“Self-defence is Nature’s eldest law”, said John Dryden, and “men have the right of killing in self-defence”, according to Montesquieu.

It is a frightening prospect to be confronted by an intruder on your property and you would expect that you can defend yourself in that situation. In response to public concern over the support offered by the law and confusion about householders or shop owners defending themselves, the CPS Justice Secretary has proposed amending the law in England and Wales on self-defence to protect householders who over-react when confronted by a burglar or intruder.

If a householder finds himself on trial, the jury must consider the following:

• Was the use of force necessary?
• If so, was the particular force used reasonable?

Q: What are the official guidelines of the amended law?

A: The limitations of the legislation were made clear through a circular sent by the Ministry of Justice.

‘Householders are only permitted to rely on the heightened defence if they are using force to defend themselves or others. They cannot seek to rely on the defence if they were acting for another purpose, such as protecting their property…The term “in or partly in a building” is used to protect householders who might be confronted by an intruder on the threshold of their home, climbing in through a window perhaps.’

Moreover, shopkeepers can only get away with disproportionate attacks on robbers if they live above their shop, and only if the two parts of the building are connected. Besides, shop assistants and customers cannot get involved in the violence, unless their loved ones happen to be living in the store.

Q: What force does the law allow?

A: The law currently allows people to use “reasonable force” to protect themselves, others or property, to carry out an arrest or to prevent crime. Householders are protected from prosecution as long as they act “honestly and instinctively” in the heat of the moment.

According to the Crown Prosecution Service (CPS), “Fine judgements” over the level of force used are not expected. In other words, someone can claim they attacked in self-defence only if they genuinely believed they were in peril – even if in hindsight they were clearly wrong.

Victims do not have to wait to be attacked if they are in their home and fear for themselves or others. These guidelines also apply if someone, in the spur of the moment, picks up an item to use as a weapon. The law very clearly says that a householder is not expected to weigh up the arguments for and against in the heat of the moment – but they have to show that their actions were reasonable in the moment.

Q: Can the intruder be chased if they run off?

A: It all depends on what was proportionate in the moment and what the householder genuinely believed. If the householder chases and attacks the burglar who no longer presents a threat, it is not self-defence.

For instance, if an intruder flees the scene, they might not be a threat any longer, so if the latter chases and attacks, it would no longer be considered self-defence. Reasonable force can still be used to recover property or make a citizen’s arrest.

The CPS has previously suggested that “a rugby tackle or a single blow would probably be reasonable” because these are designed to stop the criminal, rather than to inflict grievous harm.

Q: Do I have to wait to be attacked?

A: No, not if you are in your own home and in fear for yourself or others.

In those circumstances the law does not require you to wait to be attacked before using defensive force yourself.

Q: What is the situation if the intruder dies?

A: It is still lawful to act in reasonable self-defence, even if the intruder dies as a result.

However, prosecution could result from “very excessive and gratuitous force”, such as

• having knocked someone unconscious, you then decided to further hurt or kill them to punish them
• you knew of an intended intruder and set a trap to hurt or to kill them rather than involve the police

For instance, the CPS decided not to prosecute one woman who snatched a baseball bat from an intruder and smashed him over the head. Had the woman continued to beat the man to a pulp, after he had already fallen and posed no threat, this would probably be considered as unlawful.

Q: So the law is quite complicated?

A: It depends which way you look at it. In each case, the precise facts will be different and may justify a different response from juries.

Most cases that have come before the courts have tended to divide public opinion. Whereas the Conservatives have repeatedly argued that the law needs to be shifted in favour of the householder to give them certainty that they will not be prosecuted, Defenders of the current position argue that self-defence is exactly the kind of debate that should be left up to juries.

Q: How likely is prosecution?

A: There have been very few prosecutions in these circumstances. An “informal trawl” by the CPS suggested that between 1990 and 2005 there were only 11 prosecutions of people who had attacked intruders in houses, commercial premises or private land. Only 7 of those appeared to have resulted from domestic burglaries.

One of the cases that were prosecuted involved a man who lay in wait for an intruder and then beat him, threw him into a pit and set him alight.

Another case involved Buckinghamshire businessman Munir and Tokeer Hussain who were jailed in different circumstances. Hussain had returned home to find that three intruders had tied up his family. He escaped and, with the help of his brother, chased one of the intruders, Walid Saleem. Hussain caught Saleem and hit him so hard with a cricket bat that he inflicted permanent brain damage.

Saleem was incapable of entering a plea at trial and received a lesser sentence than the man whose house he broke into. It’s important to note that the brothers did not plead at trial that they acted in self-defence when they chased and attacked the intruder. The Court of Appeal reduced their sentences but emphasised that the case was very unusual – and included an eyewitness who pleaded with the men to stop attacking the intruder.

Q: What about if someone shoots?

A: Again, the juries will decide upon the case depending on the facts.

The most recent case was that of Andy and Tracey Ferrie. They were in bed when two burglars entered their home. Mr Ferrie fired his (legally-held) shotgun at the men. The couple were arrested but then released without charge.

The judge at the intruders’ trial said: “If you burgle a house in the country where the householder owns a legally held shotgun, that is the chance you take. You cannot come to court and ask for a lighter sentence because of it.”

The most well-known case is Tony Martin. In 1999, the Norfolk farmer shot dead an intruder in his home. He was jailed for life for murder but the Court of Appeal then reduced that to manslaughter. He served three years in jail.

Q: How would the police and CPS handle the investigation and treat a householder?

A: In considering these cases Chief Constables and the Director of Public Prosecutions (Head of the CPS) are determined that they must be investigated and reviewed as swiftly and as sympathetically as possible.

If the facts are very clear, or where less serious injuries are involved, the investigation will be concluded very quickly, without any need for arrest.

In more complicated cases, such as where a death or serious injury occurs, more detailed enquiries will be necessary. The police may need to conduct a forensic examination and/or obtain your account of events. To ensure such cases are dealt with as swiftly and sympathetically as possible, the police and CPS will take special measures namely:

• An experienced investigator will oversee the case
• If it goes as far as CPS considering the evidence, the case will be prioritised to ensure a senior lawyer makes a quick decision

Q: What are the views of this law?

A: Lord Judge said that he thought the law was sound, while others believe the it is ‘riddled with loopholes’.

In his 2012 press conference, the Lord Chief Justice said: “I suspect if any of you have come home to find a burglar in your home, or have been in bed at night — or indeed having an afternoon snooze and found a burglar in your home – you are not calmly detached. You are probably very cross and you are probably very frightened – a mixture of both -and your judgment of precisely what you should or should not do in the circumstances cannot, as another predecessor of mine, Lord Lane, said, you cannot measure it in a jeweller’s scale. You have to face the reality of how people are and how people react to these situations – and justifiably react.

“The householder is entitled to use reasonable force to get rid of the burglar and that in measuring whether the force is reasonable or not, you are not doing a paper exercise six months later. You have to put yourself in the position of the man or woman who has reacted to the presence of a burglar and has reacted with fury, with anxiety, with fear, and with all the various different emotions which will be generated, and who has no time for calm reflection.

On the other hand, Malcolm Starr, a spokesman for jailed burglary victim Tony Martin, said: ‘I think it’s an absolute farce. They really must let common sense prevail.’ He said that rather than drawing up new laws, the system should simply prevent homeowners being arrested as soon as an intruder is attacked. Mr Starr added: ‘People immediately seem to get arrested and don’t get the benefit of the doubt – it’s the wrong way round.’

Furthermore, Nick de Bois, a Conservative MP on the Justice Select Committee, said: ‘It looks like the Ministry of Justice civil servants are watering down the intent behind this very sensible law. People have the right to defend their property and homes, and they don’t need a straitjacket from the Ministry of Justice.’

Anyhow, whatever the circumstance, always maintain the security of your property to avoid any possible confrontation with a burglar – and make sure you do not bash a burglar in any case of intrusion! This brings us to the conclusion that implementing security on your home is more clever than self defence! Please visit our range of security products and get in touch via our contact us page or call 02081231088.