What Hague just cannot bring himself to say

'What more does Mr Hague want than three strikes and you're out? One strike? The death penalty?'
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The Independent Online

Fifteen years ago, in a celebrated case, a jury learnt how a nervous householder in a secluded mansion in Kent had heard noises in his garden. When he went to see what was going on, he came face to face with an intruder - a man who had no right to be there. There was a struggle, and the intruder was killed. The police prosecuted the householder. But the jury, considering the evidence, accepted his account of how he had been frightened for his life - despite the fact that he had been armed and the intruder had not - and acquitted him on the grounds of self-defence.

Presumably, this was the sort of outcome that William Hague would have wanted in the recent Tony Martin case (though for some reason he cannot bring himself to say so). In yesterday's now-famous speech, he referred to the public outcry that has followed the conviction of a man who was, in the Conservative leader's phrase, "defending his home against burglars". Mr Hague then went on to say, "I understand the outcry and I share it". Had Tony Martin been cleared (as the Kent defendant was), then I guess Mr Hague and many ordinary people in Britain, would have felt less indignant.

Some think it was the verdict that was wrong. Mr Hague hinted that this was his view when he asserted that, "there is all the difference in the world between the career criminal who sets out deliberately to burgle a house, and the terrified home-owner who acts to protect himself and his home." This suggests that the law on self-defence gives insufficient protection from prosecution to the householder. Particularly that it pays too little regard to his or her state of mind.

Now, Martin was convicted, as we know, because his claim of self-defence was rejected by the jury. They thought that Martin had been lying in wait for burglars, having made clear, in advance, his intention to blast them if they intruded. Accordingly, they also did not accept that he was genuinely "terrified" into shooting. So any Hagueite change in the law to prevent such a verdict in the future would logically have to give the trespassee an additional benefit of the doubt when judging either self-defence or state of mind.

Mr Hague also blames the Martin outcome on the fact that the Bleak House burglars had been convicted and reconvicted and were still at loose when they robbed the wrong farm-house. This is slightly odd, since Mr Martin could not have known that his intruders were repeat offenders, so it is hard to see how this affected his actions. But I suppose that what Mr Hague is getting at is the idea that these chaps should have been banged up for long stretches and thus rendered unavailable for burgling.

But all the tough sentencing measures proposed by the last Tory Home Secretary have now been obligingly enacted by their equally tough successors. What more does Mr Hague want than three strikes and you're out? One strike and you're out, perhaps? The death penalty (thus saving farmers the trouble)? Transportation to Zimbabwe? Or China? Now there's a place where they know how to deal with burglars.

But I will allow Mr Hague this rhetorical flourish, because he is far from being alone in seeking to "learn lessons" from the Martin case. Lord Donaldson, for example, would also alter the law concerning the intention of the householder. "Proof of intention to kill is not [currently] an essential ingredient of the crime of murder," he wrote to The Times. "Proof of an intention to cause grievous bodily harm suffices." This, he believes, is a problem. If we were to alter this sufficiency, we would effectively be raising the murder threshold, turning many murder cases into manslaughter ones.

Come to think of it, say yet other people, doesn't the Martin case show the need to get rid of mandatory life sentences altogether? Even where there is a conviction for murder, all murderers are demonstrably not the same. You cannot treat Tony Martin, one liberal columnist opined yesterday, as though he were the Yorkshire Ripper. He is, after all, no threat to anyone. Allow more discretion to the judges.

We all wish sometimes to surf the popular wave. I gave up the habit of enjoying being in a minority some time ago. But even so, with 99.9 per cent of the population believing that Martin was wrongly convicted, may I ask all those of you who have read this and found yourself agreeing with Hague or Donaldson this one simple question. If Tony Martin were to be not guilty of murder, then would it actually be possible - under English law - to murder a burglar? Or a poacher? Or a trespasser? Or anyone else about whom a householder could say, "I was scared and I didn't actually mean to kill"?

Even the suggestion that Martin should not have received a life sentence is something of a cop-out. I can quite imagine him, if released, at some point in the future, in another twilit orchard, killing some other criminal, using a Bronsonesque self-justification. And (sorry about this, because I hate burglars, too) but Fred Barras had a right to live as well. An equal right. I may not like mandatory sentences as a rule, but in the one case of murder, should there not be the clearest tariff? Or are we going to return to the days when some judges thought that a wife's "provocation" provided grounds for a husband's lenient treatment?

But even if you don't buy all this, let me go for a full fall and make a simple appeal to self-interest. Any action taken that might allow a future Tony Martin to walk free out of court (and this is surely what Mr Hague and his supporters imply) will mean that householders are able to kill intruders on their property and expect to avoid prison. More householders are likely to arm themselves. After all, what would be the point of having the effective right to behave as Martin did, but not possessing his means?

In response, burglars can do one of three things: give up burgling and turn to politics; accept - fatalistically - their hugely increased chances of being killed; or go out and buy guns themselves. I think it will be more guns, more intriguing boxes on daddy's secret shelf, more shot kids, more armed burglaries, more shoot-outs, more fear, more guns. And so on. Some of us will end up deader, whatever the original intention was.

Time to go back to Kent in 1985. The mansion in question was a big mock- Tudor affair set in 20 acres of land near West Kingsdown. The intruder was a highly respected undercover detective called John Fordham and he was there because the police suspected that the mansion's owner had been involved in the Brink's-Mat bullion robbery. The owner stabbed John Fordham to death. His name was Kenneth Noye. The jury let him go.

"The Tony Martin case," says Mr Hague, "lit a touch-paper that has led to an explosion of anger and resentment among millions of law-abiding British people who no longer feel the state is on their side."

But in prosecuting Martin, the state was on our side. Any other suggestion is crass and dangerous populism.