Should the law on self defence cover ‘grossly disproportionate’ actions?
The Tories have announced new plans to change the law on self defence. There is no statute on the law, but currently it is well established in common law that you can only claim self defence if you have an honest belief of danger to yourself or another and you used proportionate and reasonable force to prevent that danger occurring. The Tories are now stating that they wish to change the law to cover disproportionate actions. This is designed to combat burglars who successfully sue house owners if they used force greater than that of the burglar. Should the law be changed to cover such occurrences?
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The cases of burglars needs to be dealt with
There have been all too many cases whereby burglars have been able to successfully prosecute people who have merely protected themselves and their family from someone is has broken the law and entered their house. Munir Hussain brought this issue to light when he was sued for beating an intruder. Mylene Klass also brought light to this issue when she waved a knife at people staring through her window and was warned that she could be sued. These are instances of ordinary decent people acting against people who have broken the law. They should not be the ones to be prosecuted. The law needs to be changed.
We should be able to protect our homes from intruders
The case of Munir Hussain brought the publics attention to the fact that the law of self defence as it stands offers more protection to the wrong doers than it does to the innocent people protecting their land. This is not a happy state of affairs. We should be able to protect our property from intruders. Upon entering a house, a burglar has invaded someone’s privacy. A home is not just the building; it’s the people inside as well. A man’s house is supposed to be a place of support and security. When that is breached, people feel very threatened. They need to get intruders out without worrying that they themselves will be prosecuted. The law should not protect burglars, it should not punish the victim of the crime.
We are able to protect our homes, but just not in a disproportionate manner. If an intruder has a gun, we can shoot the criminal; we do not have to wait for the burglar to shoot us. However, if they do not have a gun, if we then shoot them for them merely being in our homes, then this is disproportionate. Parliament has assigned 14years maximum sentence for burglary. To allow people to act as violently as they like so long as it is not ‘grossly disproportionate’ would be allowing people to take the law into their own hands. If Parliament has not given burglary a life sentence then neither should the public. This is nothing more than capital punishment executed by the public.
We should not allow state sponsored revenge
The idea of legally allowing people to attack people who enter their property is disturbing. This would be the state sanctioning violence, this should not be allowed. Legally, you cannot consent to being attacked violently. A person who behaves in this way cannot have as their defence that the victim consented. This reasoning is currently behind the self defence law and that is the way it should remain. By entering some one else’s property, you are not consenting to the consequences if they are disproportionate to your own actions. If you have only your fists you should only be hit with a fist, if you have a knife, you can be hit with a knife, if you have a gun, then all is fair in love and war. But to use violence far greater than hat shown to you, then we are allowing people to take revenge on rule breakers, but this should be left to the courts. Currently the balance of self defence and avoiding vigilantes is struck correctly, to change it would be catastrophic.
To only disallow ‘grossly disproportionate violence’ is barbaric
Do not be deceived by the legal jargon. The Tories proposal would not disallow the killing of another in aid of ‘self defence’! They are permitting violence of any sort as long as it was not ‘grossly disproportionate’ to what they were afraid of in their plea of self defence. If you punch a burglar once that’s reasonable. Twice reasonable. Three, four times that’s harsh but a jury might let it go. Five, six times, that’s unreasonable and disproportionate. Seven eight punches, would the Tories state that this was grossly disproportionate the burglar who had only entered the house and showed no violence? Or would it take nine ten punches in the head to be grossly disproportionate? This would be seen by many people as a barbaric and savage attack, regardless of who it is on. What if the burglar had a knife, how many times would you be able to stab the burglar before your violence is grossly disproportionate? To exhibit such levels of violence means you cannot control your anger, and you should have no defence under the self defence rules.
The self defence law works well as it is
Paul Mendelle, QC, chairman of the Criminal Bar Association states that the current law works well and juries understand well the concepts that are involved in the current self defence law. Why would we seek to change the law to different concepts that might not be so easily understood? Whenever the word ‘gross’ is used in the law, people get confused. People have different conceptions and ideas about what gross means. This will cloud the law. People will not know what they can and cannot do. How can you draw the line neatly between acting disproportionately, which would be allowed under the Tories plans for reformation, and acting grossly disproportionate? The law on self defence although not enshrined in statute is widely understood and accepted. If the Tories change the law on this matter then prepare to see a hazier concept of self defence.
This is nothing more than political point scoring
Yes, politicians form part of Parliament, and Parliament sets the laws, but we should not allow them to use the law as a point scoring technique with the public. The law works fine as it is. Yes there are a few unsatisfactory results, but this was decided by peers; members of the jury. They decide the cases based on the facts. The media picked up on these cases and has turned the public against the law of self defence but they are only seeing a snippet of what the law actually does in this area. We should not change the law because there has been one high profile case that the public were disgusted by. If the law gives a satisfactory result 99% of the time, then why change it for the odd case? The only reason the Tories want to change the law is to get the public on their side. But they should not meddle with a law that works just to win votes. This is not justice.
There is already enough leeway in the law of self defence.
When looking at the law of self defence, it already gives people who use this defence a lot of leeway. All that is required is that you believed yourself or others to be in danger and you acted proportionately with the violence that you believed was potential. You need not wait to be struck, you can have a pre-emptive strike to prevent the threat occurring in the first place. There are several elements of leeway here.
First of all, you need not suffer any physical harm, or see anyone else suffer physical harm to invoke this defence. You can attack someone before they have attacked anyone; this is classed as a pre-emptive strike.
The second crutch offered in this defence is that the fear that you are defending yourself from need not be real. As long as you can prove beyond reasonable doubt to a jury that you believed a threat to be present, then you can invoke the defence, even if you were mistaken. So if you thought someone was going to hit you, you could hit them first, even if they were not in fact going to hit you. In court, you are judged not on what the scenario were, but on what you believed them to be.
The third is that the defence must be proportionate to the threat perceived. So if you believed they had a knife in their pocket when it was merely a mobile phone, then you are acting proportionately to defend yourself with a knife.
With all these factors taken into account, the law on self defence does offer a large protection to the users of it.
What do you think?