Does the law allow you to kill a burglar who has broken into your home?

Richard Osborn-Brooks was arrested on suspicion of murder

The case of pensioner Richard Osborn-Brooks, who was arrested on suspicion of murder after the death of a suspected burglar, has again focused attention on what you can and can’t do if an intruder comes into your home.

1. Am I entitled to kill a burglar?

   Yes, but only under certain circumstances. And you would almost certainly face detailed police questions about your actions.

   The police and courts would have to be satisfied that when the burglar died, you were engaging in what the law regards as legitimate self-defence.

   The legitimacy of that self-defence relies in part on the long-established common law right of honest citizens to use “reasonable force” to protect themselves.

   The Criminal Law Act 1967 also encoded a similar “reasonable force” defence for actions taken to prevent crime.

2. But what does the law mean by 'reasonable' force?

   The law has said that “reasonable” should be assessed in the context of the danger that you honestly believed you were facing – not the danger you were actually facing.

   In other words, even if your threat assessment is later shown to have been wrong, you are still entitled to be judged on the basis of the danger you thought you were facing – provided your actions were based on a genuinely held belief.

   So, for example, if you act on the belief that you are facing an intruder armed with a gun, you will still be entitled to a “reasonable force” defence if it turns out the supposed weapon was in fact a realistic-looking toy.

   If, however, you form a mistaken belief about the danger you are facing while intoxicated, you may not be entitled to a “reasonable” force defence.

3. But what if, in the heat of the moment, I react to the danger with violence that I later realise was excessive?

   You may still have a defence. Crown Prosecution Service guidance has long emphasised that people are not expected to make “fine judgments” in the heat of the moment.

   And in 2013, for people facing intruders in their own home, David Cameron’s coalition government further relaxed the reasonable force requirements by introducing the so-called “householder defence.”

   The Crime and Courts Act 2013 stated that if you were in your own home, you only had to prove that the force you used in self-defence was not “grossly disproportionate.”

   In effect, the government accepted that in the heat of the moment people might over-react and do something that on calm reflection is seen to have been disproportionate.

   The then Justice Secretary Chris Grayling said: “I think householders acting instinctively and honestly in self-defence are victims, not criminals. They should be treated that way.”

   He added: “We’re saying you can do anything as long as it’s not grossly disproportionate. You couldn’t, for instance, stab a burglar if they were already unconscious.

   “But we really should be putting the law firmly on the side of the homeowner, the householder, the family, and saying ‘when that burglar crosses your threshold, invades your home, threatens your family, they give up their rights’.”

4. So does that mean that once an intruder enters my home, I can mete out whatever violence I like to them?

   No.

   In January 2016 the High Court ruled on what had effectively become a test case, brought by the father of alleged intruder Denby Collins, who had been left in a coma after being confronted by a homeowner who put him in a headlock.

   The judges decided against Mr Collins by ruling that the 2013 rule change did not breach Article 2 (1) of the European Convention on Human Rights which protects the right to respect for life.

   At the same time, however, the judges were careful to stress that they were not giving homeowners “carte blanche” to use any degree of force without facing legal repercussions.

   If what you did to a home intruder was “grossly disproportionate” – as opposed to just disproportionate – you could face prosecution for offences including murder, manslaughter, attempted murder, wounding and assault.

5. Why was the law changed in 2013?

   The change came after farmer Tony Martin was convicted of murder in 2000 for shooting dead a teenage burglar.

   It prompted more than ten years of calls for greater legal protection for people who took violent action against intruders in their own home.

6. What were the details of the Tony Martin case?

   In August 1999 Tony Martin shot dead 16-year-old burglar Fred Barras and wounded his 29-year-old accomplice Brendon Fearon after they entered his Norfolk farmhouse, which was called Bleak House.

   There was a public outcry when Martin was arrested and put on trial for murder. With Martin complaining of repeated burglaries and a lack of police action to stop rural crime, many took the view that he had a right to protect himself, his home and his property.

   At trial, however, Martin failed in his claim of self-defence.

   The court heard he had waited in the dark with a loaded, illegally-held pump-action shotgun, before going downstairs and shooting the two burglars. Barras had been shot in the back, suggesting that he had been trying to run away.

   The prosecution claimed that after Barras was shot, he was heard to exclaim: “He has got me. I am sorry. Please don't. Mum.”

   After he was sentenced to life imprisonment for murder, some came to view Martin as a violent eccentric who chose to act as a vigilante, but many others supported him.

   Martin received thousands of supportive letters in prison and campaigners said the guilty verdict was “monstrous.”

   At appeal, Martin’s sentence was reduced to five years for manslaughter after he argued that he had suffered from a paranoid personality disorder. His appeal was granted on the grounds of diminished responsibility, not self-defence.

   He was released in 2003 after having served three years, to a largely warm reception from the public.

7. Since Tony Martin, have there been other cases of people killing intruders who entered their homes?

   Yes. In March 2009 builder Omari Roberts, 23, killed 17-year-old burglar Tyler Juett following a struggle after he found the teenager and a 14-year-old accomplice in his mother’s house in Basford, Nottinghamshire. Juett died of stab wounds.

   Mr Roberts was charged with murder, but before the trial could go ahead, the prosecution dropped the case in April 2010, effectively withdrawing its claim that the apprentice builder had acted with “excessive and gratuitous force.”

   New evidence had emerged, confirming Mr Roberts’ assertion that the gap in time between him forcing the 14-year-old accomplice to leave the house and being engaged in a struggle with Juett had not been long enough for him to call the police.

   It was therefore accepted that Roberts had been acting in legitimate self-defence.

   It also emerged that while the 14-year-old accomplice told police he did not have a knife, he told a social worker he had been armed.

   In another case, in June 2011 Peter Flanagan, 59, was arrested on suspicion of murder after four masked men broke into his home and John Bennell, 27, ended up dying from a stab wound to the chest.

   Mr Flanagan was put on police bail, but in July Nazir Afzal, the chief crown prosecutor for the north-west, ruled he had acted in self-defence and should face no further action.

   In explaining his decision, Mr Afzal said Mr Flanagan had been confronted by a group of intruders, one of whom was armed with a machete.

   Mr Afzal said: “I am satisfied that Peter Flanagan acted in self-defence after being woken by noises in his house shortly before midnight. He was confronted by intruders, one of whom was armed with a machete. People are entitled to use reasonable force in self-defence to defend themselves, their family and their property."