Barrister M. A. Muid Khan :
"…HOMEOWNERS can defend themselves against raiders who break into their house…" (Justice Secretary David Gauke, 6th April 2018, London, UK)
In the wake of the recent case where a pensioner who was arrested for murder over the fatal stabbing of an intruder in his home, and later on released by Police, question arises if a homeowner kills a burglar acting in self defence, in the heat of the moment, is there any self-defence available to him in law to justify his action?
In my opinion, under the current law, the answer is that homeowner may still have a defence. In accordance with the guidance published by the Crown Prosecution Service guidance, people are not expected to make "fine judgments" in the heat of the moment.
Burglary is a criminal offence. It is defined by s 9 of the Theft Act 1968 (TA 1968) which provides for two different variants of the offence. An individual will be guilty of burglary if: they enter any building or part of a building as a trespasser with intent to steal, inflict grievous bodily harm or do unlawful damage to the building or anything in it; or having entered a building or part of a building as a trespasser, an individual attempts to steal anything in the building or inflicts or attempts to inflict grievous bodily harm on any person in the building.
Section 9 of TA 1968, which provides the maximum sentence that someone convicted of burglary will receive is: 14 years - where the offence was committed in respect of a building which is a dwelling & 10 years - where the offence was committed in relation to any other buildings.
Despite having this strict punishment, the incidents of burglaries are increasing at an alarming level in the UK especially in East London.
On 27th July 2018, Police were again called at 03:39hrs on Friday, following reports of a burglary at Sidney Street, East London. Officers attended and established that a group of men had forced entry to the property before demanding cash and gold from the occupants. The suspects, believed to be up to eight males, grabbed the occupants and threatened them with weapons, including a knife and machetes, before making off with a quantity of items. In another incident, on 1st August 2018, another burglary took place at Jalalabad Law Associate's Office in Whitechapel High Street. The burglars broke through the window, damaged the office tables, chairs, file of papers & walked free.
Few weeks before, another burglary took place at Kalam Solicitors Office on Whitechapel High Street. Burglars broke through the front door at the middle of the night, damaged valuable items, furniture and displaced file of papers and escaped with valuable items.
In all these incidents, burglars walked away free leaving the owners of these premises to suffer with distress and worries for future possible attacks by burglars. Question arises, would homeowner seat idle and do nothing when their house is attacked by burglars? Or Do they have to wait to be attacked before defending themselves in their home?
Therefore in this article an attempt would be made to establish whether home owner would be protected by law even if they kill a burglar at the heat of the moment in the light of some famous incidents and cases?
Richard Osborn-Brooks case
On 6th April 2018, Metropolitan Police said that they will not press charges against Richard Osborn-Brooks, 78, a pensioner who was arrested for murder over the fatal stabbing of an intruder in his home. Two burglars broke through his door into home at 12.45am, where he lived with his wife. One of the burglars tried to attack him with a screwdriver.
He stabbed to one of the intruders with a knife, in the heat of the moment who later died at a Hospital. Police arrested the home owner for stabbing the burglar. Later Police released him and told him that they will not press any charge against him over the burglar's death.
Justice Secretary David Gauke also pledges to protect homeowners after this case was published in the newspaper and public opinion forced the Police drop charges against the pensioner. His case has again focused attention on what you can and can't do if an intruder comes into your home.
It is to be noted that the law in this area was change in 2013 came after a farmer Tony Martin was convicted of murder in 2000 for shooting dead a teenage burglar.
It prompted more than ten years of calls for greater legal protection for people who took violent action against intruders in their own home.
Denby Collins's case
In January 2016 the High Court ruled on what had effectively become a test case, brought by the father of alleged intruder Denby Collins, who had been left in a coma after being confronted by a homeowner who put him in a headlock. The judges decided against Mr Collins by ruling that the 2013 rule change did not breach Article 2 (1) of the European Convention on Human Rights which protects the right to respect for life.
Omari Roberts case
In March 2009 builder Omari Roberts 23, 23, killed 17-year-old burglar Tyler Juett following a struggle after he found the teenager and a 14-year-old accomplice in his mother's house in Basford, Nottinghamshire. Juett died of stab wounds.
Mr Roberts was charged with murder, but before the trial could go ahead, the prosecution dropped the case in April 2010, effectively withdrawing its claim that the apprentice builder had acted with "excessive and gratuitous force." It was therefore accepted that Roberts had been acting in legitimate self-defence.
Peter Flanagan's case
In another case, in June 2011 Peter Flanagan 59, was arrested on suspicion of murder after four masked men broke into his home and John Bennell, 27, ended up dying from a stab wound to the chest. Mr Flanagan was put on police bail, but in July 2011, the chief crown prosecutor for the north-west, ruled he had acted in self-defence and should face no further action. In explaining his decision, Mr Afzal said Mr Flanagan had been confronted by a group of intruders, one of whom was armed with a machete.
Mr Afzal said: "I am satisfied that Peter Flanagan acted in self-defence after being woken by noises in his house shortly before midnight. He was confronted by intruders, one of whom was armed with a machete. People are entitled to use reasonable force in self-defence to defend themselves, their family and their property."
CPS Guidance for homeowners
On 4th April 2018, the Crown Prosecution Service (CPS) has outlined where you stand when faced with in intruder and how it will be dealt with by police.
CPS guidance confirms that if a homeowner kills a burglar at the moment under certain circumstances where he/she was engaging in what the law regards as legitimate self-defence, then he/she will face no prosecution for killing that burglar.
The legitimacy of that self-defence relies in part on the long-established common law right of honest citizens to use "reasonable force" to protect themselves. The Criminal Law Act 1967 also encoded a similar "reasonable force" defence for actions taken to prevent crime.
'Reasonable' force under law
The Government Legal Department also published a policy on their webpage regarding the "reasonable force against intruders" and confirmed that you can use reasonable force to protect yourself or others if a crime is taking place inside your home.
This means you can be to protect yourself 'in the heat of the moment' - this includes using an object as a weapon. You are also allowed to stop an intruder running off - for example by tackling them to the ground.
Government 'sympathises' with break-in victims and reassures people they can act in self-defence if they fear their life is in danger
The law has said that "reasonable" should be assessed in the context of the danger that you honestly believed you were facing - not the danger you were actually facing.
Therefore, when a burglar unlawfully enters into the homeowner's house with an intent to steal, inflict grievous bodily harm or do unlawful damage to the building or anything in it; or having entered a building or part of a building as a trespasser, attempts to steal anything in the building or inflicts or attempts to inflict grievous bodily harm on any person in the building; and at the heat of that moment if a homeowner kills that burglar under legitimate self-defence, he/she will not face any prosecution for killing that burglar.
The government accepted that in the heat of the moment people might over-react and do something that on calm reflection is seen to have been disproportionate. Even if a homeowner kills a burglar at the moment under certain circumstances where he/she was engaging in what the law regards as legitimate self-defence, then he/she will face no prosecution for killing that burglar.
Hence in 2013, for people facing intruders in their own home, the government further relaxed the reasonable force requirements by introducing the so-called "householder defence." The Crime and Court Act 2013 stated that if you were in your own home, you only had to prove that the force you used in self-defence was not "grossly disproportionate.
The government has firmly put the law on the side of the homeowners, the householders and the family to prevent the burglars enter into their property unlawfully and without any permission. We must stand shoulder to shoulder to protect our houses from the hands of the burglars and use reasonable force against them instead of seating idle and do nothing when our house is attacked by them. We also don't have to wait to be attacked before defending ourselves in our homes against those criminal intruders.
(The writer is a Barrister of the Honourable Society of Lincoln's Inn, Chartered Legal Executive Lawyer of CILEX. In 2016, he won CILEX President AWARD. He was declared as the Best Human Rights Lawyer of England & Wales by Bar Council, Law Society & CILEX. He can be contacted at firstname.lastname@example.org ).