• Act will produce only confusion, misunderstanding and recrimination Times photographer, Richard Pohle

The new Justice Secretary’s proposal to amend the law on self-defence is an unnecessary piece of political grandstanding

If the new Justice Secretary Chris Grayling takes a walk down the leafy High Streets of his Epsom and Ewell constituency he is likely to come across enough snarling Staffies to alert him to the folly of passing badly thought out and unnecessary legislation. Like the notorious Dangerous Dogs Act, his proposal to amend the law of self-defence to give greater protection to householders who use violence against burglars has all the characteristics of a foolish and unnecessary piece of political grandstanding that will fail to achieve its objective.

The existing law of self-defence, based as it is upon common law built up over centuries, is generous to householders and anyone else defending himself. All criminal barristers are very familiar with pub punch-ups in which a defendant who makes an even vaguely plausible claim that he was acting in anticipation of an attack is extremely unlikely to be convicted.

The law covering a householder trying to evict burglars from his house is identical: he too is entitled to use reasonable force to defend his family and his property. What is “reasonable” in the particular circumstances of a case is left to juries to decide. But they will be given a firm direction from the judge that the householder should have the benefit of any doubt, based upon the circumstances he believed himself to be in at the time. They will be told that if “in a moment of unexpected anguish … a person has only done what he honestly and instinctively thought was necessary, that would be the most potent evidence that only reasonable defensive action has been taken”. They will be told to consider whether the defensive force used was “wholly disproportionate”. Taking all this into account, the question for the jury is: “have the prosecution proved that, in the circumstances as the householder believed them, the force used to defend himself was unreasonable?” If so, the householder is guilty, if not he is not guilty.

The change that Mr Grayling wishes to make is that juries should instead be told that they should acquit unless the force used was “grossly disproportionate”. It is hard to see what difference this will make. If the force used was “wholly disproportionate,” under the existing law it will be unreasonable. It will also be “grossly disproportionate” under the new law, unless anyone can discern a useful distinction between “wholly disproportionate” and “grossly disproportionate”.

Mr Grayling’s changes would not have made the slightest difference to the two causes celebres that appear to be the main reasons for his proposed change. Tony Martin was convicted because the jury found that he shot the burglars in the back as they were trying to get away. The jury found that that was unreasonable, no doubt because among other reasons they thought it was “wholly disproportionate” to any threat that the fleeing burglars posed. There is no reason to suppose that the same jury would not also have found it “grossly disproportionate”. As for the more recent case of the Warwickshire couple who shot a thoroughly nasty burglar who broke into their house in the middle of the night, the police investigated and reported the facts to the CPS, which correctly decided that they should not be prosecuted.

So if the change in the law would make no difference, why worry about it? The answer is that it will create confusion where there should be clarity. Lawyers will have a field day, or at least as much of a field day as Mr Grayling’s cuts to the criminal legal aid budget will allow. If the new law states that a person defending his home can use all force except the “grossly” disproportionate, that must mean that he will be allowed to use some other sorts of disproportionate force. What about “wholly” disproportionate force, already forbidden under the existing law? Is that greater, the same as, or less than “grossly” disproportionate? The burglar’s guess is as good as the householder’s, but if I had to argue the point I would say that “wholly” disproportionate force was greater than “grossly” disproportionate, in which case the effect of Mr Grayling’s change might be to reduce the amount of legal violence the householder can inflict on the intruder, thereby doing the precise opposite of encouraging householders to bash their burglars.

Mr Grayling’s proposal seems to be that the householder defending his property should be entitled to use more force than the man in the street who is set upon by violent thugs or muggers. But why should this be? Not all burglars are ruffians prepared for violence. Far more of them are gormless teenagers who have drunk too much cider and see an open window. What if the householder returns to find an intoxicated adolescent rifling through his CD collection? Is it really right that the law should encourage him to kick someone like that harder than he can kick the gang who the next day try to mug him at knifepoint? Should not the law remain, as it is at present, that he can use reasonable force against either of them? Why create anomalies where none existed before?

In the 18th century, English law did in fact allow householders to use unrestricted violence to defend their property. In many parts of America a similar law remains. It is one reason why the homicide rate is rather high in many American cities, even though the burglary rate may be low.

It has the benefit of clarity, if not of subtlety. But it is not the law that Mr Grayling is proposing.

Grayling’s Bash a Burglar (But Not Too Hard) Act – rather like the Dangerous Dogs Act — will produce only confusion, misunderstanding and recrimination. And the main victims will not be dogs but human beings.

Matthew Scott, Pump Court Chambers