The justice secretary's promise to give householders the right
to deploy "disproportionate force" in defending their homes will be
incorporated into a parliamentary bill this week.
At the Conservative party conference last month,
Chris Grayling
announced he would reform the frequently reviewed laws on self-defence.
Criminal lawyers, however, have warned it may be difficult translating
the initiative into legislation.
A new clause is expected to be introduced into the
crime
and courts bill, now working its way through the House of Lords, this
Tuesday. The aim is to reassure householders that they may use force
against burglars.
According to the Ministry of Justice, the
changes will protect anyone who fears for the safety of their family,
and in the heat of the moment uses force that is reasonable in the
circumstances but in the cold light of day seems disproportionate.
"The
public should be in no doubt that the law is on their side," Grayling
said on Sunday. "That is why I am toughening up the current law for
those who defend themselves and their loved ones.
"Householders
who act instinctively and honestly in self defence are victims of crime
and should be treated that way. We need to dispel doubts in this area
once and for all." Force which is "grossly disproportionate" will remain
illegal.
The current law – section 76 of the Criminal Justice and
Immigration Act 2008 – says the degree of force used in self-defence
must be "reasonable in the circumstances" as the person acting genuinely
believed them to be.
A justification of acting "honestly and
instinctively", taken from one key judgment widely relied upon, is
already embedded in Crown Prosecution Service guidance.
Use of
"disproportionate force" is not at present lawful in any circumstances.
Under Grayling's new clause, householders who act honestly to defend
themselves, their families or others from an intruder using force that
they believe is reasonable in the circumstances but is actually
disproportionate when viewed with the benefit of hindsight will not be
guilty of an offence.
Interest in the self-defence laws was
revived by a recent case involving Andy and Tracey Ferrie, who used a
legally held shotgun to defend their remote Leicestershire cottage. The
intruders were injured. The Ferries were held for 40 hours by police but
were not charged.
There are relatively few prosecutions of
householders who use force against intruders. An informal trawl by the
CPS suggests that between 1990 and 2005 there were only 11 prosecutions
of people who attacked intruders in houses, commercial premises or
private land. Only seven of those resulted from domestic burglaries.
In
September, the lord chief justice, Lord Judge, implied there was
sufficient leeway in the law as it stood to protect householders from
unnecessary prosecution.
Householders who defend themselves
against burglars should not be expected to exercise "calm, cool
judgment", he explained then. "You are not calmly detached. You are
probably very cross and very frightened – a mixture of both … the
householder is entitled to use all sorts of reasonable force to get rid
of the burglar."
Last month Michael Turner QC, chair of the
Criminal Bar Association, said: "It's a vote-catcher. There's no concept
elsewhere in British law of allowing anyone to use disproportionate
force for pretty obvious reasons.
"It's no surprise that a
non-lawyer [Grayling] would come up with such a crazy idea. Are we
really saying that the police should not even investigate cases [where
an intruder has been injured]? I can't believe this will make it into
statute."
Richard Atkinson, the chair of the Law Society's
criminal committee, which represents solicitors, said when the proposal
was first floated: "Whatever he comes up with will have to be very clear
to be well defined. Grayling is setting himself a difficult task.
"Will
it apply to commercial property as well as homes? There needs to be
consultation on it. It will have judicial consequences in many other
areas."
