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HEADLINE GRABBING AS A NEW MEANS OF ACHIEVING LEGISLATIVE CHANGE. 15 October 2012
Posted by: 2bedfordrowchambers

HEADLINE GRABBING AS A NEW MEANS OF ACHIEVING LEGISLATIVE CHANGE.

THE REAL RISK OF THE "HOUSEHOLDERS' CHARTER".

"It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do, but only do, what is reasonably necessary."

Palmer v R [1971] AC 814.

 "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."

Section 3 Criminal Law Act 1967.

Neither proposition is novel. Both are set out on the Crown Prosecution Service website on the page that deals with legal guidance on the law of self-defence and are applied every day in countless cases of assault throughout the country.

It is a legal position that serves the public interest well. A householder is entitled to use reasonable, that is to say, proportionate, force to defend themselves and their property. In deciding what is reasonable or proportionate, proper allowance has to be made for the strain or panic of the situation, judging what is done "in the heat of the moment" is a well-established and humane test.

Nothing proposed in the recent speech of the newly appointed Lord Chancellor at the Conservative Party Conference would bring about any real change. It may however leave some householders in the belief that summary justice administered by them when faced by a burglar will now be acceptable. Deciding to dole out some on the spot punishment or retributive justice will not, and never should, be permitted under the law.

It is worrying that the burning desire to make headline news at a party conference should mean that the actual legal position is ignored and the public might be left in a position of thinking that taking the law into their own hands will be permitted.

It will be interesting to see if cases do find their way into the courts when householders, having used too much force, will advance the argument that the Lord Chancellor told them they could do so with impunity.

It is a sad state of affairs that such uncertainty may have been created in an attempt to gain political advantage. Not being a lawyer does not put the Lord Chancellor at a disadvantage, these are basic principles that any first year law student, any probationary police constable and almost every prison inmate could have explained if only he had asked.

by Maura McGowan QC Chairman of the Bar elect.