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12 February 2022

Fake Law (2) Yourself and Your Home

Tag(s): Current Affairs, Law
I first blogged about the book Fake Law[i] last year[ii] and suggested that I would return to the subject going into more detail. I wrote then that ‘It is both a spirited defence of the legal system and also an exposé of agenda-driven politicians, click-hungry tabloid editors and powerful corporate interests who persuade us that the system is stacked in favour of criminals and the undeserving. This leads to changes in the law which means that our own fundamental rights - for example, to legal aid - are being quietly eroded and in some cases extinguished.’

The book covers nine areas of the law and on a periodic basis I’ll cover each one starting with ‘Yourself and Your Home.’ Chris Grayling, the then Justice Secretary, said in 2012 ‘Householders who act instinctively and honestly in self- defence are victims of crime and should be treated that way. We need to dispel doubts in this area once and for all.’ He may well have been sincere in his analysis and in his intentions, but I think it highly unlikely that he really understood the law and how it should be interpreted. In fact, most of us would think that we are entitled to act in self-defence if our home is invaded illegally and we are attacked and yet the public perception is that in many cases it is the innocent householder, rather than the marauding criminal, up in front of the courts.

You may recall the case of Norfolk farmer Tony Martin, who was convicted and imprisoned in 2000 after shooting dead a teenage burglar who broke into his home. He was first convicted of murder which was later reduced to manslaughter upon appeal, due to a psychiatric condition. Norman Brennan, director of the Victims of Crime Trust, criticised the verdict as a ‘dangerous precedent’ declaring, ‘This is yet another example of how the criminal justice system can make criminals out of victims.’ Upon his release from prison Mr Martin was paid £125,000 for an exclusive interview by the Daily Mirror, with the Press Complaints Commission ruling that the general prohibition on paying criminals for their stories could be avoided on the grounds that he had ‘a unique insight into an issue of great public concern.’

Then Leader of the Opposition William Hague claimed to be speaking for ‘millions of law-abiding British people who no longer feel the state is on their side’ when he pledged the Conservative government would ‘overhaul the law’ to ensure ‘the state will be on the side of people who protect their homes and their families against criminals.’ According to one television opinion poll 85% of voters thought that the jury had reached the wrong verdict. Changing the law was duly delivered in 2012 but just six years later 78-year-old Richard Osborne Brooks was arrested for stabbing to death a burglar in his kitchen.

So, what is the law of self-defence? The permitted use of force in self-defence has been established in the common law of England and Wales for centuries. In common law claiming that you were defending yourself can afford you a ‘complete defence’ to a charge of violence, up to and including murder. If successful, the accused will be acquitted of all charges; a person could be killed and yet no crime will be found to have been committed. English and Welsh criminal law distinguishes between ‘complete’ and ‘partial’ defences. A partial defence reduces culpability and so the level of charge, but a criminal offence has still been committed. ‘Diminished responsibility’ is an example of a partial defence. This was the defence the Court of Appeal found also applied in Tony Martin’s case, after hearing expert evidence of a diagnosis of paranoid personality disorder and provides the reason for his conviction for murder being quashed in 2001 and substituted for manslaughter.

The principles of the law of self-defence are relatively straightforward:
  • 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 use of lethal force;
  • the first question that the jury must ask is, did the defendant believe or may have believed it was necessary to use force to defend himself from attack or imminent attack on himself or others or to protect property or prevent crime?
  • The second question is, was the amount of force the defendant used reasonable in the circumstances, including the dangers as the defendant believe them to be?
  • the burden is on the prosecution to disprove self-defence. It is not for the defendant to prove that he was acting in self-defence. The prosecution must prove beyond reasonable doubt (so that a jury is sure) that the defendant was not acting in reasonable self-defence.
The key concepts here are necessary and reasonable. Other relevant principles include there being no duty to retreat, although the possibility of a defendant having been able to retreat is a factor to consider when assessing whether the use of force was necessary and reasonable. It is also long established that a person may strike pre-emptively – you do not need to wait to be hit.

So why was Tony Martin initially found guilty of murder? Well in that case Tony Martin gave a version of events some of which were proved to have been impossible. The jury visited the house and were able to assess the reconstruction of events for themselves. The jury also heard that Mr Martin had repeatedly told local Farm Watch meetings of his view that burglars should be shot. He said that if burglars came to his home he would blow their heads off. He even advocated putting such criminals in the field and using a machine gun on them.

There had even been a case some years before when Mr Martin had seen a man attempting to steal apples from his orchard and fired at the rear of the man’s vehicle as he drove away. As a result, his shotgun certificate was revoked. It follows that the firearm he used in the case was unlicensed. On this basis it seems reasonable that the jury might have concluded that this was not a case of someone acting in reasonable self-defence, on any construction of the term.

While not an isolated case there have not been many such incidents and usually they lead to inaccurate press coverage condemning the prosecution of individuals because they took action to protect their family from violent thugs who threatened to kill. In 2012 the Crown Prosecution Service conducted an ‘informal trawl’, which showed that between 1990 and 2005 there were only 11 prosecutions of people who used force against intruders on private premises, and only seven of these related to domestic burglaries.

So, we see a contrast between what was actually happening and what the media and many politicians believed was happening. In 2008, in response to a feeling that Something Had To Be Done, Labour simply copied and pasted the existing common law of self-defence into a statute. In the words of the author ‘this was an exercise of pure political conmanship.’ Section 76 of the Criminal Justice and Immigration act 2008 simply restates the basic principles considered above, allowing the government to proclaim that it Had Done Something. During the Bill’s second reading in the House of Lords, Lord Thomas of Gresford[iii] mocked the Minister who opened the debate by observing ‘not only is it the fifty-fourth bill dealing with crime and criminal justice that has come before us in the past ten and a half years, but it perpetuates muddled thinking, a lack of understanding of the fundamental legal principles that lie behind the British concept of justice, and populist but meaningless gestures towards the red tops’ concerns of the day. Rhetoric and vote-catching matter more than practicality and principle.’

The Conservatives, not to be outdone, quite rightly derided Labour’s non-solution, but once in government vowed to dispel doubts where none existed seeking to make good on their vacuous manifesto pledge in 2010 to give householders greater legal protection if they have to defend themselves from intruders. David Cameron and his ministers resolved to terrify citizens with fake stories rather than honestly reassuring them that there was no such monster lurking under the legal bed.

His Justice Secretary Chris Grayling duly vowed to protect those who ‘in the heat of the moment use force that is reasonable in the circumstances, but in the cold light of day seems disproportionate’, overlooking that the law already allows force that is reasonable, and that the jury’s assessment of the reasonableness and proportionality of the force use is by reference to the circumstances as the householder genuinely believes them to be.

Grayling’s solution was to allow the use of disproportionate force against burglars. In 2008 Parliament had at least got this bit right which was to specify the long-standing principle that force which was disproportionate was not capable of being reasonable. David Cameron went on to explain ‘People need the certainty to know that unless they did something grossly disproportionate, as we’re going to put it, then they are basically in the right.’

In a ‘householder case,’ the law of self-defence would be amended to ensure that only householders using grossly disproportionate force against intruders would be acting beyond the scope of reasonable self-defence. Merely disproportionate force, if followed, would be permitted, even celebrated. ‘This’ declared Chris Grayling, ‘should finally lay the issue to rest once and for all.’

Needless to say it didn’t. For a start Parliament didn’t actually legislate what Grayling and Cameron had promised. When the High Court was called upon to interpret the new legislative provision, it confirmed that its drafting didn’t mean that, to borrow the statesmanlike words of the Prime Minister, ‘You can do anything as long as it’s not grossly disproportionate.’ Instead, the legislation on its true construction still required that the courts apply the same age-old test of reasonableness when assessing the level of force. All the Grayling’s law had achieved was to state, entirely pointlessly, that ‘grossly disproportionate force’ could never be reasonable, and confusingly that disproportionate force might in some circumstances be reasonable, but might also not be.

What this whole shocking story shows is that the flaw in how we approach the issue of self-defence is located not in the law, nor in its application by the justice system, but in our collective understanding. In this example, and indeed there are many more in the book, politicians wasted nearly a decade legislating and counter-legislating to zero practical effect, but at the same time confused the public to a remarkable and indeed horrendous degree.

Don’t think that this confusion is therefore limited to the rather narrow issue of what degree of force you may use in self-defence in your own property. Because that is misunderstood, that misunderstanding will extend to a great deal of contact between humans’ propensity to misunderstand each other’s motives.

And to return to the case of Richard Osborn-Brooks: he was neither convicted nor even prosecuted but the newspapers, particularly the Sun, still complained that the police had even investigated the case. Again, the government could not resist getting involved. Rather than refusing to comment on an ongoing police investigation, or reminding the public of due process, Justice Secretary David Gawke let it be known that his ‘sympathies are with householders who have to defend themselves when intruders break in.’ His spokesperson added, ‘That’s why we strengthened the law in 2013 to give householders greater protection from intruders.’

The author believes, and I can see why, that the natural consequence of these narratives is ‘A society where we are entitled, even encouraged, to disproportionately inflict fatal violence upon each other without the state even troubling itself to investigate.’


[i] Fake Law: The Truth About Justice in an Age of Lies. The Secret Barrister. Picador. 2020
[iii] A distinguished QC, Deputy High Court Judge and at one time Shadow Attorney General for the Liberal Democrats.




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