Thursday, 11 October 2012
From the Party Conferences No.1 ~ Burglary
Mr Sadiq Khan Mr Chris Grayling
It seems fair to say that it has been Mr Grayling's speech which has received the greater media coverage since headlines appeared such as that in the Telegraph 8th October New right to attack burglars or The Sun which announced - "It's official: You can batter a burglar." All such headlines are completely misleading. The law remains that "reasonable force" may be used in defence of person or property though Parliament has legislated in recent times to "tweak" the law somewhat. The concept of reasonable force takes into account the situation as perceived by the person who has used the force and already makes due allowance for the fact that, in the heat of the moment, the attacked person cannot be expected to "weigh to a nicety" his reaction. In 1921, the American judge Oliver Holmes said: "Detached reflection cannot be demanded in the presence of an uplifted knife" - Brown v US 1921.
Mr Grayling said - "I will shortly bring forward a change to the law. It will mean that even if a householder faced with that terrifying situation uses force that in the cold light of day might seem over the top, unless their response is grossly disproportionate, the law will be on their side.We’ve all backed this change in the past. It’s time it happened."
It is to be noted that there is very recent "tweak" to the law in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 section 148 of which further amends the law on reasonable force - please see this post on LASPO Part 3 Chapter 9 where section 148 was considered. However, section 148 has yet to be brought into force and, of course, Grayling has the power to activate this if he so chooses and maybe this is actually all he intends to do. If so, it is to be regretted that such misleading headlines have been generated.
Grayling has been lambasted for his "Opportunism " in an article in the Law Society Gazette and the article concludes by saying - "let’s not pretend this will reduce the frequency of burglaries – indeed this only means the chilling prospect of intruders arming themselves in their own self-defence before entering someone’s home" and concludes - "There is a very good chance that Grayling’s law will turn an ordinary person into a killer. Even if the law deems that they are immune from prosecution, is that really the kind of society we want to live in?"
The Law Society article has attracted some interesting comments which suggest that, for some readers at least, Mr Grayling's proposal is welcome. Here are a couple of the comments:-
Methinks the legal
Methinks the legal establishment doth protest too much here. What the Tories are proposing is a greater presumption in favour of the householder who has been forced into a difficult and terrifying situation. What has been irritating in recent cases is seeing householders under arrest for considerable lengths of time, while the whole incident is investigates as if it was a punch up between two drugs gangs.
The simple fact of the matter is people in extremis, terrified in their own homes, may well act in a way that a highly educated professional, with the benefit of hindsight, may think went well beyond reasonable defence. However, the householder did not volunteer to be burgled, and all presumptions should be in favour of the innocent victim - not the criminal.
When I first heard about this proposed change in the law my initial reaction was that it would make no difference, now the Courts will have to interpret what "grossly disproportionate" means.
Actually what I think it does is to give prosecutors greater flexibility in deciding whether to charge the householder. To the extent that there is now more flexibility police/prosecutors will still have to carry out an investigation but it should be much quicker to decide whether it is a particular case which warrants a formal charge and consideration by the Courts. Since one of the most obscene aspects of the current law is that already traumatised victims can be under the threat of prosecution for some considerable time, if that anxiety can be lessened then I for one think that this is a change that is no bad thing.
In some instances, the CPS have not brought charges against homeowners even where the burglar has been killed - for example, Manchester Evening News 7th October 2011. The present law of "reasonable force" seems adequate provided that it is sensibly applied by the CPS and the courts. Perhaps the most Mr Grayling intends to do is to activate LASPO section 148. He can then claim - "Job done!" Anything beyond that is likely to prove to be very problematic.