It is fascinating that at a time when the Justice Secretary has called for householders to be permitted to tool up against burglars and use disproportionate force, international news is filled with the story of the killing of Reeva Steenkamp in South Africa. Oscar Pistorius has stated in a sworn on affidavit that he fired the gun thinking she was a burglar. Like any deceased in a murder allegation, Reeva Steenkamp is not here to confirm or refute the version of events given by the suspect.

Any prosecution in these circumstances is based on the other evidence and the principle of transferred malice. The reliability of any evidence will depend on an unbiased and good quality police investigation, usually with the assistance of firearms, post mortem and blood spatter experts. Conclusions can only be reached after the evidence has been tested in a robust cross examination of witnesses. These things can take time and much can change between initial arrest and trial.

The statistics on domestic killing of women here and abroad are appalling. According to figures published by Women’s Aid, on average two women every  week are killed by a violent partner or ex partner. This constitutes nearly 40% of all female homicide victims in the UK. Apparently in Canada on average, every six days a woman is killed by her intimate partner.

Domestic violence is a massive problem that needs to be addressed but a court cannot assume someone is guilty just because there is a lot of it about. Criminal trials involve the particular people involved and the specific evidence available in relation to those events. Any suspect must remain innocent until proved guilty. To approach any case from any other perspective risks a miscarriage of justice

Obviously if there was no burglar and a man has a row with his girlfriend, hits her with a cricket bat and shoots her as she is hiding in the loo, there might be good evidence of murder. Proof that this is what happened will depend on what is heard by neighbours, the layout of the premises, position of the bullet holes, the scientific and telephone evidence and any propensity to violence towards women. In addition, the prosecution evidence will have to rebut the defence case. If the couple appear happy, there is no provable apparent dispute between them, no argument, no relevant telephone or other forensic evidence and the suspect explains he was acting in self defence under a genuine mistake then there can be a reasonable doubt. It all depends on what the jury can be sure about.

Sadly, given the gun culture in South Africa, householders assume, based on past events, that a burglar of a gated complex will be armed and probably not alone. Here, most burglars are unarmed and a householder would not, and should not leap, to the conclusion that his life rather than his property is at risk. It follows that if a householder here picks up a gun (registered or not) and forms an intent to kill a burglar and then kills that burglar without considering any sensible alternative, that is murder. Even if someone else is shot, the householder remains liable to be convicted of murder by virtue of the principle of transferred malice. The intent to kill one victim is transferred to the other, making the householder guilty of murder of whomsoever dies. Conversely, if no malice is formed (acting in self defence / accident) nothing is transferred and the defendant ought to be acquitted.

Obviously it is not sensible to speculate on the outcome of the Pistorius case when there are so many outstanding issues; but, it is worth looking at the situation from a householder’s perspective here: Take first of all the householder who shoots a burglar; where the issue is self defence using a licensed gun, the test would be whether what the householder had done was proportionate.

The old test used to be ‘reasonable and necessary’. It is all much the same. Injuries and firearms evidence will be relevant as to the number of shots fired, the distance and the circumstances. Plans of trajectory etc will be all important. Was the intruder armed and did the householder know this? This will depend on the lighting and the layout of the premises. Was there really no other option than to open fire? Most burglars flee if disturbed and perhaps the best thing to do is to let them go.

If the court – in this country, a jury – concludes that the householder intended to kill or cause really serious harm and had gone beyond proportionate self defence, the verdict would be guilty. If the circumstances are such that, let’s say, a rural householder with a licensed shotgun, in fear of their life opens fire, the verdict would be the opposite. It is most likely that it is for these reasons there was no prosecution of Mr and Mrs Ferrie who recently shot intruders at their remote address in Rutland. These are the decisions the CPS have to make on charge and juries have to take in criminal trials across the country and it will be a similar decision for the non-jury court in South Africa.

Mr Grayling’s assertions at his party conference that he intended to clarify the law on self defence were really a nonsense. As any courtroom advocate will tell you; the law is quite straightforward. It is usually the evidence that is complex with the added complication that the best witness as to what happened is dead.

There is no real advice a householder can take in advance of such a set of events other than to refrain from domestic violence and remember that however unreasonable it may feel to be the victim of a burglary, your response must be proportionate in the specific circumstances of those events. The Pistorius case is exceptional. The basic legal principles are not: Killing with an intent to kill is murder and the intent can be formed very close to the fatal shot. Killing in self-defence will be excused.

Profile photo of Felicity Gerry QC About Felicity Gerry QC
Felicity Gerry is a high profile criminal barrister and author specialising in serious fatal, sexual and violent offences. She is the co-author of The Sexual Offences Handbook and also a legal media commentator.

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