Self-defence in the UK

[Bono]

http://bishophill.squarespace.com/blog/2008/7/19/self-defence.html

Self-defence
Saturday, July 19, 2008 at 10:10PM
Posted by Registered CommenterBishop Hill in Civil liberties

Brian Mickelthwait wonders if the government's recent announcement of a right to self-defence means that the tide of gun control has reversed and that we are soon going to be able to go out and buy six-shooters to our hearts' content. Actually, he doesn't say exactly that. He has taken on board that it may well just be a restatement of the common law and that's it's probably just spinning anyway, but he reckons that the very fact that the subject is being raised means that something has changed.

Having trawled around the interweb, I came across this posting from Tim Lambert's old site, in which he details a series of cases in which people used deadly force and then successfully argued that their actions constituted self-defence. Where they stabbed their attackers in the chest, they even seem not to have been prosecuted, which only seems proper. I can't therefore see how anyone can reasonably argue that self-defence was not allowed before the announcement last week. This does therefore seem to confirm the idea that what we are seeing is what the naysayers think - which is to say a restatement of the common law.  This may well be a disappointment for those on the other side of the pond, who have acclaimed the return of a right to self-defence. Sorry guys, but it never actually went away.

But all of this doesn't mean that there isn't a problem.

Let's imagine what happens when I'm awoken by the sounds of an intruder in my house. I go downstairs to investigate. I take a tool from the toolbox so that I'm not completely defenceless. I don't think this would be construed as unreasonable by a jury. I creep through to the living room where I see the burglar helping himself to valuables from a drawer. There's a crowbar by his side.

What next?

Imagine he hasn't seen me. I am not in fear of my life, because he doesn't know I'm there. What should I do? I can't, I think, bash him on the head or stab him in the back. That wouldn't be self-defence. The Telegraph article on the annoucement says that homeowners are able to "stab or shoot a burglar if confronted".(My emphasis). At the moment there is no confrontation, so I cannot use deadly force. I don't think any reasonable person would want to either.

I think it's instructive here to think what the situation would be if, instead of me, it was a policeman who caught the burglar in the act (and we should remember that the police have no special powers in these situations). Our officer of the law would first have to identify themselves and tell the burglar not to move. If the thief failed to do so, then the policeman would be justified in using his truncheon and other physical force to subdue him. The policeman (or more likely policemen) are fully dressed and as well as being armed with truncheons, they come equipped with mace sprays and stab-proof vests and the like.

Returning to our original scenario then, I have none of the arms and armour that the policemen have. Nevertheless, I wonder if the reasonableness test requires me to order the burglar to stop, or at least to advertise my presence in some way. I think it probably does. It seems fairly clear that my objective has to be to subdue him rather than kill him on the spot, and morally this seems correct.

However, we must notice that once I have told him to stop, or otherwise made my presence known, I have instantly given away what may be my only advantage over the burglar. He is almost certainly younger, stronger and fitter than me. So if he does decide on violence, I will almost certainly lose and I might even lose my life. I may still lose even if I am armed and he is not. The law gives me a bit of a consolation prize, in that I can die in the knowledge that I could use deadly force against him if only I was twenty years younger, but I'm not sure that I consider that to be adequate recompense for the loss of my life.

It seems pretty clear to me that the homeowner, unless young and strong, is placed in an impossible situation. If the burglar is violent, they will probably die. If not, then the thief will be able to make good their escape unmolested.

Actually, apart from the young and strong, there is one other category of people who avoid this unenviable situation. Those few who have shotguns are, of course, able to deal with this situation in the way expected by common law. They can (assuming they can retreive their guns from the gun cabinet in time) identify themselves and order the burglar to stop, with little risk to themselves. They can actually subdue the burglar until the police arrive. They cannot shoot the burglar in the back, any more than I can stab him in the back at the moment, but what they can do is prevent the crime and bring the criminal to justice without undue risk to themselves.

So the question we must ask of Jacqui Smith is, why the only people who can deal effectively with an intruder are young strong men and a few farmers. What about the rest of us?

[dead0man]

If a mother mucker breaks into my house with a weapon and I have the element of suprise, that mucker is in trouble.  I might not kill him, but he's certainly going to visit the hospital before he visits the county jail or courthouse.  You as the homeowner didn't instigate this situation, you deserve and usually get (at least in the US) the benefit of doubt.  The homeowner can't possibly know all the motives of the criminal, maybe he's got a gun in his pocket and plans on raping and killing you and your family.  If you don't want to have somebody bash you in the back of the head with an aluminum baseball bat (or shoot you, or beat the sh**t out of you, or stab you with a screw driver) don't break into people's homes (or do a better job of it).

[AkSaber]

I was always confounded about self defense in the U.K. An honest person is the victim of a crime, defends himself and gets thrown in prison, and the politicians can't figure out why crime was rising out of control.

[Silent Hunter]

That farmer (Tony something) shot the guy in the back and left him to die, IIRC.

[Sbane]

That farmer (Tony something) shot the guy in the back and left him to die, IIRC.

Shouldn't break into people's property.

[Silent Hunter]

That farmer (Tony something) shot the guy in the back and left him to die, IIRC.

Shouldn't break into people's property.

Yeah, but that didn't justify that. I don't think the shotgun was even licensed.

[Tetro Kornbluth]

I was always confounded about self defense in the U.K. An honest person is the victim of a crime, defends himself and gets thrown in prison, and the politicians can't figure out why crime was rising out of control.

It's not "running out of control" neither was Tony Martin innocent, he shot the guy in the back without warning.

The last school shooting in the UK? 1996, which brought about the present hand gun ban. Remind me how many school shootings there have been in the US in that time.

And again, I remind people, I do not support widespread gun control.

[Filuwaúrdjan]

It's not "running out of control"

Well... crime is by definition "out of control". That's the point really. But by any measure there's less of it now than there's been for a while.

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Somewhat worse than that; he shot the guy as he was running away. It's also painfully obvious that he'd been waiting to kill anyone who broke onto his property again (the reason why so many had done so, btw, was because the place was a ruin). This is before we get onto the subject of his long record of violence and of racist outbursts. The only reason why his conviction was downgraded to manslaughter was diminished responsibility. The Martin case is, thank God, exceptional in almost all respects.

[Filuwaúrdjan]

Yeah, but that didn't justify that. I don't think the shotgun was even licensed.

Martin had his shotgun license taken away after a violent incident of some sort a few years earlier.

[Tetro Kornbluth]

It's not "running out of control"

Well... crime is by definition "out of control". That's the point really. But by any measure there's less of it now than there's been for a while.

Oh, curse your sarcasm!

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Somewhat worse than that; he shot the guy as he was running away. It's also painfully obvious that he'd been waiting to kill anyone who broke onto his property again (the reason why so many had done so, btw, was because the place was a ruin). This is before we get onto the subject of his long record of violence and of racist outbursts. The only reason why his conviction was downgraded to manslaughter was diminished responsibility. The Martin case is, thank God, exceptional in almost all respects.
[/quote]

Not surprising really.

[12th Doctor]

I just think its sad that any government, anywhere, has to be forced into acknowledging a right to self-defense.

[Filuwaúrdjan]

I just think its sad that any government, anywhere, has to be forced into acknowledging a right to self-defense.

The right to self-defense has never been in question. The debate, insofar as there is an actual debate, has been over the definition, and limits, of self-defense.

[??????????]

I just think its sad that any government, anywhere, has to be forced into acknowledging a right to self-defense.

The right to self-defense has never been in question. The debate, insofar as there is an actual debate, has been over the definition, and limits, of self-defense.

Al,

Wouldn't you agree that an individual who works hard for what they own and bought honestly has an unquestionable right to defend their property largely unrestrained by government?

[Јas]

I just think its sad that any government, anywhere, has to be forced into acknowledging a right to self-defense.

The right to self-defense has never been in question. The debate, insofar as there is an actual debate, has been over the definition, and limits, of self-defense.

Al,

Wouldn't you agree that an individual who works hard for what they own and bought honestly has an unquestionable right to defend their property largely unrestrained by government?

Under British (and Irish) law, people have an unquestionable right to defend themselves and their property - however, the actions they take in that defence must be deemed reasonable. If a jury of one's peers decide that one's actions in defence were reasonable, then there is no problem.

Beckford v R. (1988) 1 AC 130:
"A defendant is entitled to use reasonable force to protect himself, others for whom he is responsible and his property. It must be reasonable."

Criminal Law Act 1967, section 3 (1):
"A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large."

This issue here, obviously, is that the definitions of what is reasonable differ markedly on both sides of the Atlantic.

[opebo]

Al,

Wouldn't you agree that an individual who works hard for what they own and bought honestly has an unquestionable right to defend their property largely unrestrained by government?

What if the 'owner' didn't work ('hard' or not) for what he owns?  I only ask because generally ownership is a sign of not-working, while most who 'work hard' don't own much.