Following Chris Grayling’s appointment as Justice Secretary in the recent Cabinet reshuffle back-bench Conservatives have called on him to “raise the bar” against criminals and change the law on self-defence to provide greater protection for householders who cause injury in the course of defending their homes.
This follows close on the heels of a widely reported incident in Leicestershire earlier this month in which a man and a woman were arrested after allegedly shooting at a suspected burglar on their premises. The CPS brought no charges against the couple who asserted that they acted in lawful self-defence. The case appears, on the facts reported by the press, to bear similarities to that of Tony Martin, who was convicted of the murder (later reduced to manslaughter on appeal) of a burglar at his home in Norfolk in 1999.
Cases such as these tend to divide opinion between those who believe that the current law should be extended to allow householders freedom from the risk of prosecution when protecting their property, and those who believe that the current law affords adequate protection.
The current position is that self-defence (which encompasses defence of another person and defence of property) is a complete defence to offences against the person ranging from common assault to murder. The key elements to be established are that the actions taken in self-defence were both reasonable and proportionate, having regard to all of the circumstances.
Applying this test strictly means that actions which go beyond what is reasonable or proportionate, such as retaliation or retribution, cannot be justified as self-defence. This was highlighted in the case of Munir Hussein in 2008. This case caused controversy after Mr Hussein was jailed for 30 months (reduced to a 12 month suspended sentence on appeal) for an assault on a burglar who had entered Hussein’s home, tied up his family and threatened them at knifepoint. There was widespread public concern regarding the fact that the victim, the alleged burglar, was never charged with any offence.
When sentencing Mr Hussein the judge noted that he had faced extensive provocation, but the evidence showed that his actions amounted to a violent revenge attack, rather than lawful self-defence. The injuries sustained by the alleged burglar resulted in a permanent brain injury and the decision was taken by the Crown Prosecution Service that it was not in the public interest to bring criminal proceedings against him.
In 2010 David Cameron reiterated the Conservative Party’s position that the law should be changed so that only householders who use “grossly disproportionate force” should be prosecuted, a position which is expected to be supported by the new Justice Secretary, Chris Grayling. This contrasts with the position taken by the Director of Public Prosecutions, Keir Starmer, who maintains that the current law provides adequate protection and does not require amendment.
Cases such as these resonate widely and are of significant public interest. Whilst it is easy to understand the actions of those accused of assaults on intruders in their homes, it would be of some concern if the use of unreasonable or excessive force was legitimised. The law exists to offer guidance as to the appropriate action to take in such circumstances and the decision not to prosecute in the Leicestershire case suggests that the current law is able to distinguish adequately between those who do so and those who do not.