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Self Defence – does the law go far enough?

A recent survey by an insurance company concluded that “seven out of ten men say that they would attack a burglar, if caught in their home”. For many this will not be a surprising statistic. The Human Being’s most basic instinct derives from the need for self-preservation and the desire to protect those whom we love and cherish most. Unfortunately, however, the law stops a very long distance short of sanctioning every home dweller’s right to visit the land of Summary Justice. For example the unarmed burglar, who has already left the house and is clearly retreating from the abode of his intended prey, is unlikely to be seen by even the most sympathetic jury as posing an immediate threat to physical safety. Also, an intruder who, having realised that he has bitten off more than he can chew, now surrenders in a compliant and completely docile manner, may expect to turn wrong into right, if he is subsequently attacked by the homeowner in those circumstances. The law on self-defence, defence of another, or defence of property is powered by a legal concept known as “proportionality”. It depends upon what is reasonable in the circumstances. For example an irate father couldn’t lawfully kill a man who had just raped his teenage daughter, no matter how strong the moral urge to do so may be. Alternatively, that same offender, having just stabbed the girl and threatening to do so again, could not complain against the highest level of violence being offered in return. Ultimately, the law on self-defence does recognise the citizen’s right to protect his home. The question for debate is, does the law go far enough? It is arguable that in border line cases, the benefit of the doubt will always be given to the hapless homeowner. For example, a man who kills a knife-wielding, balaclava-clad intruder, who has just woken him up at 3 in the morning, is likely to be subjected to a common sense inquiry about whether his actions matched the prevailing level of threat. Fear, once aroused, cannot simply be switched off like a running tap. On the other hand, if the burglar has already left the house, it would clearly not be permissible to allow him to be hunted down and attacked like a rabid dog. Fortunately, Ken Clark has recognised that by dancing along the tight-rope of proportionality, the law has done exactly the opposite of what it originally intended – it has given the greater power to the burglar rather than to the law abiding citizen. People who break into homes and remain there when challenged should expect no mercy or indeed protection from the law. For a clear explanation of the current law on self defence see www.cps.gov.uk/legal/s_to_u/self_defence/.

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