Remember what Charles Clarke (Labour, Norwich South – until 2010) said in 2005, in his capacity as Home Secretary? The Daily Mail said at the time:
A householder’s right to attack or even kill an intruder has been officially sanctioned by the Government.
People were told they could even use a knife or a gun if it was instinctive and involved only "reasonable force".
But if they were to chase the intruder down the street they could only rugby-tackle him or land a single blow.
The Crown Prosecution Service reckoned that there had only been eleven prosecutions and five convictions of householders in the preceding 15 years for using excessive force against intruders – figures that presumably included Norfolk farmer Tony Martin. There was enough concern for the government to issue a leaflet titled Householders and the use of force against intruders (which has since disappeared from the Home Office website) to restate the common law right to defend life, liberty and property, using such force as is apparently reasonable and necessary at the time.
The problem most people discover in extremis is a lack of knowledge: when does defensive action blur into offensive action? We hold that to be a training issue, as without training it’s hard to understand the difference. Basically, the actions you take to repel an invasion of your property and/or to maintain your safety and that of those who are entitled to be there are defensive. Once the intruder is out of the fight, by being felled or retreating, the defensive action is over; so a pursuit into public space is where the line is crossed and your rights to be violent are really limited to what you might have to do to effect a lawful arrest.
The current government is making similar noises to those made by Charles Clarke in the wake of an incident in Salford, Manchester on 22 June. Four masked men, one armed with a machete, are said to have invaded the home of Peter Flanagan, leaving a short time later after one of them had been mortally wounded by an edged weapon.
Mr. Flanagan was arrested for murder, as is usual in the circumstances. It was a month before the announcement that no further action would be taken against him over the death of John Bennell. In some respects, it’s more satisfactory that Mr. Flanagan was arrested. It means that his actions have been thoroughly scrutinized and found to be correct in the circumstances.
But the problem remains one of weapons. Mr. Flanagan used an edged weapon, lethal force. Both the current government and the Labour government of which Charles Clarke was a member have gone as far as saying that lethal force is OK – using a gun or a knife is OK, if you have one to hand. That leaves just three problems, all of them significant. Fortunately, the solutions to those problems are set out in our book Does The Trigger Pull The Finger? and they’re summarized here.
The first one to address is the old Home Office chestnut that if you don’t attack a violent intruder, he is less likely to harm you; and if you introduce a weapon to the confrontation, the intruder will take it off you and harm you with it.
It’s a lazy argument, thought up by an administration that wanted to justify ultra vires legislation they put on the statute book to deal, as they saw it, with the growing problem of youth violence on the streets. Kids carrying weapons in the early 1950s – the days before they were organized into tribes by the fashion and music industries.
The straightforward solution is planning and training. When the issue came up on BBC Radio Four’s Any Questions shortly after the Flanagan arrest, none of the panellists understood the basic solution. The question was what do you do if awoken in the night by masked intruders in your home? The tentative answers panellists gave alluded to their perceived right act violently.
Yeah, right. The intruders who are on your premises have a plan. They will have considered the possibility of the premises being occupied and they will have formulated their plan accordingly. They could try to do things quietly. Massad F Ayoob drew attention to a common criminal policy: his experience in the United States was that intruders tend to arm themselves with something of yours as soon as they get into the property – a kitchen knife being the typical ‘easy to find’ weapon in most households.
So the weapon of convenience two successive governments have suggested you might deploy could already be in the hand of the intruder when you first meet him. But go one step back – you have to make sure that your intruder is on the premises unlawfully before taking any defensive action. The police tend to barge into private property wearing ski masks and crash helmets these days and must be given time to explain themselves before you throw them out again.
One of the SRA’s founder members had precisely this experience in the early 1980s – door kicked open one Saturday morning, and four roughly dressed persons trampling in without an appointment, so our member threw them out. It turned out they were policemen with a warrant for the flat opposite, so they lacked the lawful authority to be on his premises. They got their own back by charging him with criminal damage to a police warrant card.
Also in the 1980s, an unchartered chemist called Georgiades (1989 1 W.L.R. 759) pointed a sawn-off shotgun at intruders crashing into his premises, only to surrender immediately when they identified themselves as police. Essentially, his use of a firearm in the circumstances was an intention to endanger life, but wasn’t unlawful until the intruders proved that they had lawful authority for the intrusion.
So, having determined that your intruders don’t have lawful authority for the intrusion, it’s time to get rid of them. The commonest plan burglars have for this moment is to run; typically, retracing their steps to where they got in, so you can minimize the risk to yourself by not blocking their way out.
If they want to make something of your interruption, we reach the point where Government policy and advice fades out. They say you can arm yourself and you can use violence to regain control of your premises, but the there are two flaws with this advice. The first is that their advice hasn’t extended to the need to train in the use of the weapon and to practice for the eventuality.
In a crisis, trained people do what they’ve been trained to do. Massad Ayoob made his name in the 1970s by studying police gunfights in which the police lost the engagement. He identified weaknesses in training, which cost the officers the gunfight, and sometimes their lives, when they put that training into practice on the street. The most graphic illustration came from New York. The city issued revolvers, but didn’t allow officers to carry speedloaders. Officers trained to reload their revolvers rapidly in the dark, by ejecting the dummy shells into their hand and then reloading them into the chambers. It’s a convenient way to get the feel for inserting rounds nose first into the little holes waiting for them.
The flaw in this training is that’s what the policeman did on the street. Having fired his six, he ejected the empties into his hand and tried re-inserting them into the chambers. It’s a model of how a trained person will use his training in a crisis. The key is to get the details of the training right. When you learned to drive, one of the scenarios your trained for was the emergency stop. You hit the brake pedal to stop the vehicle and then the clutch pedal to prevent stalling the engine just before the vehicle stops moving: if you hit both pedals together, your stopping distance increases.
Training and practice. If your technique is wrong, your ‘practice’ becomes, in Peter Eliot’s words “the repetition of error.”
Since all this debate started in the 1950s, various non-lethal weapons have been developed specifically for defence. Taser, stun guns, rubber ball guns, pepper and CS gas sprays, to name a few.There are various shotgun cartridges that are not meant to be lethal, firing rubber balls, plastic granules, sand or bean bags, wooden dowelling and tear gas. Even less dangerous to the victim would be paint ball or smart water projection – things that tag the offender for future identification. Everyone else in the world can get pistols designed to fire paint balls or gas. We can’t, not ‘legally’.
The problem yet to be tackled by our Government is that previous governments have stuck most of this stuff into section five – the prohibited category of firearms, so legally they are classified as machine guns. That’s a problem. Our view is that householders should be able to go on courses to learn about these products. Then they can carry out risk assessments for their property and decide what non-lethal weapons they could best deploy against an intruder and then buy what they need. Having planned their defence and trained with the weapon they can sleep safe; if they ever need to protect their property or family, they have a plan and the tools for the job; and that should give an incident a better outcome than going into a crisis with neither the tools nor the training.
We don’t think that the law needs changing to effect this; possession of prohibited non-lethal weapons by a trained person demonstrates lawful authority for having them, which means the householder will either not be charged or will be acquitted. That leaves the current draconian legislation in place for any scrote caught on the street with something in section 5.
It’s got to be better for us all if active defence uses tools designed for the job. The problem with weapons of convenience is that they can do more harm than necessary: if a woman thinks she needs to defend herself from you, she’ll do your eyesight far more damage if she uses her hairspray than she would using a pepper spray.
And that brings us to the final point here: mistaken identity. If your intruder turns out to be a drunken nephew who last stayed with you eighteen months ago and still has a door key, shooting him with rubber balls is (both for him and family relations) survivable. You can gun him down in the dark, turn the lights on, see who it is and then shoot him again for disturbing you. He’ll try to get sympathy for his bruises for weeks afterwards, but at least he can. If you’ve stabbed him, you’ll have to miss the funeral, because even if you’re not still in custody when it happens, you won’t be welcome.The potential need for defence, some way of the owner of a house or shop being able to neutralize superior numbers of intruders came into sharp focus with the August riots. Passive defence – be it hard shell security, smart water and security tags on high value items is not enough of a deterrent, but a shopkeeper or householder who can hurt the intruder may well be what’s needed. We’re back to training; the three men run over and killed in the Midlands defending property were on a street – or at least in a public place. Would trained men have deployed themselves in that position? Chances are, they wouldn’t and, if they’d been appropriate armed, they would not have needed to put themselves in so much jeopardy.