Page last updated at 11:39 GMT, Monday, 21 December 2009

Q&A: What is 'reasonable force'?

By Dominic Casciani
BBC News

The Conservatives have proposed amending the law in England and Wales on self-defence to allow householders to use violence to repel intruders. What is the law on self defence in the home - and where do victims stand if confronted?

What force does the law allow?

In England and Wales, anyone can use "reasonable" force to protect themselves or others, or to carry out an arrest or to prevent crime. Householders are protected from prosecution as long as they act "honestly and instinctively" in the heat of the moment. "Fine judgements" over the level of force used are not expected. What this means in practice is that someone can claim they attacked in self-defence if they genuinely believed they were in peril - even if in hindsight they were clearly wrong. Victims do not have to wait to be attacked if they are in their home and fear for themselves or others. These guidelines also apply if someone, in the spur of the moment, picks up an item to use as a weapon.

Can the intruder be chased if they run off?

It all comes down to the fundamental question of what was proportionate in the moment and what the householder genuinely believed. If an intruder flees the scene, then at that moment they might not be presenting a threat to the householder any longer. This means that a householder who chases and attacks could no longer be considered to be acting in self-defence. Reasonable force can still be used to recover property or make a citizen's arrest. The Crown Prosecution Service (CPS) has suggested in the past that "a rugby tackle or a single blow would probably be reasonable" because these are designed to stop the criminal, rather than to inflict grievous harm.

What is the situation if the intruder dies?

It is still lawful to act in reasonable self-defence, even if the intruder dies as a result. However, prosecution could result from "very excessive and gratuitous force", such as attacking someone who is unconscious.

So the law is quite complicated?

It depends which way you look at it. Defenders of the current position argue that self-defence is exactly the kind of debate that should be left up to juries. In each case, the precise facts will be different and may justify a different response.

That's not very clear, is it?

That's the argument from the other side. The Conservatives have repeatedly argued that the law needs to be shifted in favour of the householder to give them certainty that they will not be prosecuted. Most cases that have come before the courts have tended to divide public opinion.

How likely is prosecution?

There have been very few prosecutions in these circumstances. The most well-known case is Tony Martin. In 1999, the Norfolk farmer shot dead an intruder in his home. He was jailed for life for murder but The Court of Appeal then reduced that to manslaughter. He served three years in jail. Earlier in December, Buckinghamshire businessman Munir Hussain was jailed for 30 months in different circumstances. Hussain had returned home to find that three intruders had tied up his family. He escaped and, with the help of his brother, chased one of the intruders, Walid Saleem. Hussain caught Saleem and hit him so hard with a cricket bat that he inflicted permanent brain damage. Saleem was incapable of entering a plea at trial and received a lesser sentence than the man whose house he broke into. He is appealing against his sentence.

So what attempts have there been to change the law?

In 2005, Conservative backbenchers proposed giving householders and shopkeepers the right to use greater force against burglars. The bill said there should be no prosecution unless "grossly disproportionate force" was used. The proposal ran out of time amid opposition from MPs who described it was a vigilante law. This was the Conservative's third attempt to change the law in recent years - and the latest proposals from the party repeat the argument.

What's the position elsewhere?

The Conservatives argue that the Republic of Ireland has found a way of rebalancing the law that recognises public concern without approving vigilantism. Following a similar case to that of Tony Martin, the Irish government has now announced two key changes to the law of self defence and force in favour of householder. Firstly, it wants to specifically allow the use of lethal force in situations where someone has broken in and the householder can prove that extreme violence was the only means of defending themselves and their property from attack. Secondly, ministers say householders should be allowed to use force in situations where they could in fact safely retreat - but choose not to because they want to defend their home. This is generally known as the "castle defence" or doctrine and is seen in many US states that permit a householder to "make a stand" against an intruder. This second element of the Irish package goes far beyond what the law says in England and Wales.



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