 A new law to give greater protection to householders is unnecessary and could be a licence to kill, a leading criminal barrister has warned.
| British householders are in the habit of murdering visitors if unrestrained by threats? How very wrong Ms Christie was, thinking such behaviour might excite the curiosity of strangers. No wonder her writing career was so brief. |
Paul Mendelle, QC, chairman of the Criminal Bar Association, says that a change to allow "disproportionate" force would encourage vigilantism.
| "Hangings in back gardens, bodies in the flower beds. Britain's greenery will flourish as never before, until the surplus of wayward milkmen is absorbed." |
"The law should always encourage people to be reasonable, not unreasonable; to be proportionate, not disproportionate," he said, adding that the present law worked perfectly well and was well understood by juries.
| Sorta depends on what you mean by 'proportionate': I suspect you define the word much differently. |
| It's the "well understood by juries," bit that puzzles me. After all, it's the job of the judge to clarify the law for the jury at summation, over there. |
If, as the Conservatives propose, the law is changed to allow "disproportionate force", householders who kill burglars could be acquitted. The issue has been given recent impetus by Munir Hussain, who was originally jailed for beating an intruder, and Myleene Klass, the TV presenter warned after waving a knife at people staring through a window at her home.
But Mr Mendelle said: "You would have, in effect, sanctioned extrajudicial execution or capital punishment for an offence, burglary, that carries a maximum of 14 years -- which is the sentence that Parliament decided was appropriate." He warned that the change could also make householders less safe. "Burglars, knowing that they could be killed, might be more likely to carry weapons and/or use extreme violence. So it would be wholly counterproductive," he said.
| Or burglars might decide to become store clerks and stop robbing people. It could happen. |
"The law on self-defence works well and has done for years. The balance is properly struck between prosecution and defence and it is easily understood by juries, as it was in the case of Munir Hussain [freed last week by the Lord Chief Justice], who did not even seek leave to appeal on this ground.
"Leave it alone and stop playing politics with the law," Mr Mendelle added. "This is not law and order. This is no law -- and disorder."
| With disorder currently favoring burglars, stick-up artists and rapists ... |
If the law was changed, he added, would householders be allowed a greater level of self-defence than other people -- so that "you could use more force to protect your property than your family?"
| Oh heavens no, let's use force to defend our families too ... |
| Yes, please. Speaking as one of the family, I would very much appreciate it. On the other hand, it could be argued that my desire not to be hit over the head by random strangers in my own home was a function of having a home, and therefore Mr. Wife was merely protecting his property when killed the man attempting to hit me there... |
Alternatively, if the law was changed for all offences, he said you could have a scenario where someone is allowed to kill someone who was going to punch them -- an offence at worst carrying five years as actual bodily harm.
| Nice straw-man. You might consider just copying Texas law -- it too has 'struck a balance' ... |
Mr Mendelle's view was strongly supported on Sunday by the barrister who acted for both Munir Hussain and Tony Martin, the Norfolk farmer who shot dead a burglar. Michael Wolkind QC told BBC One's The Politics Show that permitting householders to use any force which is not "grossly disproportionate", as Tories suggest, would amount to "state-sponsored revenge".
| I don't see that, revenge being a dish best served cold and all that, which implies it does not take place in the heat of the moment. And state-sponsored revenge generally takes the form of hangings in the public square, which Britain is no longer set up for. |
Mr Wolkind said there was no need for the law to be changed. "The law already recognises that people react in a certain way in the heat of the moment." He added that in future cases, courts could be expected to take account of the Lord Chief Justice's decision to exercise "mercy" and free Mr Hussain from a 30-month sentence for beating a burglar.
| Mr. Hussain didn't require mercy. What Mr. Hussain did was justifiable. |
| Good lord, he didn't even kill the brute, so the new law certainly would not apply. |
Mr Wolkind said: "If I manage to tackle a criminal and get him to the ground, I kick him once and that's reasonable, I kick him twice and that's understandable, three times, forgivable; four times, debatable; five times, disproportionate; six times, it's very disproportionate; seven times, extremely disproportionate -- in comes the Tory test -- eight times, and it's grossly disproportionate.
It is a horrible test. It sounds like state-sponsored revenge. I don't understand why sentencing should take place in the home. Why can't it go through the courts? Why can't the jury, as they always do, decide what is reasonable?"
Mr Mendelle, 63, a leading defence lawyer, also expressed concern about trials without juries. The first jury-less trial in England and Wales is proceeding after a ruling that this was necessary because of the significant threat of jury "nobbling". Mr Mendelle declined to comment on that case. But he said that the danger with such a move was that it could lead to others.
"The prosecution puts before the judge a lot of evidence to justify an application for a non-jury trial which is not, and is never seen, by the defence.
"That might include evidence of the cost of the various measures to protect jury. But the defence never have a change to challenge that. That is the real problem." |