'Householders Who Use Violence on Burglars': John Spencer

At the Conservative Party conference a couple of weeks ago, the Minister of Justice, Mr Grayling, said he would take the first opportunity to change the law so that a householder who used force on a burglar would not be criminally liable unless the force he used was grossly excessive. The basic premise of the change is to get the law into a position where, if you are in your home and you are confronted by an intruder, then, if in the heat of the moment you use a level of force that in the cold light of day might seem disproportionate, the law will be on your side. This is strange because that is in essence exactly what the law says now and, indeed, what the criminal law has always said. The criminal law has always been on the side of the householder against the burglar. The law says a householder confronted by a burglar can use reasonable force in defending his person or his property and the law also says that in judging what force is reasonable the householder is judged on the facts as he honestly saw them, even if he made an unreasonable mistake about the facts, and allowance is made for the fact that he was acting in the heat of the moment. There’s a famous quotation from Mr Justice Holmes in the United States, which has been repeated in many cases, in many books in this country: “Detached reflection cannot be demanded in the presence of an upturned knife.”

Mr Grayling’s statement is not the first time a Minister of Justice has pledged to re-balance the law in favour of householders facing burglars. Jack Straw made a similar pledge at the Labour Party conference in 2007. The result was that the then government looked at the existing law, found it was correct, and ended up having to codify it in section 76 of the Criminal Justice and Immigration Act 2008, which says on paper and in an Act of Parliament exactly what the law, in the case law, had previously said. And it seems to me we are heading for another round of the same thing. How does this happen? Why do our politicians believe that the criminal law is not on the side of the householder and has to be re-balanced? It’s because they misunderstand what happened in the Tony Martin case, thanks, I believe, to the misleading coverage of that case that it received in sections of the tabloid press.

Tony Martin, as you may remember, shot two burglars and killed one and he ended up tried for murder and convicted and received the usual life sentence. Actually, the burglar he shot, he shot in the back; the burglar he killed with bullets in his back. And before this incident he had said to the police on one occasion, “You know the best way to stop them. Shoot the bastards.” And he was also said to have said he’d recommend putting criminals like that in a field and machine-gunning them. The end of the story was that Mr Martin’s conviction for murder was replaced by a conviction for manslaughter because of the defence of diminished responsibility, the fact that his mental state was not wholly normal. This case has been misinterpreted by the newspapers as showing how the law is not on the side of the householder but it seems to me, if you look at the facts, this was a case where clearly disproportionate force was used and the result would be the same even if the law were supposedly changed in the way that the Minister of Justice has said.

All that said, it seems to me that the present law is defective but not in a way the Minister of Justice or the Conservatives currently understand. There are two things wrong with it. The first is that the civil law says that if the householder is criminally liable for using excessive force the burglar, or his family if he is killed, is entitled to claim damages. That is surely wrong. Irrespective of the criminal liability of the householder for using excessive force, surely the burglar or his family do not deserve compensation for his injury or death and their claim ought to fail because of the defence known as “ex turpi causa”, ex turpi causa non oritur actio: you are disentitled to sue, you are not permitted to sue if the cause of your damage was your own criminal behaviour. The last government made an inept and hurried attempt to alter that rule of civil law in section 329 of the Criminal Justice Act 2003 which says if the claimant is convicted of a serious criminal offence he can only claim damages in this type of situation if he has judicial leave to bring the action and the force he used was grossly disproportionate. But this provision is deplorably badly drafted and, as appears from a Court of Appeal judgment called Adorian v the Metropolitan Police Commissioner, the only people in reality it protects are truncheon happy police officers who beat up suspects in the cells. That aspect of the law surely needs to be sorted out.

Secondly, the criminal law is wrong, in my view, because it says that if the householder kills a burglar by using excessive force, his conviction is for murder and for murder there is a mandatory life sentence, irrespective of the mitigating circumstances. The householder who kills the burglar in the use of excessive force is subject to the same life sentence as the burglar would be if he killed the householder. Surely that is wrong? Surely it should be possible, even if a murder conviction is returned in such a case, for the court to have a discretion to take the mitigating circumstances into account in order to impose a sentence less severe than a life sentence? Unfortunately the mandatory life sentence for murder without the possibility of mitigating circumstances appears to be an article of faith to law and order politicians, just as it’s an article of faith to Southern Baptists that the world was created in seven days. The law should be changed but not in the respect that Mr Grayling told the Conservative Party conference it should be.