Home, Reasonable Home?

If I was slightly more cynical, I would almost be tempted to believe that all the fuss and repeated gaffes over the Legal Aid and Sentencing Bill was a way to distract from the massive and dangerous cuts to the legal aid system.

First, the ‘rape might not always be as serious as other types of rape’ non-debate, then the accidental publication of the bill on Tuesday morning, and the expected U-turn on the 50% sentence reduction for early guilty plea. And just in case that wasn’t enough to catch one’s attention and make our collective heads spin, David Cameron then stepped up to provide some distraction, in the popular and populist form of “Grrrr! Look at me I’m tough and not at all soft” posturing. Or, as John Humphrys elegantly put it this morning, “willy-waving”.

(the video link is here – apologies for unwanted and scarring mental images…) 

Thankfully, this has not been so and the Legal Aid part of the bill has attracted the attention it deserves in the press but also in various legal blogs. If you want to know about what the government is hoping to do to the legal aid system and the repercussions it may have for justice in this country, you can find information here, here, and there.

The measure that caught my attention was David Cameron’s promise that he

“will put beyond doubt that homeowners and small shopkeepers who use reasonable force to defend themselves or their properties will not be prosecuted.”

The first thing to mention is that this promise might well just be that, an empty promise. There is no clause in the bill that deals with this particular proposal and it’s unclear how the government hopes to implement it. Yet the making of this promise raises two issues, beyond the afore-mentioned posturing:

  • first, the issue of who makes the decision to prosecute someone who uses force when their property is threatened, but also
  • the issue of whether there should be a defence in that situation and in what circumstances.

Charging Decisions…

As was explained before on this blog, the decision to prosecute someone for any crime is taken by the Crown Prosecution Service (CPS), according to a double test. There is the evidential test, which asks if there is a “realistic prospect of conviction” based on the available evidence, and there is the public interest test, which asks whether it would be in the interest of the public to prosecute.

While the evidence test is relevant in all cases, the public interest test is more rarely applied. It will be used for example in cases of assisted suicide or when someone withdraws an accusation of rape. The CPS is an independent body which answers to Parliament, and makes decisions according to specific cases.

From a practical point of view, it’s difficult to see how the government would apply this particular promise to not prosecute, seeing as they do not make the ultimate decision and do not control the body that does. Short of reforming the entire CPS, it seems a difficult thing to enforce.

Coincidentally (or not?), it is not the first time that such an idea has been put forward. In the Criminal Justice (justifiable conduct) Bill, which was introduced in 2004 by a Conservative MP, section 2 stated that, in such situations, when considering whether to prosecute,

The Crown Prosecutor shall take into account the fact that the public interest requires householders to be fully protected by the law against intruders in their homes.

For once, the fact that the bill did not survive the House of Commons does tell you all there is to know about this proposal. The public interest is defined in general terms in the CPS’ code of practice, and to reinstate a particular interpretation of it for particular cases makes no sense at all.

However, the similarity with the 2004 Bill is worrying because of the other proposals it aimed to introduce, which relates to our second issue, the definition of the defence available to home-owners who defend their property.

Home Sweet Home?

The Criminal Justice (Justifiable Conduct) Bill wanted to put into law a new defence for anyone who “did an act” in relation to someone who they believed, reasonably or not, were breaking into the ‘dwelling’ they were occupying at the time and they felt they had to protect themselves, someone else, their property, apprehend the intruder or prevent a crime.

Public and Private Interests

The list of interests protected by the current defence of self-defence, which is also sometimes called private or public defence, is exactly the same. You are allowed to use force and indeed will be justified in doing so, if you are trying to protect yourself or someone else, if you are trying to protect your property, if you are making a citizens arrest or trying to prevent a crime.

These situations will often overlap, for example if you are making a citizens arrest on someone who tried to mug you (not advised unless you are a martial arts expert I guess…) then you are protecting yourself, your property, apprehending a criminal and preventing a crime. Using force against someone who is intruding onto your property to steal (ie a burglar) is therefore covered by this defence.

Mistakes and Honest Belief

But what if you see someone being attacked in the street by another man, and intervene and punch the attacker, only to find out he was a plain clothes police officer making an arrest?In this particular situation (taken from a real case – R v Williams (Gladstone) [1987] 3 All E.R. 411 if you’re interested), the court decided that it doesn’t matter if you misread the situation, as long as you really believed that there was something fishy going on. In legal terms, it means you only need to prove that you had an ‘honest belief’ rather than a ‘reasonable one’.

For example, if a particularly nervous person is startled by a relative coming into his house during the day and punches them down rather than check who they are, then he will be able to claim that, although most people would not think someone who came in the day and had the keys to the front door were a threat, he really did think they were and reacted accordingly. Inevitably, it will be harder to prove that you really did believe something that seems unreasonable, but if you can prove you really did believe it, then it will be acceptable.

So, you can use force against someone trying to attack you, someone else or your property, to make a citizen’s arrest or to prevent crime, even if they weren’t actually trying to do any of these things, as long as you really believed they were.

This may sound a little complicated but the important thing to remember is that the situation will be assessed by the court according to how the individual perceives it. The law here is trying to stick to the individual’s perception of the situation, because it is this perception that led him to react the way he did. What he saw or thought he saw will tell the court whether he was justified in doing what he did.

Reasonable Force

However, this doesn’t mean that, if you really believe someone or your home is being attacked, you can do whatever you want to the person doing the attack. The use of force is only acceptable to prevent the crime or protect yourself or your property, so any force going beyond that is not justified. Here, the test for how much force is appropriate is not decided on what the individual himself believed, but rather on what anyone in his situation would have thought appropriate.

The trick and further complication here happens when the individual was mistaken about the need to use force because there was actually no crime committed, as we’ve seen above. In this situation, the law still places itself in the shoes of the individual and what he believed the situation to be, but then asks what reaction would anyone reasonably have if they thought the same thing.

It’s that extra test that was missing from the 2004 bill: according to its proposals, any act done by A in relation to B or his property when he thought B was intruding on his dwelling is justified. It might not seem like much of a difference, but it draws the line between an act of preservation and an act of vengeance. While the law allows and even encourages acts of preservation in the face of crime, it discourages and condemns acts of vengeance from individuals.

A recent case highlights the fine line between the two reactions, where it was said that while defending one’s family and property was ok, running after the offender in the street and hitting him repeatedly with a baseball bat was not. By then, one cannot claim that it was done to protect or preserve any interest, nor to arrest the offender, and there is no defence to the crime.

However, as the Court of Appeal decision eventually showed, the courts do make allowance for the exceptional circumstances people who are threatened find themselves in, and while there was no defence to the attack on the burglar, it was decided that the sentence would be suspended to mark the difficulty of the situation and the remorse of the attacker.

These fine lines are hard to address with the broad brush of the law and this is precisely why it is probably better left to the appreciation of the CPS and eventually the courts, to be dealt with on a case by case basis. This is the surest way to ensure that individuals are allowed to protect themselves, others and their property in the face of burglars, while discouraging personal vengeance…

Reality Catching up with Politics?

Yesterday, it was reported that a suspected burglar was stabbed to death while trying to break into a house in Salford. The facts are still under investigation, but one can speculate that whether there will be a self-defence justification to the killing will depend on how much force was used. It seems undisputed that a burglary was under way, which settles the first test, that of the honest belief that an interest was at risk.

However, it would still need to be decided whether the force used was reasonable in the circumstances. For example, if one of the occupiers of the house grabbed a knife to defend themselves and accidentally killed the intruder with one stab, it would generally be deemed reasonable and therefore a defence. If, however, it can be shown that the occupiers pursued the burglar out of the house and/or stabbed him repeatedly until he died, it will be harder to prove that the use of force was reasonable and aimed at protecting the occupiers and the house…

Let’s hope that this particular story doesn’t encourage the PM and that his promise remains just that. With the government’s recent history of u-turns, it’s perhaps not that unlikely…

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