Saturday, December 04, 2004

Right to Defend Your Home

You may remember my part in the Radio 4 Listeners' Law at the turn of the year, where I insisted that a so-called Tony Martin Law, giving homeowners more rights to defend their homes, was on the shortlist. I was delighted to read an article in the Telegraph today where the Metropolutan Police Commissioner echoes my thoughts. CLICK HERE to read the full article.

Here's a short quote from the article: "My own view is that people should be allowed to use what force is necessary and that they should be allowed to do so without any risk of prosecution. "There's a definite feeling around when I go out on the beat with officers and talk to members of the public that we need clarity in the law." He said the current legal test of "reasonable force", which has evolved in common law, seemed to be weighted against householders and left the public confused about their rights. Sir John suggested replacing it with legislation that put a statutory duty on police, prosecutors and the courts to presume that the force someone used in their home against a violent intruder was within the law, unless the facts clearly disproved this."

I quite agree.

2 comments:

ken said...

He said the current legal test of "reasonable force", which has evolved in common law,

But Common Law as in “English Common Law” allows self defence, it is one of the basic principals, it is parliamentary law that limits it.

Bill of Rights 1688
That the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions and as allowed by Law.

Liam said...

There seem to be two major flaws in Sir John's reasoning from a legal perspective.

First, Sir John implies that it is easier to show that a householder used "necessary force" than it is to show he used "reasonable force". In fact, the reverse is true - it is obviously far harder to show that a course of action is "necessary" than to show it is "reasonable". For example, it is easy to show that it is reasonable to take a walk in the park on a sunny day but almost impossible to show it is necessary.

Secondly, contrary to Sir John's apparent belief the burden of proof is already firmly on the prosecution to disprove a contention that the level of force used was reasonable in self defence. That is well established law and the Crown Prosecution Service accepts that it bears the burden to disprove self defence - www.cps.gov.uk/legal/section13/chapter_t.html

It is in a way a shame that senior police officers appear to lack really thorough legal training - it is not the core of their job to have encyclopedic legal knowledge, but having some would help prosecutions run more smoothly.

That is not to say that there should not be additional guidance for householders or that judges should not be instructed to direct juries in a certain way (e.g. "when considering what consituted reasonable force you must bear in mind the strong natural desire of the householder to defend his property, the fear he must naturally have felt" etc). However, much of the debate on this is ill-informed.