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Brian Mickelthwait wonders if the government's recent announcement of a right to self-defence means that the tide of gun control has reversed and that we are soon going to be able to go out and buy six-shooters to our hearts' content. Actually, he doesn't say exactly that. He has taken on board that it may well just be a restatement of the common law and that's it's probably just spinning anyway, but he reckons that the very fact that the subject is being raised means that something has changed.

Having trawled around the interweb, I came across this posting from Tim Lambert's old site, in which he details a series of cases in which people used deadly force and then successfully argued that their actions constituted self-defence. Where they stabbed their attackers in the chest, they even seem not to have been prosecuted, which only seems proper. I can't therefore see how anyone can reasonably argue that self-defence was not allowed before the announcement last week. This does therefore seem to confirm the idea that what we are seeing is what the naysayers think - which is to say a restatement of the common law.  This may well be a disappointment for those on the other side of the pond, who have acclaimed the return of a right to self-defence. Sorry guys, but it never actually went away.

But all of this doesn't mean that there isn't a problem.

Let's imagine what happens when I'm awoken by the sounds of an intruder in my house. I go downstairs to investigate. I take a tool from the toolbox so that I'm not completely defenceless. I don't think this would be construed as unreasonable by a jury. I creep through to the living room where I see the burglar helping himself to valuables from a drawer. There's a crowbar by his side.

What next?

Imagine he hasn't seen me. I am not in fear of my life, because he doesn't know I'm there. What should I do? I can't, I think, bash him on the head or stab him in the back. That wouldn't be self-defence. The Telegraph article on the annoucement says that homeowners are able to "stab or shoot a burglar if confronted".(My emphasis). At the moment there is no confrontation, so I cannot use deadly force. I don't think any reasonable person would want to either.

I think it's instructive here to think what the situation would be if, instead of me, it was a policeman who caught the burglar in the act (and we should remember that the police have no special powers in these situations). Our officer of the law would first have to identify themselves and tell the burglar not to move. If the thief failed to do so, then the policeman would be justified in using his truncheon and other physical force to subdue him. The policeman (or more likely policemen) are fully dressed and as well as being armed with truncheons, they come equipped with mace sprays and stab-proof vests and the like.

Returning to our original scenario then, I have none of the arms and armour that the policemen have. Nevertheless, I wonder if the reasonableness test requires me to order the burglar to stop, or at least to advertise my presence in some way. I think it probably does. It seems fairly clear that my objective has to be to subdue him rather than kill him on the spot, and morally this seems correct.

However, we must notice that once I have told him to stop, or otherwise made my presence known, I have instantly given away what may be my only advantage over the burglar. He is almost certainly younger, stronger and fitter than me. So if he does decide on violence, I will almost certainly lose and I might even lose my life. I may still lose even if I am armed and he is not. The law gives me a bit of a consolation prize, in that I can die in the knowledge that I could use deadly force against him if only I was twenty years younger, but I'm not sure that I consider that to be adequate recompense for the loss of my life.

It seems pretty clear to me that the homeowner, unless young and strong, is placed in an impossible situation. If the burglar is violent, they will probably die. If not, then the thief will be able to make good their escape unmolested.

Actually, apart from the young and strong, there is one other category of people who avoid this unenviable situation. Those few who have shotguns are, of course, able to deal with this situation in the way expected by common law. They can (assuming they can retreive their guns from the gun cabinet in time) identify themselves and order the burglar to stop, with little risk to themselves. They can actually subdue the burglar until the police arrive. They cannot shoot the burglar in the back, any more than I can stab him in the back at the moment, but what they can do is prevent the crime and bring the criminal to justice without undue risk to themselves.

So the question we must ask of Jacqui Smith is, why the only people who can deal effectively with an intruder are young strong men and a few farmers. What about the rest of us?

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Reader Comments (9)

This is exactly the type of thinking that politicians never do. It is also the exactly the same thought that would go through my mind. The problem as it is at the moment is that unless you have, say a naval sword, like I have hanging very close to your bed, the chances of having any kind of weapon to hand in such a situation is very, very low.
Of the legal forms of gun, they are all locked up on the premises. Our air rifle is also in the bedroom, however, it is under lock and key, and cannot be grabbed in the heat of a noise downstairs. Not that it would be much use - air weapons are really only for kids, rabbits and rats. Not much use for removing burglars!

For this to change will require much more than just a change in the self defence law. It will require a change of mindset from reluctant victim to aggressive householder.

With the health and safety culture we have in the UK, I can see this might take a while to happen!
Jul 19, 2008 at 11:30 PM | Unregistered CommenterF0ul
I remember reading that the law was much clearer pre-1967 Criminal Act when self-defence was codified and the common law rules were replaced but bugger if I can find a reference.
Jul 20, 2008 at 12:02 AM | Unregistered CommenterKit

I've certainly never heard that self-defence was ever codified. I've always thought it was one of those things where there are so many possible scenarios that it's impossible to codify and so you leave it to the judges and the common law.
Jul 20, 2008 at 6:26 AM | Registered CommenterBishop Hill
Here is the wikipedia page about the 1967 Act:

"Section 3 replaces the common law rules on self-defence..."

Part of the Common Law which was replaced was the "duty to retreat":

I wish I could find my original source:(
Jul 20, 2008 at 9:55 AM | Unregistered CommenterKit
I'm starting to think we lost something when the American colonies went their separate way. In the US they have the Castle Doctrine:

I still can't find that &&%%$$# reference.
Jul 20, 2008 at 10:55 PM | Unregistered CommenterKit
There is no duty to retreat in Common Law.
Jul 21, 2008 at 11:00 AM | Unregistered Commenterrightwingprof
Just as the law prohibits both the rich and the poor from sleeping under bridges, it allows both the strong and the feeble to defend themselves with their bare hands. On Wednesday, I'm going to submit my application for renewal of my Indiana handgun permit. Sure am glad we kicked you people out back in the day!
Jul 22, 2008 at 2:27 AM | Unregistered CommenterAlan Gunn
All of us? ;-)
Jul 22, 2008 at 7:19 AM | Registered CommenterBishop Hill
You never kicked me out Alan, for I was not there at the time!
Jul 28, 2008 at 8:35 PM | Unregistered CommenterLurch

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