Burglary defense

Discussion in 'General Martial Arts Discussion' started by axelb, Apr 5, 2018.

  1. axelb

    axelb Master of Office Chair Fu

    I read the news about a pensioner who found 2 burglar's in his house, one allegedly attacked him with a screwdriver and ended with burglar being stabbed and killed.

    This is a sad situation to end in, attacked in your own home, defend your life and end up under trial for it.
    Pensioner held for murder over fatal stabbing of home intruder 'was just protecting himself', neighbours say

    I think in all cases you have to see a trial for such an incident instead of being let off with the assumption that it was just defense, but it leaves a bitter taste for such an incident.

    I have had someone break into my house more than once, first time I didn't even know, the second time was halloween and I found the kids (teenagers) who were given a good lecture (probably bored to death by the end of it).

    I guess there is so much you can do to prevent and prepare yourself mentally for such a situation, but the newspapers are all painting it as an injustice.
    Dead_pool likes this.
  2. Smitfire

    Smitfire Cactus Schlong

    I think too much is made of an arrest. I'd imagine that when there's a case like this an arrest is pretty much just protocol, to gather evidence, question the guy properly, etc.
    It doesn't mean the police think he's guilty or that he'll be prosecuted.
    Might be wrong though?
  3. Vince Millett

    Vince Millett Haec manus inimica tyrannis MAP 2017 Gold Award

    I think you're right. Same as when a cop shoots someone here in the UK - they are always suspended and investigated until they know the full situation. My first reaction to this burglary story, though, was to wonder why they emphasised the word "murder" in the news releases. There was no mention of the burglar attacking the homeowner and it made me wonder if the homeowner went a bit vigilante. Did the police know more than they let on? Was there more to the story? The media are now saying the intruders were armed with the screwdriver but I'm not sure the police have said that.

    The famous case of the farmer who shot an intruder some years back led to him doing gaol because he shot the intruder as he was outside the property and running away ie it wasn't self defence at that point.

    If this one was genuinely self defence then I believe the homeowner had an absolute right to defend himself and his wife and it's tough on the burglar - he put himself in that situation.
    chatter box and axelb like this.
  4. Smitfire

    Smitfire Cactus Schlong

    The Tony Martin case was even worse than that IIRC. His shotgun was illegally held. He sat waiting to get someone (he'd been burgled before). Shot the intruder in the back. And then didn't call an ambulance or the police when he knew he'd shot someone and then left him to die. I think that's some of the details.
    Vince Millett likes this.
  5. Smitfire

    Smitfire Cactus Schlong

    I'd agree on how justified it seems though. Big age difference. Another helpless dependent to defend. In your own home (which should be your safe place). Multiple criminals. Weapons in play.
  6. Dead_pool

    Dead_pool Spes mea in nihil Deus MAP 2017 Moi Award

    I would assume Claiming self defence still means it has to go to court, I havn't seen the case details, but hopefully the secret barrister blog will also cover it.

    Edit, they have:

    The Secret Barrister

    make clear at the outset that I offer no comment whatsoever on this particular case. While the editorial slants of the tabloids may hint at two-fingered salutes to the law of “strict liability” contempt of court, I am going to play safe by disclaiming that, as criminal proceedings in this case are “live” within the meaning of Schedule 1 of the Contempt of Court Act 1981 (a suspect having been arrested without a warrant), what follows is intended as a contribution to a discussion in good faith of public affairs or other matters of general public interest.

    What I want to look at briefly, therefore, is the law of self-defence in what lawyers euphemistically refer to as “householder cases” – where force is used by a householder against a trespasser in a dwelling. In dipping into this legalese, I do not for a moment seek to minimise or cloak the stark reality that confronting a burglar in your home is one of the most terrifying experiences imaginable. Burglary of somebody’s home is an offence which, in my view, is treated with relative disdain by the criminal justice system. Its ubiquity means that insufficient resources are made available to police to investigate (hence shocking reports of 9 out of 10 burglary investigations being closed without a suspect being identified). Its prevalence means it is considered by the CPS to be one of the least serious criminal offences for the purpose of instructing prosecuting barristers, attracting a miserly fee (£480 for a 2-day trial requiring on average 20 hours’ work (2 days at court plus a conservative 4 hours’ preparation), so around £24 gross an hour, of which I would take home about £12), and is therefore prosecuted often by the least experienced in our ranks. And, while I am not one predisposed towards longer sentences, I have a lot of sympathy with members of the public who feel that a Sentencing Guideline starting point of 1 year’s imprisonment, of which a defendant will serve a maximum of 6 months, does not adequately reflect the harm done by the violation that breaking into someone’s home represents. The after-effects can last forever. It is not a mere property offence; it is an encroachment into a person or a family’s safest space. And I think many of us in the system can become inured to that truth.

    So there is my opening salvo: I hold no affection for burglars. Don’t allow the clinical nature of what follows to lead you to think otherwise.

    But, since the tale of Tony Martin in 1997, elements of the press and the Conservative party have become fixated on the notion that an Englishman’s home is no more his castle; that, confronted by an intruder in the dead of night, the householder is required to deferentially hand over the code to the safe and ensure that the burglar is safely escorted from the premises with his bag of swag bulging and his bodily integrity intact. What followed, under the intellectual guidance of Chris Grayling, was a change to the law in 2012 seeking to persuade Middle England that, in the words of the prematurely-celebratory Sun headline, “It’s Official: You Can Batter a Burglar“. We’ll have a look below at what that means in practice.

    The law of self-defence

    It is a longstanding principle of English common law that a person is entitled to use reasonable force in self-defence, or in defence of another. There are also statutory defences of using reasonable force in defence or property or in the prevention of crime and arrest/apprehension of offenders.

    In 2008, the common law defence of self-defence was put on a statutory footing in section 76 of the Criminal Justice and Immigration Act 2008. What it means in practice is as follows:

    • A person acting in genuine self-defence is entitled to use such force as is reasonable in the circumstances as he believes them to be. This provides a defence to any charge of violence, up to and including the use of lethal force;
    • The first question that a jury must ask is Did the defendant believe or may he have believed that it was necessary to use force to defend himself an attack or imminent attack on himself or others or to protect property or prevent crime?
    • The second question is Was the amount of force D used reasonable in the circumstances, including the dangers as D believed them to be?
    • The burden is on the prosecution to disprove self-defence. It is not for a defendant to prove that he was acting in self-defence. The prosecution have to prove beyond reasonable doubt (so that a jury is sure) that the defendant was not acting in reasonable self-defence.
    Let’s break down what this means.

    “A genuine belief that force is necessary”

    The question here is subjective – i.e. did the defendant genuinely believe he needed to use force in self-defence? It does not matter if the defendant was in fact mistaken, as long as he believed that at the time. So if a 6-foot man wearing a terrifying bear costume runs towards you brandishing what looks like a machete, and you genuinely believe he is about to attack you, the fact that you later realise the “machete” is a hunnypot and that you’ve KO’d Winnie The Pooh in front of a distraught crowd of Disneyland toddlers does not matter. The fact that your belief in the need for force was, by objective standards, unreasonable – who would mistake a hunnypot for a machete, for Lord’s sake? – does not matter at this stage. It might make the jury less likely to accept your insistence that your belief was genuine; however the bottom line is that a mistaken, unreasonable but genuinely-held belief in the need for force is enough. (The only exception is if your mistaken belief is due to your voluntary intoxication. Because, frankly, getting tanked on Stella and raining fury on Winnie The Pooh in a fountain is not something the courts can condone).

    “Reasonable force”

    Whether force is reasonable has to be judged by the circumstances as the defendant believed them to be, even if, as above, he was in fact mistaken. So if you genuinely believe that a machete attack is imminent, what is reasonable has to be assessed by reference to that belief. What is reasonable will obviously depend on the individual case, but section 76 reflects the famous words of Lord Morris in the case of Palmer v R 1971 AC 814, which are distilled in some form to juries when they are given their directions of law by the trial judge:

    “If there has been an attack so that self defence is reasonably necessary, it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his defensive action. If the jury thought that that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought necessary, that would be the most potent evidence that only reasonable defensive action had been taken …”

    Further pointers in section 76 include the provision that if force is “disproportionate”, it cannot by its nature be “reasonable”. Which sounds self-evident, one might think, but we’ll come to this more in a second. It is also made explicit that, while the possibility of a defendant having been able to retreat is a factor to consider when assessing reasonableness, there is no “duty to retreat”. It is also long-established that a person may strike pre-emptively – you do not need to wait to be hit.

    So in a nutshell, the law of self-defence means that the prosecution must make a jury sure that either a defendant didn’t really believe he needed to use force, or that he did but used unreasonable force – for example killing someone with a gun in response to a slap to the face – bearing in mind the broad scope of appreciation allowed in these cases.

    Simple, right? Well, not, sadly, in cases involving burglars. As we shall now see…

    Householder self-defence

    In 2011, Prime Minister David Cameron, having promised in his party’s manifesto to afford “greater protection” to householders who use force against burglars, said:

    ‘We’ll put beyond doubt that homeowners and small shopkeepers who use reasonable force to defend themselves or their properties will not be prosecuted.’

    Quite how Mr Cameron intended to guarantee that fetter on the discretion of the independent Crown Prosecution Service was never explained, but the public was thereafter treated to Chris Grayling’s party piece at the Conservative party conference, which went someway beyond Mr Cameron’s hashed restatement of the existing law. And, as you might expect, Mr Grayling’s idea was as poor in execution as it was stupid in policy.

    Grayling, having dissembled to the crowd about what the existing law of self-defence said, insisted that a new law was needed which changed the test. No longer was “reasonable self-defence” a sufficient litmus. Instead, householders should only be convicted where they had used “grossly disproportionate” force. Merely “disproportionate” force, it followed, was no more than burglars deserved. Section 76(5A) was duly inserted into the Act.

    Inevitably, once reality bit, Grayling’s dreams came crashing down around him. He lost the support of the Mail once they saw guidance sent to judges and prosecutors “admitting that the provision does not give householders free rein to use disproportionate force in every case they are confronted by an intruder.” (You can just hear the disappointment jumping off the page). The exemption did not apply to the use of force to protect property, for example. Nor did it apply to “non-dwelling buildings”. So if you saw someone stealing your lawnmower from your shed, you could not use disproportionate force to stop them.

    But worst of all, when the High Court was called upon to interpret section 76(5A), it confirmed that its drafting did not in fact have the effect that Grayling had desired. The CPS had interpreted s.76(5A) in accordance with the newspaper headlines – only where the prosecution could prove grossly disproportionate force would it be appropriate to prosecute. But the High Court said otherwise: all the new law did was to confirm (as if confirmation were needed) that anyone using “grossly disproportionate” force could not, by definition, be using reasonable force. Force which was “merely” disproportionate could be reasonable in householder cases, but would not always be. The test, as with all cases of self-defence, remained whether force was “reasonable” in the circumstances.

    So, in conclusion, where a householder is confronted by a burglar, if they genuinely believe they need to use force in self-defence, they can use such force as is reasonable in the circumstances. If they use “grossly disproportionate” force, they cannot rely on self-defence. If they use merely “disproportionate” force, that may or may not be reasonable. Got it? If not, you can blame Grayling for the unnecessary confusion injected by the pointless test of “gross disproportionality”.


    Much has been made about the fact that the 78-year old householder in the present case has been arrested and (presumably) interviewed by the police, before being released. It is worth remembering that the police have a legal duty to investigate cases where there has been a loss of life. Part of the investigation may involve arresting a suspect so that they can be interviewed.

    Whether an arrest is necessary in a given case – as opposed to inviting a suspect in for an interview – depends on whether certain statutory factors have been satisfied. But on its face, there is little unusual in the police arresting somebody suspected of killing another person. The police will usually have a reasonable suspicion that a crime has been committed – because somebody has died a non-natural death – and the arrest will usually be necessary to allow a prompt and effective investigation, the combination of which means that an arrest is permissible. It is no indication of whether a charge will follow; rather it is on its face the police complying with their legal duties. When a suspect is arrested and detained at a police station, they have a panoply of rights, including the right to independent legal advice. If they are interviewed under caution (as one would expect), they will have the opportunity to advance any account of self-defence, which will then form part of the file that is passed to the Crown Prosecution Service for a charging decision.

    The charging decision

    The Code for Crown Prosecutors provides that when a charging decision is being taken the test is two-fold – (i) is there a realistic prospect of conviction on the evidence? (ii) Is a prosecution in the public interest. If a suspect offers self-defence as an explanation in their police interview, the CPS will have to be satisfied that there is sufficient evidence to disprove this beyond reasonable doubt, applying the above test. Even if they are satisfied of the evidence, they must then consider the public interest. CPS Guidance says:

    When reviewing cases involving assertions of self-defence or action in the prevention of crime/preservation of property, prosecutors should be aware of the balance to be struck:

    • the public interest in promoting a responsible contribution on the part of citizens in preserving law and order; and
    • in discouraging vigilantism and the use of violence generally.
    There is often a degree of sensitivity to be observed in such cases; this is particularly important when the alleged victim of an offence was himself/herself engaged in criminal activity at the relevant time. For instance, a burglar who claims to have been assaulted by the occupier of the premises concerned.


    Upon inspection of most of the tabloid’s causes celebres, one will often find a fairly sensible explanation for a decision to prosecute a householder who has injured or killed a burglar. Sometimes, as with Tony Martin, the homeowner will have used lethal force on a burglar fleeing the property, or will have chased him down the street and given him a sound thrashing. The bottom line, as has always been the bottom line notwithstanding the dishonesty of Chris Grayling, is that using reasonable force against a burglar will rarely result in a prosecution, much less a conviction.
  7. Mitch

    Mitch Lord Mitch of MAP Admin

    The arrest is pretty much standard procedure. If the facts of the case are as they are currently being presented and the homeowner didn't do a Tony Martin, then I imagine the CPS will choose not to take it any further.

    It was disappointing to note self proclaimed self defence Facebook pages frothing about this with seemingly almost no understanding.
    axelb and Dead_pool like this.
  8. Smitfire

    Smitfire Cactus Schlong

    People sure do love a burglar getting some comeuppance. I mean...I'm no fan of criminals at all....but there's definitely something of the colloseum about the responses to this.
    Van Zandt, Dead_pool and axelb like this.
  9. axelb

    axelb Master of Office Chair Fu

    There is no doubt that we'll see some flaky self defense drills come out of those Facebook groups soon to "help" with a similar scenario :rolleyes:
    Van Zandt, Mitch and Dead_pool like this.
  10. Mushroom

    Mushroom De-powered to come back better than before.

    I liked that lengthy post @Dead_pool .

    Yes, an arrest has to be made for investigation purposes, it does not equate to guilt. That is all found in court. (in this case probably Coroner's Court)
    And I understand why people want this old fella to be found innocent immediately (as per court of social media)

    However let's break it down.

    Man stabs another man and kills him. That is the unfortunate fundamental. Everything else needs to be looked into. It's not fair however to a) Papers showing old bloke with a shotgun and booze and b)social media making it sound like he's in a pitch black cell with nothing but bread and water.

    Everything needs to be looked into. People want Police (or at least expect) Police and the Law to be impartial, yet at the same time complain when things don't go the way of public opinion.
  11. axelb

    axelb Master of Office Chair Fu

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  12. Dan Bian

    Dan Bian Neither Dan, nor Brian

    The reaction to this has narked me a bit.

    No matter the situation, you can't kill someone and expect the authorities to NOT investigate and just accept your version of events.

    We have the right to defend ourselves and our property. But the police have to establish that we were justified in any action we take.
    If you act within the law (as in this case) then you have nothing to worry about.
    Mushroom, Shmook, axelb and 3 others like this.
  13. Vince Millett

    Vince Millett Haec manus inimica tyrannis MAP 2017 Gold Award

    Yes, the police did it by the book, as they should. The right decision was made, based on their investigation. It has sparked interesting discussions about self defence rights.
    The fuss about the dead burglar's "shrine" has raised some interesting questions too. What are the rights of the relatives of a dead criminal who have not themselves committed a crime but mourn the dead criminal? How are they balanced against the right of the victim of the crime to be left alone to get on with their life?
  14. Dan Bian

    Dan Bian Neither Dan, nor Brian

    1st - They shouldn't be insulting the deceased's would-be victim, or threatening some kind of vengeance. When all is said and done, he would NOT have died in this way, had he not CHOSEN to break into this gentleman's house.

    2nd - Of course they need to grieve for their loss. But they shouldn't be setting up a tribute to him outside the house in which he was committing a crime. Again, if he hadn't of committed the crime, he wouldn't be dead.

    3rd - The CPS has decided there are no charges to answer, as no crime has been committed. The gentleman acted in self defence. He should NOT have to go into hiding with his wife, for fear of reprisals from the family of the man who broke into his house.
    chatter box, Smaug97 and axelb like this.
  15. Smitfire

    Smitfire Cactus Schlong

    It baffles me people want to leave flowers where a person was killed.
    I'm as baffled by this as I am by the people that tie them to a tree where someone got run over or crashed a car or something.
    If flowers are your thing then why not leave them where they lived?
    And if he was injured at this house, but died later in the hospital or ambulance, why not leave them at the hospital or half away along the A54, or in the local A&E?

    Reading about this there are maybe similarities to the Tony Martin case here. The person he killed was also a member of the traveller community and so Martin also suffered death threats and relatives wanting revenge.
  16. Dan Bian

    Dan Bian Neither Dan, nor Brian

    The difference being Tony Martin shot his intruder in the back as he was escaping. Not self defence.
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  17. Smitfire

    Smitfire Cactus Schlong

    Absolutely. Not defending Martin at all.
    Dead_pool likes this.
  18. SWC Sifu Ben

    SWC Sifu Ben I am the law

    Wait, you have people who can afford to travel on a regular basis, and they just go around robbing people? And folk think the Americans are a strange lot.
  19. Dead_pool

    Dead_pool Spes mea in nihil Deus MAP 2017 Moi Award

    No, traveller is a euphemism for gypsies, its complicated.
  20. VoidKarateka

    VoidKarateka Valued Member

    Not that complicated, just watch Snatch XD

    In all seriousness though, I honestly worry for the burglary victim and his household in this instance. As Smit has echoed in the wake of the Tony Martin case there were death threats etc. In some cases of crime like this a loss of life could lead to some attempt at revenge. Does anyone know if the police will be keeping an eye on the household to ensure safety?
    axelb likes this.

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