Legalising the use of ‘disproportionate force’ against burglars – a red herring?

Justice Secretary Chris Grayling is seeking to amend the law of self-defence to protect homeowners who, when confronted with a burglar, use force that they believe to be reasonable in the circumstances but is actually disproportionate when viewed with the benefit of hindsight. A criminal lawyer might ask: isn’t that the current legal position anyway?

The law applicable to the situation where a person defends their property, themselves or their family against an intruder is that of ‘self-defence’. The current approach of the CPS to self-defence cases is explained clearly in their Guidance ‘Self-Defence and the Prevention of Crime’ and ‘Householders and the use of force against intruders’ (a Joint Public Statement from the CPS and the Association of Chief Police Officers).

Self-defence is available as a defence to crimes committed by use of force, where a person uses force in defence of themselves, another, property, or in order to prevent crime or affect a lawful arrest. In order for a person to avail themselves of the defence, the use of force must have been necessary, and the degree of force used must be ‘reasonable in the circumstances’. What is reasonable in the circumstances is judged on the basis of the facts as the accused believed them to be: the subjective part of the test. The objective element of the legal test is whether – on the basis of the circumstances as the accused believed them to be – a reasonable person would regard the level of force used as reasonable.

Grayling’s proposal rests on the recognition that force which is used in the heat of the moment may seem disproportionate in the cold light of day – and that a homeowner should not be at risk of conviction because of this. However, it has already been long recognised in law that this situation may occur, and that it should not lead to conviction. Lord Morris in R v. Palmer (1971) AC 814 stated “It will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his defensive action. If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary, that would be the most potent evidence that only reasonable defensive action had been taken”. In practice, this question may not even be left for the jury to determine, as the CPS will carefully consider whether such cases should even be prosecuted in the first place.

The Joint Statement from the CPS and ACPO clearly states that “You are not expected to make fine judgments over the level of force you use in the heat of the moment…as a general rule, the more extreme the circumstances and the fear felt, the more force you can lawfully use in self defence”. Many factors are taken into consideration when determining if the force used was reasonable, such as: the physical characteristics of the victim and their attacker, the period of time in which the person had to decide whether to defend themselves with force, and the way in which force was applied (i.e. with a weapon). The law must strike a fine balance between the public interest in allowing homeowners to protect themselves, and discouraging vigilantism or the use of excessive or gratuitous force. Therefore, in a situation where, having knocked someone unconscious, you then further hurt them or kill them; or where, as the burglar flees, you shoot them as they are running away, you would be unlikely to be able to avail yourself of the defence of self-defence. It may be difficult to argue that the force used in such circumstances was ‘reasonable’ or necessary, and Grayling’s ‘disproportionate force’ amendment will not make such action legally permissible.

Were it to do so, it would be encouraging vigilantism and creating a unique rule permitting excessive force for self-defence within the home, over and above other situations where force is used in self-defence. Although it is recognised that it is a terrifying experience to be attacked in your own home, it could be equally frightening to be attacked in the street, raising the question: why should a person be permitted to deploy excessive force in the first situation, and not in the latter? The answer, of course, is that it should not be legally permissible for gross or excessive force to be used in either situation, where the person pleading self-defence did not genuinely and reasonably believe that there was a need to deploy that level of force. If that belief is not there, then that person has ceased to act to defend themselves, and is merely indulging in gratuitous violence or seeking revenge – and that is not the behaviour that the law of self-defence was designed to permit.

Therefore what effect can Grayling’s amendment have on the law? It will not operate to legitimise the use of grossly excessive force which was not reasonable, and the law is already weighted in favour of the homeowner who uses force because of a genuine belief it was reasonable in the circumstances. It does not appear to be an area of law which needs changing – as stated in the CPS guidance, “It is a fact that very few householders have ever been prosecuted for actions resulting from the use of force against intruders”, and it is difficult to see therefore, what gap in the law Grayling’s proposal seeks to remedy.

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