14 April 2000

LEGAL MATTERS

Taking the law into your own hands

The increase in rural crime and relative remoteness of a lot of

farms must leave many people wondering just how far they can

go in defending their family and home from intruders.

Mark Horvath of solicitors Barker Gotelee, Suffolk, explains

the dangers of taking the law into your own hands

IF you use force or a weapon to protect yourself, your property or another person and you injure or kill the attacker, you can expect to be charged with a criminal offence. How can you defend yourself in such a case?

You can claim you acted in self-defence but you must produce evidence. A successful plea of self-defence will result in an acquittal whatever the charges.

If the court rules that self-defence is an issue in your trial, the prosecution must convince the jury that you were not acting in self defence. If the prosecution fails in this task the court must acquit you. However, your defence will fail if the prosecution can show that the force you used was not justified because it was not necessary or reasonable.

Must you be attacked before you can defend yourself?

No, if you believe an attack is about to be made you can use reasonable force to prevent it. The courts have accepted that sometimes "circumstances may justify a pre-emptive strike," but the danger to you must be specific and immediate enough to justify your actions and you must prove that the problem could not have been overcome by other means.

What happens if you mistakenly believe you are being attacked?

You may still have a valid defence as you will be judged according to the circumstances as you believed them to be. However, if your mistake was caused because you were drunk your defence will fail.

Must your actions be spontaneous or can you prepare for an expected attack?

Each case will be judged on its merits, but you must convince the court that you reasonably expected an attack. You cannot carry a weapon 24 hours a day "just in case".

In one case a defendants shop had been attacked by rioters. The defendant expected more attacks and made petrol bombs for protection. This broke the law but the defendant was acquitted because the jury accepted his plea of self-defence.

If you are attacked or about to be attacked, do you have to try and avoid confrontation at all costs before using force?

No, but if you attempt to reach a peaceful solution before using force this will count in your favour. Producing evidence that you tried to retreat will cast doubt on the suggestion that you were the attacker.

If you have convinced the court it was necessary to use force, are you automatically found not guilty?

No. If the prosecution can show that the actual force you used was unreasonable in the circumstances, then you may still be found guilty.

Who determines what is "reasonable force"?

The jury or the magistrate. They must put themselves in your shoes and take into account the two "evils" you faced of either using too much force to prevent an attack on you and harming the attacker, or not using enough force and ending up injured or dead.

If you fail to convince the court that the force you used to defend yourself was reasonable it must convict you. Is that the end of the matter?

No. The sentence you receive will depend on whether you used excessive force by mistake or deliberately. If the court decides you used excessive force by mistake you can expect a reduced sentence. How-ever, if you are convicted of murder the judge must pass the mandatory life imprisonment sentence on you.

Whether you win or lose in a criminal court, the attacker, or, if he was killed, his family, may sue you in the civil courts for damages for injury or death. But thats another story .