Comment, Comics and the Contrary.
Sir John Stevens
has thrown his weight behind the Conservative Party
proposal to change the law regarding the right to self-defence, the defence of others, and the defence of property. At the moment, the law allows people to use reasonable and proportionate force
. Wrigley Claydon Solicitors
note that “once a defendant has shown enough to raise the defence properly as an issue, the prosecution is then obliged to prove that it was not self-defence. The person accused is given this very significant 'benefit of the doubt'.” They argue that the Tony Martin case “should not mislead. The defence of self-defence remains very much alive and (in an eminently reasonable way only of course) kicking. It should not be assumed from the Martin case that one cannot defend oneself against a burglar. Martin got it badly wrong and paid the price. Many others who defend themselves properly are not prosecuted and are never heard of.”
The Conservative proposal
is to change the law to ensure that prosecutions are only sought when grossly unreasonable force has been used. On Newsnight last week, the Conservative spokesperson (I believe that it was Alan Duncan, but David Davies would be a more logical choice as spokesperson) was questioned as to what circumstances would count as being grossly unreasonable. In effect, they amount to pretty much exactly the same set of circumstances in which a person under the current law would be convicted of using unreasonable and disproportionate force. He admitted that he could offer no examples of cases where there had been a conviction under the current law that would have been an acquittal if the Conservative law had been in place. Indeed, the examples that the supporters of this change appeal to are a thoroughly dishonest strategy of persuasion. Michael Howard is reported to be arguing that that the law would protect people such as Kenneth Faulkner
. Faulkner shot a burglar in the leg. Mr Faulkner was arrested, but not charged or prosecuted. The law protected him perfectly well, at least against possible prosecution, and ensures that cases of homicide and serious wounding are properly investigated.
So what would be the effect of a change in the law? The key point, admit most proponents, is that a change would reduce the number of householders being prosecuted, with relatively no change in conviction rate. Why shouldn’t we proceed with prosecution, if people using reasonable and proportionate force are, without exception, even according to the supporters of this new law, found innocent? We are warned that the experience of being a defendant in court is a traumatic one. Indeed, I imagine that it is. However, I would argue that we need an exhaustive public investigation of every case of serious wounding or homicide, justifiable or not. In Britain, we demand that justice is served by an adversarial system of deliberation. To do away with this because of the ranting of The Sun
would be paradoxical; if we were suggest to Rebekka Wade that we adopt the French system of inquisitorial deliberation and we would no doubt have xenophobic headlines at first press.
Could you imagine the raising of barriers to the initiation of a prosecution to be politically popular in any other area of crime? Why are we contemplating changing the law to allow people to get away with murder and assault, simply because we are worried about the trauma that the accused may experience? Doesn’t the accused experience this trauma, regardless of whether they are acquitted of the crime célèbre of burglar murder, or the crime infamie of peadophilia? Do we worry about the accused in these cases?
Experience tells us that we do not. Moves are made to minimise the trauma of witnesses and victims in trials, with aggressive cross-examination being minimised, opportunities to give evidence via video link and the like. And all this is quite correct. While we may revere the adversarial system, we should be wary of our system being one of overt hostility. But why should we allow this hostility to remain towards the accused? The accused is innocent, at least in law, and should be treated as such. If we recognise the court environment as being too hostile for witnesses and victims for justice to be done, how can we expect it to give justice to the accused?
Rather than prevent the full circumstances of a death or serious wounding from be aired and interrogated in public, we should ensure that the presumption of innocence is just that. Interestingly, the very people calling for the law to be rebalanced in favour of the accused in this case are also the people who complain that the justice system is institutionally biased in the favour of the accused. Can they have it both ways? If you want an example of Tory reasoning that rejects reason, click here
This change in the law is being presented to readers of The Sun as if it would allow the use of a level of force that the current law does not. That is patently false, by the admission of the authors of the prospective law. Perhaps it is their presentation of the law to the viewers of Newsnight and the readers of The Guardian that is false, and it will significantly change the right to use force, not merely the prospects of prosecution. Either way, their arguments are unreasonable and their demand to change the law is a disproportionate.