I promised a further post on the ‘Tony Martin’ case. My first take on the matter (see here) was really just an excuse to link to a post on Plastic Gangster’s site which usefully pointed out a number of facts about Tony Martin’s previous behaviour that those who argue he is a victim of injustice seem to prefer to leave out.
This post is intended to begin to tackle the substantive question which is, as I see it is – should a householder be allowed to use any means neccessary to defend themselves, their family and their property against intruders or should they be restricted to using reasonable force, as the current law allows ?
Despite MP Stephen Pound’s unsporting behaviour and overexcitable language on the Radio Four programme I have some sympathy for his position. That is because changing the law would not only be an invitation to vigilantism but would run counter to the whole ethos of the common law tradition.
English law has as one of it’s tools of analysis, the concept of the “reasonable man”. In many areas of law when considering a verdict a judge has to ask himself, or request that the jury consider “what would the reasonable man do in the circumstances ?” This is because English law (and it’s offshoots American, Australian and Canadian law etc) is not, like continental law, codified. One does not look up the answers in a book. In other words you can’t say “According to the law on Self Defence Tony Martin is within his rights to shoot a burglar in the ankle but not within his rights to shoot him in the back”. Martin, like everyone else is, however, obliged to act reasonably.
The test of the “reasonable man” is designed to take into account what a reasonable person would have done in the circumstances and is thus, in my opinion, more flexible than codified law. A citizen has only to act within reason rather than familiarise himself with the law as it applies to him in all areas of life.
It is my understanding that the judge in the Martin case found that Martin, in deliberately shooting a burglar in the back with an illegal pump-action shotgun as he fled from Martin’s property was not acting reasonably and that is why he was found guilty.
If Martin had been surprised by burglars in his bedroom and had instinctively reached for a licensed gun and fired at the burglars foot this would seem to me to fit easier into a description of reasonable behaviour.
The trouble with such a flexible concept as “reasonability” though is that interpreting it is neccessarily subjective and there are so many variables (disposition of the judge, respective strengths of the prosecution and defence team etc) that there are no guarantees of what verdict might be arrived at. Your best chance of being acquited is still to hire good lawyers and hope they are better than the other side’s.
The advocates of “anything goes in defence of family and property” appear to want to throw out the test of “reasonableness” but not replace it with anything which would act to restrain potentially homicidal behaviour by enraged home-owners.
To throw out the concept of “the reasonable man” in favour of “anything goes” would be to pull out the cornerstone of English justice. We would also have to rip-up the important civil concept of “proportionality” aswell and wave goodbye to the mythical, but legally important “man on the Clapham omnibus” since these are both similar in principle to “reasonableness” and have been used for years for the same ultimate end – attempting to reach fair verdicts and judgments.
To argue that we should not be liable to legal sanction when we kill someone or wound them because they are stealing from us is the first step on a very slippery slope which leads only to anarchy.
These are the legal arguments against replacing the current law but it’s just as important to remember the practical consequences of attempting to do so. Do we really want to live in a society where death is the penalty for theft ? Essentially that’s what the supporters of Tony Martin are arguing in favour of. Giving legal carte blanche to kill someone who trespasses onto your property is asking for all sorts of trouble. Even Saudi Arabia’s criminal code is more liberal than that.
That is not to say I have no sympathy for victims of burglary. I have on numerous occasions been a victim of burglary myself and would gladly have smacked the little bastards in the face if I’d caught them red-handed. Whether this would have been reasonable is a matter for a court to decide having regard to all the circumstances, but at least I would be acting within a civilised legal framework as opposed to a primitive tribal honour-code type system where I would have been entitled to kill them.
This brings me to the final topic which I want to comment on – that of the case Plastic Gangster refers to where a man
was sent down for killing a household intruder. The intruder was physically violent and the householder, a dedicated family man of unblemished civic record, interrupted him in the act of assaulting his daughter. The intruder turned on the householder and struggle ensued during which the householder seized a knife and stabbed the intruder to death. The householder was imprisoned, not because it was considered inherently unreasonable for him to stab the intruder in what was a genuine life or death struggle, but because it was judged that the householder had stabbed the intruder too many times and that this went beyond reasonable force.
Without knowing more about the case it’s difficult to comment on it accurately but it might seem at first blush to demonstrate that the law is skewed in favour of the burglar rather than the burgled.
It is more probably a little more complicated than that however. It would seem to me more likely that the man’s imprisonment occurred because his defence team had not made the case for him acting reasonably. Whether this was because the man had not acted reasonably or whether the team had been poor at explaining his actions is unknowable on present information.
The point I am trying to make is that when someone we feel sympathy for in such situations is imprisoned the fault is more likely to be laid at the lawyers rather than the law. We should not be tempted to view all miscarriages of justice as arguments in favour of ditching civilised rules of behaviour. Often they are examples of the poor application of the existing law, incompetent lawyers or other stuff-up’s.
The law as it stands is fine. We are constrained to apply only reasonable force when we, our families, or our property is attacked. To argue we should be allowed to act unreasonably is entirely muddle-headed and morally wrong.
