The current law against criminal liability in the UK

Following the high profile cases of Tony Martin and Munir Hussian,1 the UK Conservative Party has signaled it will introduce new laws providing householders with a stronger defense against criminal liability where they use force to defend themselves against intruders. 2 Under the current law, homeowners are permitted to use “reasonable force” against intruders. 3 However this standard is criticised for being unclear and weighted too much in favour of the intruders. 4 Under the proposed law, homeowners would be convicted only where they used force that was “grossly disproportionate”.

This essay discusses whether such legislative reform is appropriate by first looking at how the current law operates and its main areas of criticism. It then analyses the proposed law and considers whether it adequately improves on the current law. The current law As a general rule in common law, householders are entitled to use “reasonable force” to protect themselves, others or their property. 6 This rule provides householders with a justifiable defence against a charge of murder or other levels of assault where they kill or injure the intruder. 7 The burden of proving the householders did not act in defence rests with the prosecution.

8 The Court has made it clear that “reasonable force” bears the same meaning in the context of defence as section 3(1) of the Criminal Law Act 1967 (CLA)9 which provides that householders may use force which is reasonable in the circumstances to prevent crime or assist the lawful arrest of offenders or suspected offenders. As set out by Lord Justice Hughes,10 in determining whether the force actually used by the householder was reasonable in accordance with common law and s. 3 of the CLA, the Court will apply the following two stage test11: (a) Did the householders believe that the use of force was necessary; and

(b) In line with the belief, was the degree of force used proportionate? These stages have been codified by section 76 of the Criminal Justice and Immigration Act 2008 (CJIA) and shall be considered in turn. Necessity of force Whether the use of force is necessary in the circumstances is to be judged according to the defendant’s honest and instinctive belief in the circumstances. 12 It is a subjective test. It does not matter whether the belief was a mistaken one so long as it was honestly held13 (save and except for the situation of self-induced intoxication14) or whether the belief was reasonable. 15

This subjective belief is limited to only matters of fact and does not extend to matters of law. 16 A homeowner is not protected where they mistakenly believe that the degree of force used was permissible and proportionate. 17 Reasonableness of the degree of force used In contrast to the first stage, the second stage – whether degree of force used by the householders was reasonable – is an objective test. 18 It is irrelevant what the householders subjectively believed to be reasonable force. The current law makes allowances for defensive action recognizing that one cannot weigh the exact measure of his necessary defense.

Householders are not expected to undertake detailed consideration before deploying force in the heat of the moment. According to the test laid down by Lord Diplock in Attorney-General for Northern Ireland’s Reference20, the jury, when deciding whether the degree of force used by the householders was reasonable, must place themselves in the position where the householders believed them to be, taking in account the limitation of time and the stress that the householders were exposed to determine whether a reasonable person in the position of the householders would have deployed the same degree of force.

21 In addition, any other relevant matters, for example, the physical characteristics of the householders should also be considered by the jury when determining whether the degree of force used by the householders was reasonable. 22 This is implied in sub-section 76(8). However, psychiatric conditions of householders are excluded. 23 Pre-emptive attacks and the duty to retreat Householders are not required to wait to be attacked before using defensive force against the intruders.

24 The apprehension of an attack justifies the use of force to defend oneself if it is reasonable under the circumstances. 25 Householders are also under no duty to retreat as far as possible,26 although the failure to retreat is relevant in determining whether the householders are acting within the lawful boundary of defence or are crossing the line into revenge or retribution. 27 The CIJA is silent on these two matters. 28 Criticism of the current law Criticism of the current law can be grouped into two broad themes: (a) the law is unclear29 and (b) the law is unfair. 30

Is the law clear? It is argued that the law is insufficiently clear as to the position of the householder, in that there is still no exact definition as to what constitutes “reasonable force”. 31 As suggested by John Denham32, the codification of what level of force is reasonable is only an academic issue and juries are unlikely to bear such principles in mind when determining if force is reasonable. Instead, juries are more likely to apply their common sense.

However, in my view, this criticism is unwarranted. The consolidated single test of “reasonable force” as set out in s.of CIJA, together with guidelines published by the Crown Prosecution Service on the position of householders when they are confronting with intruders34, mean that householders should have no difficult in understanding what constitutes “reasonable force”. That is to say, the test for “reasonable force” is clear and unequivocal. However, further clarification on the point of pre-emptive force and the duty to retreat is needed. A second aspect of this criticism is that it is suggested that in practice, juries are often unclear as to how to consider the disparity of strength and vulnerability between householders and intruders.

35 Palmer v R36 and s76(8) of the CJIA provide that such disparity should be considered, but not all judges direct juries to this effect. However, this criticism is aimed at how the law has been administered rather than at the content of the law itself, and accordingly, cannot be fixed by simply amending the law. If judges are falling short on their duties, perhaps the courts should consider circulating a directive to ensure judges adequately direct the jury to consider the necessary points. Is the law fair?

It is argued that under the current law, the balance between householders and intruders is weighted too far in favour of intruders. 37 Instead, home invasions should be regarded as an exceptional case in this balancing act in that when an intruder enters a house, they essentially leave their rights outside the door. It is argued householders who act in self-defence should not be at risk of being prosecuted. 38 However, instead they can receive sentences that are far more severe than the sentences received by the intruders.

It is this criticism that formed the basis of the public outcry following the cases of Tony Martin and Munir Hussain. However, in my view such criticism risks failing to appreciate that the householders have indeed committed an act which met the elements of a criminal offence. While of course, the law of self-defence confirms the right of householders to defend their home and family with reasonable force, does it mean that we should give no respect to the intruders’ right to life? As Lord Thomas pointed out in a House of Lords debate in October 2011, the death of a person is extremely important.

Shouldn’t a person who killed someone be arrested and questioned? If that person did act in self-defense, his view and his account will no doubt be taken into account by the police when they decide whether to charge the person or by the jury when they consider whether the person had acted reasonably. 41 It is fair that a suspected killer, though also a victim of crime, be arrested, questioned or even prosecuted. However, I support that a charge should only be laid when the police, throughout investigation, have reasonable believe that the householders had acted far beyond the limits of self-defence.

Moreover, if one were to support the effective immunity from prosecution of householders, it would mean that the law permitted householders to exercise extra-judicial punishment on intruders and the law encouraged vigilantism. 42 However, retributive punishment should never be exercised by householders. It should remain the prerogative of the state. 43 In my view, the law should not be rebalanced further in favour of householders. The current law works well in balancing the right of householders to defend themselves and their family and the necessity of upholding justice.

If householders act genuinely in self-defence with reasonable force they will be protected by the law. Householders will only be found guilty if they are found to have not acted genuinely in self-defence or if the force they used was excessive. This was the case with Tony Martin and Munir Hussain, and the rarity of such cases suggests the current law works well. 44 Householders who are charged with a non-fatal offence can mitigate their sentence on the grounds of mistaken assessment of the appropriate degree of force.