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Why we don’t need permission to bash a burglar

2012 October 10

There is nothing a Conservative Party conference likes as well as being told it has permission to bash a burglar.  It goes down so much better than being told to hug a hoodie. The new Secretary of State for Justice, Chris Grayling, was therefore on a winner with his announcement that he will change the law to allow householders to use “disproportionate” force against intruders.

There are two problems with this. The first is that the law already says disproportionate force is permissible where a homeowner acts instinctively out of fear for their own safety. It does not matter whether, in the cold light of day, force is unreasonable so long as they thought they were acting reasonably in the heat of the moment. Any new legislation to change the language so that only “grossly disproportionate” force is outlawed will, in practice, amount to the same thing as the existing law.

The other difficulty is that under the new Grayling system the two cases which have so outraged Tory backwoods opinion – that of Tony Martin who fired a gun at a burglar who was running away and Munir Hussain who chased an intruder down the road and beat him with a cricket bat – would remain illegal. The new legislation will therefore change nothing.

What will make a difference is the way judges, prosecutors and police interpret the law.  The necessary changes have already been made here. The Crown Prosecution Service updated its guidance on self-defence in May. It made clear that householders can use force if they genuinely believed they were in peril – even if in hindsight they were clearly wrong – and said they do not have to wait to be struck before they defend themselves. Last month the Lord Chief Justice Judge ruled that burgled householders should not be expected to exercise calm cool judgment. And if they legally own a gun burglars should accept they risk being shot.

The problem in the past has been that where intruders have been injured police arrested the householder until the CPS said prosecution was unlikely. It will still be incumbent upon the police to investigate such cases. But the recent signals from both judges and prosecutors should further inhibit the police from making unnecessary arrests. All this is already in place. So Chris Grayling’s new initiative amounts to no more than vacuous populism.

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