Just before midnight on 22 June, four masked men attempted to break into the rear of a house on a quiet cul-de-sac in Salford. One of the would-be burglars, 27-year-old John Leonard Bennell, was fatally stabbed, dying shortly after having been discovered nearby, abandoned by his accomplices fleeing from the approaching authorities. The householder, Peter Flanagan, 59, was arrested on suspicion of murder (his son and son’s girlfriend were also initially arrested, though were both released without charge), having telephoned police to alert them to the crime. Flanagan was later bailed until 25 July.
Chief Superintendent Kevin Mulligan stated that Bennell suffered ‘at least one stab wound’ during an altercation in the house, which involved at least one person from the address and four people breaking in, though Mulligan refused to be drawn on whether the weapon was taken into the property by the intruder or belonged to the householder. The cause of death was later confirmed to have been a stab wound to the chest. News of the disturbance has again stimulated discussion regarding the balance of rights between intruder and householder.
The incident in Salford occurred mere hours after David Cameron confirmed families should ‘feel safe in their homes’, promising that homeowners would not be punished for using ‘reasonable force’ to protect themselves and their property. Seeking to appease public opinion as he announced that controversial proposals concerning plea bargaining are to be scrapped, Cameron said that the new Justice Bill would ‘put beyond doubt that homeowners and small shopkeepers who use reasonable force to defend themselves or their properties will not be prosecuted’. This pledge will now be put to an immediate test, with the problem of quantifying what is ‘reasonable’ once more being brought to the fore by an encounter that evokes memories of the case of Norfolk farmer Tony Martin.
Current CPS guidelines dictate that anyone in England and Wales can use ‘reasonable force’ to protect themselves, or others, as well as to make a citizen’s arrest or prevent crime. Similarly, homeowners are safeguarded so long as they act ‘honestly and instinctively’; according to the guidelines, ‘fine judgements’ pertaining to the force employed cannot be expected in the heat of the moment.
To simplify, employing force in self-defence is legally justifiable so long as there is a genuine perceived threat, irrespective of whether this estimation proves to be accurate. Rightly, homeowners are not required to wait for the smoking gun in defending themselves or their property; to do so would render the homeowner powerless to defend his right to quiet enjoyment of property and potentially produce fatal consequences. Applying this rule, Flanagan’s arrest is not indicative that he will be charged with an offence. Instead, this provides an opportunity for law enforcement and prosecution services to establish precisely the chain of events that led to Bennell’s death.
By extrapolation, self-defence can remain reasonable in instances where the intruder dies as a result. This raises an interesting point alluded to by Mulligan: can a weapon be justifiably used in self-defence only if the attacker is in possession a similar instrument (or if it is the attacker’s weapon that is used against him)? Morally, such a directive would appear attractive. However, with no way of confirming whether an intruder is armed, such a precautionary measure is overly prudent: given that an intruder’s presence is necessarily unsolicited and impinges a homeowner’s right to freedom, a default assumption of intent to cause harm or damage is not unreasonable.
Importantly, CPS guidelines require an element of proportionality, warning that prosecution could result from ‘very excessive and gratuitous force’; the 2009 case of Munir and Salem Hussain, for instance, demonstrates that should a homeowner give chase to a fleeing intruder, the reasonableness assessment needs to be recalculated to accommodate the reduced threat posed to the householder. Equally, the perceived threat emanating from multiple intruders is undoubtedly greater than that posed by a single burglar, thereby vindicating greater force. This was a factor in the Martin case and will unquestionably be a central consideration in determining whether to prosecute Flanagan.
Clearly, the legal framework concerning reasonable force is inherently subjective, leaving an element of circumstantial consideration for jurors; as no two cases are identical, the principles of the law must be applied to the facts of each case individually. However, contrary to Cameron’s assertion that protection from prosecution needs to be clearer, the current legal stance evidently favours the householder, permitting the application of force, fatal if necessary, to protect oneself and one’s property. Correctly so. While not providing license for unremitting aggression, this is consistent with Cameron’s suggestion, in 2010 when leader of the opposition, that ‘[t]he moment a burglar steps over your threshold and invades your property, with all the threat that gives to you, your family and your livelihood, … they leave their human rights outside’.
Given current knowledge of the facts of the case, to prosecute Flanagan would not appear to be in keeping with precedent or in the public interest. In November 2001, a jury took only fifteen minutes to clear a householder who fatally stabbed an armed intruder in his home. With Flanagan telephoning police to alert them to the developing situation, a reasonable person would suggest that Flanagan took appropriate steps to prevent a violent situation developing. Moreover, with multiple intruders being involved in the incident, the use of force in self-defence within his property does not appear to be disproportionate; heavily outnumbered, whether the intruders were armed is a seemingly moot point.
The coincidence of the altercation with Cameron’s speech may prove to be a win-win situation for the Conservative Party. While CPS guidance concerning reasonable force was issued under a Labour government, a decision not to prosecute will be remembered as having been taken under a Conservative-led coalition. Alternatively, should the case go to trial, Cameron’s assertions will be proved correct, potentially restoring faith in the Conservatives as a stalwart of law and order following the debacle surrounding proposed sentence reductions.
*UPDATE*
- Ken Clarke, the Justice Secretary, seeking to address the ‘constant doubt’ surrounding the current legal position and in a seeming reference to the Flanagan case, confirmed on 29 June that a householder who knifes a burglar will not be adjudged to have committed a criminal offence. Individuals should, Clarke opined, be afforded the right to use ‘whatever force necessary’ in protecting themselves and their home, though this does not extend to shooting a fleeing intruder in the back. This proclamation is wholly in kilter with the spirit of the current legal stance, though replacing direct use of the problematic term “reasonable force” with more assertive phraseology will doubtlessly be portrayed as a deepening of the policy by a Conservative-led government attempting to reinforce their traditional image.
No comments:
Post a Comment