We are developing the social individualist meta-context for the future. From the very serious to the extremely frivolous... lets see what is on the mind of the Samizdata people.

Samizdata, derived from Samizdat /n. - a system of clandestine publication of banned literature in the USSR [Russ.,= self-publishing house]

Ha ha, fooled ya!!

“You can kill burglars” was the message that came blaring forth from the tabloid press with that flourish of heady triumphalism that usually accompanies a victory-for-the-common-man story (and which, on closer scrutiny, nearly always means that the government has just fucked over the common man good and proper).

To the cursory eye, the impression given is that the government has backed down and responded to public pressure for a change in the law to give citizens more rights to fight back against intruders and attackers. In reality, the government has done no such thing. Instead, those various branches of the state responsible for law enforcement have collaborated on a public statement:

Anyone can use reasonable force to protect themselves or others, or to carry out an arrest or to prevent crime. You are not expected to make fine judgements over the level of force you use in the heat of the moment. 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 evidence of you acting lawfully and in self-defence. This is still the case if you use something to hand as a weapon.

As a general rule, the more extreme the circumstances and the fear felt, the more force you can lawfully use in self-defence.

None of which sounds unreasonable per se, but all of which is merely a re-statement of the law as it currently stands. This is not a change of heart or a climbdown or a fresh start or anything else of that nature. This is just yesterday’s bill of fare, re-heated and served up with a garnish of finely-chopped press release.

In essence this is political chaff; a big bunch of glittery tinsel ejected into the air in order to deflect the heat-seeking missile of public disquiet. It appears to have done the trick.

As I have said before, the law does need changing in order to more accurately reflect the pre-1967 Common Law positions but, more than that, there needs to be a reversal of the last half-century’s worth of anti-self-help culture.

On the downside, we are still a long way from any of that change but, and on the upside, at least the ball is now in play.

115 comments to Ha ha, fooled ya!!

  • I’ve fisked the advice at

    http://staghounds.blogspot.com/

    Feel free to link or quote, love your work!

  • Johnathan

    “it appears to have done the trick”.

    I have to agree. I watched the BBC breakfast news this morning (I am a glutton for punishment) and the general pitch was that we had had some sort of radical change in the law.

  • John K

    As I understand it, if you find burglars in your house, it is reasonable:

    1. To attack them first without warning;

    2. To use a weapon;

    3. To kill them if necessary.

    Can someone please remind me what exactly Tony Martin did wrong?

    There has been a big lie that he shot a fleeing burglar in the back. This is not so. He shot one burglar in the back, and one in the leg. He was in fact firing in the dark, and the burglar shot in the back simply had his back to him when he was shot. Both burglars fled his house, and he did not chase them or shoot them as they were fleeing. One died of blood loss, one did not.

    I realise that Martin did not have a licence for his shotgun, but in law you may act in self-defence even if you have to use an illegal weapon. Tony Martin could well have been charged with a firearms offence, but he was in fact charged with murder.

    Do I trust Phony Tony and his spin machine? Do I balls.

  • JK – those are the facts *as TM stated them*.

    However, the jury found that his story about being on the stairs and blindly firing in the dark was impossible based on forensic evidence about Barras’s wounds; therefore the verdict was reached on the basis that TM *was* able to see Barras when he shot him.

    Shooting someone in the back without warning is not only ‘unreasonable’, but would also be ‘grossly disproportionate’ under Michael Howard’s formulation.

  • John K

    Shooting someone in the back without warning is not only ‘unreasonable’, but would also be ‘grossly disproportionate’ under Michael Howard’s formulation.

    But why? It is now established that “reasonable force” includes using a weapon and striking first without warning if needs be. I think a man in his 50’s in an isolated location finding two burglars in his house late at night has every right, under the interpretation of the law we have now been given by the Home Office, to have done exactly what Martin did.

    Personally, I do not see what the problem was if Martin could see the burglars, I feel that firing blind is a very dangerous thing to do. I imagine there was some bullshit legal reason why Martin came up with one story and then had to stick with it.

    So I cannot see how Martin’s actions were either “unreasonable” based on the Home Office definition, or “grossly disproportionate”.

    There is no doubt that the Tony Martin case lead to this controversy, and I feel that if a similar case occurred now the police would deal with it differently. If they did not this Home Office guidance would be seen to be so much bullshit. Of course it may well be just that!

  • Verity

    Tony Martin, who lived on a remote farm in Norfolk, had been victimised, burgled and frightened by this band of gypsies for months. He had called the police so many times that had been taking longer and longer to respond, until they stopped bothering to come at all(rather than go and warn the gypsies that they were being watched).

    The time Martin got out his shotgun was around the 11th or 12th time they had entered his premises and taken things.

    So, he was a late middle-aged man, awakened in the middle of the night by two reckless young men in his house. Both he and the gypsies were aware that a phone call to the police would not result in a visit. It is not unreasonable to assume, when they began to come up the stairs to his bedroom floor, that he panicked. He may have shot blindly in the dark and hit lucky by killing the vicious little kid, or he may have turned on the lights and shot in a panic as the two were mounting the stairs and then turned to retreat.

    Either way, he was aware that he was on his own. He was aware that these two intruders were reckless. He was aware that the intruders knew that even if he called the police, no police would come.

    There is absolutely no excuse except to control the population with an iron fist for what subsequently happened to Tony Martin.

    To compound official assininity and toxic currying favour with “ethnic minorities”, they were then proposing, on his eventual release, to spend £500,000 of taxpayers’ money to give Martin a new identity and resettle him in Australia (where he knows no one) because the gypsies had threatened that he would be murdered on his release, in revenge for killing the little asshole. This was somehow regarded as cheaper and more streamlined that going over and explaining the facts of life to the gypsies.

  • “Anyone can use reasonable force to protect themselves or others”

    It appears to me that the entire problem in Britain is the change in political culture that caused the authorities to informally redefine “reasonable”. The statement, taken at face value, would equally well describe the law in America even in “cowboy” states like Texas.

    The practical difference is that in, say Texas, “reasonable” force is considered to be anything done in the heat of the moment. As long as you don’t cold-bloodedly walk up and administer a coup de grace, you’re usually on solid legal ground. That definition of “reasonable” is cultural, not legal. The authorities know that if even if they brought a person to court, they could not get a conviction.

    In Britain there appears to have been a cultural shift wherein “reasonable” came to mean “minimal proportional response” as judge by people sitting calmly in a well lit office, after breakfast and several cups of coffee. If the new statement presages a return to the old standard then it will have the effect that many seem so hopeful about.

    The test will come the very next time someone kills or injures an intruder. If the authorities pounce on the victim for defending themselves then we will know that the new stances is just a facade.

  • It might be interesting to compare the respective rates over the last few decade at which victims of crime were charged when they injured or killed a criminal.

    That would provide evidence for whether the official story line is true or not. If the rate grew over time that would mean either (1) crime victims have gotten more violent in protecting themselves or (2) that the state has defined “reasonable force” downward.

    I’m betting on (2).

  • Whenever the word “reasonable” issues from a bureaubot’s yap, you can be completely certain that it means: “I get to summarily ignore anything you think or say for any reason or no reason at all.”

    It’s the world’s oldest hand-job.

  • John K

    It might be interesting to compare the respective rates over the last few decade at which victims of crime were charged when they injured or killed a criminal.

    This cannot easily be done, as the CPS does not keep statistics covering cases where householders who injure or kill burglars are prosecuted.

    The figure of 11 cases in 15 years was pulled out of the air by CPS lawyers who happened to remember 11 cases. There could have been 111 cases for all we know, but the figure of 11 suits King Tony quite nicely, so that’s the one they will keep using.

  • Euan Gray

    Whenever the word “reasonable” issues from a bureaubot’s yap, you can be completely certain that it means: “I get to summarily ignore anything you think or say for any reason or no reason at all.”

    The test of reasonableness, as should be well enough known here, is one of the fundamental concepts of the common law. It doesn’t mean anything you happen to think is ok, it means what an average person in similar circumstances would consider to be appropriate and proportionate. Contrary to Shannon Love, it is not a cultural thing but is actually a concept in law.

    It should perhaps be borne in mind that nobody is claiming this event to be redfinition of any law or right. It is a restatement of the law as enacted in 1967.

    IMO, the principal change in recent times that is relevant to the situation is the focus on human rights. It would appear that the rights of the criminal have been emphasised at the expense of the rights of the victim. The restatement of the legal position (which has not changed since 1967) should clarify that, although people do still have certain rights even if they are criminals, the rights of the law-abiding victim of crime have a higher priority.

    EG

  • “The test of reasonableness…” in this context turns completely on whether the subject under consideration is being faced with the arbitrary and unilateral application of force or its immediate threat.

    I’m not talking about a person facing some perp at the scene.

    I’m talking about presumptives with their asses firmly lodged on the altar of state.

  • Euan Gray

    Nevertheless, that’s what it means.

    EG

  • GCooper

    John K writes:

    “The figure of 11 cases in 15 years was pulled out of the air by CPS lawyers who happened to remember 11 cases”

    Prescisely!

    This entirely fictitious figure has, however, been siezed on by the Biased Broadcasting Corporation’s hand-wringing legal correspondents, who have been clucking and fussing at this story for weeks, doing their best to rubbish the very suggestion that there is any problem at all – other than that being ‘whipped-up by the Right-wing press’.

    The only time I’ve seen this figure questioned was by the Telegraph. The BBC, on the other hand, first swallowed it, then parroted it, over and over again.

  • Euan Gray,

    “it means what an average person in similar circumstances would consider to be appropriate and proportionate.”

    Well, what an average person considers appropriate is a function of the broader cultural values.

    For example, it was once considered reasonable that a husband who found his wife in flagrante delicto would lose emotional control and murder the wife and lover. A man who did so would often escape any punishment. Now days, even though the formal law never changed, it is no longer considered reasonable for the husband to act in such a fashion. The thing that changed was the general culture, not formal or even common law.

    A change in culture is a change in the zeitgeist which in turn changes the practical effect of the law.

  • If victims are being convicted on grounds of use of unreasonable force, then juries, who represent the average person alluded to by Euan Gray, must have been convinced that their behaviour was unreasonable.

    This seems somewhat to contradict the generally held view that the public is very sympathetic to homeowners defending themselves. Does the problem perhaps lie with the way judges instruct juries about the law? Is there any way of finding out what judges have said?

  • Euan Gray

    Bishop Hill:

    Try the courts service for judgements, etc.

    EG

  • Pete_London

    Verity

    Let’s not forget the final kick in Tony Martin’s bollocks, that he was refused parole because he was deemed to be ‘a danger to burglars’.

  • This site seems to suggest that shooting or stabbing an intruder is OK so long as you get them in the chest…

  • snide

    It is a restatement of the law as enacted in 1967

    Exactly, which is the whole point… the media is acting as if the law has changed whereas nothing has actually changed legally and the people who claim that a householder can be a a ‘danger to burglars’ are still in power. So like the title says, if you think this means a damn thing: ha ha, fooled ya!!

  • Euan Gray

    the media is acting as if the law has changed whereas nothing has actually changed legally

    I don’t think it is, really. Even the BBC is at pains to point out that nothing has actually changed. The Mirror article linked to by David doesn’t claim anything has changed. So which media are saying it has?

    the people who claim that a householder can be a a ‘danger to burglars’ are still in power

    Perhaps so. Since you refer to the Martin case, you might care to read the judgment in which his conviction was quashed and replaced with a manslaughter sentence. Draw your own conclusions as to his nobility.

    The fact that it is permissible, justifiable, reasonable and eminently right that one should be entitled to defend life and property – to the extent of killing the criminal if justifiable – does in no sense mean that the householder has an absolute right to kill anyone illicitly entering his home. The law recognises the former and punishes the latter, but this does not mean there is a conspiracy to neuter the householder.

    EG

  • Euan Gray

    The link should be here

    EG

  • Rich

    How nice to be a ‘Subject’ of the Crown.

    If someone were to break into my house in the backwoods of America, their life is forfiet – and they know it.

    A Citizen of the Republic is a much nicer way to be, safer too.

  • It’s the same way where I live, Rich. People around here would bury a burglar in the back yard, and nobody would ever know.

    And everybody knows it. Even the ones who don’t like it know that there is nothing they can do about it.

  • I note in the transcript supplied by Euan Gray that Martin was convicted:

    “a majority of 10 to 2 of murder and wounding with intent”

    In American, an unanimous decision is almost always required for a felony conviction. Martin almost certainly wouldn’t have been convicted in the states on that basis alone.

    It seems that the critical matter in the case was whether Martin had “lain in wait.” Frankly, I don’t see the problem if he had. He was alone in remote farmhouse with no confidence the police would arrive in time. The intruders could have been armed. If he did pick the best spot to ambush the burglars, so what? Why was he under any legal or moral obligation to risk his own life to protect the life of the criminals?

    I can’t help but wonder is Martin’s public criticism of the police had something to do with him getting indicted. They couldn’t have been very pleased with him.

  • Although it’s true that the law has not been changed by this release, its benefit is that the Criminal Protection Service and ACPO have at last offered some guidance on what they consider to be “reasonable”, whereas previously the decision was entirely arbitrary.

    In Tony Martin’s case, he was acting outside of the law because he planned his actions, laying in wait for the contemptible little scum-bags who invaded his home. To that extent, he was guilty. The larger issue is that he was driven to act as he did by the gross incompetence of the local police, who, by forcing him into that situation, should shoulder part of the blame. IMO, he should have been prosecuted for manslaughter, but he should also have been given an absolute discharge because of the circumstances.

  • Euan Gray

    How nice to be a ‘Subject’ of the Crown.

    Would you rather be a subject of the British Crown or a citizen of the Russian Soviet Federated Socialist Republic? It does not matter so much the title of the person in charge or the technicalities of how the state is organised, more important are concepts such as due process of law, the rule of law, habeas corpus and freedom of speech and assembly & how these are enforced in practice rather than in theory. There have been republics and federations (such as the USSR) where the people have in theory numerous inalienable rights and liberties but in practice are prisoners of the state and its ruling elite.

    No system of government or constitutional arrangement is perfect or immutable. However well intentioned or carefully thought out, things change and with them change the views of the majority of the people, technical limits on what is and is not possible, population size versus available resources, and so on. It is fair to say the American constitution has served pretty well for over 200 years, but it has not prevented the growth of the state, intrusive regulation, welfare, etc. Much the same can be said of the British unwritten constitution.

    It seems that the critical matter in the case was whether Martin had “lain in wait.” Frankly, I don’t see the problem if he had

    It is a problem. The law in Britain permits a householder to defend his life and property, with lethal force if appropriate, but it does not permit him to premeditate an assault on a burglar. I understand, although it is hard to find unbiased evidence on the matter, that the majority of people convicted of murder, assault or criminal injury in such cases have inflicted the injury either with premeditation, from vengeance or in pursuit outside the property. The idea of “hot pursuit” is valid enough, in that one may chase and forcibly apprehend an absconding burglar, BUT the degree of force permissible is somewhat less than that justifiable in the immediate defence of home and life, because the circumstances are quite different.

    IMO, he should have been prosecuted for manslaughter

    I agree.

    but he should also have been given an absolute discharge because of the circumstances

    I don’t agree.

    Although there is little doubt that, in this particular case, the police were more than normally incompetent and lazy, I don’t see that this of itself justifies disproportionate violence. I should have preferred to see a conviction for manslaughter for Martin and a reprimand or investigation for the police. In the event, the Court of Appeal did give Martin a reduced manslaughter sentence in consideration of, amongst others, this problem. However, given that Martin did appear to act with premeditation and did so with an illegally held weapon, it would seem that an absolute discharge would be unreasonable.

    EG

  • The Last Toryboy

    Imagine being a citizen of a republic with someone like Tony Benn as president? My God, I’d be setting up the Crown Liberation Army that very night.

    British subjects get to smoke the occasional Cuban cigar too. ;)

  • Ean: “Although there is little doubt that, in this particular case, the police were more than normally incompetent and lazy, I don’t see that this of itself justifies disproportionate violence.” True, but does it not justify premeditation? I wonder which of the two was the basis for his conviction.

    Shannon, is it not the case in the US that a unanimous jury is required only when a death penalty is possible upon conviction?

  • Johnathan

    Euan Gray continues to attack Mr Martin for killing an intruder in a “pre-meditated” fashion. The trouble is defining “premeditated” for the purpose of figuring out what sort of precautions a householder should be allowed to take in self defence.

    Suppose I keep a cricket bat or a shotgun handy in case a burglar comes in. Is that “premeditated”? Under existing law it appears that there is a real danger of the courts saying it is, and undermining the effectiveness of self defence law. I hope, perhaps naively, that courts will look more favourably on those who keep an implement to use in self defence in future.

    rgds

  • The Last Toryboy

    Seems to me that while Euan Gray might be right on the letter of the law, just read the judgment. Bottom line is, in laymans terms, “one scumbag waxed”.

    The law is not about justice apparently, and this case proves that.

  • Suppose I keep a cricket bat or a shotgun handy in case a burglar comes in. Is that “premeditated”? Under existing law it appears that there is a real danger of the courts saying it is, and undermining the effectiveness of self defence law.

    No, there isn’t.
    Long quote – sorry:

    In Attorney-General’s Reference (No 2 of 1983) [1984] 2 WLR 465, the defendant made ten petrol bombs, during the Toxteth riots after his shop was damaged and looted, “to use purely as a last resort to keep them away from my shop”. The expected attack never occurred. He was then charged with an offence under s4(1) of the Explosive Substances Act 1883 of possessing an explosive substance in such circumstances as to give rise to a reasonable suspicion that he did not have it for a lawful object. It was a defence under the terms of the section for the defendant to prove that he had it for a lawful object. The Court of Appeal held that there was evidence on which a jury might have decided that the use of the petrol bombs would have been reasonable force in self-defence against an apprehended attack. If so, the defendant had the bombs for a “lawful object” and was not guilty of the offence charged. However, it was assumed that he was committing offences of manufacturing and storing explosives contrary to the Explosives Act 1875. The court agreed with the Court of Appeal in N. Ireland in Fegan [1972] NI 80, that possession of a firearm for the purpose of protecting the possessor may be possession for a lawful object, even though the possession was unlawful, being without a licence.

    In other words, even if you have an unlicensed machine gun by your bed, this is not grounds to invalidate your common law self-defence defence (although clearly you still risk jail for unlawful machine gun possession).

    This page has some actual relevant caselaw, rather than baseless speculation.

  • Shawn

    Regardless of what the liberal regime’s “law” says, if someone enters your property illegally for the purpose of commiting a crime against you or your property then you have the moral right shoot that person.

  • Euan Gray

    True, but does it not justify premeditation?

    No. Premeditated homicide is called “murder” – you may have heard of the term. Premeditation does not mean thinkng ahead and taking reasonable precautions – it means (in this sense) actively planning to do bodily harm to someone.

    The trouble is defining “premeditated” for the purpose of figuring out what sort of precautions a householder should be allowed to take in self defence.

    Sleeping with, say, a baseball bat or a golf club beside the bed is one thing & seems like a reasonable precaution. Lying on your bed, waiting, fully clothed, wearing your boots and with a loaded shotgun to hand seems a little bit more than this. Evidently the jury in the murder trial agreed, and the appeal justices didn’t seem to disagree either.

    Suppose I keep a cricket bat or a shotgun handy in case a burglar comes in. Is that “premeditated”?

    No, of course not. However, if you knew, or strongly suspected, that someone was going to burgle your house and you waited up for him, gun or bat in hand, with the intention of inflicting serious harm, then that is premeditation. Perhaps you remember the old legal phrase “with malice aforethought” – same thing.

    just read the judgment. Bottom line is, in laymans terms, “one scumbag waxed”

    “Bottom line” is, in layman’s terms, defend yourself but remember that pre-emptive attack is not defence and vengeance is not an excuse.

    EG

  • Euan Gray

    if someone enters your property illegally for the purpose of commiting a crime against you or your property then you have the moral right shoot that person.

    Unfortunately moral rights don’t stand up in court for a very good reason – your view of what is moral may be very different from mine. This type of argument was addressed by the appeal in the Martin case & you may wish to read the judgment.

    Under British law at present, you do have the right to use a firearm against an intruder. In the Martin case, the firearm was illegally held, which didn’t help his case. However, having the right to shoot an intruder (in self defence) is not the same thing as having a duty or obligation to do so.

    EG

  • speedwell

    However, if you knew, or strongly suspected, that someone was going to burgle your house and you waited up for him, gun or bat in hand, with the intention of inflicting serious harm, then that is premeditation. Perhaps you remember the old legal phrase “with malice aforethought” – same thing.

    So you can only plan to defend yourself against the unknown possibility of a threat to life or property, but not against the known threat?

  • Euan Gray

    So you can only plan to defend yourself against the unknown possibility of a threat to life or property, but not against the known threat?

    The idea is that you take reasonable and prudent precautions against potential threats. If such a threat becomes a reality, you are perfectly entitled to defend yourself.

    However, the idea also is that if you become aware of a specific threat against your person or property, you are supposed to inform the police. This does not absolve you of any need to take precautions, nor does it mean you should not take any.

    The practical upshot is that:

    (a) if you defend yourself against a surprise attack, perhaps even killing the intruder in the process, you are extremely unlikely to be prosecuted PROVIDED your use of force was not disproportionate;

    (b) if you inform the police of a known threat and take reasonable precautions (including any specific police advice) accordingly, but the police don’t do anything and you are confronted with the intruder(s), see (a) above;

    (c) if you wilfully fail to inform the police of a known threat, then lie in wait and ambush the intruder with excessive force (whether you kill him or not), you probably WILL be prosecuted;

    (d) even if you do inform the police, but you lie in wait, etc., & use excessive force, you likely will be prosecuted.

    The Martin case really came under (d). Most home defence cases, as far as I can gather, come under (a) or (b).

    EG

  • Pete_London

    So … it seems under Euan’s Law Tony Martin, having informed the Police on a great many occasions of burglaries without receiving satisfaction was supposed to … run away and surrender his property to a pair of scumbags? Excuse me, bollocks. You may well deem it satisfactory that the State sets the parameters of your self defence, others will look after themselves. Justice and the law parted ways a long time ago in Britain and only a fool puts the law above justice. If justice were served in Tony Martin vs Two Thieving Bastards (One Dead) the Judge would have thrown out the case and ordered the Chief Constable before the court to apologise to TM and consider his position.

  • Euan Gray,

    Perhaps I am to unfamiliar with the details of the case. What kind of timeframe are talking about for Martin’s premeditation? Was it days, hours, minutes or seconds? It almost sounds as if the prosecution alleged he built a duck-blind in his parlor and crouched there every night hoping someone would break in.

    It sounds to me that Martin’s premeditation consisted of the decision to shoot suddenly from the dark without giving any warning. He seized the tactical advantage. Does the law require him make a target of himself first?

    The only evidence I see in transcript of premeditation is his long standing publicly stated belief that he had a right to shoot burglars. Is a philosophical belief that you have a right to use lethal force to defend you life and property sufficient grounds for establishing premeditation?

    Approached another way, how should he have handled the incident such that the shooting would not have been premeditated? Obviously, he could have barricaded himself, hid or fled his home rather than fight but given the circumstances was there actually anyway he could have fired the weapon with being charged?

  • llamas

    As regards Tony Martin’s ‘premeditation’, while I do not have the transcript in front of me, I believe that evidence was presented at his first trial that showed that he had repeatedly, publicly stated, prior to the shooting, that he would shoot the next intruder he found in his house. Apparently, he was given to expressing this position down at his local boozer.

    Given that that is true (and if anyone has better data, that would be fine), and given that his account of what happened could not be squared with the forensic evidence, manslaughter seems to fit the bill just right. He killed a man without reasonable justification (no reasonable threat to life or limb) but also without specific intent. The murder charge was a stretch, but I could see it – his prior statements said something about his intentions and state of mind, which I think it might be considered proper to put before a jury to decide. They speak to a recklessness for the life of another which might go to the point of specific intent to kill.

    Look at it another way – if Martin had shot and killed the local constable, who was checking on his house, found the door open and came inside to check on his well-being – should he go scot-free? No, he should go to jail for manslaughter, because that would be what he did. Martin claimed that he shot blindly and was confused about what was going on, who was in his house, where they were, and why. Ergo, he did not have reasonable grounds to use the level of force that he did. We can have sympathy for the victimization that he had previously suffered, but that is no mitigation for what he did on this occasion. What he did was assume that the people who were in his house were the same people who had burgled him before, assign them the guilt for all previous burglaries, and then take his vengeance on them what he had suffered in the past. Judge, jury, executioner.

    llater,

    llamas

  • Ean: Premeditated homicide is called “murder”. Nbot necessarily. Are you saying that no act of self-defence can be premididated? Premeditation does not mean thinkng ahead and taking reasonable precautions – it means (in this sense) actively planning to do bodily harm to someone. Premeditation *does* mean thinking ahead and taking precautions. The question is which precautions are considered reasonable. Are you saying that no precautions that end in bodily harm can ever be considered reasonable, even when there were no effective alternatives available?

  • Well, seeing Llamas’ comment now, my last comment should be viewed as a general one, not about this specific case.

  • Euan Gray

    … it seems under Euan’s Law Tony Martin, having informed the Police on a great many occasions of burglaries without receiving satisfaction was supposed to … run away and surrender his property to a pair of scumbags? Excuse me, bollocks

    Patently you need to read my comment again. I am saying no such thing, and if you read what I’ve written without looking through the lens of what you’d like to object to, you will see this.

    If justice were served in Tony Martin vs Two Thieving Bastards (One Dead)

    The point of having law is to avoid this type of attitude having force. A similar concept was addressed in the judgment on appeal & you probably should read it. It was also addressed by me above in reply to Shawn on “moral rights.” Essentially, this type of argument fails because the concept of “justice” or “morality” being touted is the subjective opinion of the speaker. Taken to its logical end, this would mean (as was stated by the court) that nobody would ever be guilty of anything and thus no redress for wrong would be possible. This is not a sound basis for a system of law, to say the least.

    The same argument applies to “natural rights” or “natural law” – no two people have the same idea of what these phrases mean. It doesn’t work.

    Approached another way, how should he have handled the incident such that the shooting would not have been premeditated?

    It is hard to say sitting in relative tranquility in front of a keyboard. However, some might say a warning shot, a verbal demand to leave, etc., followed up rapidly if this didn’t work with a shot? Perhaps a shot fired at the breakfast room doorway from the top of the stairs? There are no hard and fast rules, simply the concept of what the average person might think was reasonable and proportionate in the circumstances.

    The facts of the case in question appear to be that Martin fired at least three times (probably five) at close range (ca. 12-15′) and hit each intruder at least once with in one case fatal results. The jury found that this was unreasonable and disproportionate. Coupled with Martin’s either conscious or unconscious mendacity, his oft-expressed intention to shoot the next people burgling his house and the fact that the evidence did not support his version of events, a majority conviction for murder resulted – subsequently quashed and replaced with a conviction for manslaughter.

    It seems clear enough that Martin intended to at a minimum inflict serious harm. It seems clear enough also that he was prepared and waiting – in bed fully clothed complete with boots on, and a loaded shotgun at his side. Premeditation seems obvious.

    Having said that, it seems Martin is not exactly the sharpest tool in the shed (by a long chalk). Whilst not quite the author of his own misfortune, he certainly contributed a couple of chapters. Manslaughter does indeed seem a more sensible conviction.

    Premeditation *does* mean thinking ahead and taking precautions

    In the context of a murder case, it doesn’t.

    Are you saying that no precautions that end in bodily harm can ever be considered reasonable, even when there were no effective alternatives available?

    Of course not. If you kill or wound someone burgling your house, then provided the force used was reasonable and proportionate to the situation you found yourself in you would not be prosecuted. The force considered “reasonable” is going to depend on the threat you face – someone pointing a gun at you is obvious a much greater danger than an unarmed spotty youth stuffing your CDs in his pockets. The law and the recent statement seem to be pretty clear on this.

    However, disproportionate or unreasonable force will likely result in prosecution (and probably conviction) – I think an example given is beating up someone who is already unconscious. Another example was the man who (at an industrial site) lay in wait for a burglar, knocked him unconscious, dumped him in a hole in the ground and set fire to him. These would be considered unreasonable, and in the second case clearly premeditated.

    So, depending on the circumstances, you can kill with justification, or you can bruise and be arrested.

    EG

  • Shawn

    “The point of having law is to avoid this type of attitude having force.”

    No it isint. The point of having law is to defend the life liberty and property of citizens. In this case the law failed, and as a result Martin was within his moral to act in his own defense.

    “Unfortunately moral rights don’t stand up in court for a very good reason – your view of what is moral may be very different from mine.”

    Only after 50 some years of liberalism. Are you suggesting we surrender our rights to the moral relativism iof the liberal regime? No thanks.

    “Manslaughter does indeed seem a more sensible conviction.”

    No it doesnt. He will rot in jail for defending his property. That is not justice. He had the right to shoot the scumbag. End of story. I dont give a damn what the “law” in this case says, nor do I care what some liberal judge says on the issue. The criminals in question had, lets be clear about this, REPEATEDLY violated his property. On that basis alone he had the moral right to shoot first and ask questions later. If the so called “law” does not allow this, change it.

    Take back your country.

  • John K

    I agree that Tony Martin made a lot of mistakes, and his case was not entirely straightforward. However, he did not in my opinion act in premeditation, or in revenge. He had no way of knowing he was going to be burgled that night, and he also knew that the police were not interested in his problems even if he reported them.

    He may well have taken to going to bed fully clothed and with his shotgun readily to hand. To me that speaks of the level of desperation he had been driven to, both by the amount of crime he had suffered, and the inability and/or unwillingness of the police to do anything about it. He may well have given it large down the pub that he would shoot the next burglar who came into his house. God forbid that any of us should be judged by the rubbish we spout in the boozer.

    If OJ was innocent then Tony Martin got a bad deal!

  • Euan Gray

    No it isint. The point of having law is to defend the life liberty and property of citizens

    Well, not really. It IS in fact to have a common set of rules by which all citizens (or subjects, or whatever) abide. This is what makes society. All societies have a commn set of rules the citizenry need to obey, EVEN IF they personally object to them. You don’t get to pick and choose which laws you will obey. However, since we have a more or less democratic system, you do get to state your case for changing the law. If you don’t get the support necessary, you need to accept this.

    In this case the law failed, and as a result Martin was within his moral to act in his own defense

    Correct up to a point – it was not the law but the enforcement thereof that failed. However, Martin had no right in law to use excessive and disproportionate violence, and this is why he was charged, tried and ultimately convicted by a jury of citizens.

    Are you suggesting we surrender our rights to the moral relativism iof the liberal regime? No thanks

    Are you suggesting that we all accept your version of morality, whether we like it or not?

    This is the problem with legislating morality – your morality and mine may differ considerably. Which of us has the right to impose our will upon the other? If you consider it wrong for the “liberal regime” to impose its morality (or lack thereof) upon us, you must surely accept that it would be equally wrong for you to impose your moral code on everyone else. The law should steer clear of moral positions, except where these are so widely accepted as to be near-universal truths.

    For example, almost everyone agrees murder is wrong and must be punished. Some people think murderers should be executed. Others don’t. Many others probably do but would change their mind pretty quickly if they had to be the executioner. What to do?

    On that basis alone he had the moral right to shoot first and ask questions later. If the so called “law” does not allow this, change it

    And what if the majority of people don’t want it changed? Are they wrong? Stupid? In need of “appropriate” guidance? And what makes your guidance any better than anyone else’s?

    In any event, he did not have the legal right to do what he did. The law does not judge one’s morals, only one’s obedience to the law.

    It appears that if you have a gun, you may indeed use it and “shoot first, ask questions later” as you put it. However, you must accept that you will also have to answer questions. The law would be on your side if you shot an armed burglar you reasonably apprehended was going to shoot or threaten you. It would not be if you shot an unarmed burglar as he was running away.

    It is fair to say that in Britain the vast majority of people support the right to defend life and property. Probably almost as many would think it reasonable to use lethal force if the circumstances warranted. The law permits this. However, it is also fair to say that public opinion is decisively against the general private ownership of firearms. Whether this is a sensible opinion is another matter, but that is the fact.

    EG

  • Just curious: does anyone know whether the burglars he shot were the same ones that had previously broken into his house?

    Euan: “Unfortunately moral rights don’t stand up in court for a very good reason” Not directly, they don’t. But they in no way can be ignored, as the law is directly based on precisely the moral rights that the majority of a community subscribe to at the time that particular law is written. “…your view of what is moral may be very different from mine.” Not very likely if we live in the same community at the same era. Problems arise when either the morals change while the law does not, or the law was originally written in a way that yelds it to interpretation.

    There is, however, a third possibility, and that is when the morals are changed following a change in laws. After all, if some actions are deemed illegal for long enough, and enough people grow up knowing they are illegal, there is a good chance that enough people will begin to view them as immoral.

  • Euan Gray

    Not very likely if we live in the same community at the same era

    Were that true, there would be little debate on moral issues at all. There are in reality a great many issues on which public moral opinion is sharply divided to a greater or lesser extent – abortion, homosexual marriage, drug use, to name but three. People of the same age within the same communities can have radically different views on these subjects.

    It is because of this that law generally isn’t framed on an overtly moral basis. Which moral code should be used? That of Citizen A, who thinks all three are fine? Or B, who thinks all three are terribly wrong? Or C, who cares passionately about one but not the other two? You see?

    Having said that, I think it’s reasonable to assert that the growth of the human rights industry in recent years has distorted the picture by an unwarranted and counterproductive focus on the rights of the criminal at the expense of the victim. To a large extent, the present clarification appears to be due to patent public disquiet on the issue, so to that extent the public morality is strong enough to force, if not a change in the law, then at least a clarification of what the law actually says.

    EG

  • Euan Gray, llamas,

    Thanks for your input. I think that reading your post I can safely conclude that under British law.

    1) Tony Martin had a legal responsibility to place himself at risk in an attempt prevent injury or death to his attackers. He had to announce his presence and declare that he was armed and/or fired a warning shot before taking further action. If his attackers had in fact been armed themselves and his announcement made him a target, then well to bad for Tony Martin.

    2) Tony Martin was legal required to assume that the intruders, who were mere blobs in the dark, presented the minimal level of threat i.e. they would turn and flee immediately upon being challenged. Only after he saw clear evidence that the intruders presented an elevated level of threat for example after they shot him could he elevate the force he used in turn.

    This standard is exactly the opposite of the American one. An American is not required to place themselves at risk to protect the life of an intruder. An American can presume that the intruder presents the maximum level of threat i.e. armed with intent to kill, and respond accordingly. An American is only required to de-escalate his response after he is presented with clear evidence the intruder doesn’t present a threat.

    The American system does have it drawbacks. Every once and a while somebody gets roaring drunk, goes “home” to the wrong house, finds their key doesn’t work in “their” door and then breaks into the house through a window. The homeowner, having the right to presume maximum risk, shoots the drunk dead. Very rarely will such a case result in any charges against the homeowner. The drunks death, while a tragedy, is his own responsibility just as if he had driven drunk and plowed his car into an embankment.

    The British system is clearly weighted to put the homeowner at risk in order to protect the safety of the intruder. No wonder people are outraged.

    Personally, I think this attitude springs from an elitist mindset that views the state as a wise adult who most mediate the childish squabbles of the citizenry. The homeowner and the intruder share nearly equal responsibility for any violence that results from a break-in just as two children are nearly as equally responsible for a playground scuffle.

    No wonder law abiding Britons are about to blow a gasket.

  • Johnathan Pearce

    Euan, I don’t know if Tony Martin knew for sure that he was going to be burgled on the night his house was attacked. I doubt it. It is therefore rather bizarre to imagine that he was lying in wait for the folk concerned. What is clear to me is that he became so frightened that he lived in a state of siege. But I don’t think this means he deliberately set out to kill in advance, which seems to be your argument.

    The trouble with your view, Euan, is that you seem to be applying a very strict rule to what counts as legitimate self defence which suffers from the fact that householders in certain circumstances will have different levels of fear about their circumstances. That has to be taken in account.

    For what it is worth, I think Martin is a flawed character, but his jailing for manslaughter was wrong. The reaction of the local police was, and remains, contemptible.

  • Shawn

    “Well, not really. It IS in fact to have a common set of rules by which all citizens (or subjects, or whatever) abide. ”

    In other words it doesnt matter what the content of the law is? Rubbish. That is not an accurate view of Western Christian civilisation and its legal foundations, let alone a rational way to think about law. The moral content of the law DOES matter. And in the case of the Anglosphere the law is supposed to be there to protect life, liberty and property. Your saying than any old laws are fine so long as everyone is forced to obey them?

    “However, Martin had no right in law to use excessive and disproportionate violence,”

    And he didint.

    “Are you suggesting that we all accept your version of morality, whether we like it or not?”

    Thats exactly what the liberal regime does. I am forced to live by laws wich are grossly immoral. ALL laws are based on moral principles, therefore you and I are both currently being forced to obey the laws of the liberal regime.

    “This is the problem with legislating morality”

    ALL laws legislate morality. Why do you think we have laws against murder? Becuase the blood might make a mess?

    ” If you consider it wrong for the “liberal regime” to impose its morality (or lack thereof) upon us, you must surely accept that it would be equally wrong for you to impose your moral code on everyone else.”

    Again, ALL laws impose a moral code, including libertarian versions of the law. Thats not the issue. The issue is WHICH moral code.

    “The law should steer clear of moral positions”

    For the reasons stated above, it cannot do this by its very natue, as all laws take a moral position.

    Legal moral nuetrality is a liberal myth.

    “And what if the majority of people don’t want it changed? Are they wrong? Stupid? In need of “appropriate” guidance? And what makes your guidance any better than anyone else’s?”

    Two thousand years of culture, civilisation, Faith and Tradition.

    “Whether this is a sensible opinion is another matter, but that is the fact.”

    Many things are facts. That does not mean we should accept them.

    “This is what makes society.”

    No, it doesnt. What makes society is family and tradition, not forced obedience to evil.

    “You don’t get to pick and choose which laws you will obey.”

    Yes I do. Thousands of Christian martyrs died under Roman rule for refusing to obey Ceaser. My loyalty is to God, not the liberal regime.

    “However, since we have a more or less democratic system, you do get to state your case for changing the law. If you don’t get the support necessary, you need to accept this.”

    No I dont. If the law means that I cannot defend my life, family and property, then I not only can but must oppose it, peacefully if possible, but through armed resistance if necessary.

    If your take on the law had been held by most people in the colonies in the late 1700’s, then the American Revolution would never have occured. Disobediance and armed resistance to tryanny and evil is a legitimate moral right.

    Martin excersised that right, and the right to defend his property.

  • John K

    Just curious: does anyone know whether the burglars he shot were the same ones that had previously broken into his house?

    Who knows? They were never caught, indeed we do not know if the police ever made any serious effort to catch them.

    Euan, I don’t know if Tony Martin knew for sure that he was going to be burgled on the night his house was attacked. I doubt it. It is therefore rather bizarre to imagine that he was lying in wait for the folk concerned. What is clear to me is that he became so frightened that he lived in a state of siege

    That’s basically how he lived. I think the poor guy was at the end of his tether. Thieves had already stolen just about everything he owned, antiques, furniture et al. He was left with very little apart from his clothes and his shotgun.

    Tony Martin was not perfect. Who is? But he did not seek a confrontation with these burglars. They broke into his house in the middle of the night to steal whatever few possessions he had left. He did not give them the benefit of the doubt, he shot at them. But once they fled his house he let them go. He did not follow them. Barrass was badly hurt, he crawled into some undergrowth and died. Fearon was shot in the leg and buttock, he limped to the nearest house and asked for help. If Martin had had a mind to, he could have followed Fearon and shot him down. That would indeed have been murder. He did not do it.

    Tony Martin acted like a once respectable man whose life had been ruined by the depradations of criminals, who had been abandoned by the police, and who had lost almost everything valuable he owned to burglars. The only time the police showed an interest in his plight was when he fought back, then they swarmed around his house, but only when it was too late, and only when they had decided that he had become the villain.

    Cynical, moi?

  • John: well, wasn’t Fearon questioned as to whether he had previously burgled Martin? Strange.

    Euan: “ Not very likely if we live in the same community at the same era

    Were that true, there would be little debate on moral issues at all.”

    I was obviously refferring to the most basic moral values, such as the value of life, property, and truth. “The 10 commandments” type of thing. The vast majority of us agree that killing, stealing and lying are immoral, and that, in most cases, even includes people who do kill, steal and lie. Homosexuality and abortion are not good examples, because they are not included in that basic set of moral values. I think the reason is that homosexuality does not cause actual harm to anyone. The problem with abortion is different, and that is the disagreement as to whether a fetus should be considered a human being.

    I’d just like to point out that there should not necessarily be an argument between Euan and others here, since his assertions are mostly factual, while the others’ are moral. This still does not mean that Euan’s moral views are different from the rest here (although they certainly can be). It seems to me that you guys are not arguing about the same thing.

  • Pete_London

    Just curious: does anyone know whether the burglars he shot were the same ones that had previously broken into his house?

    It wasn’t proven that the Two Thieving Bastards who broke into TN’s home that night had previously made his life a misery but the Police and CPS said it was virtually certain they came from the same gypsey camp/group/clan/commune/whatever they call them.

    The Two Thieving Bastards didn’t just happen upon YN’s isolated farmhouse, they travelled IIRC some 50 miles specifically to his place.

    Shannon Love

    Personally, I think this attitude springs from an elitist mindset that views the state as a wise adult who most mediate the childish squabbles of the citizenry.

    This describes the paternalistic Tory view which has done so much to destroy Britain in the last 50 years.

    The homeowner and the intruder share nearly equal responsibility for any violence that results from a break-in just as two children are nearly as equally responsible for a playground scuffle.

    There’s the other great villain of the piece, the liberal’s view.

    Neither one will be consigned to history while Euan and others continue to bend the knee to the great God known as ‘the State’.

  • llamas

    Shannon Love wrote:

    ‘This standard is exactly the opposite of the American one. An American is not required to place themselves at risk to protect the life of an intruder. An American can presume that the intruder presents the maximum level of threat i.e. armed with intent to kill, and respond accordingly. An American is only required to de-escalate his response after he is presented with clear evidence the intruder doesn’t present a threat’

    and, for the 117th time here, I must again point out that this statement is, largely speaking, incorrect. Laws vary from state to state, but in virtually all places, the use of force against an intruder, including deadly force, is based in a ‘reasonable man’ standard and upon a reasonably-held belief of threat to life and limb. In most places, an American CANNOT presume ‘the maximum level of threat . . . and respond accordingly’. Even the famous Oklahoma ‘make-my-day’ law, which expressly includes the presumption which Shannon Love describes (the only state law which does), also makes that presumption rebuttable by contrary evidence.

    So, while there is no doubt that American laws generally favour the rights of homeowners to use force against intruders to a much greater extent than they do in the UK, claims that American law gives citizens carte-blanche to use deadly force against intruders are just hogwash. I wish people would stop repeating this hogwash here, since it has to be rebutted every single time. It is a prime example of what Mark Twain described as ‘things we know, which just ain’t so’.

    llater,

    llamas

  • llamas

    Shawn wrote:

    ‘Take back your country.’

    Well, that’s fine, but before we do, could you please describe just how far back you want to take it?

    Oh, wait – after reading your subsequent posts, I think I see how far back you want to take it.

    No, thanks, We did away with the death penalty for theft quite some time ago, and I for one don’t wish to return to that particular moral mindset.

    llater,

    llamas

  • Euan Gray

    Tony Martin had a legal responsibility to place himself at risk

    Incorrect.

    The householder is entitled to use force to defend himself. He may use lethal force where justifiable. He is not expected to put himself at risk.

    Tony Martin was legal required to assume that the intruders, who were mere blobs in the dark, presented the minimal level of threat

    Incorrect.

    He was entitled to assume there was a degree of threat, since people had broken into his house. The actions taken subsequently to address this threat must be proportionate to the reasonably apprehended degree of threat. If you see an armed intruder in your house, you are entitled to assume that your life may be at risk. You are entitled to use force to defeat this risk, and if (for example) you shoot and kill an armed intruder in circumstances where you reasonably believed he was likely to wound or kill you then you are VERY unlikely to be prosecuted for doing so. However, if you see a clearly unarmed intruder having it away with your CDs and by the time you see him he is already half way out the window in escape you most certainly DO NOT have the right to shoot him – because the threat of violence to you is in this case minimal.

    Is this really so hard to understand?

    An American can presume that the intruder presents the maximum level of threat

    I’d echo llamas’ comments. As I understand it, US law on the matter is generally very similar to British law, with a (slightly) less restrictive approach to deadly force and a presumption in favour of the victim. I am not aware of any legal entitlement to assume maximum threat or to, with impunity, kill intruders.

    Two thousand years of culture, civilisation, Faith and Tradition.

    Essentially, the thrust of this argument is that we should frame our law around Christian morality. Antiquity does not confer authority, however. Were that the case, why would we not adopt the ancient Egyptian law – the cult of Osiris dates back to about 4,000BC and is reputed to be still observed in some areas.

    It is unreasonable to seek to impose your own moral world-view on everyone else. Whilst I do not personally have any problem with Christian morality, I also recognise that many others do not share this view.

    Western civilisation is based largely (but not exclusively) on Christian ethical and moral guidance. However, Christianity is a rather ascetic religion, and strict adherence to all its moral precepts is for all practical purposes impossible for most people. Compromise must be made, and this is where it becomes impossible to have a legal system based on a moral code. For example – do you approve of abortion? If you don’t, and ban the practice, then you will make enemies of the feminists and drive abortion underground (you won’t stop it). If you do, and permit it, you will make enemies of the many people who object. So which morality has the right to impose itself on the other? And what of Islam?

    No, the answer is to reach a consensus on the more contentious issues. Moral prescription will not work, whether it is the ascetic Christian morality or the contemporary liberal morality.

    Homosexuality and abortion are not good examples, because they are not included in that basic set of moral values

    In which set of “the most basic moral values, such as the value of life, property, and truth” did abortion cease to feature? These are in fact valid issues to raise in this context, and here is why:

    All the monetheistic religions unambiguously and explicity condemn homosexuality (whatever the weasel words of the politically correct modern clergy). It is simply not logically consistent to be a practising Jew, Christian or Moslem and at the same time a practising homosexual. The moral basis of our civilisation rejects it, but for a variety of reasons the law and much of public opinion does not. One of these views (the moral or the legal/public) must be wrong. Which one? Why?

    Depending on your views on when an unborn child becomes “human,” abortion can be considered as murder, and therefore contrary to any reasonable moral code. However, the law permits it under specified circumstances. Again, one view is wrong. Which one and why?

    How do you decide which moral precepts to include and which not? How do you justify this? How do you justify imposing it on everyone?

    EG

  • Wonderful Anon

    Hiya, Euan. Why not answer the point about all laws being based on moral principles? Would you agree that they do, or not?

  • Kristopher Barrett

    Euan …. your defense of a morally undefendable law … is exaclty why you are at odds with most of the folks in this forum.

    Your interpretation of the existing statute is absolutely correct.

    But it ignores the fact that the politicians who created it, and the judges who are enforcing it need to be horsewhipped, and the statute radically altered.

    Any law that does not give any homeowner the absolute right to use deadly force, in a manner that most effectively safeguards the homeowner from physical harm ( yes … including laying in wait and shooting through a locked door at assholes trying to break in ) is completely and totally counter to what should be an absolute human right of self-defense.

    Yes, your interpretation of the existing law is correct.

    But this law is still absolutely evil.

  • Euan Gray

    Why not answer the point about all laws being based on moral principles?

    Why not read what I’ve written and discover that I have already answered that question?

    is exaclty why you are at odds with most of the folks in this forum.

    This does not, however, mean that I am wrong.

    Any law that does not give any homeowner the absolute right to use deadly force

    Tell me where at present a homeowner has an ABSOLUTE right to use deadly force.

    But this law is still absolutely evil.

    Hyperbole.

    The law states that you can use deadly force without facing prosecution IF it is a proportionate and reasonable act in the circumstances. AIUI, the same applies in most if not all states of the US.

    The fact that the law does not allow one to blast the crap out of intruders with impunity in any way one sees fit does not mean it is “evil.”

    EG

  • Johnathan

    Euan, you seem to be displaying a rather heroic defence of the indefensible. You try hard but you are not convincing anyone. You need to prove that Martin was deliberately intent on killing intruders and that he knew they were coming into his house on the night he acted. You have not done so.

    Of course I agree that premeditated killing is murder. I do not believe Mr. Martin was guilty of that, although I do believe that he is a character who made himself vulnerable to charges of being reckless.

    Enough said. It is pretty clear to me that Mr Gray, and millions of other Britons, will the end of homeowner security, but are unwilling through their natural squeamishness to will the means. The result of that mindset has been the mayhem of housebreaking we have seen over the last few years.

    Of course, there are many other things needed to reduce crime, of which scrapping the insane war on drugs, increasing punishments for burglarly, and improving policing methods, are but a few. But allowing the individual to defend himself or herself is not something that is in the gift of the State. It is an inalienable right, as was recognised in the Glorious Revolution of 1689. It is time to reclaim it.

  • Euan Gray

    You need to prove that Martin was deliberately intent on killing intruders and that he knew they were coming into his house on the night he acted. You have not done so.

    I don’t need to at all, unless I wished to suggest murder. Which I don’t.

    Considering the evidence at trial and the judgment on appeal, it is fairly obvious that Martin had no scruples about shooting and killing intruders. That he was the victim of long series of prior burglaries explains his frustration, and although a mitigating factor does not entirely excuse his conduct. The further fact that Martin is of somewhat limited intellectual capacity and appears to have suffered from some form of emotional disturbance (mental illness is too strong a term) might go some way to explaining some of his actions and attitudes, but again does not excuse his conduct (it would if “diminished responsibility” was successfully argued).

    There may be many good reasons for sleeping fully clothed with one’s boots on and keeping a loaded shotgun at the side of the bed, but it raises suspicions in the mind of a reasonable person. There may be good explanations for why Martin shot two retreating burglars at close range, but there are none consistent with both his version of events and the evidence.

    Whilst it would be manifestly wrong to argue that Martin planned the shooting of two people he knew were going to burgle his house, it is equally manifest that he had a pretty clear intention of what he was going to do if he was burgled again. Gicven the evidence, this is persuasive of manslaughter, but not of murder.

    It is pretty clear to me that Mr Gray, and millions of other Britons, will the end of homeowner security

    I dunno. I have lost count of the number of times I have said on this blog, in language which should be transparent to the meanest intellect, that I support the right of householders to defend themselves and their property, and indeed to do so with guns if they wish. And yet still people make comments like this.

    many other things needed to reduce crime, of which scrapping the insane war on drugs

    Given that a great deal of crime is in fact related to drug use – including much petty burglary – I’m not convinced that legalising or decriminalising their use is going to help. Unemployable drug users will still need money to buy their fixes, even if it is legal. Since they can’t work, and since welfare won’t pay for it, they resort to crime.

    It is an inalienable right, as was recognised in the Glorious Revolution of 1689. It is time to reclaim it.

    It has not been taken away. You cannot reclaim something you never lost.

    EG

  • Shawn

    ” Antiquity does not confer authority,”

    Antiquity is not the issue. Truth and who we are as a people is. Europe is the Faith and the Faith is Europe. That still remains true despite the inroads and propaganda of the Enemy.

    “Essentially, the thrust of this argument is that we should frame our law around Christian morality. ”

    No. The thrust of my argument is that we should frame our law around traditional European civilisation, which is inseperable from the Christian Faith.

    “Were that the case, why would we not adopt the ancient Egyptian law – the cult of Osiris dates back to about 4,000BC and is reputed to be still observed in some areas.”

    The Egyptians were not Europeans.

    “It is unreasonable to seek to impose your own moral world-view on everyone else.”

    That is exactly what you are trying to do, force YOUR concept of morality on me, in this case YOUR interpretaion of the case at hand. I know your not a liberal Euan, but in this instance you sound like one. Liberals are the only people to believe that they are not trying to impose their morals on anyone. Moreover as I said, ALL LEGAL SYSTEMS IMPOSE MORALITY BY FORCE.

    “Whilst I do not personally have any problem with Christian morality, I also recognise that many others do not share this view.”

    So? Not everyone shares your beliefs about liberty. Dont you think a Marxist would object to your desire to impose your libertarian beliefs on him?

    “Western civilisation is based largely (but not exclusively) on Christian ethical and moral guidance. However, Christianity is a rather ascetic religion, and strict adherence to all its moral precepts is for all practical purposes impossible for most people.”

    Different issue, but utterly false. That millions do so proves the opposite of your claim.

    “Compromise must be made”

    Why?

    “and this is where it becomes impossible to have a legal system based on a moral code.”

    For your education. ALL LEGAL SYSTEMS, AND ANY YOU CAN COME UP WITH, ARE BASED ON MORALS AND ARE IMPOSED BY FORCE.

    “For example – do you approve of abortion?”

    For example – do you approve of theft?

    “If you don’t, and ban the practice, then you will make enemies of the feminists”

    If you dont, and ban the practice, then you will make enemies of thieves

    “and drive abortion underground (you won’t stop it).”

    and drive stealing underground (you wont stop it you know)

    Are you starting to get the picture yet? Because you keep repeating yourself on this point which I have already shown to be a non-issue.

    “And what of Islam?”

    Islam is not the historic faith of the European peoples.

    “No, the answer is to reach a consensus on the more contentious issues. ”

    Reaching a “consensus” will involve MAKING A DECISION ON WHAT IS RIGHT OR WRONG, EVEN IF ITS A COMPROMISE POSITON, AND THEN IMPOSING THAT ON THOSE WHO DO NOT AGREE WITH YOUR CONSENSUS.

    In other words, your “consensus” is no different to mine.

    But 100% consensus is not possible, and therefore you are still going to end imposing your “consensus” by force one way or another.

    “Moral prescription will not work, whether it is the ascetic Christian morality or the contemporary liberal morality.”

    Again, all laws are based on moral prescription and therefore your statement is a total contradiction.

    ( by the way, all forms of ethics and morality, wheher Christian, Utilitarian, Objectivist, or even liberal, have a component of discipline and ascetism to them, and millions practice such ascetism. Try living with a left wing Vegan aniumal rights activist sometime)

    “In which set of “the most basic moral values, such as the value of life, property, and truth” did abortion cease to feature? ”

    It doesnt. Or at least should not. Abortion is muder and should be treated as such.

    “All the monetheistic religions unambiguously and explicity condemn homosexuality (whatever the weasel words of the politically correct modern clergy). It is simply not logically consistent to be a practising Jew, Christian or Moslem and at the same time a practising homosexual. The moral basis of our civilisation rejects it
    but for a variety of reasons the law and much of public opinion does not.”

    Actually for one reason. Liberalism and decades of liberal indoctrination.

    “One of these views (the moral or the legal/public) must be wrong. Which one? Why?”

    Exactly. We must choose. One way or another, we must choose. Thats my point. on what basis do you choose yours?

    “How do you justify this?”

    Hopw do YOU justify it?

    “How do you justify imposing it on everyone?”

    How do YOU justifying imposing your “consensus” model on me?

    By the way, you will find answers to many of your questions here:

    The Conservative FAQ: http://jkalb.org/?q=node/3

  • Shawn

    Euan: “Why not read what I’ve written and discover that I have already answered that question?’

    No, you havent. You have repeatedly ignored it. What you dont seem to realise is that, in saying that the statute is correct, and that the sentence imposed on Martin is right, that you are making a moral judgemt about the laws goodness and rightness, and then agreeing that it should be imposed on Martin, and that he should be deprived of his liberty because of that. You keep asking about me imposing my morality, but your depriving a man of his liberty because of your moral OPINION that the law is right.

    You think your just stating what the law is in this case . But your not. Your saying that ACCORDING TO YOUR MORALS THE LAW IS MORALLY RIGHT AND NEED NOT BE CHANGED., AND IT SHOULD BE IMPOSED ON MARTIN BY FORCE.

    Can you see this small point? Martin is in prison not for the letter of the law, but because of a moral decision that this law is good and right.

  • Wonderful Anon

    Why not read what I’ve written and discover that I have already answered that question?

    I already read what you’ve written, so I don’t need to discover that you haven’t, that you dodged the point entirely. But when I read the above, I discovered that you’re a liar who thinks that he can fool people by being ever-so-subtly condescending.

  • Euan Gray

    Antiquity is not the issue. Truth and who we are as a people is

    “Truth” is an unwise argument to use in the context of religion. The Christian religion may be true – but you cannot PROVE it is true, therefore you cannot claim truth for it.

    The most the Christian can say is “I believe it is true,” which is not at all the same thing. You, as a Christian, have presumably persuaded yourself of the truth of your faith, but this in no sense means that it is in reality true.

    There is no difference between this aspect of your argument and that of the Islamists – which is why I asked “what of Islam?”

    we should frame our law around traditional European civilisation, which is inseperable from the Christian Faith

    Well, that’s not as persuasive as you might think. Much of European law (especially Dutch and Scots) is based on Roman law. Indeed, precedent from ancient Rome can be and has been cited in Scottish courts. If you go back beyond about 1500 years, the “traditions” of European civilisation are not Christian. European civilisation has existed in a meaningful form for rather longer than this, perhaps the more important date being the foundation of Rome in 753BC.

    If any culture has shaped European civilisation in a lasting way, it is that of Rome. The effects of the fall of Rome – Christian for less than 200 years before its final collapse, or less than 1/6 of its life – are still felt today, over 1500 years later. Many European legal and moral concepts orginated in Roman culture, not Christianity.

    This is not, of course, to deny that Christianity has heavily influenced European civilisation, but it is not the only influence, nor IMO necessarily the most important one.

    The Egyptians were not Europeans.

    Neither were the first Christians. Christianity, as I am sure you are aware, was a Jewish sect orginating in Palestine. The form of Christianity ultimately adopted by Rome was heavily influenced by the Graeco-Roman ideas of Stoicism, and was grafted on to the Roman state religion of the Capitoline Triad, to the extent that many Christian traditions and festivals are actually Roman ones with the names changed. This does not necessarily detract from any truth the Christian faith has, but equally it does not make it a European faith.

    I suppose you could say Roman Catholicism is a rather more (west) European form of Christianity, and Protestantism even more so, but Orthodoxy is rather closer to the Middle Eastern roots of the faith, despite the very heavy Greek influence even it contains.

    “Compromise must be made”

    Why?

    Because not everyone accepts the veracity of someone else’s religious-moral point of view.

    This is why I gave the examples of abortion, homosexual marriage and drug abuse. Christian morality would condemn all three. From an entirely personal point of view, I object to all three, and therefore would not particularly have a problem with Christian-based laws forbidding them.

    BUT…

    Abortion happens. Whilst I agree that it is in principle murder and therefore most objectionable, there are circumstances where many people would consider it justifiable. Neither you nor I might necessarily share this point of view, but a great many people do. The law is pragmatic on the issue, although it is a very serious moral matter. Were the law to be an enforced morality on a Christian basis, abortion would be illegal – but it would still happen. On this issue, the law does not impose a moral point of view, but permits abortion in the circumstances where a great many people would consider it justifiable. That it is not forbidden does not mean it is compulsory, of course.

    You raise the issue of theft. Theft is morally wrong, but it is also pratically a very bad thing. The basis of society is respect for property, and this is why (from a legal point of view, and it surprises many people) theft is one of the most serious crimes possible. All western societies have comprehensive legislation on the subject – not because it is morally wrong (although it is) but because permitting widespread theft undermines the principle basis of civilisation. It is pragmatic, not moral, and in fact has little to do with any religious/moral strictures against theft.

    But 100% consensus is not possible, and therefore you are still going to end imposing your “consensus” by force one way or another.

    All systems of law are imposed by force, otherwise they don’t work. There will always be someone who breaks the law, and it will be necessary to punish him. This needs force.

    However, an arbitrary code of law imposed without taking heed of what the people are actually prepared to accept – however moral it may be – will not work. People will, and indeed do, ignore laws they disagree with. Where laws are generally unpopular or flatly contradictory to practically attainable standards of general human behaviour, they will be widely ignored. A single law more honoured in the breach than the observance brings the entire legal system into disrepute and leads to people cherry-picking the laws they will obey.

    Where a set of laws are widely ignored, there will be little public support for their enforcement. If you want people to obey the law, you need to make laws they actually can obey without unreasonable effort. For example, it is not generally hard to avoid stealing things, BUT if the rest of your system of government puts very large numbers of people into extreme poverty, then theft will increase – people will steal in order to eat, for example. In this case, you need to create the economic environment where people can earn enough to eat without resorting to theft. Moral strictures against theft are not enough on their own.

    You also need to enact law which is not contradictory to the basic wishes of the majority of the people (this is not the same as enacting law which is fully in accordance with their base desires). From a Christian moral point of view, for example, homosexuality is wrong, BUT most people really don’t give a damn what other people get up to in the privacy of their own homes. From a moral point of view, there perhaps should be a law forbidding it. From a practical point of view, there should not. Like abortion, homosexuality is something that will happen whatever the law says – somethnig like 1% to 2% of all human populations are homosexual, and it is folly to enact law which contradicts basic human structure. Again in this case, the law is pragmatic rather than moral.

    I don’t need to discover that you haven’t, that you dodged the point entirely

    Where you enact law on the basis of morality alone, you get things like sharia and the Taleban. In western civilisation, law does not impose a specific morality but a set of rules that are intended to make society work. Given that much of western society is heavily influenced by Christianity, it would seem that there is a Christian moral basis to our legal codes. In fact, this is incorrect – many of our basic “moral” laws could also be found in a closely similar form in pre-Christian European civilisations. They are essentially pragmatic rather than overtly moral.

    Earlier “moral” laws, such those outlawing sodomy, abortion, etc., are either no longer in force or have long since fallen into disuse. The period of overt moral law in Europe was, I think, not that long and is pretty much over.

    Legal systems – other than those expressly designed to enforce a specific, narrow religious morality – make pragmatic law, not moral law. Morality is to a large extent for the individual, or between the individual and his God or conscience, not the state.

    EG

  • Euan Gray

    Your saying that ACCORDING TO YOUR MORALS THE LAW IS MORALLY RIGHT AND NEED NOT BE CHANGED., AND IT SHOULD BE IMPOSED ON MARTIN BY FORCE.

    I believe the law is broadly correct in this case, although it could benefit from some changes. I do not asrcibe morality to systems of law, however, and would not say it is “morally right.”

    I believe it is justifiable to jail Martin because the widespread use of excessive violence without reasonable excuse is prejudicial to the maintenance of an orderly society, NOT because I think he was morally defective.

    Finally, all systems of law are imposed by force.

    EG

  • Euan, I think I can try and narrow all of this down: you seem to completely separate pragmatism and morality throughout this discussion, and I think this is a mistake. The reason is that all morality is originally pragmatic, and is based on our most basic instinct of survival, and its offspring, the instinct of reproduction. The laws that punish murder and theft are the ones that are based on the former instinct. The now archaic laws that prohibit homosexuality are the ones based on the latter. (I am going to leave abortion out of this for the time being). The reason that most people do not give a damn what other people are doing in the privacy of their homes is that they are no longer concerned with the procreation prospects of people who are not part of their immediate family (“tribe”). I think, BTW, that most even very liberal parents are not very happy finding out about their sons’ homosexuality. But, with the planet becoming so overcrowded, I will not be surprised if in so many years from now homosexuality will be viewed in an increasingly positive light.

    So, morals do change over time, following (albeit often slowly) changes in our pragmatic needs and circumstances. Although there are great numbers of people, most of whom are religious to varying degrees, that do stick with the ancient morals as handed down to them by their religions. I would call this “religious morality”. Sharia in its modern reincarnation is a very extreme example of this, and Taliban and al-Qaida are examples of extreme religious morality being highjacked for political purposes.

    So, going back to the original question of whether laws are based on morals, is is really achicken and egg kind of thing. As I noted earlier, you are correct that morals are not directly considered in courts, but in the West the laws are based on conteporary morals, which in turn are based on pragmatic considerations. When you look at the matter this way, the question whether these morals are Christian, Roman, Greek or Jewish becomes irrelevant. They are, in fact, universal, at least in the West.

    Now all that aside, I am very curious as to what would you personally have done in Martin’s situation? You live in an isolated area. You are being repeatedly and successfully burgled. The police does not act, or to be about to. what do you do?

  • Wonderful Anon

    Where a set of laws are widely ignored, there will be little public support for their enforcement. If you want people to obey the law, you need to make laws they actually can obey without unreasonable effort. For example, it is not generally hard to avoid stealing things, BUT if the rest of your system of government puts very large numbers of people into extreme poverty, then theft will increase – people will steal in order to eat, for example.

    This example of yours seems analogous to the situation many people who use violence to defend themselves find themselves in – if the police fail to provide an acceptable level of protection from and deterrence to crime, AND the law is written so as to ensure that the best way to avoid falling foul of it is to basically not resist criminals too strenuously, never mind the risk of harm to themselves that the law may well punish them for not taking, then this creates a situation that is exactly like your ‘government driving people to poverty’ scenario. Right?

    Maybe this will help you understand why the laws on self-defence do not have a great deal of public support.

  • Euan Gray

    Alisa,

    I understand your argument, but I do not agree that the (changing) law necessarily reflects the (changing) morality. I think this would be valid in less sophisticated times, but I think a more relevant view now is that formal law and moral standards are separate things – one for the state or society, one for the individual. I suppose we shall have to agree to differ on this.

    As for being in Martin’s shoes:

    Firstly, he could have tried to avoid the situation arising in the first place. He had for years neglected the house and grounds, such that both appeared derelict and uninhabited, and the inside of the house was in many places seriously run down and disintegrating. This naturally attracts opportunist thieves. He could have fitted more secure windows and doors, which by themselves deter many opportunists.

    Secondly, if he found himself being burgled despite the elementary precautions above which almost everyone takes (but he didn’t), he should have sought and heeded any further security advice given by the police – and they DO advise on these matters, but you don’t have to listen to them. He could have installed exterior lights (as many people do), an alarm system (ditto) and/or security cameras (fewer people do this, but it’s eminently practical and not expensive).

    If he was STILL getting burgled, which would be somewhat unlikely, I can understand him deciding to keep a shotgun. He should have made sure he had a licence for it, and he could have let it be known during his mouthing-off sessions in the pub that he had one, and it was legally held.

    If it came to it and the burglars still came into his non-derlict, well-lit, more secure house, he could have made enough noise coming downstairs to scare them off. Alternatively, he could have fired in a safe direction as a warning. At any rate, as soon as he knew there was someone in the house, he should have called the police – so what if they don’t come, at least he told them and they cannot blame him afterwards. Since the burglars were unarmed, he would be justified in actually shooting them only in pretty extreme circumstances.

    There are two observations I think should be made about the case.

    Firstly, Martin was not your average middle class working homeowner – he was an eccentric loner and what you might call intellectually challenged. His house was ill-kept and run down, for no good reason other than his lack of interest in it. He repeatedly failed to take the most elementary precautions to protect his property, and this is often overlooked. He was in many ways an easy target. He isn’t a good mascot for the home-defence interest, to be honest.

    Secondly, there are basically two types of burglars. There is the professional steal-to-order type, who basically will only be interested in your house if he knows you have something he specifically wants. These people are hard to deter, and if he wants whatever it is badly enough, he’ll get it one way or another. Fortunately, this is relatively uncommon, and Fearon & Barras did not come into this category.

    The vast majority of house-breakers are opportunistic petty thieves. They are attracted to houses which appear run down, which look easy to break in to, or which have been done over before with no difficulty and the owner has not changed anything. They are deterred by secure doors and windows, obviously occupied buildings, well-lit areas, cameras, and so on. This doesn’t mean they will never try such places, but it is far, far less likely. They will instead choose the run-down, easy to enter property.

    I have every sympathy with a homeowner who takes sensible and reasonable precautions and who still gets burgled. I have some (but limited) sympathy for someone who doesn’t bother with this at all and then expects to get away with shooting unarmed intruders. As I said earlier, Martin was not quite the author of his own misfortune, but he did behave in a manner not calculated to solve the problem.

    EG

  • Euan Gray

    AND the law is written so as to ensure that the best way to avoid falling foul of it is to basically not resist criminals too strenuously

    But it is NOT written like that. I think this is the root of the misunderstanding about British law on the subject.

    You CAN use force. You CAN kill. You CAN resist as strenuously as you want.

    But if you kill or injure when you are not under any reasonable apprehension of threat, you are considered to have broken the law and will be held to account.

    The law does not give an absolute right to kill in defence of your property. I am not aware of any legal jurisdiction where anyone DOES have such an absolute right & would be glad to learn of one. The law in the US is pretty much the same as it is in Britain, although there is a greater (but not absolute) presumption in favour of the householder.

    The law does not “force” people into using violence in defence of home and life. The legal ability to use force is there, it has never been taken away and it is justifiable in many (but not all) circumstances. It is fair enough to say the the British police are depressingly often lazy and incompetent, but this does not alter the range of situations in which people are entitled to use force for defence. It does mean that such circumstances arise more often than they need to, but in fairness there are a great many other factors in contemporary western society which have the same result.

    EG

  • Euan: fair enough.

    I have a question: how easy or difficult is it to obtain a firearm licence in England under the current law?

  • Euan Gray

    I have a question: how easy or difficult is it to obtain a firearm licence in England under the current law?

    Firearms licences are hard to obtain. However, you don’t need one for a shotgun – you need a shotgun permit which is controlled by different legislation.

    A shotgun permit is much easier to obtain, and the onus is upon the police to provide a reason not to issue. The applicant doesn’t need to provide a good reason for having one, although it would be helpful if he did. For example, if you wanted a shotgun because you were a clay-pigeon shooting enthusiast, or if you lived on a farm and wanted to keep down vermin, you’d probably get one without undue difficulty.

    Basically, if you are a person of good character and can easily demonstrate a valid reason for keeping a shotgun, you’d be unlikely to be refused. If you are refused, you can take the matter to court, when the police will need to produce evidence as to why they think you are unfit.

    To get a firearms certificate, however, you need to be able to provide a good reason. AIUI, this will not normally be anything other than (a) firearms trade, (b) target shooting or (c) game or vermin shooting. An application on the grounds of self-defence will be automatically refused. There are severe restrictions on where the weapons can be used (this needs to be specified on the application). The weapon must be defined on the application. You need to be of good character & be able to provide referees of equally good character & good standing.

    EG

  • Euan Gray

    Alisa,

    I should also point out in connection with guns that if you lawfully kill someone with an unlawfully held gun, you would not be prosecuted for the killing. You will, however, be prosecuted for keeping an unlicensed firearm.

    The use of the weapon and the having it in the first place are distinct matters, and you can lawfully use and unlawful weapon. There is precedent for this, so it’s not in doubt. Maybe it sounds daft, but there it is.

    Martin was convicted of murder (later overturned for manslaughter), and also of keeping an unlicensed shotgun. I think also wounding with criminal intent. Had he lawfully killed or wounded his victims, he would still have been convicted on the firearms offence.

    EG

  • John K

    Since the burglars were unarmed, he would be justified in actually shooting them only in pretty extreme circumstances.

    Obviously, he would only know they were unarmed after the fact. A recent TV programme, “Tonight with Trevor McDonald”, looked into this issue. It had on it an Assistant Chief Constable and a QC. In one scenario, a householder armed himself with a knife, crept up behind a burglar, and without warning him, stabbed him in the back. They insisted that this action was quite legal. It is exactly analagous to Martin’s actions.

    Firstly, Martin was not your average middle class working homeowner – he was an eccentric loner and what you might call intellectually challenged. His house was ill-kept and run down, for no good reason other than his lack of interest in it.

    I agree, I feel that Martin’s manifest eccentricity, and the fact that he lived in such a run down house, was a major factor in his conviction, he must have cut an odd figure in court. If he had been more conventionally respectable it would have helped his case. That sort of thing should not matter, but I think it does.

    Secondly, there are basically two types of burglars. There is the professional steal-to-order type, who basically will only be interested in your house if he knows you have something he specifically wants. These people are hard to deter, and if he wants whatever it is badly enough, he’ll get it one way or another. Fortunately, this is relatively uncommon, and Fearon & Barras did not come into this category.

    Can you be so sure? Fearon, Barrass and their pal who drove the car that night, did not drive 60 miles to burgle his house on a whim. His house had been broken into many times, and they knew where they were going. That must have been something which really preyed on Martin’s mind. It is one thing to be burgled once, but when the burglars keep coming back again and again you know you are being targeted. It must feel very personal, and frightening. I am not surprised that he took to sleeping fully clothed with his shotgun to hand, the pressure he must have been under can only be imagined. I’m glad that I haven’t been put under that sort of strain, it can cause even rational and law abiding people to snap. I think that’s what happened in this case.

  • Euan Gray

    If he had been more conventionally respectable it would have helped his case. That sort of thing should not matter, but I think it does.

    It’s not so much being conventionally respectable as taking reasonable and elementary precautions. He repeatedly failed to do this. It’s a stretch to argue this was contributory negligence, but it isn’t much of one. By failing to do simple things like put his house in order, fit secure windows & doors & generally give an impression of anything other than dereliction, he was essentially inviting repetition.

    Can you be so sure? Fearon, Barrass and their pal who drove the car that night, did not drive 60 miles to burgle his house on a whim

    This is the point I was making – opportunist burglars like this will pick the soft targets. They *knew* Martin’s house was easy to break in to. If Martin had had any common sense and secured & tidied up his house after the first burglary, I doubt they’d go to the trouble they did.

    The steal-to-order thief targets you not so much because he knows your house is easy to get into but because you have something he wants – a particular painting, piece of jewellery, expensive equipment, or whatever.

    EG

  • John K

    It’s not so much being conventionally respectable as taking reasonable and elementary precautions. He repeatedly failed to do this. It’s a stretch to argue this was contributory negligence, but it isn’t much of one. By failing to do simple things like put his house in order, fit secure windows & doors & generally give an impression of anything other than dereliction, he was essentially inviting repetition.

    I think you’re being rather harsh on him. Apart from the fact that it’s not your fault if your property is stolen, even if you do not lock it up, is there any proof that he had the money for alarm systems and the like? I got the impression that he was pretty well on his uppers.

    I have never claimed that Tony Martin was the ideal exemplar of the armed citizen defending his home. He was an eccentric loner, his home was a wreck, he had an illegal shotgun. None of that helped his case, but the basic facts are still the same: he had been repeatedly burgled, the police could do nothing to help him, he did not initiate the confrontation with the burglars, and he did not continue to shoot them after they fled his property.

    I think he was a man who had just reached the end of his tether, and could not take it any more. If he had been thinking logically he would never have used an illegal shotgun, because he was just setting himself up for legal trouble. I think the realisation that this was the case was why he fled his own house after the incident, which made him seem somehow guilty. He did not know at that stage he had killed Barrass, whose body was not found until the next morning.

    i have a great deal of sympathy for Martin, I think he was just driven too far by the repeated attacks on his home, and we should bear that in mind before we judge him too harshly. He did not seek out the gypsies or try to take revenge on them, and if they had not invaded his home in the middle of the night none of this would have happened. Fearon and Barrass were the authors of their own misfortune.

  • Hagar TH

    Here in the US, common opinion is if you shoot him outside, you had better drag him inside. If he is truely inside, the intruder is almost fair game. If the intruder is carrying a firearm, or you have strong reason to believe that he is carrying a firearm, you have virtually unlimited license. A “citizen’s arrest” carries the same strictures as a police conducted arrest: Ya gotta warn them, “stop or I’ll shoot”; a warning shot; shoot to disable only. If you shoot at a policeman, he is going to shoot back. They are taught to shoot at center of mass, simply because they want a greater assurance of a hit.

  • Shawn

    “This is not, of course, to deny that Christianity has heavily influenced European civilisation, but it is not the only influence, nor IMO necessarily the most important one.”

    European civilisation has not been “influenced” by Christianity. It IS a Christian civilisation, and has been for over a thousand years. To dismiss that as merely an add on that we can pick and choose to leave in or out is historically facile.

    “Neither were the first Christians. Christianity, as I am sure you are aware, was a Jewish sect orginating in Palestine.”

    Except the fact remains that Europe is a Christian civlisation.

    ” The law is pragmatic on the issue,”

    No its not. Its a liberal moral postion.

    And thats the point. We do not, as you claim, have a pragmatic law. The law has not moved from a moral basis to a pragmatic one, it has moved from a Chriatian moral basis to a liberal one. Thats the central point that you do not see. Your “pragmatism” is just liberal moral opinion.

    “Where you enact law on the basis of morality alone, you get things like sharia and the Taleban”

    No you dont. When you enforce ISLAMIC law you get things like Sharia. We are talking about Europe. Moreover, ALL LAWS ARE MORAL BASED. Your so-called “pragmatic” law is just liberal morality. Moereover, when we enforce liberal morality we get things like Martin in prison and tens of thousand of innocent children murdered in the liberal regime’s holocaust.

    “The basis of society is respect for property, and this is why (from a legal point of view, and it surprises many people) theft is one of the most serious crimes possible.”

    Respect for property is a moral opinion. I know people who dont share that opinion. Should we allow theft in some circumstances in order to be “practical”?

    You keep advancing moral opinions, and then claiming that those morals are just pragmatic positions when clearly they are not.

    “Legal systems – other than those expressly designed to enforce a specific, narrow religious morality – make pragmatic law, not moral law. Morality is to a large extent for the individual, or between the individual and his God or conscience, not the state.”

    Rubbish. Legal systems make moral law. ALL of them. Including the ones we are currently living under. Your claim that morality is between the individual and no business of the state. Except your prepared to allow the murder of defenceless children becuase liberal morality allows for it. So in allowing abortion, your forcing YOUR moral opinion on children and killing them. And this killing is SANCTIONED BY THE STATE YOU CLAIM IS NUETRAL.

    Sorry Euan, but your talking ignorant rubbish.

  • Shawn

    Martin is a victim of liberal morality.

    “By failing to do simple things like put his house in order, fit secure windows & doors & generally give an impression of anything other than dereliction, he was essentially inviting repetition.”

    By wearing a mini skirt a women is inviting rape then, right?

    Your blaming the victim.

    “I have every sympathy with a homeowner who takes sensible and reasonable precautions and who still gets burgled.”

    Sensible and reasonable according to YOUR opinion. I have no respect for someone who claims to believe in the right to self defense only if the person conforms to your opinions about “respectable”.

    Could you please tell all he people who dont conform to your ideas of morality and respectability that they must allow thieves to have free reign?

  • Shawn

    What really burns me about this is the sheer hypocrisy of Euan saying that no personal morality should be enforced, and then saying that Martin should be deprived of his liberty, in part because he wasnt “respectable” according to Euan, and failed Euan’s MORAL test of the right to self-defense.

    So Euan has said that the state can kill children, it can deprive Martin of his liberty, but this is, according to Euan, morally nuetral.

    Nice to know that the mass murder of children and depriving folks who arent “respectable” of their liberty are positions that have nothing to do with morality.

    Yeah right.

  • Shawn, I don’t think Euan actually supports abortion. He was just arguing that it is currently legal, which i think is a fact.

    “The law has not moved from a moral basis to a pragmatic one, it has moved from a Chriatian moral basis to a liberal one. Thats the central point that you do not see. Your “pragmatism” is just liberal moral opinion.” This is a good point in general, and is consistent with what I was saying. I only have one problem with it, and it has to do with a question I have been asking for quite a while. Maybe you can answer it for me. Is it not true that modern liberalism has at least some of its roots in Christianity? I am thinking about “turning the other cheek”, for example. Pardon my ignorance, but I am not a Christian:-)

    Euan (and others): so what is the difference between a licence and a permit, other than the degree of difficulty in obtaining them?

  • Euan Gray,

    “But if you kill or injure when you are not under any reasonable apprehension of threat, you are considered to have broken the law and will be held to account.”

    I still don’t understand why Tony Martin wasn’t under a reasonable apprehension of a threat. You seem to be condemning him based on information only obtained after the fact in the clear light of day, not on the basis of information that Tony Martin actually had when he pulled the trigger.

    Remember that the interior of the house was dark and that the only light came from the small flashlights carried by the intruders. So a list of information about the intruders that Tony Martin possessed at the actual moment would have been:

    (1) There were at least two intruders because he could see two flashlights.
    (2) There is not second item because he had no other information.

    Would the case have changed at all if a gun was found in the waist band of the dead intruder? By your reasoning it should not have changed anything because, due to the darkness, Tony Martin could not have been aware of the presence of the weapon when he fired.

    As it turned out, the intruders turned out to be petty burglars who were unarmed but how was Tony Martin to have know that? There was no way he could have acquired more information before shooting without exposing himself to potential attack.

    You condemnation of Tony Martin only makes sense if he was legally required to assume the intruders presented a minimum risk and to escalate his own response only if he acquired new information indicating otherwise.

    Your legalistic arguments concede that the homeowner had the right to lethal self-defense but the way you require the homeowner to act on information they do not have nullifies this principle in many cases.

  • Euan Gray

    Shawn,

    It is fairly clear from the almost hysterical tone of your posts that you simply will not see what I have written but will see only what you want to oppose. In such circumstances, there is little point in continuing to debate the issue. I am simply not saying the things you apparently think I am, and in some cases I have very plainly and simply said the precise opposite of what you claim I have said, but no amount of explantion, even in the simplest language, seems to alter your perception:

    I object to abortion, but that doesn’t mean I think it should be forbidden;

    I support the right of householders to use force, including guns, in defence of life and property, but I do not support the use of unlimited force or the absolute justification for using weapons in all cases;

    I have entirely pragmatic reasons for supporting the conviction and detention of Martin. I explicitly stated both this and the fact that my reasons were not moral.

    Your view of law, as a Christian, is perhaps a deeply moral one – I respect this, but I disagree with it. Mine, that of many people, and indeed that of the law itself, is not. You may object to this, but that will not alter reality. The law is a set of rules made to permit society to function, not to impose a given morality on the people. Of course, you might argue that this is essentially what morality is, but then you’d have to concede that codified religious morality (e.g. Exodus c20, the Torah, the Beatitudes, etc) is simply a spiritual justification of pre-existent secular law, for such is the record of history. Even the Christian faith commands obedience to the secular law (Luke c20 v21 et seq.)

    Law and morality are not necessarily the same things. They can be, in some cases they have been (cf. the Dark and Middle Ages, also cf. pre- and post-Christian and Rome to see the differences), and in some cases they are now (cf. Iran before and after the Revolution). It has been suggested that the overtly moral Christian law of the Middle Ages to the start of the industrial era was no more than a brief if unpleasant interlude in the progress of European society. It should be noted in this connection that the Renaissance marked the beginning of the end of this type of thing in Europe, with the rediscovery of the far more tolerant nature of classical antiquity. Doubtless you will object to this suggestion of tolerance on the grounds of the martyrdom of the Christians under pagan Rome, but before you do so I’d suggest you review just how often and why these martyrdoms took place – it was not as common, frequent or widespread as I suspect you think. You might also wish to contrast the tolerance of Rome before it became officially Christian with its intolerance and brutality afterwards. The contrast is striking and illuminating.

    There is a surviving court record in which a somewhat puzzled Roman magistrate found it difficult to understand why the Christians up in front of him insisted on going out of their way to break the civil law – I’ll try to find a link for you. There are numerous records of Christians hauled up in front of the Roman magistrates throughout the Empire on various charges, and who were told that Rome had no objection to them practising their religion if they would just stop trying to force it on everyone else, and that if they promised to respect everyone else’s liberties then they were also going to be set at liberty. In probably the vast majority of such cases, the Christians did in fact agree, and were released. Martyrdom was far less common than many Christians today think it was, and Rome far more tolerant. What, though, of the many pagans persecuted after Rome adopted Christianity and banned the old religions? No such tolerance then, I’m afraid.

    Making the secular law an overtly moral creation leads to oppression and intolerance, particularly when the morality imposed is a religious one. In all cases where religious morality has been the foundation of the secular law, this has happened – Christian Rome, mediaeval Europe, Afghanistan under the Taleban, contemporary Iran or Saudi Arabia, Tibet before the Chinese occupation, et cetera et ad nauseam. Although I do not object to Christianity or Christian morality as a PERSONAL credo (nor do I, to a lesser extent, object to any other religion on the same basis), I do most strongly object to its (or any religion’s) imposition as the basis of our code of law, and in this regard I would point out that those at the forefront of struggles for liberty have in very large measure been non-religious or of minority religious persuasions. Few of the Founding Fathers were Christian, most of the Abolitionists in Europe were atheists or Deists, many of the suffragists were non-religious, and so on.

    I have to say that you owe most of your liberties to people who objected to the domination of law by morality.

    Apologies for the lengthy post.

    so what is the difference between a licence and a permit, other than the degree of difficulty in obtaining them?

    A shotgun licence basically entitles you to keep and use a shotgun (only). A firearms licence is necessary to keep and use a pistol, rifle, certain types of semi-automatic shotguns, certain types of high powered air weapons, etc – essentially anything that isn’t a conventional shotgun. The conditions on the use of a “firearm” are usually much stricter than those for a “shotgun.”

    Your legalistic arguments concede that the homeowner had the right to lethal self-defense but the way you require the homeowner to act on information they do not have nullifies this principle in many cases

    This is not correct. The criterion is the reasonable apprehension of threat, not the actual threat as it was subsequently proven. If you can show that, in the circumstances, you had reasonable cause to believe that your life or limb was in danger, you are justified in using force up to and including lethal force. You are not expected to determine for FACT whether it actually was or not. You are NOT justified in using lethal force (or excessive non-lethal force) if you KNOW your life is not in danger – for example, if the burglar is already running away, or if you have already knocked him unconscious.

    EG

  • John K

    A shotgun licence basically entitles you to keep and use a shotgun (only). A firearms licence is necessary to keep and use a pistol, rifle, certain types of semi-automatic shotguns, certain types of high powered air weapons, etc – essentially anything that isn’t a conventional shotgun. The conditions on the use of a “firearm” are usually much stricter than those for a “shotgun.”

    Don’t forget most pistols are banned. The only exemptions which spring to mind are:

    muzzle loading pistols;

    pistols owned by vets or huntsmen used to despatch animals, often single shot .22s or .32s;

    pistols of historical value, which may only be kept at special ranges, and may not be taken from the premises.

    I think that’s about it, but luckily none of this applies to the state, so Phony Tony’s bodyguards can legally pack their Glocks when protecting the Dear Leader. God forbid that he should be subject to the same laws as the rest of us.

  • Euan, do you not make a distinction between religious morality and “general”, universal morality? After all, you yourself noted the obvious fact that there are many different moralities out there. (BTW, under “religious morality” I could also file “ideological morality”, since ideologies can be filed under “religions” in many respects.)

    Also, I may have missed the part which makes it obvious to you that Martin knew that his life was not in danger.

    At the same time, and perhaps paradoxically, it seems to me that you are arguing that the law sets limits to the lenghts to which a person can go to protect his property, as opposed to protecting his life, and that you support this. Am I correct?

    Sorry to keep “picking on you”, but this is in no way personal. It is important for me to get to the bottom of this, and I hope you don’t mind helping me out.

  • Euan Gray

    do you not make a distinction between religious morality and “general”, universal morality?

    I’m not persuaded that there is a general, universal morality – or at least not in the sense I think you mean. Correct me if I am wrong, but when you say “universal morality” do you mean what might be called the eternal verities, the things that are always true? If so, I don’t think there is such a thing.

    As I have observed before on this blog, there are few things which have always been considered wrong. Even in those few cases, emphasis has widely varied.

    We consider all murder to be wrong, but Rome reserved a special revulsion for parricide (the murder of one’s father) which we no longer consider uniquely awful. This becomes more understandable when you realise that Rome was a patriarchal society, more so than most others before or since. Young men had to be formally freed from paternal control, rather than automatically attaining freedom with age as they do now. Other cultures make a big moral deal out of what are, to us, inconsequential trivia. We make a big deal out of things they may consider perfectly normal and acceptable.

    To try and extract from history a list of things which have always and everywhere been considered morally wrong is very difficult, and the list is short indeed. Murder is one of the few, but even here there are different degrees of emphasis and different exceptions. Historically, the murder of people from another tribe or culture has often been considered markedly less bad than murder of one’s own, for example, and see above re parricide. Even theft is not a universally accepted wrong, since more primitive societies don’t necessarily have a clear concept of property in anything other than a communal sense & therefore their idea of theft is somewhat dilute compared to ours.

    Theft, rape, paedophilia, homosexuality, infanticide, abortion, contraception, bestiality and blasphemy have all in some cultures been absolutely taboo, and in others quite acceptable. Where is the universal morality in this?

    Even within a given society, there is not really such a thing as a universal morality. To use again the examples I gave much earlier, homosexual marriage, abortion and drug abuse are considered by large segments of contemporary western society as quite acceptable. Other large segments strongly disagree. Others still agree with some but not all.

    We might consider contraception. This was illegal but widely practiced in ancient Rome, but the legal sanctions had nothing to do with morality & everything to do with expanding the Roman population and state. It was until relatively recently effectively illegal in Britain, and still is illegal in several Catholic countries – and even where legal often attracts social disapproval. This is an example of morality informing law, but it is a type of law that is increasing rare. Sometimes a thing is illegal in different societies for different reasons – one moral, another pragmatic.

    I agree with your point about ideological morality. The USSR is an excellent example:

    Shorlty after the revolution, homosexuality was legalised and divorce & contraception made very easy to obtain. This didn’t last long, because the birth rate fell sharply almost immediately, and this was soon exacerbated by the large scale deaths caused by forced collectivisation of agriculture. The law reverted to the Imperial standards, making divorce harder to obtain, contraception even harder and homosexuality illegal – purely for pragmatic reasons, since the Soviet government could not realistically be accused of sharing a religious morality (even if Stalin was a seminarian). The Soviet political morality is another matter, but it is fair to say that denunciation of enemies of the people, class or state, even in one’s own family, was promoted as a moral duty.

    I may have missed the part which makes it obvious to you that Martin knew that his life was not in danger

    I didn’t suggest that. It is, as I have said before, not a case of KNOWING whether your life is in danger or not, but of REASONABLY BELIEVING this to be the case. A pedantic point, but if you are confronted by a burglar armed with a pistol, you don’t know your life is in danger – it may be a fake gun, it may not be loaded, he may have no intention of firing. However, you have an eminently reasonable belief that you are in danger. If it turned out later that the gun was not actually loaded, this would not affect any legal case. You would be entitled to use lethal force in such a case, and you would be quite justified.

    Martin fired his shotgun at least three and more probably five times. He hit one burglar once and another twice. He could patently see well enough to aim sufficiently accurately to do this, and although he could not see whether or not they were armed he presumably could see well enough to notice that they were actually trying to escape at the time. Although he did not know he was not in danger of his life, he was not in a position to reasonably conclude that he actually was, and therefore the use of lethal force was not justifiable – this is essentially the basis for his conviction.

    arguing that the law sets limits to to the lenghts to which a person can go to protect his property, as opposed to protecting his life

    I’m not really arguing that. Most people would agree that property is less important than life, however, and therefore some might argue that a lesser degree of force is justifiable in defence of property. There is something in this theoretically, but I don’t really think it is practical to make much of a distinction.

    Faced with the question “your money or your life,” most people will say take the cash. However, you don’t necessarily know whether the burglar means this or not. In practice, I think there is no real distinction to be made in most cases & AFAIK the law doesn’t make an obvious distinction.

    Sorry to keep “picking on you”

    Nothing to apologise for.

    EG

  • John K

    Martin fired his shotgun at least three and more probably five times. He hit one burglar once and another twice. He could patently see well enough to aim sufficiently accurately to do this, and although he could not see whether or not they were armed he presumably could see well enough to notice that they were actually trying to escape at the time.

    Well with a pump action shotgun he could easily fire five rounds in three seconds, there is no reason to think that this encounter lasted very long, or that Martin had any particular plan other than emptying his shotgun in a blind panic.

  • Euan Gray

    there is no reason to think [ … ] that Martin had any particular plan other than emptying his shotgun in a blind panic

    The only fly in the ointment of your argument is that the forensic evidence does not agree.

    EG

  • John K

    The only fly in the ointment of your argument is that the forensic evidence does not agree.

    Whether he fired a shot from the stairs or not, the entire episode would have lasted seconds, and he did not, as has often been alleged by many people, shoot at fleeing burglars, he shot at two burglars who then fled. Once they were out of his house he stopped shooting.

    The Martin case is just the most egregious example of an alleged right of self-defence, which the law subjects to the most intense Monday morning quarterbacking, poring over powder residues allegedly on bannisters etc etc until the reality is obscured.

    A lonely frightened man had his home invaded and shot at the intruders, who beyond any doubt were intent on burgling his house. He did not initiate the confrontation, and he ended it when they fled. The burglars were the authors of their own misfortune. C’est tout.

    If something like this happens to you, will have seconds to react, you will not know all of the facts, you will just have to do your best. You are the victim of aggression, and you are trying to defend yourself. You may make mistakes, or do things which in the cold light of day who have been better done differently or not at all. That does not make you a murderer, and you should not have to risk a life sentence.

  • Euan Gray

    the most egregious example of an alleged right of self-defence, which the law subjects to the most intense Monday morning quarterbacking, poring over powder residues allegedly on bannisters etc etc

    Well, this is how law works, it’s the whole bloody point of having a criminal justice system. What else did you expect? No investigation? If one of your family were killed or injured, WHATEVER the circumstances, wouldn’t YOU expect, indeed require, some sort of investigation? Of course you would. Everyone does, which is why they are held.

    Someone shoots two people who were illegally inside his house, one of whom dies. A crime has been committed by one or more of the parties. It needs to be investigated. The course of the investigation throws up evidence that shows the householder’s version of events could not possibly have been true. Further evidence shows that the householder did nothing to avoid the burglaries being repeated (although any normal person would) and that he was not mentally well-adjusted. Forensic evidence clearly shows that Martin lied, that he acted (albeit under provocation) unlawfully and with grossly excessive force. He was convicted and jailed accordingly.

    Nowhere in the western world does anyone have an absolute right to use unrestricted force in defence of life or property. There are limits, both in the UK and (very similarly) in the US. Breach those limits, you get punished, and this is what happened to Martin. It’s not hard to follow.

    EG

  • Wonderful Anon

    AND the law is written so as to ensure that the best way to avoid falling foul of it is to basically not resist criminals too strenuously

    But it is NOT written like that.

    Oh, but it is. There actually isn’t a definition of ‘reasonable force’ that the prosecutors use to judge cases, never mind what is said in the recent guidelines – which are meant for the public, not the prosecuting bodies. And given that they like to charge 63 year old blind men with murder for killing intruders who were strong enough to take their front door off its hinges in order to assault them, I think your confidence in the law and the people who administrate it is a little misplaced.

    So tell me, given that you don’t get to find out if you have used force that would be ‘considered’ reasonable until after the event, how are you to be sure that the force you have used will be considered reasonable and you will not face charges? Given that the law seems to think that even reasonable uses of force still have to be prosecuted as harshly as possible, what makes you think that such a case will be regarded in a fair and sensible manner?

  • Euan Gray

    Wonderful Anon,

    You seem to have little idea of the basic concepts behind much of English law, whether statute or common. “Reasonable,” in a legal context, is not used in the quite same sense as it is in everyday conversation.

    “Reasonable force” means what an average person would consider appropriate and proportionate force if he were to find himself in the same circumstances. It is not necessarily what YOU think is reasonable, nor is it something the prosecution or police can define for themselves.

    In this country, we do not have one set of laws for the prosecutor and another for the defendant, and it is therefore ludicrous to claim that the recent clarification of the law applies to citizens but the police and courts can cheerfully ignore it.

    You can quite lawfully kill a burglar IF you reasonably believe your life is otherwise at risk. You CANNOT lawfully kill a burglar if you could have no reasonable belief that this was the case – for example if he was running away, was already knocked unconscious, or similar – I would point out that you never could lawfully do this, this is not a recent innovation. The same basic principle applies to the law in the US, the ground of reasonable apprehension of risk being applied.

    I suggest you read up on some basic legal concepts. You should also read the statement again, and you will probably find the appeal judgment in the Martin case illuminating – it is fairly obvious from your comments that you either have not read it or do not understand it. You might find the Criminal Law Act of 1967 (the relevant legislation for this matter) worth perusal. Here is a handy extract which summarises much of the situation:

    Criminal Law Act, 1967
    Section 3(1):

    “A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large”

    There are numerous judgments which illustrate the various points raised throughout this thread.

    EG

  • Wonderful Anon

    The CPS don’t seem to be adhering to the spirit of the laws you mention, so don’t insult my intelligence by suggesting I need to acquaint myself with ‘basic legal concepts’. Instead, why don’t you read up on this case, and then explain to me why a man who ‘is blind in one eye and partially sighted in the other’ was judged to have commited, and was charged with, murder.

    Your understanding of the matter seems quite shallow. ‘Oh, the law allows you to use a reasonable amount of force, so therefore the CPS will weigh up each case in a perfectly acceptable manner according to that standard’. Not in the real world, sadly.

  • Euan Gray

    explain to me why a man who ‘is blind in one eye and partially sighted in the other’ was judged to have commited, and was charged with, murder.

    I don’t understand your point on the O’Connor case.

    O’Connor was NOT judged to have committed murder, and was NOT charged with murder. Since the reasons for this as outlined in the newspaper article basically reinforce the points I have been making all along, I am frankly at a loss to understand what, if any, point you are trying to make in contradiction to me.

    I’d be fascinated to read your explanation of what part of “[the Coroner] John Pollard ruled that Mr O’Connor had acted with reasonable force and within the law” can in any way contradict my position that one is lawfully allowed to kill an intruder where this is reasonable.

    I have to say that if you totally misread that very simple and straightforward article, I may not be entirely wrong to question your understanding of the Martin judgment, the CPS statement and the Criminal Law Act, 1967.

    EG

  • Euan Gray

    Wonderful Anon,

    Any comment?

    I’d be glad to hear your point, or your view on the O’Connor case and why you think it contradicts me.

    EG

  • ed

    Maybe I should read all the comments (fatal last read words), but it seems to me the flaw in Euan’s eminently readable reasoning is that a person who couldn’t sleep for fear of attack brought on by repeated experience might well be wary of going to bed, of undressing, or sleeping, and might well feel the need to be awake, dressed, and carrying (holding onto) weaponery, for the duration of a night. If he is then attacked, and retaliates, he is then a murderer by the definitions I’ve seen offered.

    I don’t actually believe that anyone would offer much resistance at all unless it was considered at least somewhat in advance, and the idea that all of us would make such preparations with a full sense of self-possession is unrealistic in the extreme. A genuinely surprised person is a person who is practically helpless- and thus such a fictional killer can almost be discounted from our thinking. It is the straw man in our legal reasoning.

    Euan’s argument about what is ‘reasonable’ applies well only for the majority of cases. This is not an issue, and never is. The law must exist for the exception to what is commonplace or it shouldn’t exist at all.

    But of course that isn’t an argument that appeals to a statist, for whom the average is the rule that counts.

  • Euan Gray

    a person who couldn’t sleep for fear of attack brought on by repeated experience might well be wary of going to bed, of undressing, or sleeping

    Yes, but factor in the failure to take any reasonable steps to prevent recurrence and you have Martin’s situation. At best, he did nothing to help himself, and at worst he was in large part responsible for the fact that the burglaries continued for so long.

    I don’t actually believe that anyone would offer much resistance at all unless it was considered at least somewhat in advance

    Well, the evidence of numerous court cases suggests otherwise. People DO in fact respond and resist, and whatever the alarmist hysteria of the libertarian response criminal convictions for so doing are very rare.

    The law must exist for the exception to what is commonplace or it shouldn’t exist at all.

    The common law test of reasonableness covers this. More prescriptive legal systems tend not to, however. In the case of Britain and the US, it is covered well enough and has been for a very long time.

    Maybe I should read all the comments

    Maybe so …

    EG

  • Euan, what would have been your view on the Martin case, had he taken all the reasonable security precautions that you mentioned, but the rest of the case remained unchanged?

  • Euan Gray

    Alisa,

    I think the rest of the case would likely have changed, too, since this would necessitate a significant change in Martin’s general outlook on things. However, assuming it didn’t, I don’t think it would have changed the outcome of the case.

    If Martin shot two burglars, one fatally, when they were not posing any credible threat to his life or limb, then whatever the state of his house I think he would still have been guilty of using grossly disproportionate force. This was the point at issue, and he would still have been charged (rightly, IMO). Having said that, a natural human prejudice among the jurors might have made them less lilely to convict a more obviously sensible and rational person, but that’s really speculation.

    I said before that I do not think murder was an appropriate charge, but manslaughter would be appropriate. Whether he fixed his house or not would have no bearing on the matter, I think, but it would have made the continuation of the series of burglaries far less likely.

    I suspect that had Martin had the wit to realise that the decrepit state of his house was in large part responsible for the ongoing burglaries, he might also have had the sense to realise that one does not have an absolute right to execute burglars. It was objected above that Martin may not have had the means to keep up his house – in which case I can only say that the logical course of action would have been to sell it and move to a more affordable property. This has nothing directly to do with avoiding burglary, but more with prudent management of one’s personal finances.

    EG

  • “Whether he fixed his house or not would have no bearing on the matter, I think, but it would have made the continuation of the series of burglaries far less likely.”

    Less likely, sure, but still quite possible. So let me ask you now: what would you have done in Martin’s situation? You fixed your house and took all the reasonable security precautions, and someone still broke in.

  • Euan Gray

    what would you have done in Martin’s situation? You fixed your house and took all the reasonable security precautions, and someone still broke in

    It’s impossible to say what one would really do until one is actually faced with the situation. Many blowhard “shoot first, talk later” types do, whatever their bluster, actually wilt when it really happens. Conversely, shrinking violets can be powerful and assertive in defence, even to their own surprise.

    I like to think I would have given sufficient warning to get the burglars to leave. Or, threaten them with the gun (having obtained a licence for it) to detain them until the police arrived, if necessary firing a warning shot. I’ve never, fortunately, been in a remotely similar circumstances, so I don’t know what I’d really do. I don’t know anyone who has ever confronted a burglar, and few people who have ever been burgled. I strongly suspect it is rather less common than often claimed hereabouts.

    EG

  • “It’s impossible to say what one would really do until one is actually faced with the situation.” But isn’t this what the jury is asked to do?

  • BTW, Euan, I found your remark about birth control in USSR very interesting. I was not aware of these facts. I do know that abortion was at least relatively easily available (although I don’t know if it was legal), and fairly common, at least in the 30ies. I also know that condoms were legally available in pharmacies in the 70ies.

  • Wonderful Anon

    OK, I must admit I was seeing red about the whole thing when I mentioned Thomas O’Connor, and was mistaken about his being actually charged with murder. But I don’t doubt that the courts would have liked to have charged him with something:-

    [snip]the Crown Prosecution Service and a top lawyer said it would not be possible to disprove that Mr O’Connor had acted in self defence and that legal action was not in the public interest.

    In other words, if the incident had been a less obvious case of self-defence, they would have proceeded to take legal action against O’Connor, even though they would have known that Lee Kelso started the trouble.

    That the Kelso’s of the world put self-defenders in the positions they find themselves in(and the reasonable force standard doesn’t help) should count for more with the prosecutors than it seems to. I think that’s the advantage of scrapping the reasonable force standard or at least changing it to ‘grossly disproportionate force'(like tying up burglars and setting them on fire). Self-defenders do not risk getting caught out by faulty or prejudiced decisions that what they did was not reasonable force, and they aren’t made examples of by people who think they have to protect the rights of burglars or that they have to discourage the public from ‘taking the law into their own hands’.

  • Euan Gray

    But isn’t this what the jury is asked to do?

    No, they are asked to decide whether the actions taken were reasonable – even if they wouldn’t do the same thing themselves. For example, if you see a drowning child in a lake, it is reasonable to dive in and save it. I wouldn’t do that – I cannot swim & would only drown myself. Extreme example, I suppose, but I hope it illustrates the point.

    I also know that condoms were legally available in pharmacies in the 70ies

    Condoms being legally available are one thing, social disapproval is another. The communist governments in E. Europe were somewhat prudish about a lot of these things, and even today you can get VERY dirty looks buying the things – trust me on this, I know. Even worse, try doing it in a Catholic ex-communist country and get the worst of all worlds.

    I don’t doubt that the courts would have liked to have charged him with something

    It is the police and CPS which decide whether to prosecute someone, not the courts.

    if the incident had been a less obvious case of self-defence, they would have proceeded to take legal action against O’Connor

    Yes, I imagine they would, and I don’t see anything wrong with this. The police and CPS are supposed to review the facts as thay have them and decide whether or not a prosecution is justified. It is not for them to decide that an offence has definitely been committed – that is for the court to determine. If the police think there is enough evidence to warrant it, they will charge the suspect. If after further questioning and investigation they think prosecution is justified, they will ask the CPS to prosecute. In the O’Connor case, it appears the police thought there was a case to answer but the CPS disagreed. This happens a lot, but you don’t always hear about it. It is certainly not the case that just because the police think there is a case that it will inevitably go to court.

    Here in the People’s Republic of Scotland ™, we have a slightly different system in that there is no CPS but there is a Procurator Fiscal. He is the public prosecutor and can, like the CPS, decide not to pursue a case. This decision is frequently made on the grounds of public interest.

    I think the important thing to remember is that there is no automatic absolution for killing an intruder. I have been at pains to point this out (repeatedly) in this thread. I am not aware of any jurisdiction in which there is such absolution, and even the so-called “make my day” laws of certain American states still provide for conviction and penalty dependent on circumstances.

    It does not matter who starts things. Even children know “but he started it” is no excuse. Ditto for householders who unjustifiably kill intruders.

    and the reasonable force standard doesn’t help

    I think it does. The alternative is to have a specific set of criteria which always and in every case must apply. There is then little or no room for considering the circumstances of the event. The same principle applies in America, BTW.

    should count for more with the prosecutors than it seems to

    Ultimately, the people it counts for are the jury. I think the point of the O’Connor case was the knowledge that no jury would convict. If householders in similar circumstances are routinely acquitted, then they will rarely be prosecuted because the CPS knows it is a waste of time and money. I understand, although as I said before it is hard to get unbiased information, that convictions for murder, assault, etc., for householders confronting burglars really are very rare – but one would have to compare the total with the total number of burglaries in which force was used AND the number of these where any charges were brought at all. It seems this information is not readily available.

    In the sense that it depends on the jury, the law is a little democratic. It was formerly the case that the penalty for stealing anything worth more than a shilling (or 13d., something like this) was death. Juries became reluctant to convict, even when the evidence was plainly against the defendant, simply because the penalty was unreasonably harsh. I suspect the CPS prosecute forceful resistance to burglary rather less often than many think, simply for the reason that juries won’t necessarily convict.

    I do think, though, that when someone does use disproportionate or unreasonable force they SHOULD be prosecuted. The debate is simply over what is reasonable. Given that the law in Britain on the subject has not changed since 1967, and nobody complained about it for a long time, I suspect the law is not the problem. I’m not a lawyer (although I have been accused of this atrocity before, and told I should have been), but I’m not convinced David Carr is right about the pre-1967 common law position. I have read that the 1967 Act in reality strengthens the rights formerly enjoyed at common law and does not, pace the learned Mr Carr, diminish them. However, that view could well be mistaken.

    You have a point about the rights of burglars, though.

    Criminals have rights like everyone else, and it is unreasonable to say they do not. However, where it gets insane is when people start to think that the “human rights” of the burglar trump the right of the householder peacefully to enjoy his lawful property. As I said fairly early in this thread, I think the excessive focus on the human rights of the criminal (to the extent this is at the expense of the rights of the victim) is the real problem. The law on self defence and defence of property seems to be perfectly satisfactory, but this human rights stuff needs looked at very seriously.

    I suspect we are not so far apart on this issue as I thought.

    EG

  • “But isn’t this what the jury is asked to do?” I was going to rephrase this to “Isn’t it what juries are, in fact, doing?”, but never mind. How do you decide what is reasonable if not by placing yourself in other people’s shoes? Don’t you see that the juries are in fact making moral judgements?

    So let’s modify the question again: were you a member of the jury in Martin’s case (as you know and understand it), and had Martin taken all the reasonable security precautions as mentioned above, how would you have voted?

    “The communist governments in E. Europe were somewhat prudish about a lot of these things” Yes, they were, but the people were not necessarily. The Catholic-Communist mix is an interesting one. But Russia is orthodox, and much less prudish than its Catholic neighbors, or than the Soviyet regime may have liked it to be.

    I also wonder what kind of contraceptives were available in pre-WWII USSR for the government to outlaw? All I can think of is some very primitive condoms. Do you happen to know what was the year that they were outlawed? I have some slight personal interest in this:-)

  • Euan Gray

    were you a member of the jury in Martin’s case (as you know and understand it), and had Martin taken all the reasonable security precautions as mentioned above, how would you have voted?

    For murder, not guilty – but perhaps guilty if “diminished responsibility” had been persuasively argued. If it had been a manslaughter charge, guilty. On the count of wounding with criminal intent, guilty. The shotgun licence charge is a no-brainer & has to be guilty.

    Then again, I am not familiar with all the evidence, but as I understand it that’s how I’d vote.

    But Russia is orthodox, and much less prudish than its Catholic neighbors, or than the Soviyet regime may have liked it to be

    Three generations of moral indoctrination by an almighty state and a suitably compliant Orthodox church probably made a difference, though. I think some of the social disapproval stems from the natural desire of the ageing babushka to complain about anything young people do. I once read that the standard Russian grandmother phrase for pretty much any circumstance is “young man, you should be ashamed of yourself,” and from what my Russian friends (and my girlfriend, who is also Russian) tell me, this is pretty much true. Although prone to the odd bout of revolutionary insanity, Russians are deeply conservative people. Russian women tend to be, morally speaking, far stronger than their men.

    Given this combination of inborn conservatism and unshakeable moral strength, it is said that regiments of highly trained Soviet grannies were readied for deployment against the Nazi hordes, with the intention of shaming the Germans into surrender through unending nagging and stern looks of disapproval. This story is apocryphal. Probably.

    Do you happen to know what was the year that they were outlawed?

    Sadly, my knowledge of Soviet contraceptive technology and legislation is not comprehensive. From what I remember reading, the various conservative social reforms were enacted about the time of forced collectivisation, which is to say the late 20s after Stalin secured his power. Unfortunately, anything more than that right now I would have to Google since I no longer have the books I used to.

    Stalin, as surprisingly few people seem to know, was educated at an Orthodox seminary, and this may or may not have anything to do with it. Certainly, it seems he was personally rather more conservative than Lenin – but to digress even further, Lenin was from a wealthy semi-aristocratic background and his main involvement with the proletariat lay in employing them, whereas Stalin was the son of an alcoholic cobbler. Since the proletariat tend to be more conservative than the other social classes pretty much anywhere in the world, this may not be entirely surprising.

    EG

  • LOL, the babushka quote is dead on!

    I think Russian women tend to be stronger than men in just about everything:-)

  • Wonderful Anon
    if the incident had been a less obvious case of self-defence, they would have proceeded to take legal action against O’Connor

    Yes, I imagine they would, and I don’t see anything wrong with this.

    I think you should, since ‘less obvious case of self-defence’ could mean anything from the circumstances of the Brett Osborn case to the circumstances of the Tony Martin case. In this case, it means that the one thing that kept O’Connor from being prosecuted was his partial blindness – no jury anywhere would see the justice in the state trying to have him imprisoned for murder, and he would have been cleared. If he had had better sight, it would have been a ‘less obvious case of self-defence’ – would the lawyer have advised the police that getting a conviction was unlikely then? Would the police have refrained from charging him? Would the CPS have disagreed with them?

    The police and CPS are supposed to review the facts as thay have them and decide whether or not a prosecution is justified.

    The most important fact being that in cases of self-defence, the criminal puts their victim into a situation where they must, for their own safety, use force to fend them off. That’s what makes it different from stealing, for example, where the thief has no compelling reason why they should steal.

    But do the police and CPS take this fact into consideration? Or do they ignore it, perhaps for the reason that it would not allow for as many prosecutions as they would like?

    I think the important thing to remember is that there is no automatic absolution for killing an intruder. I have been at pains to point this out (repeatedly) in this thread. I am not aware of any jurisdiction in which there is such absolution, and even the so-called “make my day” laws of certain American states still provide for conviction and penalty dependent on circumstances.

    The difference between Americans and us is that they recognise that the criminal is responsible for creating the situation in which self-defence is necessary, and so is the only one held to account. Unlike over here, where our law enforcers think that people who use force against burglars, and muggers, need to be held to account for doing so, no matter how justifiable – which is not a distinction the state cares for.

    It does not matter who starts things. Even children know “but he started it” is no excuse. Ditto for householders who unjustifiably(in whose eyes? – WA) kill intruders.

    So you think that a homeowner who fights off a violent career criminal who broke into his home, and may well be trying to kill him, is behaving like a child? That his struggle with the burglar is akin to schoolkids squabbling over something they both want? Do you think the entire population of the British Isles is this infantile, or just the ones who punch a burglar in the face?

    It says a lot about how you view the matter that you think there is an analogy between them, which is simply stupid. I’d like to see you explain why it does not matter that the criminal is responsible for the victim needing to defend themselves. That alone rubbishes your stupid comparison.

    and the reasonable force standard doesn’t help

    I think it does.

    When I said that, I meant that it makes the situation for the victim more precarious – you’ve got a psycho like Kelso coming at you, and in order to be sure that the force you use will not be considered to be ‘unreasonable’ at a later date, you have to stop and think about how to temper your response, which most people find impossible to do under the circumstances. If you hesitate while doing so(and how else are you supposed to comply with it?), the psycho may well take advantage of this by causing you serious damage, maybe even fatal. So what we have here is a law that most people would be unable to comply with, and it would be dangerous to do so.

    The alternative is to have a specific set of criteria which always and in every case must apply. There is then little or no room for considering the circumstances of the event.

    There is also little or no room for prosecuting people inappropriately, which is what we want to avoid, right? And a benefit of having a ‘specific set of criteria’ would be having the police/CPS sit down and actually think about what constitutes ‘reasonable force’, instead of winging it every time one of these cases happens(or finding ways to justify deciding the force used was ‘not reasonable’ when it plainly was).

    Besides which, there are only two criteria which need to apply here:

    Did the criminal commit the crime that the victim used force in order to stop;

    Was there any indication that force was used after being necessary to stop the crime in question(which would be murder, GBH, etc, and not self-defence),

    Nothing else is required.

    Ultimately, the people it counts for are the jury.

    If the police and CPS can’t take such things into consideration when deciding whether to press charges or not, then they aren’t doing their jobs properly and are failing the public. It shouldn’t be the sole responsibility of the jury, as the last safeguard against imprisonment, to make sure a man is not unjustly sent down as the end result of mistakes, sloppy thinking, or ‘political considerations’ on the part of the police and CPS. They have to apply some sense as well.

    Criminals have rights like everyone else, and it is unreasonable to say they do not. However, where it gets insane is when people start to think that the “human rights” of the burglar trump the right of the householder peacefully to enjoy his lawful property.

    That’s exactly why they harp on about ‘criminals having rights like everybody else’, to justify protecting the criminal’s right to be protected against violent frustrated householders, even if it means proscribing the rights of householders to be safe. Do they go on about the criminal’s right to walk down the street safely? No, because in that context, their being a criminal doesn’t matter. It does matter, however, when they’re breaking into someone’s home at night, and they face the risk of meeting violent resistance. It’s this against which their rights and safety must be protected.

    This obsession with the ‘human rights’ of the criminal while they’re commiting crimes is the reason why householders are at risk of being charged and imprisoned.

  • Euan Gray

    But do the police and CPS take this fact into consideration? Or do they ignore it, perhaps for the reason that it would not allow for as many prosecutions as they would like?

    The way it works is like this:

    Someone has been killed or injured. This may, or may not, be a crime IRRESPECTIVE of whether the injured or deceased was himself committing a crime. The two things are quite separate. An investigation will be held into BOTH matters, and it may be that the burglar is charged and the householder not, or both might be charged.

    In no sense does the law accept that one crime cancels out another. If someone breaks the law entering your house, that does NOT indemnify you from breaking the law in dealing with the matter. In a similar way, you might possess an illegal firearm, and use it quite legally in self-defence – the act of self defence might not be a crime, even though your possession of the weapon is. In such a case, you would not be prosecuted for using the weapon, but you would be prosecuted for keeping it. The law considers each thing separately and does not amalgamate them all to prosecute an “overall ” picture. Nor should it.

    It is not reasonable to suggest that the police and CPS effectively decide “well, he said it was in self-defence so we won’t prosecute.” This won’t work. You get cases like O’Connor, where the man clearly acted in legitimate self-defence under very difficult circumstances. You also get cases like Martin’s, where the degree of force used was grossly disproportionate to the threat faced. You need flexibility.

    You have a valid point on the rights of criminals, and I generally agree with the thrust of it. But, I think the criminal has a right not to be butchered, just as the victim has a right not to be a victim and to defend himself. The criminal reasonably must forgo some rights in the commission of crime, but not all – otherwise we just have mob rule and arbitrary justice, which serves no person well.

    It does seem to be the case that householders acting in self-defence with commensurate, reasonable and proportionate force are very rarely prosecuted. As I have been at pains to point out, one is not expected to sit down and think about it coolly before acting, and consideration is given to the circumstances – this is what the test of reasonableness is about. To pretend otherwise is melodramatic and unjustified.

    Basically the situation is this, both here and in America:

    You CAN defend yourself forcibly, but not unreasonably;

    You CAN use lethal force, but have no absolute right to do so;

    ALL use of force must be reasonable and proportionate, having due regard for the circumstances;

    You WILL be convicted (here or in the US) for using unreasonable or disproportionate force.

    EG

  • Wonderful Anon

    Someone has been killed or injured. This may, or may not, be a crime IRRESPECTIVE of whether the injured or deceased was himself committing a crime. The two things are quite separate. An investigation will be held into BOTH matters

    It’s not so likely that it was a criminal act if the injured party truly was initiating the confrontation(as is most obvious in burglaries), which would make it more obviously an instance of self-defence and make it less appropriate to regard it as a deliberate criminal act, and which I would think the police would be concerned with establishing. And if they are arriving at the conclusion that the initial criminal act doesn’t affect the nature of the response, then they aren’t considering the matter properly.

    In no sense does the law accept that one crime cancels out another. If someone breaks the law entering your house, that does NOT indemnify you from breaking the law in dealing with the matter.

    And if they attack you physically, does that indemnify you from ‘breaking the law’ in dealing with the matter? If they make it obvious that they intend to assault you, does that indemnify you from ‘breaking the law’ in dealing with the matter? Quite often in such cases, people was faced with kill-or-be-killed situations, the force they use is obviously necessary in defence of their safety – how often will that be judged ‘dispassionately’ by the powers-that-be to be ‘breaking the law’ and punishable?

    The police thought that O’Connor being attacked shouldn’t indemnify him from prosecution. They also thought that the nutcase who attacked Brett Osborn being high on drugs and attacking Osborn’s friend shouldn’t indemnify him from prosecution. That they HAD to use force or suffer serious injury or death was not regarded as a reason why they should be ‘indemnified’ from prosecution.

    How much confidence do you have that if you HAD to use force to prevent your own injury or death, that the police would not see it as a wholly unnecessary breach of the law, that you should be charged with as a way of sorting out? Please note, this is not a question that you can answer by repeating everything you’ve already said about ‘the law says you can use reasonable force, and all is right and good in the world.’

    You seem to be supporting a ‘zero tolerance’ stance towards force used in self-defence – of course the ordinary person should face legal retribution for it as a matter of course. Not on the understanding that they may have been committing murder/assault instead of self-defence, but that their defending themselves was murder/assault, and their use of force was therefore unjust and indefensible, no matter how demonstrably necessary it was to use force at all.

    In a similar way, you might possess an illegal firearm, and use it quite legally in self-defence – the act of self defence might not be a crime, even though your possession of the weapon is. In such a case, you would not be prosecuted for using the weapon, but you would be prosecuted for keeping it.

    The fact that firearms are illegal for self-defensive purposes makes self-defence far too dangerous and difficult. And I don’t know if you are aware, but the Home Office made it policy to deny firearms licenses if the person seeking the license put down ‘self-defence’ as a reason…now what does that tell you about how the legal establishment feels about civilian self-defence?

    It does seem to be the case that householders acting in self-defence with commensurate, reasonable and proportionate force are very rarely prosecuted. As I have been at pains to point out, one is not expected to sit down and think about it coolly before acting, and consideration is given to the circumstances – this is what the test of reasonableness is about.

    Um, how can we be sure that our actions will not be adjudged as ‘unreasonable’ after the fact? How can we be sure that our actions will be interpreted as ‘commensurate, reasonable, and proportionate’? Moreover, if the law, as you say, does not expect us to be able to moderate the force we use so that it is ‘reasonable and proportionate’, then why hold us to that standard? It’s contradictory, isn’t it?

    You have a valid point on the rights of criminals, and I generally agree with the thrust of it.

    Exactly what part of what I said do you agree with? What’s this ‘generally agree with the thrust of it’ supposed to mean? It sounds as if you’re trying to give the impression you agree, when you in fact disagree. If you don’t agree, I don’t mind if you come out and say so. Please don’t feel you have to be mealy-mouthed around me.

    The criminal reasonably must forgo some rights in the commission of crime, but not all – otherwise we just have mob rule and arbitrary justice, which serves no person well.

    And for the sake of protecting the criminals from ‘mob rule and arbitrary justice’, we have to impose a situation on the public which is every bit as bad in reality as you would have us suppose this pandemic of mob rule would be.

    consideration is given to the circumstances

    Just like the consideration that was afforded Brett Osborn’s circumstances?

    Basically the situation is this, both here and in America:

    You CAN defend yourself forcibly, but not unreasonably;

    You CAN use lethal force, but have no absolute right to do so;

    ALL use of force must be reasonable and proportionate, having due regard for the circumstances;

    You WILL be convicted (here or in the US) for using unreasonable or disproportionate force.

    Why don’t you address the fact that self-defence is not prosecuted in the US anywhere near as zealously as it is over here, because the police have a hard time accepting that any force used by an ordinary person to defend themselves is legitimate? All you can offer are weasel words about the adequacy of the law and the principle of ‘reasonable force’. I haven’t seen you even try to bring up cases yourself to see how it applies to those cases. If you were confident that the law was adequate as applied to actual cases that have happened, why wouldn’t you do so? That there is such a standard seems to be good enough for you, and you seem to think that it should be good enough for everybody else.

  • Euan Gray

    It’s not so likely that it was a criminal act if the injured party truly was initiating the confrontation

    But it still needs to be investigated, doesn’t it? Or do you argue that the homeowner’s insistence on self-defence is sufficient in itself to render investigation unnecessary?

    And if they are arriving at the conclusion that the initial criminal act doesn’t affect the nature of the response, then they aren’t considering the matter properly.

    The initial criminal act does not absolve the victim of his own obligation to observe the law. Crime in response to crime is not justifiable.

    And if they attack you physically, does that indemnify you from ‘breaking the law’ in dealing with the matter?

    No. One is allowed to defend oneself, and to use force in so doing. Lethal force may be justified BUT NOT IN ALL CASES.

    Quite often in such cases, people was faced with kill-or-be-killed situations, the force they use is obviously necessary in defence of their safety – how often will that be judged ‘dispassionately’ by the powers-that-be to be ‘breaking the law’ and punishable?

    Once again, it is judged illegal or not by a jury, not the “powers that be.” If the victim reasonably apprehended that he was in danger of losing his life, then lethal force is a reasonable response and not criminal. If, on the other hand, he could have had no such apprehension, the use of lethal force is not justified and would be a crime.

    That they HAD to use force or suffer serious injury or death was not regarded as a reason why they should be ‘indemnified’ from prosecution.

    If you break the law, you should be prosecuted. Period. The law permits you to do things in self-defence that would otherwise be pretty serious criminal offences. It is a crime to kill someone, but it is NOT a crime to kill someone if he would otherwise have killed you.

    How much confidence do you have that if you HAD to use force to prevent your own injury or death, that the police would not see it as a wholly unnecessary breach of the law, that you should be charged with as a way of sorting out?

    To be frank, I am reasonably confident that I would not suffer charges. The majority of people who are in this position seem not to be charged with anything.

    You seem to be supporting a ‘zero tolerance’ stance towards force used in self-defence

    I have said MANY times on this blog that I support the right to use force (up to and including lethal force, and including the use or threatened use of firearms) in self defence, so I don’t know where you get this idea.

    but that their defending themselves was murder/assault, and their use of force was therefore unjust and indefensible, no matter how demonstrably necessary it was to use force at all.

    The law does not class killing in self-defence as murder. However, you need to be able to demonstrate that the actions you took were reasonable and proportionate to the threat you could reasonably be expected to apprehend. You won’t be charged for killing a burglar who was armed with a pistol and threatening you with it, but you will be charged if you kill him when he is, for example, running away or unconscious.

    The fact that firearms are illegal for self-defensive purposes makes self-defence far too dangerous and difficult

    No it doesn’t. You won’t get a licence if you wish to keep the firearm specifically for self-defence, and this has been true for several decades now. Even cash couriers (such as Group4, Securicor, etc) are not allowed to carry guns, never mind the private householder. The logic behind this is that self-defence is not seen as a sufficient reason for desiring a gun – in no sense does it mean, nor is it intended to mean, that firearms may not be used in self-defence. Just that you can’t give this as a reason for wanting one.

    However, if you have a legal, licensed firearm and you use it in self defence, this is not a crime PROVIDED, as always, that the degree of force used was commensurate with the threat perceived. If you use an illegal firearm in self-defence (again justifiably), this is also not a crime, although in that case the possession of the firearm is a crime (use and possession are two different things).

    what does that tell you about how the legal establishment feels about civilian self-defence?

    Nothing. It tells me that they consider “self-defence” as being an insufficient justification for keeping a firearm, that’s all.

    How can we be sure that our actions will be interpreted as ‘commensurate, reasonable, and proportionate’? Moreover, if the law, as you say, does not expect us to be able to moderate the force we use so that it is ‘reasonable and proportionate’, then why hold us to that standard? It’s contradictory, isn’t it?

    No, it’s not contradictory, but I think you don’t quite understand some of the concepts.

    The force used is judged against what might be considered as reasonable and proportionate by an average person if he found himself in the same situation, and having due regard to all the circumstances. Whilst the law DOES require you to employ no more than reasonable and proportionate force having due regard to all the circumstances, it does NOT expect you to have undertaken a cold and logical analysis of the situation before calmly deciding what to do. You cannot be expected to think entirely logically and coolly if someone is pointing a gun or a knife at you, and the law reflects this common-sense approach.

    What’s this ‘generally agree with the thrust of it’ supposed to mean?

    Exactly what it says. I agree with the generality of your opinion (that there is an excessive focus on the human rights of the criminal) but not with the assumption that criminals should have no rights at all.

    And for the sake of protecting the criminals from ‘mob rule and arbitrary justice’

    Well, no, it’s about protecting all of society from these things.

    Just like the consideration that was afforded Brett Osborn’s circumstances?

    Brett Osborn stabbed an unarmed intruder five times in the back, and subsequently entered a plea of guilty to a charge of manslaughter. Whilst it is possible that he was acting in self-defence, or defence of others present at the time, it is not intuitively obvious that this was the case. Since he made a guilty plea to manslaughter, no argument or evidence for self-defence was presented and thus it is hard to come to a conclusion as to what really happened.

    I haven’t seen you even try to bring up cases yourself to see how it applies to those cases

    It’s hard to cite judgements when no charge was brought. To analyse the situation properly, as I suggested before, one would need to:

    (a) determine how many burglaries were committed in a given period;
    (b) determine in how many cases at (a) the burglar was confronted by the householder;
    (c) determine in how many cases at (b) force was used by the householder;
    (d) determine in how many cases at (c) charges were brought against the householder, and ;
    (e) determine in how many cases at (d) the householder was actually convicted.

    To consider the attitude of the police and CPS to self-defence, one should also consider:

    (f) determine the number of cases at (d) where the householder was acquitted.

    It seems that such information is not readily available, and therefore a rigorous analysis would appear difficult. However, there seems little to suggest that the number of (e) cases above is anything other than very small. Having said that, we can consider some of the more contentious cases, and can certainly look at those which went to trial.

    The Martin case is well enough known, and is clearly not self defence – shooting a retreating and unarmed burglar can in no sense be described as self-defence. The O’Connor case we have discussed, and the man was not charged – even if he had been charged, it was such an obvious case of self-defence that no jury would have convicted. Osborn stabbed the intruder 5 times in the back and did not claim (in court) self-defence – as I said above, it does not appear to be a case of self-defence, but it could be. There is the case of Hastings, who stabbed a burglar he thought was armed, and was convicted of manslaughter – but he stabbed the burglar in the back no fewer than 12 times when the criminal was lying face-down on the gound outside the house. In that case, I think he was jolly lucky to get away with manslaughter. Or the case of Lindsay, who chased a burglar out of his house and then stabbed him – convicted of manslaughter.

    There are several other cases akin to that of O’Connor, where no charges were brought despite the fact the victim killed the intruder, but it is hard to judge just how many such cases there are – the courts obviously do not record cases where no charge is brought. The case of Watkins is useful and illustrates points I have been making – he was confronted with an armed man trying to rob his post office, and stabbed him. He died of his wounds later. The burglar carried a shotgun, which it later transpired was not loaded. Now, Watkins was not in actual danger of being shot, because the gun wasn’t loaded. However, he did not know that at the time and acted under the reasonable apprehension that he was in danger of death. This was patently self-defence, and no charges were brought.

    There seems to be a great deal of misunderstanding, misinformation and hysteria about self-defence in the UK. Much of this seems to come from self-serving lobbyists who campaign for the right to own guns, or who think it perfectly acceptable to kill burglars whatever the circumstances or however little threat they pose. I have no objection to people owning guns (I state this AGAIN for the avoidance of doubt), but I do not feel entirely sanguine about the motives of some who seem to make a fetish of the things – sadly, it is from people like this that a good deal of the misinformation comes.

    EG

  • Wonderful Anon

    Or do you argue that the homeowner’s insistence on self-defence is sufficient in itself to render investigation unnecessary?

    I’ve already said that there is often evidence beyond the self-defender’s (not householder’s) word, that should be taken into consideration as to whether self-defence was justified. Such as whether the dead/injured crook obviously broke in, or whether the dead/injured mugger was seen by others/CCTV attacking his victim. Why are you ignoring that? Because you want me to think you’re an ignorant person?

    The initial criminal act does not absolve the victim of his own obligation to observe the law. Crime in response to crime is not justifiable.

    And there is your justification for prosecuting people for self-defence. You can simply ignore the threat posed to the victim by the criminal, using all this rhetoric that you regurgitate. It’s easy to justify refusing to consider whether genuine, although ‘non-intuitive’, self-defence is actually self-defence, but is in fact a pure breach of law, if this is the attitude you take.

    Once again, it is judged illegal or not by a jury, not the “powers that be.”

    Wrong. Consider the case of Watkins that you yourself cited. No charges were brought. The ‘powers that be’ judged – correctly – that it was not a breach of the law, and did not need to be set before a jury. How is it that they were able to make this judgment, if the only way to decide such matters is by dragging the victim into a court of law?

    I have said MANY times on this blog that I support the right to use force (up to and including lethal force, and including the use or threatened use of firearms) in self defence, so I don’t know where you get this idea.

    The initial criminal act does not absolve the victim of his own obligation to observe the law.

    Even when it’s a choice between observe the law or protect his wellbeing?

    The law does not class killing in self-defence as murder.

    Does the law compel prosecutors to find ‘killing in self-defence’ to not be murder, in all instances? No? Are the prosecutors expected to use their own judgements?

    Why do you keep suggesting that the letter of the law was the be-all and end-all? Do you want me to regard you as being disingenuous, as well as ignorant?

    However, if you have a legal, licensed firearm and you use it in self defence, this is not a crime PROVIDED, as always, that the degree of force used was commensurate with the threat perceived.

    And will the police remove the firearm from afterwards, and revoke your certificate? Should they do so?

    You won’t get a licence if you wish to keep the firearm specifically for self-defence, and this has been true for several decades now…(what does that tell you about how the legal establishment feels about civilian self-defence)…Nothing. It tells me that they consider “self-defence” as being an insufficient justification for keeping a firearm, that’s all.

    Do you think they are right or wrong to see self-defence as insufficient reason? Why do you think they changed it? What do you think their reasoning was for proclaiming ‘self-defence’ to be an insufficient reason for firearm ownership?

    You say it tells you ‘nothing’. Is this your way of saying that you are not willing to query whether the establishment is doing right by you?

    You also say it’s ‘been true for several decades now’. Is this your way of saying that just because it has become a ‘tradition’, it should be accepted?

    but not with the assumption that criminals should have no rights at all.

    Who’s making that assumption? Who’s suggesting that criminals should be killed or beaten for having a criminal record? Nobody. Why are you still arguing against this ‘assumption’ that no-one is actually assuming?

    Brett Osborn stabbed an unarmed intruder five times in the back, and subsequently entered a plea of guilty to a charge of manslaughter. Whilst it is possible that he was acting in self-defence, or defence of others present at the time, it is not intuitively obvious that this was the case.

    Not intuitively obvious. In the same way that it is not intuitively obvious that a burglar who gets his skull cracked did not contribute to his isfortune through his own actions? I thought you would have been dead set against going along with what was ‘intuitively obvious’ to puzzle out the truth of what happened, that you would expect that all concerned with weighing up Osborn’s case should investigate it in full?

    But it’s here that they failed him. The man he stabbed was rampaging on drugs, extremely violent and smashing windows with his hands and head(I assume you use the word ‘unarmed’ to connote that he was not dangerous), kicked his way into Osborn’s home, proceeded to attack a lady friend of Osborn’s, got into a struggle with Osborn, proved very hard to control, was stabbed in the back in the course of this struggle…and the CPS hits him with a murder charge, which could only have been justified if they had ignored the actions of the druggie and regarded the stab wounds as if they were delivered in cold blood – ridiculous, considering the circumstances(which you assure us the law will always do).

    For your information, Brett pleaded guilty to manslaughter because he thought it was the only way to avoid a murder trial, which the CPS thought he should face. They did not have to, they were in the wrong for doing so, and a lot of the blame for Osborn’s conviction for manslaughter rests with them.

    It’s hard to cite judgements when no charge was brought.

    You don’t have to cite ‘judgements’. You can cite cases that did not result in a conviction, even cases where the charges were dropped…so long as you explain in full your opinion as to why the police, or the CPS, thought charges were appropriate.

    The Martin case is well enough known, and is clearly not self defence – shooting a retreating and unarmed burglar can in no sense be described as self-defence.

    Barras was not retreating when he was shot. As to whether it was self-defence or not, can you prove that Martin would not have suffered serious injury or death if he had been unarmed, and had not acted as he did?

    Of course, to consider such things is to consider whether the law should be effectively asking innocent people to gamble on not being killed by burglars, and that’s the last thing the legal establishment is capable of thinking about.

  • Euan Gray

    whether the dead/injured crook obviously broke in

    This does not IN ITSELF justify the use of force against the crook, and certainly does not permit you to shoot him.

    Even when it’s a choice between observe the law or protect his wellbeing?

    Using force against someone who is threatening your safety is not breaking the law, provide the level of force used is commensurate with the threat faced. How many times does this need to be repeated?

    Does the law compel prosecutors to find ‘killing in self-defence’ to not be murder, in all instances?

    YES, for God’s sake. This is what I’ve been trying to get you to understand. Killing in self-defence (assuming it was self-defence) is NOT A CRIME. Self-defence is, as I have said before, an absolute defence against a charge of murder. If you don’t know what that means and/or implies, speak to a lawyer.

    Are the prosecutors expected to use their own judgements?

    How many times? Prosecutors don’t decide whether something is a crime or not – they decide whether or not they think they have sufficient evidence to convince a court that it was a crime. Just because they take a case to court does not mean the accused will automatically be convicted, nor does it mean a crime really has been committed.

    And will the police remove the firearm from afterwards, and revoke your certificate?

    Provided you acted in accordance with the law, I don’t see why they would. If they did, you can take the matter to court and force the police to explain their reasoning. The court can overrule the police on this.

    Why do you think they changed it? What do you think their reasoning was for proclaiming ‘self-defence’ to be an insufficient reason for firearm ownership?

    The logic is that if there is a functioning and adequate police system and fair administration of justice there is no need for the people to resort to firearms for self-defence. I think this was probably valid enough at the time it became practice. Whether it is still valid is another matter.

    Is this your way of saying that you are not willing to query whether the establishment is doing right by you?

    No, it is my answer to your question. That’s all.

    The man he stabbed was […] and the CPS hits him with a murder charge

    Unfortunately, we only have Osborn’s word for what happened. If the case was as obviously one of self-defence as you suggest, then either Osborn or his lawyer, or possibly both of them, were extremely stupid to plead to manslaughter in order to avoid a murder trial. See above re absolute defence. However, that doesn’t mean “the system” let him down – it just means he’s either very dumb or he had a bad lawyer.

    They did not have to, they were in the wrong for doing so, and a lot of the blame for Osborn’s conviction for manslaughter rests with them

    For God’s sake, man, nothing stopped Osborn from pleading “not guilty” and putting his case. If the evidence showed he was telling the truth and was acting in reasonable self-defence he would have been acquitted. That he didn’t do this is not the fault of the CPS, and to suggest it is is paranoid piffle.

    Barras was not retreating when he was shot

    Prove it. The evidence suggests strongly that he was, and the jury believed the evidence rather than Martin, who had been shown to have lied several times about the whole case.

    can you prove that Martin would not have suffered serious injury or death if he had been unarmed, and had not acted as he did?

    That is not the issue. The issue is whether or not Martin acted reasonably – his protestations to the contrary nothwithstanding, the evidence supported the Crown’s contention that he had not. Result = conviction.

    whether the law should be effectively asking innocent people to gamble on not being killed by burglars

    There are over 59 million people living in Britain, in something over 30 million households. How many people get burgled each year? Of these, how many confront the burglar in the act? How often is the burglar armed? How often does a confronted armed burglar kill the householder?

    Just how much of a “gamble” is it?

    It’s pretty obvious to me that you have fallen hook, line and sinker for the hysterical propaganda that says self-defence is illegal in Britain. IT IS NOT. You can lawfully kill in self-defence, people sometimes are forced to do it, and in many of these cases it seems no charges are brought.

    There is a difference between killing in legitimate self-defence and having the carte-blanche right to kill anyone who enters your house illegally. Nowhere in the western world does anyone have that right, but almost everywhere one has the right to use lethal force to preserve your own life and limb where you reasonably believe them to be at grave risk – and this INCLUDES Britain.

    I most strongly suggest you speak to a lawyer and have the matter explained to you. You have got hold of completely the wrong end of the stick, which is sad because it really is not a complex issue. Don’t believe everything the pro-gun lobby says, just as you shouldn’t believe everything the anti-gun lobby says. Read the legislation for yourself, read the court judgements (it’s plain you have done neither), and if necessary get a lawyer to explain it to you.

    EG