Unreasonable force

Christopher Hudson and his wife have been turned over once and staked out repeatedly by a carload of burglars. But the last thing he needs is any encouragement to wave more than a torch in their faces

Just to be clear about this, an Englishman's home stopped being his castle in the late 1970s. Up until that time, when courts and juries became stricter about crimes against the person, you could do almost anything in defence of your property. The law had scarcely changed since it was laid down by the 18th-century jurist Sir William Blackstone, who wrote: "If any person attempts to break open a house in the night-time, and shall be killed in such an attempt, the slayer shall be acquitted and discharged."

Just to be clear about this, an Englishman's home stopped being his castle in the late 1970s. Up until that time, when courts and juries became stricter about crimes against the person, you could do almost anything in defence of your property. The law had scarcely changed since it was laid down by the 18th-century jurist Sir William Blackstone, who wrote: "If any person attempts to break open a house in the night-time, and shall be killed in such an attempt, the slayer shall be acquitted and discharged."

Tens of thousands of households are burgled every year in Britain. I make no special case for mine. It happened a while ago and nobody was clubbed over the head. But in the current furore over what constitutes "reasonable force", triggered by Sir John Stevens's call to allow householders to use whatever means are necessary to deal with people who break into their homes, I sometimes wonder what might have happened if we had been legally in possession of a gun.

The night we were burgled, my wife was alone in the house. She saw lights in the lane, opened the door and found four men in balaclavas milling in the drive. They left, but as soon as the door was shut they reversed their car up to the house, veering wildly and knocking down a bush. My wife opened the door again, anger overcoming her very real fear, and confronted the men as they got out of the car. Unbeknown to her they had already been inside the house and wanted to pick up the stuff they hadn't been able to carry out the first time round.

My wife, who is a mild person, found herself screaming at them in such a rage that they got back in the car and left. But on five occasions after that they staked us out, either ringing the doorbell or hanging around in the lane.

For my wife especially it was a shattering experience. In the months that followed we were deluged with similar tales. One woman came out of her bedroom to find burglars making off with her antique furniture while one of them sprayed foam up the stairs to stop her coming down. It was probably the same gang that burgled an antiques shop by flinging rocks up the staircase at the owner.

If either of these people had had a gun, and had used it from the top of the stairs since they couldn't get down to grapple with the burglars, would the Crown Prosecution Service (CPS) have accepted a defence of "reasonable force"? And what about one of our near neighbours, who met a carful of housebreakers coming down his drive? When they swerved across the grass and out of the gates, he turned round and followed - only to find his car repeatedly rammed by another 4x4 behind him. If he hadn't been terrorised into giving up the chase, and had instead forced the getaway car off the road, injuring one of the burglars, what would have happened to him?

I give these examples to illustrate how problematic is the law on dealing with intruders in the home. After Lord Falconer last week told Today listeners that there was nothing wrong with the present law, his boss Tony Blair performed one of his celebrated U-turns and accepted the need for change. "I am on the side of victims, not offenders," he declared.

He may even swing the Government behind the second reading of a private member's Bill next month. Tabled by the Tory MP Patrick Mercer, it proposes that householders should not face charges when acting against an intruder unless the action is "grossly disproportionate" to the perceived threat. Mercer believes that at present it is the householder who fears imprisonment and physical harm, and that his Bill would transfer these fears to the burglar instead.

But does the 1967 Criminal Law Act, which enshrines the concept of "reasonable force", really need change? In the current climate of apprehension over terrorism and security, the Mercer Bill, or something like it, would be popular. The number of burglaries has gone down, and the police are right to reassure us that cases like that of the City financier John Monckton are rare. But percentage points tend to disguise the fact that in 2002-3 there were 3,399 burglaries in England and Wales in which the offender was recorded as being armed.

Confusion is added to alarm by the contradictory ways in which the "reasonable force" law has been inter- preted. Tony Martin killed a burglar who was fleeing the scene and was given a life sentence, the same sentence as the Yorkshire Ripper. Ted Newbery, a pensioner in Derbyshire, lay in wait for an intruder who had been damaging his allotment and shot at him with a shotgun; he was set free, with only a fine to pay for using "disproportionate force".

The Prime Minister's spokesman said enigmatically last week, "The important thing is that the law does allow reasonable force to be used. What it does not allow is the act of retaliation." What are we to make of that? Does the law protect the householder only if the intruder is inside the house posing a threat, and if you chase him outside and clock him with a golf club to make him drop his spoils will you be hauled before the courts? If that is the case, my near neighbour would have faced court action if he had forced the getaway car off the road.

Some police officers, like Sir John Stevens, believe in fighting back. Others tell householders to deal with intruders by locking themselves into an upstairs room and calling the police. (Much good that may do.) Ken Williams, the Chief Constable of Norfolk during the Tony Martin episode, advised the public that if confronted with a burglar they should "scream for help, shout, make a lot of noise" - unfruitful advice for his largely rural and scattered flock.

The CPS points out that there have been "few" cases of action being taken against a householder confronting a burglar. How many is few? When cases do go before the courts, judges usually tell juries to imagine themselves in the position of a defendant and reach their own assessment of whether the amount of force used was reasonable or excessive.

None of this gives householders much assurance that if they encounter someone burgling their home and crack his skull with a vase they will not find themselves in custody. But would Mercer's law make a blind bit of difference? Action grossly disproportionate to the threat may sound more belligerent than reasonable force, but there is no difference in law between them. Even so, many lawyers, and some policemen, foresee real risks if householders are given carte blanche to attack intruders - especially when 50 per cent of burglaries apparently take place while a householder is at home.

They cite the risk of heightened violence, both from the frightened householder, perhaps flourishing a kitchen knife, and the defiant burglar who has come prepared to be attacked with a weapon. More guns might be used on both sides, and that might lead to terrible mistakes.

To my mind this is an overreaction. Gun crime is lessening dramatically now that illegal possession of a gun on the streets carries an automatic custodial sentence. I cannot imagine either petty thieves or professional burglars risking carrying firearms.

The fact is that it is impossible to codify the law on self-defence to take into account every possible situation, protecting householders against intruders while not endangering the lives of people who may have entered the house with good intentions. Reasonable force is probably the best definition we can get. What matters is how it is interpreted. There has to be a judicial presumption that people who use force to defend their homes are acting within the law. This could be clarified within the existing law, without introducing a new one.

The confusion has largely been created by the police, demoralised and uncertain what to recommend. Time and again they have sent cases to the CPS arising out of attacks on intruders, only to see them thrown out. But it's good to talk. The real benefit of the past few days' debate has been that it has prompted the Director of Public Prosecutions, Ken Macdonald, to put down his marker. "Even in extreme cases, few people face court action," he now says. Clear evidence of "very excessive force" would be needed for any prosecution.

I might just move my heavy Maglite torch next to the front door.