Q: I am totally confused. How much force is a person allowed to use to protect their own home from burglars or other intruders?
There has been a lot of discussion about the recent case in the media where an intruder died after he appears to have been stabbed by an elderly householder.
Some are outraged that the householder was arrested at all, others that he has not been charged over the death.
The law is clear in respect of the level of force that can be lawfully used.
A person can use reasonable force they believe to be necessary at the time to defend themselves or others.
Section 43 of the Crime and Courts Act 2013 introduced an amendment to the law which states that the degree of force used by the householder is not to be regarded as having been reasonable in the circumstances as he believed them to be if it was grossly disproportionate.
Each case will turn on its own facts. If the view is taken that the force used by the householder was grossly disproportionate then the degree of force will not be reasonable, and self-defence cannot be made out.
Disproportionate force which is short of ‘grossly disproportionate’ force, however, is not of itself necessarily the use of reasonable force.
The prosecution, or jury, in such a case, where the defendant is a householder, are entitled to form the view, taking into account all the other circumstances (as the defendant believed them to be), that the degree of force used was either reasonable or not reasonable.
The terms of the 2013 Act have therefore, in a householder case, slightly refined the common law in that a degree of force used that is disproportionate may, depending on the facts, nevertheless be reasonable.
There are two questions to be considered:
• Was the degree of force used by D grossly disproportionate in the circumstances as he believed them to be?
•If it was not, then was the degree of force reasonable in the circumstances as he believed them to be? If it was, the defence succeeds. If it was not, it fails.
The law is designed to protect intruders and householders. A householder cannot use unlimited force simply because he finds a trespasser in his home.
The recent case in the media had a tragic end but the police and prosecution clearly came to the view on the facts, as they understood them to be, that the elderly householder had acted reasonably in defence of himself or others.
Ben Hoare Bell LLP has specialist Criminal Solicitors across the North East. To speak to a solicitor please phone 0191 565 3112 or email firstname.lastname@example.org. Visit www.benhoarebell.co.uk for further information.