In the recent sentencing of burglars Joshua O’Gorman and Daniel Mansell for four years each for burgling the home of a person who injured them both by shooting them with a licensed shotgun Judge Michael Pert QC rejected any suggestion that it was a mitigating factor that the defendants had been shot and injured when they committed the burglary for which they were being sentenced.
The judge reportedly told the defendants: “I make it plain that in my judgment being shot is not mitigation. If you burgle a house in the country where the householder owns a legally held shotgun that is the chance you take. You cannot come to court and ask for a lighter sentence because of it”.
The judge’s sentiments were commented upon by Lord Judge, the Lord Chief Justice, in his annual address to the press on 27th September when he spoke of a person’s home as a: “Haven and refuge” and went on to say that: “If your house is burgled and you’re in there, you have the right to get rid of the burglar.”
So, is this a licence to shoot burglars?
The answer lies in the law relating to self-defence, which despite being recently codified has been the same for many years. In simple terms the law makes it clear that a person is entitled to use reasonable force to defend himself or herself or his or her property and it is a ultimately a matter for a jury to determine whether a person was under the relevant threat and, if so, whether the level of force used by that person was reasonable in the circumstances as they existed at the time.
It was on the basis of this law that the police, who arrested the householders in the case where the two burglars were shot, decided that it was not appropriate to charge them with any offence. It was also on the basis of this law that a jury decided that farmer, Tony Martin, who shot and killed a burglar in 1999 was guilty of Manslaughter.
Whilst there is no doubt that the decision not to prosecute the householder who shot the burglars and the comments of the judge who sentenced them do not mean that there is a licence to shoot burglars there does seem to be a significant change in the way cases of this nature are viewed. It seems that, as time progresses, the assessment of what amounts to reasonable force when a person’s home is invaded by burglars, especially at night, has shifted significantly in favour of the householder.
The Legal Aid, Sentencing and Punishment of Offenders Act 2012 which comes into effect in November makes clear that if a householder acts intuitively to repel an intruder they will not be punished if they use: “reasonable force”. Significantly however the decision of what amounts to reasonable force is still ultimately left to a jury to determine.
The law in this area is something of a minefield and the criminal law team at Hine Solicitors, who have significant practical experience of it, are always on hand to advise anyone who is arrested on suspicion of assaulting a burglar or anyone else.
Andrew Hobson
Solicitor Advocate
Hine Solicitors
