By Sean Dilley
The new justice secretary's announcement that homeowners are to be offered more protection in law is, on the face of it very overdue good news. With homeowner after homeowner finding themselves on the wrong side of plod for doing little more than anyone else might, it's an issue that needs careful consideration.
As things stand, the law says homeowners can use reasonable force to protect themselves against burglars - or actually, anyone, homeowners included, can use reasonable force to arrest a burglar… yes that's right, it's lawful to use reasonable force against a burglar if they're running away - but the threshold of what constitutes reasonable force is likely to be considered differently by the courts.
The term 'reasonable force' also tends to confuse the public and politicians. What's reasonable exactly? Well believe it or not, the test of the term 'reasonable force' is what would have been reasonable, to that person, in their mind, at the time of the material action. The law does not require that the actions turned out subjectively to be reasonable - but subjectively that the court (jury) understands that the actions may have been considered reasonable by the homeowner at the time.
Example: a family is at home when at 3 am an intruder shouts: "I've got a shooter. I'm going to shoot the lot of you." Homeowner X then comes out and stabs that person to death in the pitch black but it turns out the most threatening item he had was a half-pealed banana. Of course it's never reasonable to stab someone to death for threatening you with a half-pealed banana. But if the court accepts the homeowner had the 'honestly held belief' the man had a gun rather than a half-pealed banana, and felt that the burglar was about to use lethal force, the law would back this action as being reasonable.
So what's the difference? Under Chris Grayling's proposals - actually first set out by my friend Patrick Mercer, alongside fellow backbench Tory MP David Davies in 2004 - the term reasonable force would be changed so that homeowners could use any force in the heat of the moment, so long as it wasn't grossly disproportionate.
If the law simply states that force is OK, so long as it's not grossly disproportionate, what would happen to homeowner X? It's grossly disproportionate to stab a man to death if he had a banana - but it's reasonable at the time.
So put simply, this announcement has the potential to actually be retrograde - however, in this writer's opinion, the term would have to be subjectively tested as to whether the person thought their force was reasonable - i.e. not grossly disproportionate - at the time of he incident.
Far be it from me to attack any government for giving greater consideration to homeowners. I just think it's a shame that primary legislation will be needed to stop idiots reading what is a perfectly good law in stupid ways. All I say to government is: don't rush this through the House - take your time or else we'll end up with another Dangerous Dogs Act.
Sean Dilley is a political writer and broadcaster. Follow him on Twitter.
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