The story began on the night of 20
August 1999, when the farmer Tony Martin killed a teenage burglar,
16-year old Fred Barras, by shooting him in the back at Martin’s
remote Norfolk farmhouse. Martin was convicted, and on 21 April
2000 The Times published the following letter from me-
Before Parliament altered
it, the common law would have acquitted Mr Tony Martin. I quote
Blackstone: ‘If any person attempts to break open a house
in the night-time, and shall be killed in such attempt, the slayer
shall be acquitted and discharged’. Blackstone added that
burglary, or nocturnal housebreaking, had always been looked on
as a heinous offence; not only because of the abundant terror
that it naturally carries with it, but also as it is a forcible
invasion and disturbance of that right of habitation which every
individual might acquire even in a state of nature. ‘And
the law of England has so particular and tender regard to the
immunity of a man’s house that it styles it his castle and
will never suffer it to be violated with impunity’. Nowadays
the law’s tender regard is for villains and burglars.
There was (and still is) considerable
public disquiet over Martin’s conviction. In January 2004
Andrew Moffat won a BBC Radio Four Today programme competition
to choose the Bill which listeners would most like to see passed
by Parliament. His winning choice was a Bill to protect householders
who find themselves confronting burglars. The BBC consulted me
about the drafting of this ‘People’s Bill’ and
I was interviewed by Dominic Arkwright in the Today programme
on 10 January. Mr Stephen Pound MP (Labour) had agreed with the
BBC to present the winning ‘People’s Bill’ in
the House of Commons, but declined when he heard what the People’s
choice was. Another backbencher, Mr Roger Gale MP (Conservative),
then stepped into the breach and decided to present his own Tony
Martin Bill. On 12 January 2004 Mr Gale issued a statement about
his Bill saying-
The Bill will seek to redress
the perceived imbalance in the law as it stands at present and
will redefine the status of the householder. At present the law
appears to some to treat the intruder as the victim and the real
victim, the householder seeking to protect person or property,
as the aggressor. Whether this Bill will make parliamentary headway
will depend, of course, upon the progress of other private members
bills ahead of it in the queue and whether or not the government
is prepared to allow it passage into committee.
It is clearly a sensitive and complex area but there is a strong
feeling that at present the legal system favours and protects
the criminal in spite of the fact that a person may use ‘reasonable
force’ for protection. Although cases of prosecution of
the householder are relatively rare there is speculation that
others who might wish to protect themselves, their loved ones
or their property are deterred from taking reasonable action through
fear of finding themselves innocently on the wrong side of the
law.
The Bill is to be carefully drafted to avoid becoming a ‘vigilante`s
charter’ but we intend to send out a clear signal that those
who deliberately place themselves, through criminal behaviour,
outside the law can expect to take the consequences of their actions.
The chief cause of public disquiet over the case of Tony Martin
and similar cases is the test of reasonableness in relation to
resistance by householders to burglars or other invaders of their
home. English common law has moved on from the days of Blackstone
and reached a position where the amount of force used, if the
householder is not to risk prosecution and conviction, must be
proportionate to the threat posed. If an intruder comes at you
with a knife, you may use a knife in return. If he is armed only
with a baseball bat you would be unwise to use a knife in defending
yourself – and discharging a firearm would mean certain
trouble with the law. Yet when the adrenalin flows in the trauma
of an attack it may be difficult to keep a cool head. Darkness
may prevent you seeing whether a burglar is armed, and if so with
what kind of weapon. You may panic. How then can you judge accurately
what degree of force is proportionate?
The difficulty is that the test is
objective not subjective. A jury trying your case will be directed
to assess whether in all the circumstances the amount of force
you used really was reasonable and proportionate, not whether
you genuinely thought it was. The position is fully set out in
a Law Commission document on the defence of self-defence
2.
9.1 Self-defence, at common
law, provides a complete defence to any charge of fatal or non-fatal
violence. A person (D) whose conduct and state of mind falls within
. . . . . .
*.
Francis Bennion is a former parliamentary counsel (draftsman of
UK Government legislation). His books include Statutory Interpretation
(Butterworths, 4th edn. 2002) and Understanding Common Law Legislation
(Oxford University Press, 2001).
1.
I neither asked for nor received any fee for assisting the BBC
or Mr Gale. 2. Partial
Defences to Murder, Law Commission Consultation Paper No 173,
31 October 2003. 3. Gladstone
Williams (1984) 78 Cr App R 276 (CA), where it was held that if
a defendant was labouring under a mistake of fact as to the circumstances
when he committed an alleged offence, he was to be judged according
to his mistaken view of the facts regardless of whether his mistake
was reasonable or unreasonable. The reasonableness or otherwise
of the defendant’s belief was only material to the question
of whether the belief was in fact held by the defendant at all.
See also, Beckford [1988] AC 130 (PC). [Law Commission’s
footnote.]
