“this is the shallow level on which she wants to discuss law and order.

How the Tories maintain their grip on that issue is beyond me.”

Beyond you? Really? Is this because you think violent right wing “englishmanshomeishiscastle cantmakeitup” power fantasies mixed with a persecution-at-the-hands-of-the-librul-establishment-which-loves-criminals-and-hates-your-kids complex is something our electorate dislikes? And where on earth would you get that idea from?

The rhetoric about leaving human rights at the door is just that: rhetoric.

I don’t believe it should be dismissed as mere rhetoric. It is dishonest guff, which devalues ‘rights’ for the sake of political expediency.

It is dishonest because it will not deliver what some voters appear to want (the right to beat, torture and kill with impunity anyone who enters their home).

The fact is that there is no problem with the law as it stands nor CPS policy. There is however a problem with public perception and I’d rather Cameron attempted to correct it than appeal to it.

Sorry to come to this late, but:

“[Home are invasions] So “rare” that I know of 2 people (in completely different parts of the country) being burgled in the past month ? You may as well say that murder is rare so we shouldn’t bother to legislate for it.”

The term “home invasion” is a woolly one that’s normally used to refer to burglaries or robberies that take place when someone’s in the house. Those are actually pretty rare, and even rarer when you’re talking about people deliberately breaking into a house while the occupants are in to rob them.

It’s sometimes used a little bit dishonestly by pundits to deliberately conflate burglaries when someone’s in the house and the burglar either doesn’t know or tries not to disturb them with deliberate invasion and robbery of the occupants. You even see the odd criminoligist using similar tactics to pretend that burglaries when someone’s in the house are way higher in the UK than the US because Americans have guns.

Most of that is waffle. Sorry. Short version – home invasions are actually rarer than plain burglaries.

But even if I accepted those, there *is* still a significant difference of principle between having a law which says you may use reasonable force, and one which says you may use force which is disproportionate, albeit only up to some level of disproportion

The law effectively already says this. There is not a straight line of amount of force, starting at none, moving to reasonable and ending at disproportionate. The test for whether the force used was reasonable already relies on whether or not it was wholly disproportionate. Stabbing an unarmed intruder to death is clearly disproportionate. But it can also be a reasonable act of self defence.

It is, incidentally, also already the case that a burglar (for example) can only sue the householder if the force used against him was, ahem, ‘grossly disproportionate’. If those words are your bug bear, then I’m afraid the pass has already been sold. In the CJA 2003 as it turns out.

I also don’t agree that R v Palmer necessarily shows that ‘reasonable’ and ‘not wholly [or grossly, which may or may not be equivalent] disproportionate’ are equivalent.

Without prejudice I assume? If you don’t like Palmer, try Chisam:

where a forcible and violent felony is attempted upon the person of another, the party assaulted, or his servant, or any other person present, is entitled to repel force by force, and, if necessary, to kill the aggressor…

The legal system is currently using the ‘Cameron test’ in determining whether cases go to trial. Clarifying the law so that it reflects this is little more than common sense.

But even if I accepted those, there *is* still a significant difference of principle between having a law which says you may use reasonable force, and one which says you may use force which is disproportionate, albeit only up to some level of disproportion.

If there was a major gain to be made in correcting a law that was unjust in practice, maybe that principle would be worth sacrificing. But the law is working fine at the moment, and all that this sort of suggestion does is mislead the public into thinking that it isn’t.

It would enshrine in law a principle that disproportionate force is allowed, which goes totally against the principle of self-defence.

There is no real legal difference between ‘reasonable’ and ‘not wholly disproportionate’. Look at the judgement in R v Palmer:

If there is some relatively minor attack it would not be common sense to permit some action of retaliation which was wholly out of proportion to the necessities of the situation.

That’s a definition of ‘reasonable force’ that amounts to it not being wholly out of proportion. These are common law concepts, determined by precedent. What the purpose of this law change appears to be is a nudge to the public perception of what your rights are – by changing a legal term of art into a more widely understandable one. As I said above – not much of a change.

But that’s not the whole issue.

It would enshrine in law a principle that disproportionate force is allowed, which goes totally against the principle of self-defence. The CPS saying ‘under the circumstances, we can see why you *thought* that was reasonable, so we won’t prosecute’ is not the same thing as making it legal to use disproportionate force in general.

On top of that, thanks to the way the media coverage has gone, and Cameron’s leaping on the Munir Hussain bandwagon, it would encourage people to retaliate against their attackers as Hussain did, thinking that was now allowed.

And all for what? There’s no evidence whatsoever that the current law is failing to protect householders.

This policy is either not much of a change in the practicality of the law (my view), or it is a grotesquely illiberal authoritarian measure (LibCon’s view apparently). But if it is the latter, then the CPS must have been acting in a grotesque, authoritarian and revolting manner for a decade or more, without anyone seeming to worry too much.

The situation at the moment is that you can use whatever force seems necessary, but no more, and account will be taken of your mental state when considering whether you were only doing what seemed necessary. That is sensible, it’s just, and it’s pragmatic.

So long as a householder is not acting in retribution or revenge, the force used in self defence would have to be wholly excessive and out of proportion before a prosecution would be contemplated.

So what’s the problem with changing the law to reflect the reality? If the test used by the CPS is ‘not grossly disproportionate’ why the outrage about the prospect of changing the test in law to ‘not grossly disproportionate’?

What a sensible, moderate policy…

What is or is not reasonable is always likely to be a fine judgement, and one which the CPS are not sufficiently confident of making – far easier to have a court do it. Make the test more lenient, and you will change both the public perception and the likeliness of charges being brought in the first place.

“On an informal trawl the CPS has only been able to find 11 cases in the last 15 years where people have been prosecuted for attacking intruders into houses, commercial premises or private land. Only 7 of these appear to have resulted from domestic household burglaries.” – CPS press release

So why do people get the facts so ridiculously wrong?

the proposal has been put forward which is to say that unless the action you take as a homeowner is grossly disproportionate…

The rhetoric about leaving human rights at the door is just that: rhetoric. The policy is, as it has been for ages, to move from ‘reasonable’ force to force which is not ‘grossly disproportionate’.

For whilst the grossly disproportionate test would presumably rule out torture, Cameron and Dorries’s suggestions yesterday about burglars losing all rights would not…

See above.

On the contrary, it is hard to deny that unreasonable, disproportionate force ought not to be permitted. It is almost definitionally inappropriate to use such force…

Ditto

According to the slogan, there simply are no limits…

Ditto.

This simply isn’t a big legal deal. As you know, the courts are usually pretty forgiving on householders who over-reacted on the spur of the moment. But this policy isn’t really aimed at the courts, it’s aimed at – well, what does Cameron say in the interview that this whole thread is about?

the reason for changing the law is people I think do find it rather unclear what the current framework of reasonable force actually means, and one of the reasons for raising the threshold is not just what actually happens in the court of law, but it’s to make sure that fewer cases frankly are taken to court, that fewer people are arrested for doing what I think is perfectly legitimate which is to defend yourself in your own home.

What is or is not reasonable is always likely to be a fine judgement, and one which the CPS are not sufficiently confident of making – far easier to have a court do it. Make the test more lenient, and you will change both the public perception and the likeliness of charges being brought in the first place.

Alternatively, the Tories want to subsidise Britain’s important rack, thumbscrew and iron maiden manufacturers, hopefully testing them all on cute little kittens.

douglas – I’ve deleted that comment.

Thanks. I have enough trouble defending what I actually think here rather than what some lunatic puts into my mouth…

Anyway Shatterface, who I genuinely have time for usually, is quite out on a limb on this argument.

I’m not going to walk into this situation armed anyway, am I? I thought I made that clear. If I had time to sneak past the burglers, unlock my gun cabinet and load my shotgun I’d have time to call the police. Even if I did get to the gun I’d probably just threaten them with it. Ever had a shotgun pointed at you? Would you pull that trigger? Any idea of the *damage* it would cause to human flesh and bone?

What exactly are the chances of *any* of this happening anyway?

Seriously? You want to make law based on watching ‘Funny Games’?

The only sensible answer that Shatterface has is mine too.

Call the Old Bill.

An incident like this, as he says, is so far away from our usual experience that the law should recognise that as an expedient mitigation. If we do not act logically then that is just because, just because we are well and truly out of our comfort zone.

Doesn’t excuse after the fact torture, or shit like that.

Well done for shifting the goal posts around once I pointed out that my example was perfectly within the law and you were the one trying to paint me to the right of Chris Grayling. The rest of your crap can be safely ignored.

douglas – I’ve deleted that comment.

Matt Munro: The tory proposal will clear this up, puting the burden on prroof on the crown to show that the force used was grossly disproprtionate.

What Tom said above. Quite a lot of you on here making wild accusations don’t actually seem to know the law as it stands. That also goes for the Tory party.

When someone commits an act of burglary, they are, quite literally, placing themselves outside the law.

Such people do not deserve, morally or ethically, the same legal protections as people who stay within the law.

So we should deny them habeas corpus and the right to a fair trial? Perhaps we could keep them locked up, rape and torture them with impunity, too? And kill them? Is that what you’re suggesting?

What is so liberal about sticking up for dangerous criminals at the expense of decent people?

What is the ‘expense’? What is being expended?

You have no answer.’

I’m not going to walk into this situation armed anyway, am I? I thought I made that clear. If I had time to sneak past the burglers, unlock my gun cabinet and load my shotgun I’d have time to call the police. Even if I did get to the gun I’d probably just threaten them with it. Ever had a shotgun pointed at you? Would you pull that trigger? Any idea of the *damage* it would cause to human flesh and bone?

What exactly are the chances of *any* of this happening anyway?

Seriously? You want to make law based on watching ‘Funny Games’?

But the argument against arming the police is that it increases the likelihood of criminals arming themselves – and shooting first. That argument works against armed response to burglers too. If a burgler thinks there’s a good chance of running into armed home owners he’s far likelier to arm himself too.

Do you stand in front of a mirror at home practicing your ‘Are you talking to me?’ speach?

Seems to me that is all you could do. You have failed to answer my question at 13.

In fact you don’t know what you’d do, do you?

You have no answer.

Hysterical? I’m not the one fantasizing about mowing ‘mofos’ down.

Where’s this gun from that you are suddenly pulling out? You’d have to walking into the situation armed in the first place. What exactly are the chances of you walking in on a home invasion – and armed? It’s a right-wing power fantasy.

If you actually have a gun and you are thinking these thoughts you should turn it in: a responsible gun owner (like myself) keeps their weapon in a locked metal cabinet. We don’t invent scenarios in which we’d use it on another human being. Maybe if you’d actually worked with ex-offenders you wouldn’t see criminals as target practice.

Do you stand in front of a mirror at home practicing your ‘Are you talking to me?’ speach?

The burden of proof is already on the crown to disprove a defence of self-defence, once it has been raised (which, of course, it wasn’t in the case that provoked this whole debate). And that defence already allows for the fact that someone who feels threatened cannot be expected to weigh all the facts to a nicety.

Well, who’d have thunk it?

But why is it ‘Well done Sunny.’

I’d have thought, correct me if I am wrong, that Sunny is no fan of Harry’s Place?

Perhaps you could explain a bit more?

and

He was not sacked fIs HP a LEFT wing site Mark2.
On issues such as education, the NHS, welfare, taxation and privatisation I would say they are libertarian right.
I wouldn’t say they are social democrats economically. They believe in neoliberal solutions to the world’s problems.
Secular and socially liberal. Yes but that is common ground amongst most of the population.”
A little like your site.

.
Lucy and the HP gang seem to be working for central office and this just a predictable campaign by HP to get Dave in.

Well done Sunny.