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Defence of property: what is permissible?

Author: ObiterJ

10 Aug 2011 | 16:37

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Normally, in a democratic society, people rely on the police to be able to respond in a way which makes it unnecessary for the individual to have to act to defend his property. The responsibility for the maintenance of law and order rests primarily with the state authorities: principally, with the police.

The Telegraph reports (Close knit neighbourhoods rally for their own defence) that people are acting to protect their businesses against possible attacks by those intent on either stealing or causing criminal damage (see also Vigilantes join 16,000 police on capital's streets, The Independent, and 'Fed Up' Residents Form Anti-Looter Patrols, Sky News). It is human nature to act to protect self, family and one's property, but to what extent is it permissible by law?

Statute law

The Criminal Law Act 1967 s.3 is headed 'Use of force in making arrest, etc':

(1) A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.

(2) Subsection (1) above shall replace the rules of the common law on the question when force used for a purpose mentioned in the subsection is justified by that purpose.

The word "crime" clearly covers acting to prevent theft, burglary, criminal damage (including arson). Thus, the key question comes down to what "is reasonable in the circumstances."

The Criminal Justice and Immigration Act 2008 s.76 comes into play. This section is important though it has been regarded by some writers as "one of the worst examples of gesture politics" and as failing to clarify the law in a number of areas. (It was seen by some as a 'gesture' to public opinion relating to persons defending themselves against burglars).

The section comes into play if self-defence under common law or if the Criminal Law Act 1967 s.3 is invoked by way of justification for an individual's action(s). Basically, the question whether the degree of force used by a defendant (D) was reasonable in the circumstances is to be decided by reference to the circumstances as D believed them to be.

However, s.76 goes on - in subsections (4) to (8) - to amplify this. The reasonableness (objective test) of a belief is relevant to the question whether D genuinely held it. If it is decided that he did genuinely hold the belief then he is entitled to rely on it even if it is mistaken. Note however subsection five relating to mistaken belief attributable to voluntary intoxication.

The degree of force used by D is not to be regarded as having been reasonable in the circumstances as D believed them to be if it was disproportionate in those circumstances. Further, section 76 (7) recognises that a person acting for a legitimate purpose may not be able to "weigh to a nicety" the exact measure of any necessary action. Evidence of D having only done what he honestly and instinctively thought was necessary for a legitimate purpose constitutes "strong evidence" that only reasonable action was taken by D for that purpose.

What about taking preventive steps?

When an attack is feared, the law seems clear enough that reasonable steps may be taken to prevent it. An interesting case here is Attorney-General's reference 2 of 1983  [1984] QB 456.

D's shop had been attacked and damaged by rioters. Fearing further attacks he made petrol bombs which he intended to use to protect himself and his property. He was charged with making an explosive substance (Explosive Substances Act 1883 s4). He pleaded self-defence and was acquitted by the jury. The Attorney-General referred the case to the Court of Appeal and asked: "Whether the defence of self-defence is available to a defendant charged... under section 4 of the" 1883 Act. Thus, the case is concerned with common law principles of self-defence/defence of property.

The Court of Appeal recognised that a person could take steps for his protection but added that "in doing so he may commit other offences." Lord Lane CJ concluded by stating: "The defence of lawful object is available to a defendant against whom a charge under section 4 of the Act of 1883 has been preferred, if he can satisfy the jury on balance of probabilities that his object was to protect himself or his family or his property against imminent apprehended attack and to do so by means which he believed were no more than reasonably necessary to meet the force used by the attackers."

The decision has been academically criticised (for example, by Professor J C Smith in Justification and Excuse in the Criminal Law (1989) - see pages 122, 123. The criticism is based principally on the point that Lord Lane CJ said that whilst a person may take steps to protect himself, he might, in doing so, nevertheless find himself guilty of other offences. Smith argued that if an act is justifiable because done in self-defence or prevention of crime, this ought to be a sufficient answer to a charge of any crime alleged to be involved in the doing of the act. However, that does not appear to be the state of the law.

Whilst the law of England permits action to defend property, the law is complex and contains uncertainties. This is typical of a system of law which largely relies on appropriate cases coming before the courts so that principles can be developed. The 2008 Act 'recalibration of the law' leaves a considerable number of questions unanswered.

So far, the actions of some shopkeepers appears to have been to maintain an 'out of hours' presence at their shops and in the streets outside. The aim is clearly to act as a deterrent to would-be looters.

Great care is needed before people resort to 'self-defence' methods. It is normal to rely on the police and their ability to respond. Where, over a number of days, the police have failed to contain the violence, the shopkeeper's action seems to be sensible, reasonable and within the law.

Of course, it would be entirely preferable if the police presence was strong enough to act a deterrent in itself and the authorities have, so it seems, stepped up the police presence in some areas. Some alleged offenders have already appeared before the courts.

It is certainly to be hoped that, as Mr Cameron put it, those found guilty "feel the full force of the law."

ObiterJ is the author of the Law and Lawyers blog. Click here to follow ObiterJ on Twitter.

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