“It is rare for householders to be confronted by intruders in their homes and even rarer for them to be arrested, prosecuted and convicted as a result of any force they used to protect themselves. When such cases do occur, the Government believes they can give rise to a public perception that the law is balanced in favour of the intruder. In response to these concerns the Coalition Agreement committed ‘to ensure that people have the protection that they need when they defend themselves against intruders’.”
Ministry of Justice Circular No. 2013/02, issue date 26 April 2013
The Crime and Courts Act 2013 received Royal Assent on 25 April 2013. Section 43 of the Act amends the current law in relation to self-defence, meaning that householders who use a disproportionate level of force (but not a grossly disproportionate level of force) to protect themselves or others in their home will not automatically be regarded as having acted unlawfully. Using a level of force that is grossly disproportionate in the circumstances of the case however will not be regarded as reasonable and the defence will therefore fail.
But what prompted this change in the law and what impact will it have in practical terms?
Until now there was no separate law dealing with self-defence in the home (cases where householders were confronted by intruders or burglars) as the test above was simply applied in the same way as in any case where self-defence was raised, although the circumstances of the alleged offence would be taken into account. Lord Morris set out the principle of self-defence clearly in the Privy Council case of Palmer v R (1971 AC 814);
“If the jury thought that that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought necessary, that would be the most potent evidence that only reasonable defensive action had been taken ..."
The case of Tony Martin was one of the most high profile cases involving an assault on an intruder. Martin was convicted of murder after shooting a 16 year old boy in the back as he fled from Martin’s property after an attempted burglary. Martin appealed against his conviction and it was reduced to manslaughter on the grounds of diminished responsibility. Under the new law Martin would almost certainly still be prosecuted; his actions would almost certainly be deemed grossly disproportionate.
Munir Hussain is another high profile case which considered the rights of householders to protect themselves against intruders. Hussain was attacked by a number of men who broke into his house armed with knives. After apprehending one of the intruders, Hussain and three members of his family carried out a prolonged attack on one of the intruders, using a cricket bat to inflict head injuries which resulted in the intruder sustaining permanent brain damage. Under the new law it is likely that Hussain’s actions would also be considered grossly disproportionate and would therefore proceed to prosecution.
By contrast in September 2012 Andy and Tracie Ferrie were arrested after shooting at an intruder at their Leicestershire home. After a police investigation no further action was taken against them as it was concluded that they had acted in lawful self-defence. Applying the new law in their case would result in the same conclusion.
Was this change in the law really necessary and what does it actually achieve? The decisions in the cases above suggest that the police, prosecutors and the courts have always had a clear understanding of the issues in respect of self-defence in the home and that no change was necessary. The “public perception that the law is balanced in favour of the intruder” was in fact an erroneous one, but provides the complete explanation for this change.