Judges have "a lot of discretion" in cases involving normally law-abiding people who use violence when their homes are burgled, the Home Secretary Alan Johnson said yesterday.
His remarks contrasted yesterday with those of his Tory "shadow", Chris Grayling, who said that there might be circumstances in which a householder would be justified in killing a burglar.
Mr Grayling, who wants the law changed to protect the right of ordinary citizens to defend themselves against criminals, said that if someone was threatened in their home by a knife-wielding burglar, they "might" be justified in killing him.
Mr Johnson admitted that he was "uncomfortable" about the recent case of two men jailed for giving a burglar a beating after he and other criminals had threatened their family with knives. The case has prompted calls from the Conservatives for a change in the law.
The law as set out last year by the Justice Secretary Jack Straw protects householders from prosecution if they use "reasonable" force to defend their homes. The Tories said that the wording was too open-ended and should be changed to allow anything other than "grossly disproportionate" force.
The brothers Munir and Tokeer Hussain were sentenced, respectively, to 30 months and 39 months in prison last week for beating a fleeing burglar with a cricket bat so severely that he suffered brain damage. Munir Hussain and his wife and children returned from a mosque in September to find three burglars in their house in High Wycombe, Buckinghamshire. The family were tied and threatened with knives, but one of Mr Hussain's sons escaped and summoned his uncle to help.
Speaking on BBC 1's Andrew Marr programme yesterday, Mr Johnson said: "I think it's impossible not to feel uncomfortable about that. Instinctively, when you look at that case, you have sympathy for the householder."
He added: "What we've done quite recently actually is strengthened the law to protect the householder and there is an awful lot of discretion obviously for the judge to look at the circumstances.
"It's a case of what's proportionate and only the judge listening to all sides of this can make the decision. Now there was nothing in this case that constricted or restricted the judge to make the decision he did. He did that on the basis of all the evidence."
He added: "This law is always kept under review but the point the judge was making was that this was not proportionate. We can't second guess his decision. What I am absolutely clear about is that he did have the discretion to come down in favour of the householder."
Mr Grayling refused to comment on the High Wycombe case yesterday because the jailed men are lodging an appeal but speaking on Sky News he acknowledged that such cases were comparatively rare. He said there had been about 20 cases in 10 years of people being prosecuted for using violence to defend their homes or after they had intervened to prevent rowdiness or crimes. Not all resulted in prosecution.
He said the Tories wanted a "higher threshold built around the concept of reasonable force" to reassure people that they would not risk prosecution by defending their homes, even if, under extreme circumstances, they had killed an intruder.
But he conceded that there might be cases where a person had to be prosecuted for going "over the top" – for instance, if they had pursued a burglar down the street, overpowered him, and then shot him dead.