FELON FELLED, HOUSEHOLDER HELD

Shortly before the recent holiday season, a man was jailed for two-and-a-half years for inflicting brain damage with a cricket bat on another man in the street. The coverage of this case made much of the fact that the severity of the attack broke the bat into three pieces. On the face of it, one might be forgiven for considering the sentence to have erred on the side of leniency.

Naturally, there was more to it. The victim was one of three men who had broken into a house and held the family at knife-point, evidently threatening to kill them. The attacker and his brother, returning home to find the incident unfolding, had chased off the intruders and attacked the one whom they managed to catch. The victim’s associates escaped and have never been identified by the police. The victim, now unfit to plead, has been given a two-year supervision order.

That’s the bare bones of it. I was not present at any of the events of the case, nor was I in court, nor have I read transcripts of any of the court proceedings. It is not my policy to pronounce on the particular findings of juries or the particular sentencing by judges at such a distance. No such inhibition afflicts either the media commentariat or the politicians, of course.

Media reaction has been strong and polarised. In The Observer, Catherine Bennett roundly accounted the bat-wielders “vigilantes” and their actions “vengeance” and “retribution”. The OED defines a vigilante (not entirely helpfully) simply as a member of a vigilance committee, which itself is defined as “a self-appointed committee for the maintenance of justice and order in an imperfectly organized community”. Measured against the known facts, Bennett’s use of the word “vigilante” would seem to be, at best, somewhat loaded. So would her other terms.

The Tory Party called for a public debate on the legal position of householders in the matter of protecting themselves. I am happy to oblige. Like the Tories (and I certainly don’t like the Tories), I have a strong sense that rather a lot of emphasis has been placed in recent years on the rights and rehabilitation of offenders and rather a little on the rights and rehabilitation of victims. The recent case is of course peculiar in the savagery of its outcome. So was that of the Norfolk farmer who, ten years ago, shot and killed a teenaged burglar. The farmer was initially found guilty of murder, reduced on appeal to manslaughter, for which he served a three-year sentence, one of exactly the same length as that imposed on the 29 year-old accomplice of the dead boy. Much was made of the supposed paranoia of the farmer, the fact that he did not report the incident to local police (who, he said, had done nothing to solve a string of prior break-ins on his premises and those of his neighbours) and his recent joining of the BNP.

Well, we can all offer ourselves as amateur psychologists and pass judgment on the mental state of these householders who have been jailed for defending their property with what was deemed more than the law allows, which is “reasonable force”. The trouble with this provision is that we are not dealing with incidents in which reason is the guiding force.

I look at it this way. Finding an intruder in your home is not a circumstance for which you can lay plans. I have no idea how I would behave, nor how my partner or indeed our dogs would behave. It is all fine and dandy to be wise after the event or from a safe distance. What is predictable enough is that a wave of conflicting emotions would beset the householder in such a situation. Fear, wrath, adrenalin, bravado, horror, calm, indignation, wit – who knows what would kick in? And not all intruders are the same. One’s responses to a stoned teenager making an opportunist raid for valuables to exchange for cash might well be very different from how one would behave if confronted by a gang masked with balaclavas and wielding sawn-off shotguns.

In theory, the intruder has the advantage in that he has, to a degree, anticipated the intrusion. He may have form in the matter. He may have thought about what he would do in a variety of scenarios. On the other hand, if he is an opportunist or a thief of low intelligence or simply one who has miscalculated the chance of the premises he is entering being occupied, he may behave spontaneously, rashly, stupidly. The armed gang may seem considerably more menacing than the pathetic addict but the latter may well be more likely to do something he and his victims regret. In the sense that the armed gang consists of what are termed “professional criminals”, one might be entitled to expect them to behave “professionally”. Are they going to risk being wanted for inadvertent murder?

Simply put, I hardly think it is “reasonable” to expect someone the sanctity and security of whose home has been violated to behave “reasonably”. Thankfully for most of us, a break-in is uncharted water. And one aspect that evidently characterises both the recent and the ten year-old cases is this: part of the householder’s emotion might well have been, with some justification, an inchoate fear that the intruders, if not apprehended, would strike again. The instinct to defend one’s home would certainly extend into future possibility as well as present reality. Many people who have suffered break-ins find it difficult to feel that they can continue to live safely in their present home.

I mentioned earlier that I cannot anticipate how our dogs might react to an intruder. Though they have been professionally trained, they have an over-riding instinct to protect their pack (themselves and us) and their territory (our property). That instinct cannot be trained out of them, nor, I think, ought it to be. But I should be desolate and aggrieved, were some court to order any dog of ours to be, as they say, “put down” because it attacked an intruder. Would a court so order? Who can guess?

And here surely we come to the nub of it. Someone who breaks into someone else’s property must be deemed to do so at his own risk. No householder, no property owner has an obligation to make his place safe for uninvited guests, nor to prepare a schedule of systematic and appropriate behaviours against the possibility of various degrees of unlooked-for confrontation. This is about taking responsibility for one’s actions. The intruder who chooses to break in must be deemed to take more responsibility for his actions than the householder should be expected to take for his reactions.

There is an interesting resonance here with the case of the British citizen executed in China for drug-smuggling. I deplore the state imposing death sentences and it seems inhuman to deny any consideration of the man’s evident mental state. But then I ask: why was a mentally ill Briton alone in China, trying, so it is reported, to pursue a career there in pop music at the age of 53? The circumstances of his being there would seem to confirm his delusional state. So why did his family allow him to go? Did they not have a duty of care to protect this clearly vulnerable individual?

Our actions have consequences. We cannot simply say that those who respond to our actions should not have done so in that way. And I am afraid that it applies to the Chinese government, whose policy of executing drug-smugglers is known and clear, just as it does to the hitherto innocent citizen whose home has been invaded.