Earlier this week the subject of self-defence came up, triggered by Anne McIntosh MP's private member's bill intended to give more rights to householders confronted by burglars.
There was some discussion on Samizdata, which was frankly not of very high quality, unless you compare it with that to be found, for example, here.
Pulling together the points made opposing the bill, we find:
They can't both be right.
- The law already allows citizens to take very strong measures in self-defence, without fear of prosecution.
- Allowing citizens to take very strong measures in self-defence would be a disaster, and the end of civilisation as we know it.
In fact, I believe that the first objection, made by Martin Keegan on Samizdata and Janet Anderson in the other debate I referred to - that the law already allows sufficiently for self-defence - is correct as far as it goes. The Crown Prosecution Service explained their position back in January:
Indeed we routinely refuse to prosecute those reacting in the heat of the moment to finding intruders within their homes. So householders who have killed burglars in this situation have not been prosecuted. Householders who have shot burglars have not been prosecuted. Householders who have stabbed burglars have not been prosecuted. Householders who have struck burglars on the head, fracturing their skulls, have not been not prosecuted.The cases where people are prosecuted for "unreasonable" violence in self-defence are very rare, and exceptional either in the events themselves (the CPS press release refers to a case where the householder "lay in wait for a burglar on commercial premises, caught him, tied him up, beat him, threw him into a pit and set fire to him"), or in the stupidity of the officials involved. There are limits to how well the law can protect us from official stupidity.
While defending the current law as it pertains to self-defence, I do feel that the wider situation is nevertheless highly unsatisfactory. The problems are as follows.
Weapons. We aren't allowed any. In a crisis, we are allowed to use whatever weapons we can lay hands on, but we aren't allowed to prepare to defend ourselves by carrying weapons or making the available. You cannot carry even a makeshift such as a small pot of chilli powder without committing a criminal offence, if you intend it as a weapon.
The problems caused by the offensive weapons law are quite subtle. The case I remember was unfortunately just a few years too early to be in any linkable news source - around 1992, I think. But from memory, this is what happened.
A local troblemaker, whose name was Elliot, was walking down the street, apparently under the influence of some drug, scratching cars with a Swiss army knife. A householder, whose name I can't remember but who was a music teacher with hair like Brian May, walked out to remonstrate with him, picking up a hammer on the way out. They argued, and Elliot killed the householder with the Swiss army knife. Elliot was aquitted of murder on the grounds of self-defence.
Note the strength of the law of self-defence. However, this was not altogether a satifactory resolution. The problem was that, while realistically Elliot was the aggressor, and Brian-May-hair was, in the view of many, properly defending property, by illegally arming himself he had given up the position of being law-abiding. The law effectively saw two criminals fighting. The law of offensive weapons gives us the choice of being effective or being law-abiding.
The second problem is attitude - the attitude of the other set of opponents of the McIntosh bill. In spite of the law of self-defence, and of the traditional principle that it is not only a right, but also a duty of the citizen to prevent crime if possible when it occurs, and indeed to apprehend criminals, the idea has been propogated that the most responsible and respectable thing to do is to leave it all to the police. This has originated, I believe, with the police themselves, who like any professional group don't like competition, and with the kind of state-worshipper who believes that anything that can be done by the state must be done only by the state. It is this attitude that has led to accusations of vigilantism against anyone who is in favour of resisting crime.
I believe that in a free society the police should have no special powers. The role of the police is to supplement the citizens' actions against crime with a trained, full-time force. The police power of arrest should be identical to the citizen's power of arrest. The citizens should be allowed to carry the same weapons as the police routinely carry. If weapons such as firearms are to be restricted, and carried only in certain circumstances, citizens should be entitled to apply for permission in the same way as police.
The point at which the state's monopoly comes in is in the courts - to any but an anarchist it is the state's sole duty to convict and punish offenders. It is significant though that even with Britain's feeble separation of powers, the courts have not been under strong control of the government, and have direct citizen involvement which tends to keep their actions distinct from government policy.
The third problem is that in some areas of this country, crime is apparently out of control. It may be that it is in fact less bad than at any other period - I don't really know - but a feature of modern life is that the whole population now expects the things that used to be the privilege of the old middle class, including the right to be relatively secure from casual violence. We don't expect the working man to live in a pre-war slum any more, and we don't expect him to have to endure endemic violent crime, either. And it is right that we should not.
I cannot say of my own (sheltered) experience whether it is the norm or the exception, but there are places where the law-abiding citizen is permanently threatened with crime. It is in such conditions that there is a temptation to go beyond self-defence and prevention of crime as it happens, and to attempt to drive out or deter suspected criminals pre-emptively. This is not a desirable state of affairs, and as I believe it is the right of the state to have a monopoly of punishment, it is its duty to use it to control such areas. I don't want to go further than that, as I really am outside my area of familiarity.
Any discussion of such matters inevitably gets bogged down in the details of the Tony Martin case. The case is a poor advertisement for self-defence - there is no self-defence in shooting a fleeing burglar. The sympathy that exists for Martin is due to the third problem above: the justification he claimed was that the state was chronically failing to protect him, and the burglar that he chased off on one occasion would be back on another. I can believe that is a real problem, but if the only way to protect people like Martin is for burglars to be shot (which, as a general proposition, I doubt), then they should be shot by the state on proper conviction, not by nutters in farmhouses on dark nights.
Labels: crime and freedom