Lord Chancellor misleads on the Law

10 October 2012

Today Lord Chancellor Chris Grayling used his conference speech to play politics with human rights and the criminal law. Grayling, who was only appointed Justice Secretary just over a month ago, spoke of raising the bar on the use of reasonable force by homeowners against burglars. He told conference that he would change the law so that householders would have more protection from prosecution – despite the law already allowing for reasonable force to be used in self-defence. In assessing what is reasonable, the householders’ circumstances, state of mind, perception and physical characteristics are taken into account. Grayling also said he would take attacks on the Human Rights Act to the nation’s doorsteps to help secure a Conservative General Election victory.

Shami Chakrabarti, Director of Liberty, said:

“Liberty gave this non-lawyer Lord Chancellor the benefit of the doubt, but today he paraded ignorance of the law alongside disrespect for it. Terrified householders defending themselves are already protected, so the irresponsible announcement can only be designed to make people afraid or actually encourage vigilante execution.

"His promise to attack the Human Rights Act as a vote-winning scam undermines both Britain’s international reputation and Churchill’s legacy.”

There has long been a common law defence of self defence – it has also been clarified twice in statute in the last five years. Between 1990 and 2005 there have only been seven prosecutions of householders who have used force against burglars. One of those prosecutions was of a homeowner who laid in wait for a burglar, beat him, threw him in a pit and then set fire to him. But a woman who wrestled with a burglar, snatched his baseball bat and fractured his skull was not prosecuted.

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NOTES TO EDITORS:

1. The current law on self defence allows for a pre-emptive strike, acting in defence of another person and acting in defence of property. The degree of force (both in terms of type and amount of force) must be reasonable and proportionate. But the question of whether the degree of force (in terms of both type and amount) is reasonable is determined by reference to the physical characteristics of the defendant and circumstances as the defendant believed them to be, whether or not his assessment was mistaken or objectively reasonable. The assessment must take into account the fact that a person acting in self-defence may not be able to weigh to a nicety the exact measure of necessary action. Evidence of a person only having done what he honestly and instinctively thought was necessary for the purpose of self defence constitutes strong evidence that only reasonable action was taken for that purpose. It is therefore a subjective test.  (R v Martin (Anthony) [2002] 1 Cr.App.R.27; the relevant common law defences have been codified in the Criminal Justice and Immigration Act 2008 s76 (Reasonable force for the purposes of self defence) and the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (defence of property). These reforms were explicitly enacted to clarify the common law on when an action amounts to self defence; the Coroners and Criminal Justice Act 2009 s54-55 also provides that loss of control is a partial defence to murder - including where the loss of control is related to fear of serious violence.

2. Cases

UK

The Munir Hussain case is often cited as an example of homeowners being inadequately protected. The full facts are rarely explained, especially the fact that the attack happened after the burglary had finished and when nobody was in any danger. One of the burglars was recognised in the street shortly after the attack, pursued and set upon by four men wielding cricket bats and poles while he was lying face down and defenceless on the ground. The man suffered a fractured skull and consequent brain injury and fractures to his ribs, jaw, elbow and finger. It was never disputed that some violent actions taken by Munir Hussain whilst the burglars were still in his home (e.g. throwing a table at the intruder) were anything other than perfectly justified in the circumstances, but the ensuing attack had nothing to do with self-defence. The sentences of the two men were very much shorter than would ordinarily be the case for an attack of this kind (12 months suspended and 2 years respectively), to reflect the exceptional circumstances of the case and the extreme provocation.

USA

Trayvon Martin was a 17 year old shot dead in a gated community by 28 year old George Zimmerman in Florida in February 2012. Zimmerman was the neighbourhood community watch leader for the community in which Trayvon was shot. Zimmerman was out in his car on personal business when he called the police, claiming that Trayvon was acting in a suspicious manner, which he surmised from his observation that Trayvon was walking in between houses in too leisurely a manner for the rainy weather. Ignoring the police call centre he was talking to, Zimmerman left his car and followed Trayvon, shooting him at close range with a gun he was licensed to carry. The police report indicated that there was no evidence that Trayvon was engaging, or was about to engage in, criminal behaviour. Trayvon was shot while walking to the home – in the gated community - of his father’s girlfriend after going to a local convenience store.

Zimmerman first claimed that he was acting in self-defence and he was not charged by the police. This caused a furore of media scrutiny across the world. A special prosecutor was appointed to investigate the police handling of the case. Following intense scrutiny of witness statements and findings that the local police had mishandled the case, Zimmerman was charged with second degree murder and currently awaits trial.

Zimmerman is claiming self-defence under the controversial ‘Stand Your Ground’ law, passed in Florida seven years ago. When the law was passed in Florida, it was heavily lobbied for by the National Rifle Association but fiercely resisted by law enforcement agencies. In Florida, the ‘Stand Your Ground’ law, enacted in 2005, provides that a person will be immune from criminal prosecution or a civil action if they intentionally use deadly force or force which causes great bodily harm if they do so to protect their home, themselves or others or to prevent an offence from occurring. Under the law, regardless of the specific circumstances, it will be presumed that anyone using such force is in reasonable fear of harm to themselves or another. On this basis, whether in your home or any other place you are legally present, you “have no duty to retreat” and you have the “right to stand your ground”, using deadly force if you reasonably believe it necessary to prevent harm or to prevent an offence occurring.