SELF DEFENCE DURING A BURGLARY

SELF DEFENCE DURING A BURGLARY – WHAT DOES THE LAW SAY?

This is again headline news across national media following the death of a burglar this week. A seventy-eight year old pensioner faced two armed intruders with screwdrivers in his home in south-east London and killed one of them with an edged weapon in his kitchen. The pensioner was arrested by the Police, (presumably) interviewed and then released.

The arrest has caused a national outrage because many feel that a householder should be able to defend his property and family (his wife was upstairs at the time), however it is important to note that an arrest in these circumstances is not an unexpected event. Police have a legal duty to investigate – especially when a non-natural death has occurred and there is a reasonable suspicion that a crime has occurred – and this may involve an arrest to ensure an interview can take place. This does not indicate that charges will follow, especially if during the interview, with legal representation present, the arrested person can forward a claim of acting in self defence. The Crown Prosecution Service will then decide if any charges should be made. The media headlines have a tendency to want to sell their product at the expense of the understanding of proper legal process in these cases.

Burglary is a contemptible crime, not only because the criminal is attempting to secure valuable, and often sentimentally important items, from the householder. It is even more so because the violation of someone’s home can often leave the person(s) living there feeling less secure and safe for years to come, especially if they are elderly or vulnerable.

Facing a burglar can be a terrifying prospect, especially if they are armed (they will often be ‘automatically’ armed by an edged or impact weapon as this is what the criminal used to secure entry to the property in the first place). It is therefore important to understand the legal basis you have to defend yourself in so-called ‘householder’ cases, where a property owner is using force against a trespasser inside their dwelling.

It is a principle in English common law that a person is entitled to use reasonable force in defence of self or another person. This principle also extends to property or in the prevention of crime or apprehending a criminal.

The legal aspects of self defence in section 76 in the Criminal Justice and Immigration Act 2008 means:

  • 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 the use of lethal force;
  • The first question that a jury must ask is: Did the defendant believe, or: May he have believed that it was necessary to use force to defend himself an attack or imminent attack on himself or others or to protect property or prevent crime?
  • The second question is: Was the amount of force used reasonable in the circumstances, including the dangers as he/she believed them to be?
  • The burden is on the prosecution to disprove self-defence. It is not for a defendant to prove that he was acting in self-defence. The prosecution have to prove beyond reasonable doubt (so that a jury is sure) that the defendant was not acting in reasonable self-defence.

What does this mean in practice?

To have ‘a genuine belief that force is necessary’ means that the claimant of self defence genuinely believed that force was required. It doesn’t matter if he or she is later proven to be mistaken, it is the belief at the time that matters. If a person in a clown costume jumps out on you from behind a fence whilst walking down the road swinging a look-a-like weapon in a prank to scare you, it is your genuine belief that you were about to be attacked that will be assessed in terms of any future prosecution (if you defended yourself using violence), not the fact that it was shown after the event that it was your next door neighbour with a plastic knife looking for some fun. A mistaken, unreasonable but genuinely-held belief in the need for force is enough. (Do note here that the only exception is if your mistaken belief is due to your voluntary intoxication. Another reason to be very careful with your drinking…).

To apply ‘reasonable force’ is judged by the circumstances as the claimant of self defence believed them to be, even if he was later shown to be mistaken about them. If you reasonably believed the clown had a real weapon, even if it was later shown to be plastic, doesn’t matter, as long as you can show the self defence force was applied according to a genuinely held belief at the time.

There is no ‘duty to retreat’ in the case of self defence and pre-emptively striking without waiting to be hit (with genuine belief, using reasonable force) is a long established principle in self defence law. The principles discussed in our Krav Maga school apply here; if an aggressor has an ‘intent’ to attack or take your property and he has the ‘means’ (physical ability and/or instrument/weapon to inflict damage), you should always seek to avoid the ‘opportunity’ for violence to happen, by for example keeping sufficient distance to the criminal and not voluntarily seeking to close this distance (this will make your argument of ‘genuine belief’ more problematic to use if claiming self defence later).

The law of self-defence means that the prosecution must make a jury sure that, A: either a defendant didn’t really believe he needed to use force, or B: that he did but used unreasonable force – for example killing someone with a gun in response to a slap to the face.

The changes to the 2008 Act received some media attention in 2012 when the Government applied changes to it, seemingly to allow more protections for self defence for householders, although following interpretation from the High Court, the aforementioned principles still apply; the person claiming self defence must be proved to not have a ‘genuine belief’ that they need to apply violence in defence of self, others or property and that this force must be ‘reasonable’.

If you claim self defence in a police interview, the Crown Prosecution Service will apply a two-fold test to see if a charging decision against you should be made; A. Is there a realistic prospect of conviction and B. Is a prosecution in the public interest. The Police will need to seek to disprove your claim of ‘genuine belief’ and ‘reasonable force’ beyond reasonable doubt, applying the two-fold test.

The bottom line is that using reasonable force against a burglar will rarely result in a prosecution, much less a conviction. This does not for example, mean you can use lethal force on a burglar fleeing the property (like the well-known Tony Martin case in 1999) or chase a burglar down to extend physical punishment on him as he is trying to escape. We will follow the current case in London with interest to see how it progresses and what detail arises in the press about what happened in the property.

Our advice to all our students and the public still stand. Make sure your property is secured and alarmed adequately. Always keep your doors locked. Keep car keys and valuables hidden, for example in a safe. Apply measures such as timed lights, radio or other appropriate products to give an appearance of occupation of the property. Do not open the door to someone you don’t know and check the identity of people saying they are from e.g. utilities or other organisations.

If you should face the terrifying prospect of hearing or encountering a burglar in your house, do call 999 immediately (keep your phone near your bed at night). Keep the 999 call going to record what happens until the Police arrive. Your personal safety is best achieved by not seeking out the burglar(s), if they are on the ground floor, for example, however you may want to seek out an advantageous defensive position such as at the top of the (narrow) stairs, calling out that you are aware of their presence and the Police is on their way (they may escape immediately). A high-lumen tactical torch can be very useful to protect your position, especially if you have been trained in self defence, should the burglar(s) want to seek the opportunity to come upstairs or towards your position. If this happens, intent, means and opportunity is clearly in play and you have a legal reason to defend yourself and others residing with you.

Ørjan Pettersen

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