Is 'disproportionate' force on burglars any alteration to current law?

  • Justice Secretary Chris Grayling has announced that the law will be changed so that householders who over-react when confronted by burglars are to get more legal protection.

    At present the law includes 'reasonable force' for the householder to protect themselves or others, as long as the act honestly and instinctively, even if the intruder dies as a result of the householders actions; it is still lawful to act in reasonable self-defence, but with current law prosecution could result from "very excessive and gratuitous force", such as attacking someone who is unconscious.

    However, Grayling has announced that this will be changed to include disproportionate force when tackling intruders, and could be included in the crime bill this Autumn. He has said that he wants to dispel doubts about this matter once and for all.

    The current law allows householders to use "reasonable force", and they are fully supported by this, provided that:

    • they acted instinctively
    • they feared for their safety or that of others, and acted based on their perception of the threat (emphasis mine) faced and the scale of that threat
    • they acted to effect a lawful arrest or to prevent the escape of a person lawfully detained
    • the level of force used was not excessive or disproportionate in the circumstances as they viewed them.

    "Grossly disproportionate" force, with the example given by Grayling of stabbing to death a burglar who had already been knocked unconscious, would still be against the law.

    Section 76.7 of the Criminal Justice and Immigration Act 2008 requires the court to take into account that:

    "a person acting for a legitimate purpose may not be able to weigh to a nicety the exact measure of any necessary action; evidence of a person's having only done what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken by that person for that purpose".

    Based on there only being just 11 prosecutions in 15 years for people tackling intruders in any premises, and only 7 of these in their own home, between 1990 and 2005, Keir Starmer, the Director of Public Prosecutions, has previously noted:

    There are many cases, some involving death, where no prosecutions are brought.

    We would only ever bring a prosecution where we thought that the degree of force was unreasonable in such a way that the jury would realistically convict. So these are very rare cases and history tells us that the current test works very well.

    David Cameron has said that the change is to provide "certainty":

    There has been uncertainty that if a burglar comes into your home, people aren't sure about what they are and are not allowed to do.

    Mr Grayling will tell Conservative delegates in Birmingham:

    Being confronted by an intruder in your own home is terrifying, and the public should be in no doubt that the law is on their side.

    Householders who act instinctively and honestly in self-defence are victims of crime and should be treated that way.

    So if the reason's given by Cameron and Grayling for the change in the law are already covered in the present law, then surely publicising a change in the law will in fact create the confusion for what is now allowed, and what is "gross disproportionate force"?

    At the conference, Grayling will also stress his commitment to rehabilitation of offenders to cut re-offending rates using the payment by results programme involving charities and private firms.

    However, he intends to toughen up community sentences to ensure that every one of the orders handed out to 220,000 offenders each year will include a "proper punishment". Ken Clarke, the previous Justice Secretary, had plans for a rehabilitation revolution, to which Grayling says:

    Yes, we should be looking to rehabilitate. But if someone has committed an offence, they also need to receive a proper punishment for it.

    That's part of how we can tackle re-offending and make these sentences really effective.

     

     

     

     

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