November 28 2021

When headlines are more important than justice

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When headlines are more important than justice

Almost his first act as justice secretary and already it’s clear that non-lawyer Chris Grayling neither understands the law on the use of force by householders against intruders nor does he bother reading legislation he voted for either.

Most people thought the law on the force that householders might reasonably use against intruders has been clear for many years. If the old common law wasn’t good enough then surely it was perfectly clear after the amendments introduced by the Criminal Justice and Immigration Act 2008, section 76 and even more recently in The Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012, section 148 which put this defence onto a statutory footing.

Juries can be trusted to know if a householder has used reasonable force to defend themselves or their property or gone completely over the top as in the Tony Martin case. Even the CPS eventually realised that the public would not stomach such prosecutions and in Manchester in just a few months in 2011 the CPS announced in three separate cases that there would be no prosecution of householders in cases where burglars has been injured in committing their crimes.

The classic definition of reasonable force was set out in R. v. Palmer [1971] A.C. 814:

‘If there has been an attack so that defence is reasonably necessary, it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his defensive action. If the jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought necessary, that would be the most potent evidence that only reasonable defensive action had been taken.’

Juries are routinely directed in precisely those terms. The same principles would apply in a case involving defence of property. So when Mr Grayling says that it isn’t right that householders should be judged ‘in the cold light of day’ he just shows his ignorance.

That’s not the law Mr Grayling!

I don’t understand how anyone could have been in any doubt what the law was?   So not only is Grayling indulging in grandstanding of the worst sort but it is also a bit worrying that as the new justice secretary he doesn’t appear to understand the law in this important regard.  

It will be interesting to see how Mr Grayling thinks it will be any easier for a jury to decide whether the force used was ‘disproportionate’ or ‘grossly disproportionate’ rather than ‘unreasonable’. In either event the jury has to make a judgment call and I doubt if I am the only person who thinks the jury’s task will not be made any easier by this proposed change in the law.

Nor is it easy to see how in truth this makes householders safer. Mr Grayling has given the green light for people to keep all manner of dangerous and offensive weapons in their homes and given them encouragement to use them. It is a one way bet that this will mean more burglars will arm themselves in anticipation of violence being used against them. The result will inevitably be more injured or dead householders or more dead burglars or both.

Is that what Mr Grayling really wants? Is that the sort of society any of us want to live in?

But it may be one thing that Mr Grayling doesn’t really understand the law on reasonable self defence but even more unforgivable is his assertion that under the changes he proposes those who commit serious crimes will face automatic life sentences.

Er, hello? Has Mr Grayling heard of LASPO? You know that big Act with 154 sections and a mere 27 schedules. In particular, has he had a look recently at s.122? Might not be a bad idea. Automatic life sentences for a second serious offence are already provided for. It was part of the deal whereby sentences of Imprisonment for Public Protection (IPPs) were abolished. The Act was only passed by Parliament in April this year so surely a senior minister cannot already have forgotten about it. Has the Tory party collectively had a fit of Ken Clarke induced amnesia? If this was a football match the crowd would be chanting ‘you don’t know what you’re doing!’ And they would be right.

Mr Grayling would make better use of his time if instead of showboating or pumping his chest to show how macho he is compared to that old softie Ken Clarke, he got on with implementing some of the important changes made in the law in LASPO including the abolition of IPPs regarded by many as deeply unjust sentences and an affront to the concept of the rule of law.

The criminal justice system is in crisis. It deserves a minister who is serious about dealing with the problems it faces. After a number of appallingly populist Home and Justice Secretaries under New Labour Ken Clarke a lawyer and a man of compassion was a breath of fresh air. Now it seems we are back to the bad old days of people like John Reid and David Blunkett when the next day’s red top headlines are more important that justice and the rule of law.


3 responses to “When headlines are more important than justice”

  1. Anonymous says:

    This piece notably fails to mention that over the years the supposedly sensible principles of common law had been eroded by the courts to the truly malevolent extent of creating some sort of ‘duty to retreat’ on the part of homeowners if they were to prove the reasonableness of their response to burglars.
    Indeed the LASPO Act (2012) s 148 as mentioned above failed to see off once and for all any ‘duty to retreat’:
    “… a possibility that D could have retreated is to be considered (so far as relevant) as a factor to be taken into account, rather than as giving rise to a duty to retreat.”
    In other words, it is not enough to look at what the law says on its face. There are all sorts of other subtle issues about police procedures, rules of evidence and onus/burden of proof (and indeed the possibility of civil action against homeowners by burglars) that together can combine to make the victim of this odious crime further victimised by the state thereafter.
    Surely one real benefit of the proposed change in the law is to make it far less likely that on finding a badly injured or even dead burglar the police promptly will arrest the homeowner concerned who inflicted the injury and thereby somehow create a presumption that the victim of the burglary is the key person at fault. The police and CPS instead should take a long hard look at all the facts before deciding how best to proceed.
    Maybe the right approach to these issues of self-defence is to extend the idea of the egg-shell skull rule: assailants must take their victims as they find them, and if some victims respond with irrational or excessive or ‘unreasonable’ force, so be it.
    As for the argument that these new measures will lead burglars to ‘arm up’, try explaining that to the Monckton family: http://news.bbc.co.uk/1/hi/england/london/4676898.stm
    The rates of ‘hot’ burglaries (ie of an occupied home) in the USA are far lower than in the UK – a plausible reason for that is that burglars are not stupid and know they may be shot.

    • Chairforce1 says:

      I’m sorry Mr Crawford by that is so out of touch with reality as to be laughable. It will always be incumbent on the police to gather ALL evidence – particularly now as some seem to interpret that they may kill an intruder with apparent impunity.
      Nice reversal of the eggshell rule by the way – just who is the assailant and who the victim in your little anecdote?
      And nice logical fallacy to finish with as well.

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