Written by: Mark George QC
When headlines are more important than justice
Almost his first act as justice secretary and already it’s clear that non-lawyer Chris Grayling neither understands the law on the use of force by householders against intruders nor does he bother reading legislation he voted for either.
- See elsewhere on the JusticeGap ‘Chris Grayling’s long campaign for the right to batter a burglar.’
Most people thought the law on the force that householders might reasonably use against intruders has been clear for many years. If the old common law wasn’t good enough then surely it was perfectly clear after the amendments introduced by the Criminal Justice and Immigration Act 2008, section 76 and even more recently in The Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012, section 148 which put this defence onto a statutory footing.
Juries can be trusted to know if a householder has used reasonable force to defend themselves or their property or gone completely over the top as in the Tony Martin case. Even the CPS eventually realised that the public would not stomach such prosecutions and in Manchester in just a few months in 2011 the CPS announced in three separate cases that there would be no prosecution of householders in cases where burglars has been injured in committing their crimes.
The classic definition of reasonable force was set out in R. v. Palmer  A.C. 814:
‘If there has been an attack so that defence is reasonably necessary, it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his defensive action. If the jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought necessary, that would be the most potent evidence that only reasonable defensive action had been taken.’
Juries are routinely directed in precisely those terms. The same principles would apply in a case involving defence of property. So when Mr Grayling says that it isn’t right that householders should be judged ‘in the cold light of day’ he just shows his ignorance.
That’s not the law Mr Grayling!
I don’t understand how anyone could have been in any doubt what the law was? So not only is Grayling indulging in grandstanding of the worst sort but it is also a bit worrying that as the new justice secretary he doesn’t appear to understand the law in this important regard.
It will be interesting to see how Mr Grayling thinks it will be any easier for a jury to decide whether the force used was ‘disproportionate’ or ‘grossly disproportionate’ rather than ‘unreasonable’. In either event the jury has to make a judgment call and I doubt if I am the only person who thinks the jury’s task will not be made any easier by this proposed change in the law.
Nor is it easy to see how in truth this makes householders safer. Mr Grayling has given the green light for people to keep all manner of dangerous and offensive weapons in their homes and given them encouragement to use them. It is a one way bet that this will mean more burglars will arm themselves in anticipation of violence being used against them. The result will inevitably be more injured or dead householders or more dead burglars or both.
Is that what Mr Grayling really wants? Is that the sort of society any of us want to live in?
But it may be one thing that Mr Grayling doesn’t really understand the law on reasonable self defence but even more unforgivable is his assertion that under the changes he proposes those who commit serious crimes will face automatic life sentences.
Er, hello? Has Mr Grayling heard of LASPO? You know that big Act with 154 sections and a mere 27 schedules. In particular, has he had a look recently at s.122? Might not be a bad idea. Automatic life sentences for a second serious offence are already provided for. It was part of the deal whereby sentences of Imprisonment for Public Protection (IPPs) were abolished. The Act was only passed by Parliament in April this year so surely a senior minister cannot already have forgotten about it. Has the Tory party collectively had a fit of Ken Clarke induced amnesia? If this was a football match the crowd would be chanting ‘you don’t know what you’re doing!’ And they would be right.
Mr Grayling would make better use of his time if instead of showboating or pumping his chest to show how macho he is compared to that old softie Ken Clarke, he got on with implementing some of the important changes made in the law in LASPO including the abolition of IPPs regarded by many as deeply unjust sentences and an affront to the concept of the rule of law.
The criminal justice system is in crisis. It deserves a minister who is serious about dealing with the problems it faces. After a number of appallingly populist Home and Justice Secretaries under New Labour Ken Clarke a lawyer and a man of compassion was a breath of fresh air. Now it seems we are back to the bad old days of people like John Reid and David Blunkett when the next day’s red top headlines are more important that justice and the rule of law.