Britain
The self-defence law does not need unreasonable changes
The debate about the law on self-defence is populated with larger-than-life figures. Most notoriously, there's Tony Martin, the Norfolk farmer with the shotgun and the booby-trapped stairs, and there's Munir Hussain, the Asian businessman with the cricket bat, whose family was tied-up and threatened. It may be that the source of the widespread interest in the issue is not a well-grounded fear of what would happen if we confronted an intruder, but the old Tory romance of the Englishman, whose home is his castle. After all, if the expenses scandal taught us anything, it's that at least one Tory MP did have a moat.
Outside the realms of fiction, and in the corridors of power, the coalition partners are hesitating over the promise, made by the Tories in opposition, to amend the law on self-defence. Detailed plans have been sidelined and the talk now is of altering the law "if necessary" and after "consulting with officials".
The truth is that the Conservative proposal was always a tawdry one: practically useless and theoretically dangerous. You can only be prosecuted for using force in self-defence if your act is not "reasonable". The Tory idea, first put forward by Patrick Mercer in a private member's bill, is to change the standard to "grossly disproportionate".
The amendment would not have affected the outcome of either the Tony Martin or the Munir Hussain case. Neither man was prosecuted because their actions were not reasonable. They were prosecuted because their actions were not in self-defence. They wielded their cricket bats and shotguns against criminals who were already fleeing empty handed.
Only the outcomes of cases where an act of self-defence was considered not reasonable, but also not grossly disproportionate, could be affected by this bill. It's a subtle distinction. The Ministry of Defence document, "Are juries fair?", recently found that 69% percent of jurors in the study were unable to identify the key questions they were being asked to decide in cases involving force used in self-defence. It's hard to believe that slightly altering one of those questions would change the verdicts they came to in most cases.
So the importance of the amendment is largely theoretical. Mercer thinks it would resolve an inconsistency in the law. At the moment, all acts of self-defence that are not reasonable are criminal, but those who suffer them cannot claim civil damages unless the act was "grossly disproportionate". This situation arose ad hoc, after provision was made in the Criminal Justice Act 2003 to avoid the public outcry that would have resulted if burglar Brendon Fearon had claimed damages against Tony Martin.
Nonetheless, and funnily enough, the current state of the law actually makes quite a lot of sense. Civil and criminal law have different purposes. Criminal law is designed to maintain law and order in society, while civil law aims to uphold the rights of individuals and provide redress for those who are wronged. When force of any kind is used against, say, a burglar, many people do not see him (it nearly always is a him) as personally wronged, because he provoked the attack. For example, few people would see someone as wronged when, having punched someone in aggression, he or she gets punched back, even if it is with disproportionate (but not grossly disproportionate) force. If they are correct, then it is right that there is no civil redress unless the force used is actually grossly disproportionate.
But the punch might still properly be seen as a criminal offence, because it constitutes a threat to law and order. The problem with the Tory plan is that it would shift the focus of the law away from whether or not it does. As Carl Gardner points out reasonable means "reasonable in the circumstances as they were understood at the time", so what matters at the moment is not really what the citizen did, but what they thought they were doing. To be reasonable is to do what you feel is necessary.
But the "grossly disproportionate" test focuses on the act itself, permitting disproportionate force that was not proportionate because it was motivated by spite or revenge, as well as the need for self-defence. This would allow citizens to pursue punishment and revenge on the streets, instead of in the court rooms. The amended law would thus send out the message that the law has no monopoly on punishment, and that our legal system may be bypassed at will. That is why it is so strange that it is a cause célèbre for people like Colonel Patrick Mercer, who profess to hold these ancient institutions dear. We should all be glad that his plan appears to be on the back burner.
(Published by The Guardian – June 14, 2010)