Monday, December 21, 2009

Licence to Kill?

I'm all in favour of people acting in self defence to protect their families and their property, but even I was a bit taken aback by the front page splash headline in the Daily Mail today...


Well, not quite. Chris Grayling sensibly proposes to change the law so people will only be convicted if they act "grossly disproportionately" in proctecting themselves or their families. At the moment you can be convicted if you use "unreasonable" force. So in theory, if you kill a burglar as the only means of stopping him killing you, you'll be OK.

Mr Grayling made it clear that killing a burglar would not necessarily be classed as 'grossly disproportionate'.

He said: 'If somebody breaks into your house with a knife and goes for you and you end up defending yourself and killing them, arguably in many cases that wouldn't be. It's got to be clear that the householder has gone way beyond what any reasonable person would expect to be the case to defend yourself.'

I have always believed the law needs changing and rebalancing in this area. Labour has mouthed platitudes about it for years now, but done absolutely nothing. I shall regard it as a key test of a Conservative government that it should bring in new proposals within a year of coming to power. The time for talking about it is long gone.


Bird said...

The Mail is becoming like the News of the World. For two days now they've splashed over several pages a non story about a blonde woman "frantically smoking a cigarette outside the home of a bloke called Ross, who happens to part-own Carphone Warehouse, and who happens to be an aquaintence of David Cameron.
What's it all about?

DM Andy said...

You say "So in theory, if you kill a burglar as the only means of stopping him killing you, you'll be OK."

That is exactly the case now so Chris Grayling is proposing no change in the law whatsoever. Remember that Tony Martin was only charged with murder because he shot the burglar in the back and then lied about it to police.

What's concerning is that someone's going to believe Grayling and the Daily Mail and shoot a paper boy or door-to-door salesman and expect to get away with it because it's on his property and he thought it was a burglar.

Unsworth said...

'Tories' licence to kill a burglar'

OK. Where do I get mine, how much does it cost, and when will it have to be renewed? Also, is there a discount for multiple purchases?

tris said...

I suspect that, if you are a normal, unviolent, law abiding sort of person, faced in the middle of the might with a burglar, it may be rather difficult to stop and work out what a reasonable amount of violence might be seen to be, in the cold light of day, three months later, by a sheriff and a jury.

I suspect that, knowing that I might have a bit of a job on my hands if the bloke were bigger than me, I might take a stick, but just how hard am I allowed to hit him? Would old people get more of a lecence, or would women, or young people, on the basis that they are weaker?

Fair enough if he says, "Fair cop gov; you got me bang to rights....", but then they only do that in British Film Comedies.

It's a difficult one though and I wouldn't like the job of sorting it out.

(Of course it's an English law situation and as such won't affect me in Scotland, which is just as well, because I'd be much more likely to pretend to be asleep.)

A said...

This comes up frequently Iain and the real problem is that the courts understand what a test of reasonableness is, but "grossly disproportionate" or other such terms are unknown. There is a real danger with this because at the moment the law can and does permit people to use reasonable force - and thankfully shooting somebody in the back like what Tony Martin did doesn't count. What this Tory proposal will lead to is increased lack of awareness of what is reasonable.

JuliaM said...

The problem is, Grayling is barking up the wrong tree. Didn't the Tories learn anything from the Dunblane gun legislation or the Dangerous Dogs Act?

What he needs to do is tackle the culture that has developed where someone like Salim can rack up an amazing 54 convictions yet still be free to burgle and steal with utter impunity.

Irene said...

Terrible headline and misleading.

Will 883 said...

So what is the difference between 'unreasonable force' and 'grossly disproportionate force'?

I would argue it is very little, if anything at all.

This is a shallow and cynical political issue based on nothing more than semantics.

John Moss said...

It is interesting that home invasion burglary is virtually unknown in the US state where every household is obliged by law to own a gun!

Personally, I think the balance here needs adjusting so unless the prosecution can prove that grossly disproportionate force was used, then the householder's action must be deemed to be self-defence.

Retaining a definition of "reasonable force" is not sufficient as was pointed out yesterday on Con Home.

Arf said...

Daily Fail. Nothing more confirmed my opinion of Gordon Brown than when everyone's favourite Hitler-supporting paper started cheering him on.

Not much sure I like the thrust of the current debate either. For me, there's no problem with a burglar getting seriously hurt..... in self-defence. However, Munir Hussain chased the perpetrator down the street with his brother, beat him with an iron pole and a baseball bat, breaking his arm and jaw, fracturing his skull and causing a brain injury.

That's not self-defence, it's plain old revenge. It's perilously close to attempted murder.

Carl Gardner, Head of Legal said...

I think this Tory policy is far too blunt. It sounds fair enough at first blush to say you'll protect people as long as they don't do something "grossly disproportionate".

But it follows that what this proposal means is that you'd in effect legalise killing a burglar, even where a jury thinks killing him was disproportionate. That seems a bit much to me.

And Chris Grayling's use of the new Irish proposals to back his case on Today this morning is no good at all - the Irish reforms are clearly more modest than his, and will require force to be proportionate.

Isn't the wrong answer yet more law to constrain judges and juries? I thought the Tories were opposed to yet more legislation on crime. Interestingly, a retired judge on WATO just made the point that, had it not been for fairly recent (and no doubt well intentioned) sentencing legislation, the judge in this case would have been able to pass a suspended prison sentence on Munir Hussain.

Jimmy said...

So Wallpaper is concerned that killing the burglar at present may be "beyond" reasonable rather than "way beyond". What would constitute "way beyond"? Ritual disembowelment?

Of course I would absolutely staggered if Gideon had the faintest idea what the current law was anyway.

FireForce said...

All very well trying to change the law on defending yourself, however by what means can you use?
The best defence is a pistol but when last in the Conservatives banned them.
How does an arthritic cripple like me in my 50's defend against some teens and twenty year olds?
Sam Colts equaliser would be ideal.
Time to change the law again.

Carl Gardner, Head of Legal said...
This comment has been removed by the author.
Fenrir said...

Cool idea, let's repeal all the stupid firearms legislation which only serves to leave guns in the hands of criminals yet deprives ordinary citizens from being able to defend themselves.

MikeyP said...

It depends in how you define "grossly disproportionate". I suppose using a flame-thrower or tactical nuclear missile might be seen as such, but where do you draw the line? Anything that wipes the intruder out, fleeing or not, is OK by me.

Unsworth said...

@ John Moss

"every household is obliged by law to own a gun"

Not so. There is no obligation. But the Second Amendment enshrines the right to do so. Some people regard the wording as meaning that the head of household where there are men 'of militia age' is required to keep a gun, but this is open to dispute. The definition of 'militia age' is also not completely clear - people live longer and more often in single households, and increasingly women are sole householders.

Nick said...

I agree with Arf. he was lucky not to be charged with attempted murder; it looks like the CPS chose lighter charges because of the fact he'd been burgled, so if anything Hussein got away lightly.

This proposed change is pure nonsense. As has already been stated, the courts have developed a clear body of jurisprudence in this area of the law, and introducing "grossly disproportionate" will not add anything, since the ultimate decision on whether force was "reasonable" or "grossly disproportionate" will be a question of fact for the jury.

Whether right or wrong, most jurors ask themselves "would I have done the same in the same situation?" - this won't change regardless of the terminology used.

This is playing politics with the law at its worst. It won't improve the law, and is in danger of making things worse. Shame on Grayling for pandering to hysteria like this.

Weygand said...

I'm afraid this Grayling initiative is the sort of opportunistic populism that many hoped a Conservative government would put an end to.

The present test of "reasonableness" is, as it sounds, reasonable - which laws need to be.

Any alternative, in which the need to behave reasonably is no longer required, will become a charter for every baseball wielding chav to maim and slaughter in a new category of 'honour killings'.

In the case of the present victim, one might not feel too concerned, but there would be numerous innocent or at least relatively harmless people (particularly vulnerable adolescents) who would perish at the hands of these macho men exercising their "rights" - people who are even more dangerous than those they will have slain.

I was going to say Grayling should think again - but in reality he should just think, full stop.

FireForce said...

Unsworth @ 2:15

There is indeed several towns in the U.S.A. that say all houses should have a firearm in them.

Compare the second amendment to the law in this country, in America you have the right (inalienable right) to possess a gun for defence, or any other reason, in the U.K. you get 5 years, that says a lot about this uncivilised country. Criminals rule.

Steve Tierney said...

Agreed, Iain. This is a necessary rebalancing.

Shamik said...

Grayling went further on 5Live this morning, saying the Irish option was one he was looking at.

He said: "I think the legal system should accept that people may overreact through fear and that's the point really, they've done this in Ireland, they have raised the hurdle effectively, they've not used the test of grossly disproportionate, they've used a different one, and we'll look at their option as well."

More here

Ray said...

Part of the problem is that although currently one can use 'reasonable force' to defend oneself, in practice you can't. If someone gets attacked or burgled, thumps the offending criminal (in a proportionate manner) then phones the police, the police then have a reported crime. They need to match that crime with an arrest/charge/caution so that they can tick the box and meet their targets.

Thus the police have a choice, to try and find and charge the original offender, or to charge the person in front of them (the victim) who has just admitted thumping someone. It is far easier for them to reach their targets by charging the victim. This also saves the policing cost of tracking down the actual offender. The police are incentivized away from solving the original crime and towards charging the morally innocent with a technical crime.

The point made above about those of us who are less physically able to defend themselves is also a valid one. I have a painful progressive illness and can barely walk, let alone fight off a burglar. The law doesn't allow me to defend myself by arming myself - the state effectively encourages violent crime against those less able to defend themselves by making sure they are unarmed and making sure that criminals know that.

Nicholas said...

@ Unsworth. I believe there is a town in Georgia where gun ownership is compulsory unless you are a convicted criminal.

Gerry57 said...

When you are scared for your life you are going to lash out. You do not think about the amount of force. If there is evil in your house then will want to disable it any way you can to protect yourself and your family. Surely burglars have no rights as soon as they break into your property. Thank goodness the Tories are standing up for common sense. Labour and the left are obsessed with protecting the rights of the culprit. 'License to kill' is over the top but the right to defend your home should be sacrosanct.

................................. said...

"So in theory, if you kill a burglar as the only means of stopping him killing you, you'll be OK"

This would be no different to how the law presently stands.

The proposal is to allow you to kill a burglar in your house. Very convenient to any husband who murders his wife, then claims, "I woke up and she was downstairs - I thought we were being burgled".

In any case, the commitment is only to "review" the law - meaning that we'll review it, then say "yes, looks okay to me" and leave as is.

Hawkeye said...

One thing that nobody is mentioning is that the cops have a habit of arresting the housholder who is later acquitted in court. Quite a few of these cases go that way.

How would you like to spend 6 to 12 months on edge even if there is a 95% chance of acquittal?

I would be happier if Grayling changed the law to make it less likely that cops would arrest the householder unless there was evidence of unreasonable violence.

True Belle said...

When my husband was away, I used to feel content that his Naval ceremonial sword was under the bed!

Years later when we were based outside Port Harcourt, Nigeria,33yrs ago, when he was night flying , I had a homemade chillie pepper spray in a quite handy position ready to release it's nasty vapours.

Burglaries and murders were very common place out there , I would have defended my children to the end.

Don't we all have a right to defend ourselves anymore?

Here in the countryside we have nasty b----d poachers who wave their guns and wild looking dogs around, slaughtering deer, pinching tractor wheels, nicking grain and anything else they can lift-- ah yes, staddle stones, church lead and gates and mowers and manhole covers, sign posts- the whole lot.

I would string them all up on a gibbett for causing fear and financial ruin to good hardworking people.

These evil thieves rustle pigs , sheep and kill deer and leave the legs behind because the carcases won't fit into their vans.

We have so few police to patrol rural areas at night. Domestic crime caused by drunkeness and drugs has stretched police time to the limit in all areas of society.

Excess has created a monster ,the need for excess has created an early hell for us who get in the way .

Nick said...

"Thus the police have a choice, to try and find and charge the original offender, or to charge the person in front of them (the victim) who has just admitted thumping someone. It is far easier for them to reach their targets by charging the victim. This also saves the policing cost of tracking down the actual offender."

Ray, this point is ridiculius, in that for the victim to be charged the offender would have to make a statement to the police (and thereby effectively hand himself in).

I'm happy to live in a country without mob rule, and that's what the current law offers. This pandering to the hysterical Daily Fail needs to stop; we need sensible well-thought out policies from a Tory government, not this drivel.

Steve Horgan said...

'In any case, the commitment is only to "review" the law - meaning that we'll review it, then say "yes, looks okay to me" and leave as is.'

It means nothing of the kind. Conservatives already tried to change the law in this regard, which you might know if you paid attention to such things. Other countries have managed to re-balance the law in favour of the victims of burglary without causing carnage either among criminals or innocent bystanders. The main point of this would be to stop the infrequent but appalling cases where box-ticking police and CPS lawyers decide ordinary people defending their families are more of a danger to society than career criminals. It would also demonstrate to the British people, and the organs of state that are supposed to protect them, that law-abiding citizens are more highly-valued then the sort of scum who would attack a people in their own homes.

The King of Wrong said...

Those saying "the law already allows this" and comparing "unreasonable" with "grossly disproportionate" are missing the point.

The proposal, as I understand it, is that the presumption will change. The question will no longer be "can you justify using that much force?" (presuming that you should have used the absolute minimum so as not to injure the bastard), but "can you justify using less force?" (presuming that you were acting sensibly).

Yes, shooting someone in the back, or getting a gang of mates to beat him to a pulp, still aren't going to be reasonable... but if you hit a robber with a frying pan you shouldn't be arrested and have to wait months for a jury to acquit you.

Jabba the Cat said...

As Arf said.

If, otoh, they had beaten the burglars inside their house, or possibly killed them, then they in all probability would not been charged with anything as the self defence argument would prevail.

None of this, however, addresses why the perps had not been locked up in jail with their existing string of convictions, and therein lies the serious failure of ZaNuLab's crime policies over the last decade. So unless politicians accept that only a criminal locked up in jail cannot harm those outside, are we going to have any real solutions to this pervasive problem in this country.

Nick said...

Firstly, I think it would be unlikely that anyone would be arrested and tried for hitting a burglar over the head with a frying pan in the dead of night (although feel free to find a case that proves me wrong...)

Secondly, the new law is in danger of being so unclear that the police will still arrest, and the CPS will still charge! So either way, the individual would face trial.

Presuming you feel that the current law unfairly targets people who "defend" themselves, what would be needed is greater guidance to the police and CPS on arrest and charging, not a change in the law

Ben said...

Several perceptive and thought-provoking comments here, which I've been grateful to read; this is a subtle and complex problem.

One good consequence which could come of the unsubtle and unperceptive Daily Mail headline: a few burglars could be made to think twice before setting out for work tonight. With police success rate in clearing up burglaries at 13 per cent (a record high for recent years, apparently) that can only be a good thing.

Unsworth said...

@ Fireforce (nice SLR, by the way) and Nicholas

Yes, several towns in the USA do require all households to be armed, but that is a very small proportion of the total populace.

However I'd certainly agree that gun-licencing ('control', if you will) in the UK is crass. After all, most - if not all - gun-related crime is damn all to do with licenced weaponry.

jbw said...

Some years ago, I had the opportunity to ride with the Atlanta Police on several occasions. In one call out, we arrived as the 'villein' was being taken away by two other policemen. We were left to interview the householder who had caught him. She was an small elderly lady, living in a small house, in a rather run down suburb.
Having taken down her story, the officer asked to see the gun she had used to detail the thief.
She handed over a small pistol, the officer noted the details and returned it to her.

Afterward, he said that he wished more people had guns as it made his job easier.

jbw said...

FireForce said...

"All very well trying to change the law on defending yourself, however by what means can you use?
The best defence is a pistol but when last in the Conservatives banned them..."

Err - I don't think so. Even before the Conservatives bowed to the press and banned handguns, firearms were supposed to be locked in special safes when not in use. So when your home is invaded in the middle of the night, how do you propose to get hold of your pistol, load it, and get your self in a position to use it?

jbw said...

FireForce said...
Unsworth @ 2:15

"There is indeed several towns in the U.S.A. that say all houses should have a firearm in them."

There are also states that ban you from owning handguns (New York for one).

jbw said...

Reading some of the points here, it seems to me that we have a pact with the State. We promise not to kill burglars, if the State keeps us safe from the same.

The trouble is that this pact has become broken. The State has given up trying to protect us, but insists that we continue to live up to our end of the deal.

It is this bit that needs to be fixed

Twig said...

We need a purge of the libleft from the judiciary, and then this kind of case would be kicked out on the basis that the householder did society a favour.

Calum said...

This is tedious bullshit election politics. The law is already perfectly favourable to householders: as long as you don't stab the assailant twenty times, shoot him in the back with an unlicensed shotgun as he runs away, or chase him down the street and beat him senseless with a blunt instrument you are generally OK. And do bear in mind these cases go in front of a jury, who get to decide for themselves.

No Society said...

While i agree the case in question is not representative, if anyone comes into your house you should have any means to get them out. All you brainwashed human rights liberals need head examination. Zero tolerance. It will put the shit up crims.

Gallimaufry said...

I suggest that the law remain the same as now but the CPS should adopt a standing instruction that prosecution of homeowners defending themselves against would not be in the public interest. Of course, after a few juries refused to convict homeowners doing the police and justice system's job (removing scum) the CPS couldn't pass the better than 50% chance of a conviction hurdle either. Problem solved. And yes I have been burgled.

Pierrepoint said...

If someone 6 foot 6 tries to break into my farmhouse I'd be pleased to have a knife. If he has a knife I'd like my HMR. If he has a handgun I'd reach for the .308 or pump mossy.
It's no good being equal.
You need to be ahead!

True Belle said...

Licence to kill/ some kill their own.

How many murders and savage assaults will there be this Christmas, courtesy of too much alcohol and drugs used indoors? How many partners /wives / husbands and children will be attacked by some one they know within their own family?

How many Boozed up/ drugged up domestic incidents will the police be called to sort out.

The media drones on about households being under attack from burglars maybe, but the real enemy may sleep next to you or share the same house !

FireForce said...

Unsworth, 6:30 no , not an SLR, but an FAL,the SLR was a cheap imitation and an abortion in comparison.
JBW, 7:00 7:04 /7:08, look at the states that ban the keeping of guns, ie New York their murder rate is higher than those who are liberal with the laws, well you had your pistol out cleaning it when night time came, anyway every country I traveled abroad to I took a pistol and was always with in reach, never had a problem, only a problem in this country, one feels vulnerable when keeping poachers off at night because you do not havee the propper means to defend your rights.

Unsworth said...

@ Fireforce

Ah, the genuine FN item then. Only time I handled one was with a folding stock. Difficult to tell from the small image - but glad to be corrected.

Anyway, it's a bit too conspicuous for my trips to Safeways, but no doubt would engender some rather more rapid co-operation from the check-out staff.

Carl Gardner, Head of Legal said...


What makes you think the current law requires "equality of force"? That can only be *your* interpretation of the current legal requirements of reasonableness and proportionality (in the circumstances as the householder believes them to be).


Juries decide these things now. Surely, on your approach, the fact the the jury convicted here vindicates the CPS decision to prosecute.

Mostly Ordinary said...

Bandwagon jumping at its worst. I want to see the Tories passing fewer but smarter laws. How is this different at the existing situation? Will I not face jail if I chase a burglar with my mates and cave his head in with a bat?

This and the stupid suggestion we need a law to make MPs pay UK taxes annoys the hell out of me because these cost money to pass and make no difference to normal peoples lives.

Passing law <> action

Bob said...

"Chris Grayling.. proposes to change the law so people will only be convicted if they act "grossly disproportionately" in proctecting themselves or their families..."

In other words, if they use unreasonable force.

"..At the moment you can be convicted if you use "unreasonable" force..."

I smell a gimmick.

"...So in theory, if you kill a burglar as the only means of stopping him killing you, you'll be OK."

But as things stand, we must allow the burglar to kill us?