We don't want the Wild West, but a life sentence may be unjust

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The Independent Online

What is the awful fascination we have with crime? A year ago Tony Martin was an obscure if eccentric Norfolk farmer. Since then, driven to distraction by burglars breaking into his own Bleak House, he has become a convicted murderer, a political issue and cause célÿbre. He is more famous than Ricky Martin.

Most of us would not dream of committing a serious crime, and would be victims of someone else's only in our worst nightmares. Yet how we enjoy reading, hearing, watching and retelling stories of crimes most horrid in books, films, TV series, songs and the rest. And we have done so since the days of Adam and Eve - or, at any rate, Cain and Abel. I liked crime so much I spent the best part of 15 years practising as a criminal barrister.

Made-up stories are all right but there is nothing like real-life crime to excite real-life interest. Though, admittedly, in most criminal cases witnesses giving evidence stray into the world of fiction quicker than you can say Jeffrey Archer.

Now, don't think I am not taking this seriously. To give you some idea of my dedication, I am actually writing these words on my own at night, in an isolated farmhouse that was burgled just a few days ago. If I don't make it to the bottom of the page it is because either I have been overpowered by the returning thief or I have turned a weapon on him and been carted off to prison like Martin. When did rural life become so fearful?

One small, depressing detail that emerged in Martin's trial came from John Spalton, an eel catcher who, on his way home from work, came across the surviving burglar, 29-year-old Brendon Fearon, who had escaped from the scene of the burglary and shooting. Although Fearon was bleeding and distressed, Mr Spalton did not decide to help him - because of the area's terrible crime rate. He said in evidence: "You don't stop unless it is somebody you know."

If that is typical, rural Norfolk is no different from inner-city Brixton or the Bronx. Apart from the eel catching. The whole Martin case is a ghastly tragedy - a 16-year-old left dead, a 55-year-old in prison, theoretically to the end of his days, and everyone filled with bitterness, anger and loss.

But even so, I have to admit that representing an enraged householder accused of going over the top in defence of himself and his property, is something of a dream assignment for defence counsel. Surely the jury would be bending over backwards to find a way of letting the defendant off?

But, of course, in a perfect world the defendant would not have shot his victim in the back, nor would he have used a gun kept illegally, nor would it be on record that not long ago he had fired at some other trespassers for scrumping his orchard apples. The defendant, would not, in a perfect world, appear quite so odd as Martin - who does come across as a couple of tractors short of a farmyard.

But you do not practise crime in a perfect world. In a perfect world, 29-year-olds do not take 16-year-old boys along to nick other people's property in the middle of the night. In a perfect world, lonely farmers do not feel the need to have a pump-action shotgun close at hand to protect themselves. In a perfect world, there are no crimes at all. And, let's face it, no criminal lawyers either.

So in this imperfect world of real crime, the jury must have concluded that Martin went beyond what, even in the agony of the moment, he felt it was necessary to do to defend himself. Despite the sympathy they must have felt for his plight as a victim of domestic burglary, they decided he was guilty of murder. Would they, I wonder, have convicted him if capital punishment still existed and they knew he would be hanged? Would those who argue for the return of hanging tolerate its use in this case?

In the huge furore that has followed Martin's conviction - hard cases may make bad law, but they certainly make good copy - it has been argued, in effect, that someone in Martin's position should be licensed to kill anyone who ventures on to their property, just as shepherds are supposed to have the right to kill dogs worrying sheep.

It may come to that, but that would mean that 21st-century East Anglia would be ruled by the same gun law that existed in the "Wild West" of 19th-century America.

You do not have to be Charlton Heston to think that Martin might have been harshly treated. Some judges (and the Law Commission) suggest the solution is to give the trial judge discretion in sentencing murder cases.

If murder were like any other offence the judge would not have had to give Martin life. But murder is not like any other offence and blurring the distinction between murder and manslaughter would disturb the jurors' responsibility to make a very important decision on the facts, which is above all the point of the jury's work.

Is there an easier solution to hand? Well, the partial defence of "provocation" (governed by section three of the Homicide Act 1957) does reduce a charge of murder to manslaughter. If Martin went beyond merely defending himself, is it not the case that he was provoked into doing so by the presence of the burglars in his house?

A few years ago, the scope of provocation in law was expanded to include the sort of treatment a battered woman might endure for many years before striking a fatal blow at her assailant. It could easily encompass the position of someone whose home is invaded by criminals bent on misbehaviour.

This might not let Martin off altogether, but it would get him out of prison sooner. I must end now, the dog is barking at something outside.