Homeowners who come face-to-face with a burglar have to make some quick decisions on protecting their property. Hugh Price explains
With so much comment in the press about intruders and violence, how far can a homeowner go to defend his property yet avoid being prosecuted? Brokers may have difficulty in advising their clients when faced with conflicting legal advice and the current press clamour.
The media campaign has been given further impetus by recent burglary-related murders in London.
Metropolitan Police Commissioner Sir John Stevens has been quoted as saying that householders should be allowed to use whatever force they think necessary without fear of prosecution.
The Director of Public Prosecutions has joined in the controversy saying that there should be evidence of "very excessive force" before a home owner should be prosecuted.
The issue is one of interpretation. Current law allows the homeowner to "use reasonable force" to defend himself or his property.
The truth is that when frightened or in panic people often act uncharacteristically.
How much force is "reasonable"? Significantly, the intruder does not have to strike the first blow or fire the first shot. But the householder must be in fear of physical injury to himself or a member of his family for self defence to succeed.
Excessive force
The degree of force and the circumstances are highly relevant. For example, killing a starving man trying to steal a loaf of bread would be wholly unreasonable.
Put bluntly, if a householder misjudges the degree of force permissible and uses excessive force then at present he will have no defence. In the much publicised case of Tony Martin, the Norfolk farmer who shot and killed a fleeing intruder, the fact that the intruder was no longer a risk meant that Martin had no defence
As long ago as 1971, the House of Lords observed : "...it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action. If...in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary, that would be the most potent evidence that only reasonable defensive action had been taken."
This is the law as it currently stands. However, if the national press and others get their way, then any force will be permissible in defending yourself, family or property unless it is "very excessive".
Brokers will have to trust their clients to deal with such situations within the law.
' Hugh Price is a partner at Hugh James Solicitors
