Householders and the Use of Force against Intruders
| Published date | 01 October 2005 |
| DOI | 10.1350/jcla.2005.69.5.405 |
| Author | Michael Jefferson |
| Date | 01 October 2005 |
| Subject Matter | Comment |
COMMENT
Householders and the Use of Force against
Intruders
Michael Jefferson*
The Joint Public Statement from the Crown Prosecution Service and the
Association of Chief Police Officers on Guidance published on the use of
force by householders against intruders was issued on 1 February 2005 and
takes the form of a leaflet. 100,000 copies were originally printed, many
of which were distributed to Citizens Advice Bureaux. There was a
further printing of 200,000.1It is a curious document. It purports to
describe circumstances where the accused homeowner is ‘confronted by
an intruder in [his] own home’ and uses force which results in the death
of or injury to the victim, the intruder. What it does not do is to satisfy
the concerns of the public as expressed below. The failure is most
obvious in the definition provided of the defence of self-defence: ‘Any-
one can use reasonable force to protect themselves or others, or to carry
out an arrest or to prevent crime’, a provision which closely parallels
Article 2(2) of the European Convention on Human Rights.2The de-
fence of property is the issue which gave rise to the Joint Statement, but
which is not addressed, except that defence of property is presumably in
order to prevent crime, in it! Similarly, while the issue of unreasonable
or excessive force is mentioned, the public outcry was again directed at
the lack of provision for excessive force in defence of self, others or
property. A leaflet by itself cannot change the law, but it may be
indicative of current thinking and of future developments.
The Joint Statement
The Joint Statement, which is brief, is a mixture of propositions of law,
largely in question and answer format, and of examples based on cases;
it also relates what the police and the CPS will normally do. For instance,
‘So long as you only do what you honestly and instinctively believe is
necessary in the heat of the moment, that would be the strongest
* University of Sheffield; e-mail M.Jefferson@sheffield.ac.uk.
1 It is most conveniently found at www.cps.gov.uk/publications/prosecution/
householders.html, accessed 11 July 2005.
2 This Comment is not concerned with the European Convention on Human Rights,
but it is suggested here that, contrary to the current opinion of the European Court
of Human Rights, there is a difference between ‘absolutely necessary’ in Art. 2(2)
and the Anglo–Welsh test of proportionate and necessary in the defence of self-
defence. Moreover, Art. 2(2) does not speak of the defence of property, unlike
Anglo–Welsh law, but the European Convention does speak of the effecting of a
lawful arrest, which may be an arrest for theft or another offence, so any difference
may be minimal. The phrase ‘in order to’ in Art. 2(2)(b) looks like a reference to
intent; one’s intention must be to effect an arrest. Therefore, if this argument is
accepted, the defence of property does not fall within Art. 2(2). The defence in (b)
is restricted to the intention of effecting an arrest.
405
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