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November 19, 2004

Bashing Burglars: Why the English common law right of self-defence should be restored

Posted by Joyce Lee Malcolm

The current English law on self-defence favours criminals over those seeking to defend their own home. Joyce Lee Malcolm - Professor of History at Bentley College and author of Guns and Violence: The English Experience - argues that England must return to its common law traditions and that the traditional common law right of self-defence should be restored.

Thanks to the Sunday Telegraph's present campaign, the average Briton's traditional right to defend himself and his family may be rescued from a legal policy gone badly wrong. Until now the Home Office and the government have shown little willingness to change the bizarre practice of punishing householders who injure burglars while guaranteeing burglars all their rights. When thousands of Radio 4's Today listeners called last Christmas for a law authorizing them to use force to protect their homes, the MP who had pledged to introduce the winning measure as a Private Members Bill denounced the proposal as a:

"ludicrous, brutal, unworkable, blood-stained piece of legislation. The people have spoken, the bastards!"

But as violent crime continues to soar, "the bastards" have continued to speak. Seventy-two percent of those polled recently branded the current law on home defence "inadequate and ill-defined." Unmoved by popular opinion, or a spate of brutal attacks on householders, the vice-president of the Superintendents Association insists no change in the law is needed, only better locks. In case of a burglary, he urges families to retreat to a "secure room" there to await police help. On no account are they to arm themselves with anything, or approach the intruder. Someone might get hurt. If that someone is the intruder the resident can be sued by the burglar, and will certainly be prosecuted by the state. After all, as the Association of Chief Police Officers explains:

"We don't believe in vigilantism or excess violence."
When self-defence is considered "vigilantism" and burglars sue for injuries sustained, we have well and truly entered Alice's Looking Glass World.

Ironically, the supposedly "ludicrous, brutal, unworkable, blood-stained" legislation now requested by the public was, for centuries, the law of the land. Was there more crime, or "excess violence"? On the contrary, until 1954 violent crime had been declining for nearly 500 years.

For those who respond that traditional approaches won't work in the twenty-first century, there is the modern American example - invariably dismissed by UK police as a Wild West free-for-all - where the English common law of self-defence survives. In contrast to current British law that presumes a burglar only wants to help himself to your moveables, items it is never "reasonable" to use force to protect, common law begins with the presumption that the house-breaker poses a threat to the inhabitants and their property. He loses his rights at his victim's door.

While American law on defence of the home differs somewhat from state to state, the millions of residents of the large, "liberal" states of California and New York, for example, can presume anyone who breaks into their homes means to do them harm and can act accordingly. A more explicit Oklahoma statute, passed in response to a spate of violent burglaries, allows householders to use force no matter how slight the perceived threat. Has this "vigilante" legislation resulted in "excess violence"? Just the opposite, the American burglary rate is less than half the English rate. And while 53% of English burglaries occur when someone is at home, only 13% do in America, where burglars admit to fearing armed homeowners more than the police. Violent crime in the US is at a thirty-year low.

What became of the Englishman's right to protect himself? It was teased away over the course of some 80 years as the state began to insist on a monopoly over the use of force. The 1920 Firearms Act, the first serious limitation on privately-owned firearms, required anyone wanting a firearm to get a certificate from his local police chief certifying he was a suitable person to own a weapon and had a good reason to have it. The definition of "good reason", left to the Home Office, was periodically narrowed until, in 1969, they decided:

"it should never be necessary for anyone to possess a firearm for the protection of his house or person."
Since these guidelines were classified until 1989, there was no opportunity for public debate.

In 1953 the government introduced the Prevention of Crime Act making it illegal to carry in a public place any article:
"made, adapted or intended [for an offensive purpose] without lawful authority or reasonable excuse."
Any item carried for defence was now an "offensive" weapon. Police were given broad power to stop and search everyone. Individuals found with offensive weapons were guilty until proven innocent. The public was assured they had no need to protect themselves, society would protect them. When an amendment was proposed to permit people to carry something for protection, the government minister scolded:
"it would be a great pity if anything were done explicitly by statute to condone actions which imply the inability of the forces of law and order to maintain the Queen's peace."
Lord Salton sensibly pointed out that
"unless there is not only a right but also a fundamental willingness amongst the people to defend themselves, no police force, however large, can do it."
Lastly, in 1967, tucked into an omnibus revision of criminal law and passed without discussion, was a section that altered the traditional standard for self-defence. Everything was thereafter to depend on what seemed "reasonable" force after the fact. According to the Textbook of Criminal Law the requirement is "now stated in such mitigated terms as to cast doubt on whether it still forms part of the law."

While citizens were forced to rely upon government for protection, government adopted a more lenient approach toward criminals. Official skepticism about the virtues of prison has resulted in most offenders being released into the community. Those who are incarcerated receive sharply reduced sentences and usually serve only half of these. Concern for the welfare of the criminal fraternity has resulted in the insistence their rights must be protected even when they are committing a violent crime. So Tony Martin, the Norfolk farmer jailed for killing one burglar and wounding another during the seventh break-in at his home, was denied parole because, as The Independent newspaper reported:

"Government lawyers say burglars need protection."
By contrast, the wounded burglar, despite a long string of prior convictions, was paroled after eighteen months and granted public funds to sue Martin on grounds his injured leg kept him from working.

Is a return to common sense on the way? Government ministers are expressing sympathy with the Sunday Telegraph campaign to have the law protect the innocent, but their comments are cautious. David Davis, the shadow Home Secretary has called for the law to be "rebalanced" in favour of householders and against burglars. As proof David Blunkett is "deeply sympathetic", he points to a new law

"to prevent homeowners being sued by intruders who injure themselves while breaking in."
"Open to suggestions" for a more serious change, he didn't think any were necessary. One of his senior officials told the Telegraph:
"If there is a better way of defining the law, we are certainly not going to have a closed mind to it."
The parent is telling the child, "We'll see." People are being beaten senseless in their homes and punished if they defend themselves, and the government is promising to keep an open mind. As the great legal scholar, A.V. Dicey realized,
"Discourage self-help, and loyal subjects become the slaves of ruffians."
Emancipation is long overdue.

Joyce Lee Malcolm is Professor of History at Bentley College and author of Guns and Violence: The English Experience.

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Joyce Lee Malcolm makes some interesting points. The problem is that her proposals would be simply unacceptable to UK public opinion. The Sunday Telegraph, or Daily Mail, can run a vague populist campaign on the 'right to protect your own home', but once such ideas are translated into real proposals - such as relaxing gun laws - the public will see them as ridiculously extremist, and see them as an import of insane Americanism. The public may well be wrong - but that is simpy how it is.

Posted by: Jim at November 21, 2004 02:29 PM

Not to quibble with an otherwise-excellent article, but the Oklahoma statute mentioned - and other state statutes in similar vein - do not say, quite what Professor Malcolm suggests that they say.

She suggests that the OK law allows the use of deadly force by a homeowner against an intruder no matter how slight the perceived threat.

The statute actually says, in relevant part:

and the part which Professor Malcolm does not mention is that the use of force is only justified by a threat of force - in other words, a threat to property alone is not enough. And the perceived threat of force is subject to a 'reasonable belief' standard. In other words, a homeowner who uses force against an intruder, including deadly force, can still be prosecuted for doing so if that use of force was not 'reasonable', or was not in response to a threat of force by the intruder - however slight. The law does not confer a blanket justification as Professor Malcolm suggests, and this is as it should be - noone has a license to kill, or not in the real world, anyway, and the decision of a homeowner to use force, including deadly force,m should always be subject to judicial review if the case is anything but clear-cut.



Posted by: llamas at November 22, 2004 04:57 PM

It seems to me that the difficulties of all the laws that attempt to constrain self defense in the home, apparently following in the footsteps of British laws, are setting up something of a nightmare of confusion on when it is and isn't appropriate to use deadly force. I'm not sure why there was ever any entrenchment in the "eminent domain" doctrine, that allows one to use deadly force against any intruder, more or less with impunity. Clearly this isn't a "license to kill," but establishment of sovereinty. And the entrenchment is precisely an invasion and abrogation of individual sovereignty that would not have been deemed appropriate by the Founders.

The argument that property is not worth a life is simply a false consideration based on misreading the difference between an immediate and long term threat. Especially for people in marginal circumstances a theft of their property almost certainly leads to a diminished odds of survival. Indeed, in some cases one might almost rather take a beating than a theft. And the sense of violation that people feel after a burglary isn't entirely irrational. It constitutes a kind of "rape" that ought to be acknowledged.

I think it's time we simply eliminated these constraints on individual sovereignty If constraints exist, they ought to be relevant to issues of overpenetration by high caliber non-fragmenting rounds that might endanger neighbors, etc.

Posted by: Demosophist at November 26, 2004 06:15 PM

"Hello lads, you've broken in fairly, so help yourself to the goods. Mind keep your eye off the wife and daughter, or I'll have to object, perhaps strenuously."

I guess if YOU have to be robbed, beaten, raped or killed to preserve a sense of social propriety, then it's a small cost to pay for the greater common good. Think of it as a special tax.

Posted by: MaverickNH at December 14, 2004 10:58 AM

I believe that a law abiding home owner SHOULD have the RIGHT to KEEP and BEAR ARMS for self defence both in and OUT of their home.

NO GUN LAWS have ever prevented armed criminals from comitting crime. A criminal does not have to obey the law, after all he is a criminal!

Law abiding British "subjects" should not be made into criminals just to protect life and limb.

The Police, who do a great job as best as they can, are NOT able to protect each and every one of us. Apart from "King Tony" blair of course who has his own armed body guards for him and his family.

We the people of Great Britain DEMAND the right to protect ourselves and our families and to have the correct tools to do it with.


Legalise the RIGHT to KEEP and BEAR ARMS!


Visit my blog and see why you need your civil rights.

Posted by: Captain Colin. at May 20, 2006 09:24 PM

I can almost see the day when burglars will have a 'Health and safety at Work' piece of legislation placed on the Statute Book by the mindless morons we seem to have put into power.

Posted by: Jim Jervis at June 16, 2007 02:16 AM

Say what you like about U.S. "gun culture" -- indulge in a myopic wallow in moral superiority -- but the fact is that American burglars do fear being shot by an armed homeowner far more than they fear the revolving jail door.

Until the British people take back their self-respect and start exercising a degree of independence from the ineffectual state apparatus, there will be no reduction in crimes.

You made this bed for yourselves, by permitting your government to assume total responsibility for your physical safety and property. You willingly gave up your human right to self-defense. Now you must lie quietly in the bed, and be very careful to make no sound that might draw attention as the burglar rifles your things.

I have little sympathy for sheep who follow incompetent Government shepherds. All you guarantee yourselves is a tyranny of wolves.

Posted by: J. Cline at November 14, 2007 01:51 AM

Why does it have to be about guns? I don't want to see the gun laws relaxed because then before we know it we'll have high-school shootings. But, if someone wants to break into my home I'm not going to wait to see if they hurt me. They're getting a chair over the head.

Posted by: Mikey at May 20, 2008 03:43 PM

We seem to have swung over two centuries from the extreme of hanging someone for stealing a sheep to treating someone as a criminal who tries to defend themselves, their family, and their property. Why should violent criminals have any respect or fear of a law which treats them as an endangered species! Why don't we call this 'the Burglars Protection Society' because that is what we have become and we will reap what we sow. As a law student forty years ago I supported the abolition of the death penalty, but I did not realise then (and nor did most other people) that a 'life' would be regarded as approximately equal to ten years by the 'justice' system. Due to increasing public outrage and government fears of a popular demand for the return of hanging 'indeterminate' sentences have stealthily been introduced and we have started seeing sentences of twenty and even thirty years, but still not a true life sentence ie: you will stay in prison for the rest of your life. Returning to burglars, here is my suggestion for law reform: burglars do not have the right to equity 'he who claims equity must come with clean hands' so the onus of proof with regard to questions of 'proportionality' or 'reasonableness' (which are subjective anyway - your idea of what is reasonable no doubt will differ from me, or anyone else) should rest on the Burglar - in other words, once the householder shows that the intruder was unlawfully on the property it should be presumed that the intruder has 'bad faith and intends harm to the householder',this will be regarded as equivalent to an assault on the householder (similar to trespass to the person)- the next point relates to how the householder can defend his property. Firstly, the householder should be able to use any non sharp object to disable the intruder if the intruder is unarmed. This helps to 'even up' the odds as the normal householder is not used to street fighting and should not be expected to be equal to a burglar in terms of physical confrontation. Next, if the burglar is armed OR is accompanied by others, the householder should be able to use any weapon whatsoever (including a crossbow, for example) in order to disable the burglars. If by any chance, a burglar is fatally wounded in such a confrontation, the onus should be on the burglar to show that the householder intended to kill him and not to diasable him. Voila!

Posted by: Tony at December 24, 2009 10:12 PM

it's obvious that the wishes of the voting majority are being ignored by their elected representatives.
so getting the citizen's rights back will require much more than another election.
perhaps a tax revolt in combination with marches to encourage others to also withhold taxes is a nonviolent method to force the social engineers to back down.

Posted by: barry at February 21, 2010 05:24 PM
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