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Tuesday, December 07, 2004


Unreasonable and disproportionate - Tory argument and persuasion

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.

This reminds me of what happens in Texas. If you shoot someone (anyone?) who is on your property, you call the police, they come round and take the body away, apologising for the inconvenience. Of course, the people who tend to be shot are illegal Mexican immigrants, desperately trying to cross the boarder in search of money for their families (they are, in fact, in search of the American dream). The police force doesn’t really want to stop this influx of illegal human traffic because these people become the cheap, transient workforce that helps the state tick by doing all the below minimum wage jobs no one else will do.

That’s efficient right-wing logic for you. I’m sure the conservatives could learn a lot from it (but let’s hope for all our sakes that they don’t and that they never, ever get into power again. Ever.).
I assume you've seen the take on all this over in today's Belmont Club post.
Indeed, and I have posted my comments to that thread. I try to point out that, in the case of John Monckton (who is the focus case of the Belmont Club post), who was stabbed by men at his front door apparently believing that they were postmen, no change in the laws of self-defence or gun ownership would have changed the result of that encounter. Unless Monckton had answered what he believed was an innocent knock at the door with a loaded gun, primed to shoot. And, creating a culture where that was the standard response to a caller at the door would undoubtedly increase the level of violence, most of it misdirected. Either that, or we would never knock on doors, fearfully sealing ourselves indoors.

I should have added that we don't know anything about why Monckton was killed. We don't know if they were violent burglars, people with personal enmity towards Monckton or whatever else the circumstances and motives of the attack might have been. Calling for corrective legislation that would have prevented this case demands a little more information than we have at the moment, and Tory attempts to make hay out of Monckton’s death are a distasteful appeal to our fearful and violent sides. Anjd this is quite aside from the poor standard of argument, which damages any democracy.
It depends on what kind of society you wish to live in.

Britons are apparantly OK with being burglarized every year or so, often while they are at home. Americans prefer that a certain percentage of their fellow countrymen be armed and willing to use deadly force against home invaders because criminals are never sure just which house contains these armed individuals. Even those who choose not to be armed are safer due to the deterrent effect. Not to mention that there are a finite number of people willing to burglarize occupied homes and every one of them who is killed reduces that number.

Both countries are democracies so both are presumably content with the advantages/disadvantages of their respective political choices.

Personally, I believe that an unarmed middle aged man who wrestles with a young knife wielding home invader is brave but foolhardy.

Mark in Texas
"It depends on what kind of society you wish to live in."

Of course, and that is a point I make on many issues, particularly ones connected to wealth distribution, education and democratic engagement.

My post was not about gun ownership, but if we are going to add that it, we need to consider the incredible number of deaths by firearms in the US. In 1999 there were 4.08/100,000 homicides by firearms, 6.08/100,000 suicides and 0.42/100,000 unintentional deaths. By comparison, in England and Wales during the same year there were 0.12/100,000 homicides by firearms, 0.22/100,000 suicides and 0.01/100,000 unintentional deaths.

Now, some of the murders and suicides would by committed by other means. But it stretches reason to suggest that the widespread availability of guns do not increase the likelihood of murders and suicides. They patently do increase the number of unintentional gun deaths.

The gun is an immediate and effective cause of death. The majority of people murdered in Britain are killed by someone they know, within the family, friendship groups or business associations. The same pattern is found in assaults. Handing a deadly weapon to the angry parties in these situations is likely to turn assaults into homicides. Likewise, suicides by firearm are tremendously successful and instant, allowing people to end their lives at moments of acute, but not chronic, distress.

Now, you may have little sympathy for the suicidal. I, however, would argue that willfully altering the physical and cultural landscape in such a way to increase suicide must be taken into account when making this change. As you say, we must make a decision on what sort of society we wish to create.

"[G]uns have many uses, multifarious effects. Perhaps they alter minds as well as anatomies… Do they determine more than those who fire them?" Iain Banks, A Song of Stone, p. 260.

You have some good points, especially pointing out that in the specific case of Lord Monkton it would not have made any difference.

I think though, that even though someone’s chosen profession is that of burglar they are not incapable of rational thought. Is choosing to be a burglar a rational decision, assuming the person has no moral qualms?

The amount gotten per burglary is probably not that large but at one a week, a only few hours casing and a few hours burglaring it would come to a reasonable annual income tax free with plenty of time off. Easily increased to two or three burglaries if more money is needed. Since one would not report the income one could also maintain ones welfare payments. Unless there is an effective down side, being a burglar is a rational alternative to a minimum wage job or even a better job with long hours and hard work.

What’s the down side, the possibility of capture and jail time. The increasing probability and to a lesser extent the length of jail will reduce the value of being a burglar. Mandatory, even if not very long, sentences reduce crime ratesby 1) placcing te criminal where he cannot pratice his choosen proffession and 2) increasing the cost of that profession.

The other down side is the possibility of mishap during the burglary, such as being shot by a resident. Most victims would not have the ability, sometimes the situation would not allow, but if being hurt by the resident was a serious possibility the negative side of the equation is very large. If even a small number of residents were able to fight back it would reduce the rationality of being a burglar.

I would seem to me that the problem with the current state of affairs in the UK with it's attendant publicity is telling the potential burglars that there is virtually no chance of a mishap while practicing their occupation, since the resident is percived to pay a heavy price for acting in self defence. The value of the Tory bill is that it would effectively inform potential burglars that the possibility of mishap has gone up.

It has been the experience in the US that increasing the negative effects of criminal behavior, among other factors, has a mojor effect on reducing the crime rate.

This may not have done much for Lord Monckton, since it could be assumed that he normally had very valuable items in the house jusitifing a greator than nomal risk, but it would be a major benefit for the middle and lower classes.


I think there is a better idea than filing charges against the resident. In the US there is such a thing as a Coroners Jury (carried over from English common law), though often it is magistrate not a jury. Any details surrounding any suspicious death must be presented to the jury, which makes a decision as to whether or not the death was the result of an illegal act. This provides for a public hearing and record without the strain of filing charges against some on who is most likely innocent.
Ah, yes. The old gun deaths argument. The absence of firearms explains why the Middle Ages was such a peaceful time where murder was almost unknown due to the inability of those folks to shoot each other.

What was the homicide by firearms rate for Rwanda during the massacre of the Tutsis? My guess is that it was a lot closer to the British rate than the US rate because almost all of the victims were hacked to death by machetes. Dead is dead. People are not more dead when shot than when they are stabbed. If you want an honest comparison, compare overall homicide and suicide rates.

Overall, the US tends to compare quite well to European suicide rates. The US compares extremely well to Japanese suicide rates but the Japanese have a quirky habit of describing all the deaths when a woman drowns her children and then herself as suicides. Similarly if a man murders his entire family before killing himself, all the deaths are descried as suicides. One explanation for the lower US suicide rate actually credits the availability of firearms as reducing suicides. The ability of a depressed or suicidal person, according to that theory, to blow his brains out any time he wants to reduces the urgency to do so when there is a brief opportunity to use other means such as jump from a bridge or high building when there is nobody around or to cut one's wrists when there will be nobody to discover and rush the suicide attempter to the hospital. Since there is less urgency, the suicidal person is more likely to get through the bad patches without doing himself harm. I tend more towards the theory that we Americans are more likely to get homicidally mad at other people than ourselves. In any event, the US suicide rate is fairly low by world standards.

One thing to consider when looking at the per 100,000 rates is the fact that the numbers include criminals killed by police or by homeowners defending against break ins. Most Americans do not consider those deaths to be a bad thing. Judging by what I read in the British press, most Europeans do.

Another thing to consider is that half of all US homicides are comitted by the 13% of the population that has African ancestors. Of the remaining homicides, a disproportionate number are comitted by the Hispanic subset of the white population. If you just compare the white Gringos with the population of Europe, the homicide rates are not too different despite the availability of firearms in the US.

Anyway, I wasn't really intending to get on a discussion of firearms laws as much as a discussion of what constitutes "grossly disproportionate" force in defense of one's home. Where I live, trespassing in an occupied dwelling makes a criminal subject to deadly force. I think I remember a story from some time ago of an English fellow who stabbed a burglar with a sword and received the Tony Martin treatment. That makes me think that it is not firearms that makes the British authorities unhappy as much as it is self defense.
Thanks for the comments, Hank.

There's one other aspect of reducing burglary - reducing the desire to commit it in the first place. Now, don't take me to mean that we should give everybody what they want. Rather, I'm pointing out that I have no desire to burgle anybody, not even a rich financier. I'll bet that most people here don't. And we don't, not because we're scared of being caught, but simply because we think that it is wrong, even if, like me, you think that there is something seriously wrong with the distribution of wealth. Now, granted, we might not be able to reduce the desire to commit burglary to zero, but, if we can point to rising crime rates, reduced civility and the like, then we can suggest ways to push crime rates down by measures other than simple fear.

People have pointed out the many burglars are addicted to drugs - heroin being the regular culprit here in Britain. Efforts to reduce heroin addiction, and to mitigate the criminal and anti-social effects of these addictions are needed. And that doesn't mean an ineffective, but highly destructive, War on Drugs.

We also need to put some meaning back into the lives of people living in the social and cultural wastelands from which the majority of burglars come. Social engineering, I hear being cried, but then so is any education, law enforcement or even the building of public toilets. Everything we do 'engineers' our social environment, so we had better do it rationally in the pursuit of a better society. So the subsidy that would need to be poured into some of these places would be greatly expensive? That is the task of government.

I remember hearing a miner lament that when they were on strike, you couldn't move for policemen in the village. Then they cracked skulls, swore at women and waved their bonus money in the strikers' faces. Now the pits have gone, employment remains insecure and poorly rewarded and regarded, and heroin addiction has devastated the communities, you can't find a policeman however hard you try.
Sorry, I forgot to sign that last one.

Mark in Texas
Regarding suicides. According to the University of Oxford Centre for Suicide Research*, the rates of suicide in the UK during 1999 were 11.8/100,000 (males) and 3.3/100,000 (female), while in the USA during the same year the rates were 17.6/100,000 (male) and 4.1/100,000 (female).

Now, I would say that the deaths caused by police and householders are a 'bad thing', as I disagree with the death penalty, and the number of people killed by the police in the USA amounts to an extra-judicial death penalty. It might be that the deaths are a better 'bad thing' than might have otherwise been the case, but as the police in Britain (and much of the rest of the developed world) don't shoot all that many people, I'd wager that this is not a necessary component of a civilised society.

However, arguments about the death penalty will have to wait for a new thread, else we will be tied up in this for the next hundred posted comments. As the entire EU as abolished the death penalty, I think that this may reflect the attitudinal differences that you have noted, Mark.

Incidentally, it wasn't Lord Monckton who was murdered, but a relative (a cousin, I believe) of his. While I'd abolish the Lords (and all hereditary title), I wouldn't do it like this.

"Another thing to consider is that half of all US homicides are comitted by the 13% of the population that has African ancestors. Of the remaining homicides, a disproportionate number are comitted by the Hispanic subset of the white population."

And what are you trying to suggest that these statistics show?
"And what are you trying to suggest that these statistics show?"

That there are other factors involved in the rate of homicide than the availability of firearms. The homicide rate for Americans of African ancestry is lower than those parts of Africa that compile usable statistics. The homicide rate among Americans of Mexican ancestry is significantly lower than the homicide rate in Mexico. Even the homicide rate for Americans of Japanese ancestry is lower than the homicide rate in Japan, even though firearms are almost completely banned in Japan.

Mark in Texas
What happens to the murder rate by ancestor group when you adjust for socioeconomic status? The most reliable predictor of criminality for an individual or group anywhere is poverty (this is not a claim that poverty causes crime), and we know that blacks and Hispanics are poorer on average than whites.

Also, why do European-Americans commit more murder than Europeans?
"Also, why do European-Americans commit more murder than Europeans?"

Depends on which Europeans you are talking about. Back when I used to keep up on the statistics a few years ago, Holland had a higher homicide rate than Gringos. One of the Balkan states (Latvia? Estonia?) had a homicide rate that compared to Washington DC at the height of the crack epidemic. Switzerland with it's manditory gun laws (yes, I know that they don't own the assault rifles but they keep them in their houses) has one of the lowest homicide rates in Europe. A disproportionately large fraction of the European-Americans who settled the US were Scots and Scots-Irish who apparantly demonstrate a higher propensity towards violence than the average European.

Certainly black Americans have high rates of all kinds of pathologies that are associated with crime such as low income, low education, high rates of illigitimacy, high rates of drug abuse and all manner of other problems. Yet even when compensiating for these factors, Blacks tend to have higher rates of violent crime than Gringos in the same socioeconomic category. Why? I dunno. Maybe they have preserved some African traditions throughout centuries of slavery, decades of maltreatment and years of pressure to assimilate. Maybe they learned bad habits from their predominantly Celtic owners and overseers. Maybe its genes. I suspect that anybody who claims to know the answer to that question is blowing smoke.

What I do know is that legal access to firearms does not cause homicide rates to go up.

Mark in Texas
"Regarding suicides. According to the University of Oxford Centre for Suicide Research*, the rates of suicide in the UK during 1999 were 11.8/100,000 (males) and 3.3/100,000 (female), while in the USA during the same year the rates were 17.6/100,000 (male) and 4.1/100,000 (female)."

Compare the suicide rates in Holland, Hungary and all the Scandanavian countries. The United states was peopled by people from all over Europe as well as all over the world, not just the British Isles.
"I suspect that anybody who claims to know the answer to that question is blowing smoke."

Except you, when you argue that the high levels of murder in America are a result of there being a lot of black people. If you are going to blow smoke, why blow it this way?
Mark is correct in his statements. Black male Americans as a group are more likely to kill or be killed than any other group. take from that what you want, but to try, however subtly to insinuate racism to the person who merely reports the facts is an argument unworthy of you Andrew. the important thing is not whether or not Black Americans are being tarred as murderers, but whether firearm ownership is a proximate cause of high murder rates. there are plenty of statistics to show you that Americans are not living in some sort of modern day Dodge City. i guess, ultimately, that you'll have to just take our words for it.

incidentally, many of us in the USA have a standing offer to our fellows that if you want to learn how to shoot a gun, let us know, and we will either teach you or arrange for someone else to do so. our theory is that familiarity with guns and their operation, along with the mindset necesary to properly handle a deadly weapon, will make firearms more acceptable to those in society that are in simple fear of guns. it's the old education as a substitute for fear tactic. should you find yourself in the USA, let us know and we can take you to a gun range and show you how they work.
Okay. I won't subtly insinuate racism. I'll call it for what it is. Racism. To suggest that 'blackness' in itself is the most important reason for high crime rates in American society is racism. If we doubt this, and imagine that Mark is actually unpicking the racist foundations of American society, poverty and opportunity, then lets look at his further comments, where he tries to argue that suicide is somehow a racial characteristic.

Humans are, biological and genetically speaking, barely different. What is different is the economic, social and cultural conditions of their lives. If, in America, you find that crime blights the lives of black people, then perhaps you should ask how black people have come to occupy positions of lower economic, political and social power.

Genetic explanations of behaviour are mainly rubbish, except in extreme examples of serious disorders. They reveal writers who share more in common with physiognomic determinists and racial Darwinsists of previous centuries, justifications for inhumanity that we should do well not to replicate.

As for your comments on guns - in Britain we do not have a gun culture (in either the negative or positive sense). Allowing widespread ownership of guns would, in my opinion, raise the levels of murder, suicide and accidental death both by simply placing the means in the hands of people, and more subtly by changing attitudes towards violence and death. Perhaps, over years, we might see the development of a responsible gun culture, but I imagine that the immediate effects would be devastating. Of course, if gun ownership was not widespread it could do little to change crime rates, as, in the fantasy of risk calculations taking place in the minds of offenders according to much of the law-and-order brigade, there would be little chance of being confronted with a gun. All that would happen would be, at a much lower level, murder, suicide and accidental death would rise.
this is exactly my point. all he did was point out the incontrovertable fact that, as a group, male Americans of African descent are more likely to kill or be killed than any other identifiable group. it is you who decided that by pointing out this easily verified fact that he must be insinuating some sort of genetic deficiency. we can speculate as to the particular reason. my personal opinion is that the social experimentation that occurred in the '60s and '70s destroyed black two parent families with typical results. the good intentions of the Great Society led directly to the destruction of the nuclear family by actually paying people to stay single. when welfare is predicated on a woman being a single parent, it became economically preferable to avoid marriage. in short, we were paying people to be single mothers. the old saying is true, you get what you pay for.

as for a "gun culture," i am not sure what exactly that means. i grew up with a gun (several, actually) in the house. it was not locked up, and it was kept loaded. both my brother and i knew where it was and how to use it if we had to. since that is how i grew up, i have a difficult time understanding how that can be considered unusual. it is a tool, to be used for a specific job. those of us that are comfortable with firearms reall wonder when people who aren't will stop using the fight over gun control as a proxy for the real issue. whether or not it is ever justified for a citizen (subject, in your case) to use deadly force. the gun is simply a device for producing deadly force. it isn't the only way, but it is a damned efficient way. it is so efficient that it allows women to produce that force. so let's have the reael discussion. is it ever proper to use that force? i say yes.
You suggest that the high murder rate of the US is the fault of the welfare state, just as a columnist in the Daily Express wrote a few days ago. He blamed the 'savage society' in the UK on our welfare state. In this column he quoted crime figures from 1965, in order to turn his ignorance into fact. But, if he wanted to really blame the welfare state and support this argument with evidence he should have gone back to examine the state of society at a much earlier date. The welfare state has existed in modern form since immediately after the Second World War, with preceeding, though less active, forebears throughout this century. He should, for example, have examined the misery of poor and working people in the late 1800s, unsupported by welfare, at a time when vast areas of our industrial cities were miserable, degrading hell-holes. Hell, what do you think New York was like at this time?

Furthermore, if welfare is to blame, then surely the US, with its flimsy, and by European standards, inadequate, welfare state, should have a lower murder rate than continental European nations with comprehensive systems and the UK, which has, comparatively speaking, a middling one. In fact, we find nothing of the sort. America has a high murder rate, UK a low murder rate, and continental Europe lower still. Interestingly, the US has a culture based around acquisition, its moral values centred on the legitimation the individual pursuit of property above almost all else. It makes the winners rich, and kills the losers.

I have never argued that it is not justifiable for a private citizen to use force. Guns, however, make any use of force highly likely to be deadly, whether for the criminal or the victim, and it will often be the victim. Or, as also occurs, the deadly force will be visited upon one of the people participating in an argument that, in the absence of guns, would have have been settled, if not peacefully, then not in a deadly manner.
you compare murder rates as if that is the only crime to be worried about. as we have pointed out, a hefty percentage of the murder in the US isdrug gang related. typically it is one drug dealer killing another. one could make the argument that since we can't keep out the drugs, how will we keep out the guns? furthermore, with the sole exception of murder, the rate of crimes is higher in the UK than in the US. you are far more likely to get mugged or robbed in the UK than here. secondly, you claim that access to a firearm automatically make a confrontation more deadly. actuall, a case for the reverse can be made. people who know thatthey stand a statistically significant chance of looking down the barrel of a gun do not start confrontations. it is the thug who does not fear the little man in the suit of the woman in the station wagon who turns predator. in any case, what do you care? if i decide i need to shoot someone, who are you to second guess me BEFORE the fact? what godlike knowlege do you posess that allows you to know that i will never need to have immediate deadly force? surely you are not planning to move to Richmond and act as my personal human shield? i'm doing well enough just feeding myself, i can't afford you as well. at its base, fear of guns is actually fear of gun owners. quite frankly, unless you plan on kicking in my front door, you're perfectly safe. guns, like dollars, provide options. without money, you must submit to the will of others. sometimes in small ways, like going to work or school. sometimes in larger ways, like not getting married and having kids because you can't afford them. at some point i may be required to make a decision to part with my life, or the life of a loved one. i want the option to say, "no thanks."
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