Defence under attack

Q What is the current law regarding people”s rights to defend themselves against intruders in their home?

A A householder may use force when defending self, family and property, but that force must be what is reasonable in the circumstances. It is difficult to generalise about reasonableness; rather, it should be judged according to the individual circumstances of each case.

Q Is the law the same for farmers with regard to farm buildings?

A Broadly speaking, yes, though what is reasonable in one”s own home in the middle of the night in defence of family and self may not be the same as dealing with someone stealing from a farm building in broad daylight.

The recent criminal prosecution in Derbyshire of a burglar (R v Rae) gives some clue. There were three break-ins at a farm, including one at the farmhouse in which shotguns had been stolen. When the burglars re-entered the farmhouse, the owner, Mr Faulkner, believing that they were armed, shot Rae in the leg.

There was a possibility that the Crown Prosecution Service would prosecute Mr Faulkner for wounding Rae, but they decided not to. Rae himself was tried for burglary. In the course of the trial Mr Faulkner”s actions were reviewed and the judge expressed regret that a possible prosecution against Mr Faulkner had even been considered as his decision to use the shotgun was proportionate in the circumstances. Mr Faulkner reasonably believed that he was faced with imminent personal danger.

Q How do you test whether force used in self-defence is reasonable?

A It is interesting to see new guidelines on what is reasonable, but it remains to be seen how they will be interpreted in practice.

Many ordinary people think that what would be reasonable for a property owner or householder to do to a burglar is perhaps not what the Crown Prosecution Service or the courts might believe is reasonable.

In many cases the householder has been prosecuted for what he did, but has then been acquitted by the courts. However, the prospect of criminal prosecution is very stressful.

Q Is the current law fair to people wanting to defend themselves, their families and homes?

AThe law itself might be said to be fair, but perhaps not the application and interpretation of it. In theory, the law might best be left as it is, but because of some decisions which have been made by the CPS in the past, and some court decisions, it is felt that burglars may be encouraged to think that their prospects of success have increased.

Q Are convictions for injuring or killing an intruder rare?

A It is difficult to be precise on numbers, because the CPS does not keep separate records of householder prosecutions; but it is probably fair to say that they are rare. But the figures do not include the number of times in which a property owner has been prosecuted and acquitted, or the number of times in which he has been threatened with prosecution for many months.

Q Is it true that burglars can sue people who try to injure them? Have there been cases of this?

A Yes, this has been known, and it is probably the thing that most infuriates people. The law has been altered recently to make it more difficult, but not impossible, for a burglar to sue.

QThe Metropolitan Police commissioner recently called for stronger support for those who confront burglars and Tory MP, Patrick Mercer, put forward a private member’s Bill to shift the law more firmly in favour of householders. Is this an indication that the legislation is set to change in the future?

A It looks unlikely that Mr Mercer’s private member’s bill will be given government time or support. What is really required, perhaps, is a clear signal to prospective burglars that the prospects of success are now being tilted back against them. Whether this comes from strengthening the householder’s rights, express abolition of a burglar’s right to sue, changed priorities of the CPS, or any other solution, remains to be seen.

Q What practical difficulties face farmers as far as farm security is concerned?

A These difficulties are many and varied. Anyone who farms near a town is well-used to trespass, vandalism and litter. Those more remote may be targets for rave parties, hare coursing or other incursions. Rave parties are a particular worry. They are difficult to prevent, yet taking self-help measures can be dangerous, as in the recent case of two gamekeepers being jailed for three months for firing shotguns during a rave.

Jonathan Cheal can be contacted at Thring Townsend on 01225 340 000.