Householders and the criminal law of self defence
This note considers the potential criminal liability of householders who use force against intruders. Such householders will have a complete defence if they can demonstrate they were using reasonable force in self defence. However, cases such as those of Tony Martin and Munir Hussain have led some to call for a change in the law so that the test is one of "not grossly disproportionate force" rather than "reasonable force". The Government is now proposing to legislate for such a change by way of the Crime and Courts Bill.
A householder who confronts and kills an intruder may be liable to a charge of murder or manslaughter. If the intruder is only injured, the householder could face charges such as assault, wounding or even attempted murder. However, the householder has a complete defence (and will therefore be acquitted) if the force he used was reasonable and was exercised either in defence of himself or another, or in the prevention of crime.
Over the last ten years there have been repeated calls from a number of Conservative backbenchers for the current test of “reasonable force” to be replaced with a test under which householders would not be prosecuted unless their actions were “grossly disproportionate”. Critics have argued that a change to “grossly disproportionate” could encourage vigilantism and would effectively sanction extrajudicial punishment.
The Government is now proposing to legislate (via the Crime and Courts Bill) to introduce a new “grossly disproportionate” test in relation to cases involving householder who use force to defend themselves or others against intruders. Justice minister Lord McNally said that “householders should be given the benefit of any doubt” and that so long as householders did “only what they believed was reasonable in the circumstances, it should not matter if those actions were disproportionate when viewed with the benefit of hindsight”. Shadow justice minister Lord Beecham, however, argued that the change would only introduce uncertainty into the existing law, as the distinction between “disproportionate” and “grossly disproportionate” was unclear.