Tuesday, January 26, 2010

Unreasonable force

Chris Grayling was on the Politics Show this week, trying to argue in favour of a change in the law to allow homeowners to use all force that is not 'grossly disproportionate' in defence of themselves, their families and - one presumes - their property.

Naturally, the appeal case last week came up for comment, but I'm not quite sure of the relevance in this case, as the injuries to the burglar came after he had left the victim's premises and been pursued down the street by the victim and his family. Surely Grayling can't be proposing that we will be allowed to wreak vengeance upon criminals. I suppose that it would save money on the courts system, but I'm not sure that it is in the interests of justice.

Grayling said that nobody knows how they would react if they came across

a burglar holding a knife to your children's throats

which is, fortunately, true. However, I doubt that many parents would consider the law in their response, but the situation is likely to provide sufficient justification for extreme force.

And indeed, the advice from the Crown Prosecution Service and the Association of Chief Police Officers is quite clear
Anyone can use reasonable force to protect themselves or others, or to carry out an arrest or to prevent crime. You are not expected to make fine judgements over the level of force you use in the heat of the moment. So long as you only do what you honestly and instinctively believe is necessary in the heat of the moment, that would be the strongest evidence of you acting lawfully and in self-defence. This is still the case if you use something to hand as a weapon. As a general rule, the more extreme the circumstances and the fear felt, the more force you can lawfully use in self-defence.

The law itself is quite straightforward and relies upon the Criminal Law Act 1967,
A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large
further codified with more detail in the 2008 Criminal Justice and Immigration Act. Case law (Palmer v The Queen) has established that as long as a victim acting in self defence
had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonable defensive action had been taken
R v Owino established the concept that
a person may use such force as is [objectively] reasonable in the circumstances as he [subjectively] believes them to be.

The law covers everyone from me at home to an armed police officer patrolling the streets of Birmingham and that versatility is a tribute to the elegance of the solution.

Why we need a new law specifically to allow householders to use additional force just short of grossly disproportionate, but not a law to provide additional protection to people on the street, isn't quite clear. Despite the fear spread by the Conservatives, aided and abetted by a stunt committed by Myleene Klass' PR merchant, there are very few prosecutions brought for the use of excessive force and most of them deserve to be put before a jury for their consideration.

The law change simply isn't required, other than to provide soundbites for Grayling and Cameron.

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