Mr Grayling’s proposed modification of the law on violence against intruders

February 4, 2013 6:20 pm

Recently, the Secretary of State for justice – Mr Grayling, issued a proposal stating his desire to ‘change the law’ in regards to the use of force.

The current law, found in the Crown Prosecution Service, allows householders to use ‘reasonable force’ against intruders, whereas the proposed amendment concerns a threshold of gross disproportionality. In his proposal, Mr Grayling seems to voice the general consensus of the British public that amidst the anxiety and utter terror of a burglary can householders really be held responsible for their actions? It would appear that the Secretary of state for justice is concerned with amending the law so that ‘law and justice’ supports the victimised householder.Secretary for justice

At this point, it is imperative to note that the amount of cases on this matter is extremely low. The press, however, as unwarranted as it may be, have guided the public into thinking that homeowners’ protecting themselves has been and will continue to be criminalised. The cynical amongst us could argue that the conservative party, in a bid to ‘get in the good books’ of the nation, have ‘jumped on a bandwagon’ set up for them by the press. This is a controversial statement indeed, but one that may prove more truthful than the Great British public currently appreciates.

On the contrary, the Secretary of State for Justice could quite fittingly be responding to a heart-felt uproar from the British public. After all, the very notion of burglary strikes most with fear even before considering the potential consequence of imprisonment dependent upon your actions when faced with such a terrifying experience.

One thing is for certain; to fully appreciate if the law is in need of repair – we must assess the current standing on the matter. In regards to intruders, The Crown Prosecution Service (CPS) provides that:

Anyone can use reasonable force to protect themselves or others, or to carry out an arrest or to prevent crime…So long as you only do what you honestly and instinctively believe is necessary in the heat of the moment, that would be the strongest evidence of you acting lawfully and in self-defence. This is still the case if you use something to hand as a weapon. As a general rule, the more extreme the circumstances and the fear felt, the more force you can lawfully use in self-defence.’

On the face of it, these guidelines seem fair and fitting. Conversely, Grayling and others will quite rightly argue that this ‘reasonableness’ expected in individuals when the living-nightmare of burglary is upon them, is almost ridiculous. The jury is left to decide what constitutes as ‘reasonable’ and this could produce unfair results. To contextualise; imagine there is a 20-year-old female and a 42-year-old male in the same position – would the jury find it reasonable for the young woman to pick up a knife and stab an intruder but not for the older male? The psychological effects of such a traumatic experience affect people differently and it is almost impossible to quantify these emotions – the older male may be much more overwhelmed by fear especially if he was protecting his family and therefore may have grabbed and knife and stabbed an intruder. The jury cannot truly quantify or personify the emotions or thoughts of either victim. Would the man be expected to use his hands to grapple with an intruder because it is ‘reasonable’ for a man of his age? If so, then can we not be accused of discrimination?

The Lord Chief justice, enforcing this attitude, commented: ‘you are not calmly detached…you have to put yourself in the position of the man or woman who has reacted to the presence of a burglar and has reacted with fury, with anxiety, with fear and with all the various different emotions which will be generated, who has no time for calm reflection.’ If the head of the judiciary is on the public’s side – is there really anything to worry about? The main contention seems to lie with the eventuality that a householder may be criminalised if they act in self-defence. Certainly this confusion makes the public question the support of the judicial system when they are the ones being perpetrated, possibly leaving people feeling isolated and doubting their faith in the legal system.

As mentioned there are very few convictions in regards to this matter. As it stands the CPS provides what constitutes as excessive (beyond reasonable force) to include the examples: ‘having knocked someone unconscious, you then decided to further hurt or kill them to punish them’ and knowing of an: ‘intended intruder and set a trap to hurt or to kill them rather than involve the police’. Mr Grayling, by essence of his proposal is insinuating that this behaviour is acceptable and not ‘excessive’, despite the fact the majority of the public would view these CPS guidelines as fair and rational.

It is, however, the stories in the media that have sparked concerns. Perhaps the most famous story will be the story of the Norfolkian farmer, Tony Martin. He was convicted of murder (amended to manslaughter) after killing an intruder. Mr Martin, by the standards of the CPS did use excessive force – as he set a trap, waited and fired at the young men. He did not involve the police. Mr Martin fired at the young men whilst they were fleeing the scene. It was argued by the prosecution that Mr Martin, in effect, took the law into his own hands and tried to deliver what he believed to be redistributive justice after being subjected to several previous break-ins. Despite these facts, Mr Martin was certainly sympathised with as he only served three years in prison after a manslaughter charge suggesting the law does take into account the complexity of the situation. Arguably, the press failed to communicate Mr Martin’s fault in the situation.Tony Martin

Under Mr Grayling proposed emendation, would Mr Martin be free from liability despite the surrounding circumstances, or would Mr Martin’s action still be seen as grossly disproportionate?

Despite media portrayals, after reviewing the facts surrounding Tony Martin’s case, most would agree he acted excessively and tried to deliver his own form of retributive justice. Those who would not agree are likely to argue that Mr Martin should not have been convicted at all – that he was the victim in this scenario. Perhaps these people would argue ‘the criminal got what he deserved!’ and they would openly accept the proposed amendment. Although an understandable reaction to such a controversial issue, this train of thought needs scrupulous challenging.

In Tony Martin’s case – a life was lost, somebody died, to which people declare ‘he was a criminal’ but does that detract from his basic human right to live? Surely there should be some kind of consolidation and the life should not just be written off just because they are blameworthy. Dismissing the risk of mimicking the role of an advocate for criminals nationwide – can you condone ignoring a death because they have done something illegal for reasons we are not aware of? Things are not as black and white as the press likes to portray – a mother grieving for her dead son is still a mother grieving at the end of the day, no matter how the son behaved in his life. A 17-year-old in debt to a drug dealer could be forced or blackmailed into burgling a house for money; an individual who needs help – not to be shot dead in the middle of the night. Obviously, not every case will be as such, but because we can never be fully aware of the circumstances – there is always the chance that it could be the case.

On the contrary, when there is an intruder in your house armed or unarmed, family to protect or not – whether or not this hooded youth has a drug problems and needs some rehab or a cup of tea – is very much the last thing on your mind. Faced with issue, most would use their imbedded animal instincts and defend themselves with fear spurring them on. In this sense, it is easy to completely agree with Chris Grayling in his stance on giving more power to the homeowners.

Mr Vaughan Jones, a businessman, spoke of his embarrassment of having to be escorted by two police officers as if he were a murderer after grappling with an intruder in his mother’s home. Indeed the experience itself would be traumatic but to also be arrested when you are trying to prevent a crime and protect your mother – you can wholeheartedly sympathise with Mr Jones. A spokesman for the police stated that they were concerned with: ‘ensuring the safety of all involved and maximise opportunities to gather evidence.’ Mr Jones spent a night in a prison cell but was not convicted – still a haunting experience, nevertheless. Indeed for some people the psychological trauma of even the possibility of facing imprisonment could definitely cause a great deal of harm. The actions of the police were not wholly unreasonable, despite how unjust Vaughan Jones’ case may be. If a brawl has taken place, isn’t it quite satisfying to know that the police take in all parties involved in the brawl to learn the exact truth? Let us examine an instance where they were three burglars and two of them pretended to be vigilantes or part of the family – you can also see the fierce headlines now ‘police let criminals walk away from scene of crime.’ It is certainly true that Mr Jones should have not been subjected to spend a night in prison because of his actions. Obviously this kind of scenario reported in the news alarms the public and it is viewed as a great injustice in the legal system.

For the reasons illustrated; Mr Grayling may be grounded in his concerns for amending the law but would an undoubtedly high threshold of ‘grossly disproportionate’ really solve the problem?

The main issue with using ‘grossly disproportionate’ as a limit is that it could produce a frightening reality. Not only can people see it as an opportunity to deliver their own dose of justice, especially if they have been burgled in the past – but it can dramatically de-value the life of a human being. To advance from ‘reasonable’ to ‘grossly disproportionate’ gives an intensely wide scope for violence.  You can almost hear the chants of the public saying ‘yes, more violence, more rights, and more protection from the law!’ Fair enough British public, but is this really what you want from our government, for violence to be advocated and almost imposed on us? A very realistic impending consequence of this potential amendment is that a covert pressure is placed upon civilians to protect them instead of relying on the police – the police would become an after-thought. Feasibly, vigilantes would applaud the modification, but in effect we almost isolate those shy of confrontation from police protection, as it imposes that people should use violence rather than can use violence. Of course, Mr Grayling will call me ill-informed and argue that police protection would run alongside the amended law to ensure that the public are given the best protection possible. From my own experiences with the police, this argument is almost something to scoff at. Perhaps your experiences differ and you would accept this notion.Burglar

The modification of the law would condone and even persuade people to buy and use weapons in the event of burglary, a great deal more freely than before. To which the people of the United Kingdom will argue ‘well what is so wrong with that? We must ask ourselves: does there really need to be bloodshed? We are the United Kingdom, we are a developed and envied country; imagine yourself as a tourist visiting England and you learn that the law protects those who viciously attack intruders – would you not for a moment think you have stepped into the Viking age? It would go against our standing as a safe, civilised western community if we raised the threshold for violence. Somebody walking across another person’s garden could be mistaken as an intruder and shot because the householder believes it is legal to do so. Regardless of what may happen in court – somebody has died, a life has been lost, because the amendment is likely to make people more ‘handy’ with their weapons and ready for violence and even produce more errors in judgement.

For public harmony, perhaps a broader scope for violence is not the answer. Clarity in the law and a procedure that the public, the police and the judiciary are aware of, seems to be the first and foremost port of call. Mr Grayling should abandon the creation of a higher threshold that may indeed cause more damage to the country, and instead should work alongside the police and invest in schemes that would ensure burglaries in the UK are made first priority.  Instead of lavish proposal to invoke public praise, there should be a police reform; householders should be ensured that in the event of a burglary – after contacting the police, officers will be at the property within five minutes. In this way homeowners would feel they are fully protected by the law. For those who have been burgled more than once – instead of the understandable vengeful bitterness making homeowners want to serve their own retributive justice – they would be equipped with a burglary beeper and if they were to hear an intruder – they would use the beeper to contact the police. Having the beeper handy will give previously victimised householders security and comfort, without the need for them to sleep with a gun or a baseball bat next to their bed. The government could even involve themselves with setting up an ‘alarm scheme’ in which the public are encouraged to update or even simply check their burglar alarms. The government could set up a scheme in which barbed wire, burglar paint and other deterrents are offered to the public for free. It would be more understandable to exhaust all deterrents to ‘crack down’ burglaries before advocating violence. A police procedure, which is not an arrest, to ensure all of the parties at the scene of the crime assist the police in their enquiry to obtain the truth, should be invoked. In this way Vaughan Jones would not have felt like a criminal but also potential criminals would not escape arrest.

Obviously there is still the issue of defending yourself against a criminal until the police arrive; abandoning any thresholds – simple steps should be recommended to the public which would imbed a clear course of action into a householder if the event arose. The first step would be to contact the police, the second – to threaten with violence or make your presence known (in hopes that the criminal will flee) and lastly use violence by the means necessary. As long as the individual can explain the violence they should not be criminalised. It would be wrong to declare a law advocating violence due to potential consequences and the message being sent to society. Instead, police officers and the CPS should consider every situation on a case by case basis but ensure they are sympathetic towards victims.

Excessive violence is not the answer; we should promote more faith in the police – the enforcers of law. The public want to know the law is on their side – well then Mr Grayling why not put the police on our side too? Surely then we can have a justice system to be proud of?

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