Thursday, February 24, 2005
Burglars v Judge Dredd
The Tories say they want more rights for householders to protect themselves against burglars (see Otto’s post below).The current law says that a householder can use reasonable force against a burglar.
Presumably they want the right to use 'unreasonable force'; torturing kids to death over an extended period, maybe. Read here (first and last are especially recommended) about what has to happen for householders to actually be prosecuted for actions carried out against intruders.
It is also quite explicitly clear that 'reasonable force' can involve the death of the intruder. Here is the Government’s very sensible advice.
Note the section “What if the intruder dies”.
One point that deserves to be made is that the tone of this is substantially different from the advice it replaced, which, however, still seems to be available from the Home Office website. See the section “The Law on Self Defence”.
This advice was indeed worrisome: “if the criminal complains that you have used unreasonable force, the police must investigate”. (Yes, maybe.. but how long does this investiagation need to take?)
Incredibly: “What ‘reasonable force’ is will depend on the circumstances of each case, and is something that only the courts can decide… Generally, the courts use common sense and take account of what it is like to be faced with a violent or possibly violent criminal.”
This implies that the question of ‘reasonableness’ is a lottery, and that sometimes the courts do not use common sense. So the advice needed to be changed. And it was changed.
Read the BBC article here.
Nevertheless, talk radio morons still demand the "right to kill" intruders. What on earth does this mean? It can only mean taking on a Judge Dredd-style role of jury and executioner. Some householders will exercise this 'right', others forgo it. For how long after the incident is the 'right' enforceable? What standard of proof is required?
When you talk to your neighbour about your holiday plans, but then cancel them, and your car breaks down, so you take it to the garage, and your neighbour hears a noise in your house & knows you're not there, because the car's not in the drive, so he uses his key & lets himself in to investigate, is the right-to-kill instinct exactly what both sides need?
The Tories proposed a Private Members Bill to change the law. Here is Patrick Mercer explaining it:
"My Private Member's Bill will abolish the present statute's requirement that a home owner act with "reasonable force" when tackling an intruder. It will replace it with the requirement that the home owner's use of force be "not grossly disproportionate" to the circumstances in which he finds himself. Although it came top of the ballot for Parliamentary time, my Bill will almost certainly fail unless the Prime Minister explicitly supports it.
"There has already been media comment to the effect that my Bill will not provide the clarity in the law that home owners and others so desperately need: that "not grossly disproportionate" is no better than "reasonable force" as a definition of what you are allowed to do.
"Let me settle that issue now. The term "not grossly disproportionate" will allow home owners a much greater degree of latitude in tackling burglars. They will be able to do whatever they think is necessary to defend themselves when confronted by an intruder. What they will not be entitled to do is chase a burglar down the street and plunge a knife into his back once he is off their property. My Bill is not a licence to commit murder – it is not an English version of the Oklahoma law that indemnifies home-owners from prosecution no matter what they do to an intruder.
"Under my Bill, the farmer Tony Martin would still have broken the law – for he shot Fred Barras, one of the two burglars who entered his house, in the back as he was running away. Martin's use of force was grossly disproportionate. If he had injured or even killed Barras in a struggle to repel him and his partner-in-crime while they were in his home, then Martin's actions would – under my Bill – have been perfectly legal."
How many supporters of increased rights for householders realise that Tony Martin’s case would be unaffected by the proposed Tory change in the law? Perhaps their poster (check out this comedy version) should read “Are you thinking what we’re thinking? The current state of the law is broadly adequate and has been correctly applied in high profile cases”.
The difference between 'grossly disproportionate' and 'unreasonable', as Mercer himself admits, cannot be large enough to justify the allegation that the law as it stands favours the burglar. He does, however, seem to have a stronger point regarding the decision of the CPS to prosecute. He is correct that innocent people should not have prosecutions 'hanging over' them merely on the grounds that the supposed offence is serious.
The idea of the CPS being more accountable looks fair.
HOWEVER; Why should this apply only to 'householders who have defended themselves against burglars'? Why not Britain's care-home managers, falsely accused of sex crimes? What about our top black footballers, falsely accused of rape?
Noone who has not committed a crime should be charged with one. However, "Conservatives demand increased rights for paedophiles & rapists" perhaps doesn't have quite the same ring to it.
Presumably they want the right to use 'unreasonable force'; torturing kids to death over an extended period, maybe. Read here (first and last are especially recommended) about what has to happen for householders to actually be prosecuted for actions carried out against intruders.
It is also quite explicitly clear that 'reasonable force' can involve the death of the intruder. Here is the Government’s very sensible advice.
Note the section “What if the intruder dies”.
One point that deserves to be made is that the tone of this is substantially different from the advice it replaced, which, however, still seems to be available from the Home Office website. See the section “The Law on Self Defence”.
This advice was indeed worrisome: “if the criminal complains that you have used unreasonable force, the police must investigate”. (Yes, maybe.. but how long does this investiagation need to take?)
Incredibly: “What ‘reasonable force’ is will depend on the circumstances of each case, and is something that only the courts can decide… Generally, the courts use common sense and take account of what it is like to be faced with a violent or possibly violent criminal.”
This implies that the question of ‘reasonableness’ is a lottery, and that sometimes the courts do not use common sense. So the advice needed to be changed. And it was changed.
Read the BBC article here.
Nevertheless, talk radio morons still demand the "right to kill" intruders. What on earth does this mean? It can only mean taking on a Judge Dredd-style role of jury and executioner. Some householders will exercise this 'right', others forgo it. For how long after the incident is the 'right' enforceable? What standard of proof is required?
When you talk to your neighbour about your holiday plans, but then cancel them, and your car breaks down, so you take it to the garage, and your neighbour hears a noise in your house & knows you're not there, because the car's not in the drive, so he uses his key & lets himself in to investigate, is the right-to-kill instinct exactly what both sides need?
The Tories proposed a Private Members Bill to change the law. Here is Patrick Mercer explaining it:
"My Private Member's Bill will abolish the present statute's requirement that a home owner act with "reasonable force" when tackling an intruder. It will replace it with the requirement that the home owner's use of force be "not grossly disproportionate" to the circumstances in which he finds himself. Although it came top of the ballot for Parliamentary time, my Bill will almost certainly fail unless the Prime Minister explicitly supports it.
"There has already been media comment to the effect that my Bill will not provide the clarity in the law that home owners and others so desperately need: that "not grossly disproportionate" is no better than "reasonable force" as a definition of what you are allowed to do.
"Let me settle that issue now. The term "not grossly disproportionate" will allow home owners a much greater degree of latitude in tackling burglars. They will be able to do whatever they think is necessary to defend themselves when confronted by an intruder. What they will not be entitled to do is chase a burglar down the street and plunge a knife into his back once he is off their property. My Bill is not a licence to commit murder – it is not an English version of the Oklahoma law that indemnifies home-owners from prosecution no matter what they do to an intruder.
"Under my Bill, the farmer Tony Martin would still have broken the law – for he shot Fred Barras, one of the two burglars who entered his house, in the back as he was running away. Martin's use of force was grossly disproportionate. If he had injured or even killed Barras in a struggle to repel him and his partner-in-crime while they were in his home, then Martin's actions would – under my Bill – have been perfectly legal."
How many supporters of increased rights for householders realise that Tony Martin’s case would be unaffected by the proposed Tory change in the law? Perhaps their poster (check out this comedy version) should read “Are you thinking what we’re thinking? The current state of the law is broadly adequate and has been correctly applied in high profile cases”.
The difference between 'grossly disproportionate' and 'unreasonable', as Mercer himself admits, cannot be large enough to justify the allegation that the law as it stands favours the burglar. He does, however, seem to have a stronger point regarding the decision of the CPS to prosecute. He is correct that innocent people should not have prosecutions 'hanging over' them merely on the grounds that the supposed offence is serious.
The idea of the CPS being more accountable looks fair.
HOWEVER; Why should this apply only to 'householders who have defended themselves against burglars'? Why not Britain's care-home managers, falsely accused of sex crimes? What about our top black footballers, falsely accused of rape?
Noone who has not committed a crime should be charged with one. However, "Conservatives demand increased rights for paedophiles & rapists" perhaps doesn't have quite the same ring to it.
