Home Defence and the use of Force

Home Defence and the use of Force

Some publications are claiming an Irish court has upheld the right of a person to use reasonable force to defend themselves against a home intruder.  In a landmark decision, a Central Criminal Court jury acquitted a man of the murder of an unarmed man he stabbed to death with broken garden shears after finding him in his bedroom.(https://www.independent.ie Natasha Reid and Shane Phelan March 15 2018).  It is the first time a murder charge has been defended using the Criminal Law (Defence and the Dwelling) Act 2011, which removed an obligation on householders to retreat, and allows for the use of reasonable force against intruders.  The legislation was introduced in the wake of the Padraig Nally case where a farmer was accused and later acquitted, following two trials, of the unlawful killing of a criminal he found trespassing on his property.  In the recent case the defendant said he was frightened to find "two junkies" in his bedroom and hit Wesley Mooney (33) with half a pair of garden shears after he came running at him.  Both intruders had criminal convictions and the victim had drugs in his system.  The defence relied on the act and a Court of Criminal Appeal judgment which stated burglary was an act of aggression. (ibid).  Defence counsel Séamus Clarke SC said the act specified that nothing should require the homeowner to retreat from his or her dwelling.  He said that an intruder had chosen to invade a person's home and that there was latitude to the homeowner.  The defendant "didn't go home that night looking for trouble," he said. "Trouble was waiting for him when he got home."  In his closing speech, Mr Clarke had also quoted from a Court of Criminal Appeal judgment given by the late Mr Justice Adrian Hardiman: "Common knowledge will have told the homeowner that certain burglaries are committed by drug addicts, whose behaviour may be randomly vicious or wholly unpredictable."  The prosecution had alleged the defendant's account was contrived to justify what he'd done.  It alleged the force used had been unreasonable and there was no need or justification for the use of the weapon.  The judge told the jury that if they were satisfied the defendant felt in danger, he was entitled to defend himself using force and if that force was not disproportionate, then he was not guilty.  The jury acquitted the defendant.

Some sources have claimed this decision clears the way for homeowners to use force against intruders.  My contention is that this is a dangerous and irresponsible conclusion to draw from a single case.  The Criminal Law (Defence and the Dwelling Act 2011)  removed an obligation on householders to retreat, and allows for the use of reasonable force against intruders.  This act was introduced, by Brian Cowan, if I recall correctly, and had been intended to reassure nervous homeowners after the McNally case.  It may have been intended that the act would be more robust but newspaper headlines claiming that homeowners would be encouraged to shoot intruders on sight caused a reappraisal.  Let us look at this a little more closely.  The home owner does not have to retreat.  That is reasonable enough and ensures that a refusal to retreat cannot be misconstrued as an act of aggression and /or intent.  Reasonable force can be used - this is the dangerous bit.  Under British legislation the type of reasonable force to be used is specified as in a rugby-type tackle used to detain an intruder.  The Criminal Law (Defence and the Dwelling Act 2011) offers the homeowner no such reassurance.  Fair enough but remember there are homeowners in British gaols who used force that was later deemed excessive by a court.  One unfortunate man defended his family with a cricket bat and was convicted of serious assault and went to gaol while the persons who had invaded his home and tied up is family were not sent to gaol.  The clincher is the word "reasonable".  It is almost impossible to define.  It hinges on the perceived degree of aggression in the behaviour of the intruder; the fear the homeowner may have felt and whether there was premeditation as in the keeping of some kind of weapon with intent.  A jury could quite easily decide that a homeowner who discovered an intruder in his home and who subsequently produced a weapon and injured or killed the intruder had no grounds for doing so and had used force that was not justified.  I put this conundrum to a friend who is a policeman and his opinion was that for a homeowner to be absolutely sure that the use of force was reasonable and justified he would have had to have received an injury from the intruder and that even then the jury might not see it his way.  Furthermore, he told me, producing a weapon such as a gun and, as he put it, waving it around in an intimidating manner would result in criminal proceedings against the homeowner.  The defendant in the recent case was probably lucky and fortunate the jury believed his defence and it could easily have been otherwise.  If the prosecution had managed to convince the jury that the possession of a broken garden shears was premeditated or that the use of such a weapon did not constitute reasonable force against an unarmed intruder, the defendant would have been in a very different position.  It is a widely accepted fact that juries are fickle and jurors do not always appreciate subtleties or the pressures on a homeowner in such situations..

My contention is that (1) the right bestowed by the act of not having to retreat within one's own home is at best shaky because retreat IS an option in some circumstances. (2) The "reasonableness" of any force used is subjective and open to opinion and interpretation and (3) non-premeditation is difficult to prove as in the apocryphal case of the homeowner who was reprimanded for keeping a baseball bat but no baseball.  The notion that a homeowner can now arm himself with a gun for the purpose of home defence and can expect lenient treatment if he shoots someone is utterly irresponsible nonsense.  It can even be argued that the production of a weapon by a homeowner is per se provocative and that the use of violence is justifiable in only limited instances.  In one notorious case in England a farmer, Tony Martin was convicted of killing a burglar, was jailed and was refused parole on the grounds he still believed he was right and might use excessive force if he was burgled again.  Incredible as it may seem, a homeowner was kept in gaol for the protection of criminals!

There is also the question of financial cost.  The legal costs involved for a homeowner defending himself against criminal charges are horrendous.  Civil proceedings are even worse where the homeowner may be required to pay costs and damages running into hundreds of thousands.  The advice given by my policeman friend stands.  Use force only as a last resort and even then with restraint.  As for not retreating; If an unfortunate homeowner is obliged to use force to defend his home and family his subsequent actions will be the easier to justify if it can be demonstrated he first tried to avoid confrontation.

In conclusion.  The law has a very inconsistent record of supporting homeowners who have resorted to force to defend their properties and families.  A Google search on “homeowner used violence UK” will produce a mixed result of homeowners who were convicted and acquitted.  A friend who once attended for jury service in a sexual assault trial in which the accused had been acquitted for lack of evidence has told me that one juror, a woman, insisted on voting "guilty" against the advice of the judge and despite the lack of evidence.  Her reasoning was that he "looked guilty".  The police have little sympathy for the plight of a frightened homeowner and often apply the law rigorously without mercy or consideration.  The gender, ethnicity, age, socio-economic status, educational background, and demeanour of both defendant and victim all influence the proceedings.  If the hearing should take place against a background of media-induced controversy, anything could happen.  There may be instances where proficiency in the use of firearms can be turned against the homeowner.  In other words, there are no certainties where home defence is concerned and the homeowner, if at all possible , should try to keep a clear head and behave with restraint because the law is fickle.  The homeowner I am sad to say has only ONE inalienable right where an attack on his home is concerned and that is the right to phone the police.  The rest is illusion.

The case of Munir Hussain

Munir Hussain is a British businessman and community leader who was jailed for 30 months following an attack on a burglar who had broken into his home and threatened him and his family.  There was a public outcry because the law was seen as being biased in favour of the burglar instead of the victim.

On 3 September 2008, during Ramadan, Mr. and Mrs. Hussain, their two sons and daughter Arooj, returned home to their house in High Wycombe, Buckinghamshire, England, from their mosque, when they were confronted and tied up by three masked intruders.  Samad broke free, fleeing upstairs pursued by two of the masked men, and managed to raise the alarm.  Meanwhile Munir turned on the remaining intruder Walid Salem.  Munir chased him off the premises and was joined by his brother Tokeer Hussain, who lived a few doors away.  Munir and Tokeer brought Salem to the ground in a neighbour's front garden.  Salem was then subjected to an attack which left him with a brain injury and a fractured skull.  Witnesses said about four Asian men were seen battering Salem with implements including a hockey stick and cricket bat.  One witness pleaded with the attackers to stop, telling them that they were going to kill the man on the ground, but she was disregarded.

At Reading Crown Court on 14 December 2009, Judge John Reddihough sentenced Munir Hussain to 30 months in prison whilst sentencing Tokeer to 39 months in prison. Tokeer was given a harsher sentence because the judge said he had not faced as much provocation as his brother.

Judge Reddihough: The prosecution rightly made it plain that there was no allegation against you, Munir Hussain, in respect of the force you used against Salem in defending your own home and family or of the force used by either of you in apprehending Salem.  However, the attack which then occurred was totally unnecessary and amounted to a very violent revenge attack on a defenceless man. It may be that some members of the public or media commentators will assert that Salem deserved what happened to him, and that you should not have been prosecuted and need not be punished.  The courts must make it clear that such conduct is criminal and unacceptable.  If persons were permitted to take the law into their own hands and inflict their own instant and violent punishment on an apprehended offender rather than letting the criminal justice system take its course, then the rule of law and our system of criminal justice, which are hallmarks of a civilised society, would collapse.

On 20 January 2010 the Court of Appeal reduced Munir's sentence to one year, suspended for two years, which meant he was immediately freed.  Tokeer's sentence was reduced to two years, but not suspended, which meant he remained in prison.  This ruling was criticised by some lawyers as paying too much attention to media attention and public outcry, and they claimed that the law worked well as it stood. Others, including Chris Grayling, the Conservative shadow Home Secretary, considered that the law should be changed.