley-binns, Criminal Law the Fundamentals, 2nd ed. Thomson Reuters, UK, 2010

Secondary Sources: Hansard/ Research Paper/ Law Commission Report

“Self-defence”, Lords Hansard text for 25th February 2010 , 11:22 a.m., asked by Lord Mackenzie of Framwellgate

“Crime: Home Protection”, moved by Lord Blencathra debated on 20th October 2011

Sally Broadbridge, Criminal Law (Amendment) (Householder Protection) Bill, House of Commons Library 2005

Partial Defences to Murder, Law Commission Final Report,2004, pp.72-80.

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Secondary Sources: Articles and Journals

Conservative Party Manifesto 2010 – Change Society, Fight back against crime , p.55-56

Editorial, “Defending self-defence”, Criminal Law Review 2010, 3, 167-168

Richard Thompson, “Break in, make my criminal justice policy”, Criminal Lawyer, 2005, 6-7

Sally Almandras, “Use of force against intruders”, Key issues for the New Parliament 2010

Sally Almandras, “Householders and the law of self defence”, SN/HA/2959 House of Commons library

Shamiza Mahmood, “Self-defence in the Home”, Student Law Review, Volume 64

Secondary Sources: Newspaper

Frances Gibb, Lawyers fight “licence to kill burglars”: Tory plan may incite vigilantism, says top QC, Times 25th January 2010

Harry Phibbs, “Allowing reasonable force against intruders will put the law back on the side of decent people” dailymail 22/6/2011

France Gibb, You can kill a burglar if you have to, but not if you want to, Time, Independent, Guardian, Daily Telegraph 2nd February 2005

James Chapman and Jack Doyle, “The legal right to protect your home: Owners will be able to fight off burglars without fear of prosecution”, dailymail 22nd June 2011

Richard Edwards and Christopher Hope, “You have the right to shoot dead a burglar” Daily Telegraph, 16th July 2008

Secondary Sources: Website

Issy McCann, The Self-defence law does not need unreasonable change, 2011, <http:www.gurdin.co.uk/commentisfree/libertycentrl/2010/jun/14/reasonable-lw-on-self-defence> Last accessed 03/01/12

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