Tony Hatfield's Retired Ramblings

Reasonable v Necessary

A month before he retires as the Commissioner of the Metropolitan Police, Sir John Stevens, former Chief Constable of Northumbria, has decided, in a interview with the Daily Telegraph to reignite the debate about the force a homeowner can use in defending himself, his family and his property, when faced with an intruder. The law at present is that he is in no different position from anyone else faced with an attack. He must honestly believe that force is necessary at all and the force he uses must be reasonable. The “honesty” test is a subjective one. “Did this person believe in all the circumstances that he needed to use force at all”? The test of reasonable force is a subjective one. The Specimen Directions used by all crown court judges to juries is clear. “You must then decide whether the type and amount of force D used was reasonable. Obviously, a person who is under attack may react on the spur of the moment, and he cannot be expected to work out exactly how much force he needs to use to defend himself. On the other hand, if he goes over the top and uses force out of all proportion to the attack on him, or more force than is really necessary to defend himself, the force used would not be reasonable. So you must take into account both the nature of the attack on D and what he then did. I suggest few juries have much difficulty in working through both tests and reaching a verdict. Today, The Telegraph screamed “Time to let people kill burglars in their homes, says Met chief”. Sir John is suggesting something much, much less. But his ideas are muddled. He believes the “reasonable test”, only one of the two used at present, seems “to be weighted against householders and left the public confused about their rights”. He continues, “Of course you don't want to have gratuitous or excessive violence… but you have to be given the power to use what is necessary. "I'm not talking about guns but people being allowed to defend themselves and use whatever is necessary to defend themselves against someone who may well be armed with a knife. There should be a presumption in law "that the person using the force to defend themselves is acting within the law, rather than the other way round". He suggests that the “reasonable test” is replaced by something he calls the “necessary force test”. I’m sure linguists will be able to distinguish the meanings of these two words. But it’s difficult to see homeowners descending their stairs facing what looks like a human figure in the early hours of the morning, working it out! Is “necessary” force different from “reasonable” force? And if so what test is to be used to work it out-an objective or subjective one? Then what about his idea that there should be a “presumption” that the person is acting within the law? I suggest most Crown lawyers reviewing these cases today would take that view. In clear cases no prosecution would follow. The Code for Crown Prosecutors is being updated next year. I suspect this issue will be dealt with then. In fact I’m not sure this whole area presents real difficulty at all to most police officers or prosecutors. It wasn’t long before the Tories leapt in this bandwagon. After all had they not come out with similar ideas some time ago? Well yes they had. But their credibility looks a trifle shaky. After all it was Tony Martin’s case, they piled in behind to support. And even Sir John pointed out that [Martin] “did shoot the burglar as he was running away. He did use a gun that was illegal. The Martin case skewed everything and it was the wrong case to concentrate on”. And the proposals will not remove from the suspect the anxiety caused by an investigation. In all cases, there will be a police investigation. The suspect will be arrested and questioned. There will be, at least where death results, an inquest. The idea that this is going to be over in a couple of days is simply fanciful. .

posted by Tony @ Saturday, December 04, 2004