Criminal Justice: The Use Of Reasonable Force

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.

Elections In Turkey: The Constitution and Democracy

The secular establishment within in Turkey is, and has long been, wary of the Justice and Development Party (AKP) headed by Recep Tayyip Erdogan.  Traditionally, prevailing opinion amongst critics has been that the ultimate aim of the Islamist-rooted party is the imposition of sharia law, with examples of efforts to criminalise adultery and ease restrictions relating to the wearing of the headscarf being oft cited.  However, after almost nine years of single-party AKP government, the inaccuracy of such claims is being recognised; the hurdle of incorporating religiously-tinted political organisations into a rigorously laicist political framework while confining the secular generals to their barracks has been a crucial step in Ankara’s democratic epiphany.  With allegations pertaining to the establishment of Turkish theocracy being notably less prominent in the build-up to parliamentary elections on 12 June than in either of the previous two ballots, economic performance and constitutional reform were able to dominate discussions.

The AKP takes much credit for orchestrating steady economic growth and raising living standards following the bust of 2001; with per capita GDP having almost trebled from $3,500 to $10,000 since 2002, coupled with economic misery for European and Mediterranean neighbours, AKP performance appears particularly impressive.  Equally, the AKP has been responsible for opening coveted EU accession talks, albeit so far with little return, as well as instigating welcome policies of “strategic depth” and “zero problems” in the foreign policy sphere.  It is hardly surprising, therefore, that opinion polls prior to parliamentary elections indicated a 40-45% share of the popular vote.  While this figure was marginally less than the 47% achieved in 2007, it represented an improvement on the 39% support achieved in the municipal elections of 2009 and a substantial lead over the secular Republican People’s Party (CHP).  Accordingly, the outcome of the election was never in doubt; with Erdogan set to become the first Turkish leader to win three consecutive elections, the only questions being asked concerned the size of the AKP majority.

Despite the party’s favourable record in government and the concomitant approval of public opinion, the AKP’s popularity prior to Sunday’s election had been the cause of much concern.  With the idiosyncrasies of the Turkish electoral system requiring that parties surpass 10% of the popular vote before taking seats in parliament, the AKP could feasibly have returned a “supermajority” of 367 MPs which would enable Erdogan to unilaterally rewrite the constitution and, many feared, “Kremlinise” Turkish politics.  Similarly, a 60% majority (i.e. 330 MPs) would have allowed the party to put constitutional proposals directly to the public without consulting opposition opinion.  Exploiting the lack of institutional safeguards in such a Machiavellian manner would clearly fail to conform with democratic ideals; while achieving a simple majority legitimates the enactment of specific policies, changing the framework within which politics takes place should be subject to sterner requirements.  As a result, constitutional reform became a central electoral issue.

The current constitution is the product of the military coup of 1980.  Attempting to revoke many of the liberalising facets introduced by the previous military constitution of 1961 in seeking to ensure against communist infiltration, the 1982 document placed a disproportionate amount of power in the hands of the state machinery and created a democratic deficit.  Thus, despite numerous amendments, including many passed by the AKP, there is broad consensus on the requirement for a new constitution capable of meeting the demands of a growing and modernising state in the 21st century: the 2007 elections highlighted that Ankara can only consolidate democratic transition once any constitutional validation of military intervention has been removed, thereby enhancing the prospect of longed-for EU accession.

Prior to the election, both AKP and CHP promised to recast the constitution should they be victorious, with Kemal Kilicdaroglu, CHP leader, pledging to ‘bring democracy and freedom to the country’.  However, while Kilicdaroglu vowed extensive changes, including greater rights for Kurds and Alevis, reinforced press freedoms (at a time when Turkey has more journalists in prison than any other country), and a reduction in the 10% electoral threshold, Erdogan remained very nondescript about his visions for a new document, saying little more than that he desired a ‘constitution of the people’ that would be ‘short, compact, [and] open’ with greater presidential powers.  With Erdogan disqualified from running for a fourth term as prime minister yet indicating his intention to retain political influence, campaigning under the slogan “Objective 2023” in an apparent effort to evoke comparison with Ataturk in the build-up to the Republic’s centenary, suspicions arose that Erdogan intended to aggrandise the presidency and create a political system loosely based upon the French model before manoeuvring himself into the role.  Statements made by Erdogan prior to ballots being cast regarding the AKP’s disinclination to make constitutional amendments should the party fail to win 330 seats, pre-emptively renouncing any potential for cross-party collaboration amidst an air of conceit resulting from success in a 2010 referendum on a series of constitutional amendments, did little to avert such scepticism.  A strong AKP mandate could therefore have the adverse effect of reversing aspects of AKP-inspired democratisation.

Near-complete results indicate another AKP victory, winning almost 50% of the popular vote while the CHP polled 26% and the far-right Nationalist Action Party (MHP) 13%.  Translating to 326 parliamentary seats (fifteen fewer than in 2007 despite gaining roughly five million additional votes), fears of the AKP being able to unilaterally institutionalise Erdogan’s political control have been quelled – a result of the MHP surpassing the 10% barrier combined with independents scoring an impressive 36 seats.  Accordingly, in something of a volte face, Erdogan proclaimed in his victory speech that ‘the people gave us a message to build the new constitution through consensus and negotiation’, declaring that the AKP would ‘discuss the new constitution with opposition parties’.  While the AKP will be able to act freely as a result of the mandate delivered by the electorate, greater cooperation with newly-strengthened opposition parties will be required if constitutional changes are to be enacted, particularly with the Peace and Democracy Party-backed independents in redressing the Kurdish issue; a continuing failure to deliver on such promises would seriously hamper any future effort by Erdogan to capture the presidency.  Such consensus seeking will doubtlessly reinforce Ankara’s democratic foundations while holding the potential to kick-start faltering negotiations with the EU at a time when relations with Muslim neighbours are under great strain.  In this respect, a reduced majority may serve to strengthen Erdogan as well as democracy.