The Problem with Reasonable Force: Rebalancing the Law in Favour of the Householder by Adopting Alternative Jurisdictional Approaches
| Author | Edward Smith |
| Pages | 117-145 |
S.S.L.R The Problem with Reasonable Force Vol.1
117
The Problem with Reasonable Force: Rebalancing
the Law in Favour of the Householder by Adopting
Alternative Jurisdictional Approaches
Edward Smith
There is a strong view held among many members of the public that the law
favours the rights of intruders over those of the householder. Under the
current law, a householder may only use as much force as is “reasonable” in
the circumstances to protect themselves, others or their home from intruders.
This requires an analysis of the threat posed by an intruder to decide what
force is reasonable. This standard has proved problematic for some who have
used force that is considered to be excessive, and thus cannot claim self-
defence, possibly leading to conviction for the harm that they inflict. I n the
worst case scenario a householder can be convicted of mur der if death is
caused by excessive force.
The public have shown sympathy for convicted householders, claiming that
the Criminal Justice System has failed to protect the law-abiding citizen from
criminal intrusions and punished them when they have had to defend
themselves in these instances. There have been calls for greater rights for
householders to protect their dwellings, permitting a greater degree of force in
order to do so.
This article explores the validity of the asserti on that the current law does not
adequately protect the rights of the householder, followed by an analysis of
alternative jurisprudential approaches that accord different degrees of
increased rights to householders: the doctrine of excessive self-defence,
complete exculpation for excessive force used due to emotion and a
presumption that force used was in the threat of death or serious bodily injury
whenever an intrusion or attempted intrusion occurs.
Upon examination, it is discovered that whilst giving householders increased
rights solves problems with the current law, the implications of doing so deny
individual rights and justice to the intruder. Potential flaws can be found in
the rationales for the complete exculpation for excessive force used due to
emotion and pr esumptive proportionate force approaches. Pragmatic
difficulties are encountered in the implementation of all three. However most
importantly, the complete exculpation for excessive force used due to emotion
and presumptive proportionate force approaches would breach the UK‟s
human rights obligations under the European Convention on Human Rights.
This leads to the argument that calls for reform by the public to increase rights
may be based on views that lack the full knowledge required to make an
informed decision. The curr ent law may not be faultless however a full and
[2011] Southampton Student Law Review Vol.1
118
open public discussion would be needed before realistically considering
reform.
Introduction
nder the current UK law, there is no specific provision for the defence
of one‟s home. The capacity to protect your own interests comes under
defendant may use such force as is objectively reasonable,
1 with regard to an
allowance for imprecise human calculation as to the level of force2 and the
admittance as strong evidence of what the defendant honestly and
instinctively thought was necessary for a legitimate purpose,3 in the
circumstances in which the defendant subjectively believed them to be.4
Reasonable force may also be used in the prevention of crime.5 Thus to protect
any of your interests, whether it is your life or your property, force will only be
legitimate if it is „reasonable‟.
The reasonable force concept encompasses: necessity of the use of force as the
only way in which the assault could be prevented as opposed to non-violent
means, and proportionality, meaning that the degree of force used should
have been no more than the harm threatened.6 This standard has proved
problematic for householders who have used force to defend themselves that
is disproportionate to the harm threatened. It may seem that it would be
correct to punish those who use force that is unnecessary. Conversely, the
public have shown sympathy towards householders who have used force
against intruders, even if it is disproportionate, as well as outrage at the
resulting convictions.7
Two such causes célèbre were those of Tony Martin8 and Munir Hussain9 who
both used force on intruders and were ultimately convicted. Martin was
originally sentenced to life imprisonment for murder for shooting and killing a
burglar and injuring an accomplice. H ussain was convicted of assault
occasioning grievous bodily harm with intent for the severe beating of an
1 Crimi nal Justice and Immigration Act 200 8, s 76(3).
2 Ibid s 76(7)(a)
3 Ibid s 76(7)(b)
4 Ibid s 76(4)
5 Ibid s 76(2)(b)
6 Jonathan Herr ing, Criminal Law: Text, Cases, Materials (3rd edn, OUP 2008) 637.
7 BBC News, „Martin Case Tops BBC‟s Today Poll‟ (BBC News, 1 January 2004)
‟21,500 Reasons Why We Need a Tony Martin Law‟ The Mail on Su nday (London, 11 January
2004) tp:/ / www.findarti cl es.com/ p/news-articles/ mail -on-sunday-london-england-
the/ mi_8003/ is_2004_Jan_11/ 21500 -reasons-t ony-martin-law/ ai_n37113125> accessed 18
January 2011; Joshua Getzler, „Using Force in Protecting Property‟ [2006] 7 Theoretical Inq L
131, 141; Tim Shipman, „Tories‟ Licence to Kill a Burglar: H omeowners Using Self -Defence
Should Escape Prosecution, says Shadow Minister‟ The Daily Mail ( 21 Decem ber 2009)
using-self-defence-escape-prosecution-says-shadow-mini st er .html> accessed 1 M arch 2011.
8 R v Martin (Anthony) [2001] EWCA Cr im 2245, [2003] QB 1.
9 R v Tokeer Hussain and Munir Hussain [20 10] EWCA Cr im 94, [2010 ] 2 Cr App R (S) 60.
U
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