Ladies and Gentlemen of the Jury, In Conclusion...

I and Tim Lambert, professor of Computer Science and Engineering at the University of New South Wales, Australia and author of the blog Deltoid, have been having an ongoing discussion over self-defense in the UK starting back in March. The debate began over a news piece that stirred the outrage of those of us Tim calls "gullible gunners." Here's that piece, published in the UK paper, The Scotsman, in its entirety:

Man Who Killed Armed Intruder Jailed Eight Years

By Will Batchelor, PA News

A man who stabbed to death an armed intruder at his home was jailed for eight years today.

Carl Lindsay, 25, answered a knock at his door in Salford, Greater Manchester, to find four men armed with a gun.

When the gang tried to rob him he grabbed a samurai sword and stabbed one of them, 37-year-old Stephen Swindells, four times.

Mr Swindells, of Salford, was later found collapsed in an alley and died in hospital.

Lindsay, of Walkden, was found guilty of manslaughter following a three-week trial at Manchester Crown Court.

He was sentenced to eight years’ imprisonment.

After the case, Detective Chief Inspector Sam Haworth said: “Four men, including the victim, had set out purposefully to rob Carl Lindsay and this intent ultimately led to Stephen Swindells’ death.

“I believe the sentences passed today reflect the severity of the circumstances.”

Three other men were charged with robbery and firearms offences in connection with the incident, which took place in February last year.

The reaction of several of us was commented on in Tim's initial post on the subject, Gullible Gunners. Tim commented, in part:

Pro-gunners such as John Lott, Glenn Reynolds and John Derbyshire have written about the Martin case, apparently unaware of the facts that showed that the killing was not in self defence, and proceeded to make bogus claims that self defence was against the law in Britain. Claims which they have never bothered to correct.

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Now, there are two possible explanations for Lindsay’s conviction:

The jury knew more facts that those which appeared in the brief story and these showed that the killing was not in self defence.

Self defence is illegal in the UK.

The reaction from bloggers was swift and extensive. At the time of writing, Technorati reports 61 blogs linking to the story, all going for explanation 2, none even considering the possibility that the killing was not self defence.

Note that Tim doesn't wonder why 61 out of 61 blogs choose option 2 - to him it's obvious that we're all just "gullible gunners" and there is no prior evidence that would lead us to believe that "self defence is illegal in the UK," this story being only the latest example. No, we're obviously just leaping to conclusions based on our inherent pro-gun bias. (What that bias indicates, I leave to you, the jury.)

Tim noted that further details emerged indicating that perhaps this was not merely a case of self-defense. That, in fact, Carl Lindsay had pursued his attackers into a hallway and had stabbed Stephen Swindells in the back four times, thus prompting the murder charge. Instead, the jury found him guilty of manslaughter for an act of retaliation against the men robbing him.

I was one of those who posted on the story. In my piece I said:

The Next Time Someone Tells You that Self-Defense isn't Illegal in the UK, (for all intents and purposes,)...

And pointed to the Scotsman story. I then added, after the additional details were brought out:

However, were you a reader of this story - provided without nuance - would you not draw the conclusion that defending yourself against attack is legally risky?

That's my point - the general public in the UK is actively discouraged from self-defense, in fear of prosecution.

"You can't protect yourself! You're not qualified!"

The following week Tim posted his first piece, and I began the debate with him in the comments to that piece.

In response to that initial post by Tim I made this point:

[T]here have been numerous cases of the British courts charging people for defending themselves. The law there seems to be one based on "proportional response" - e.g., stabbing someone who isn't armed with a weapon is "excessive force." So is bashing them over the head with a brick. There are many of these cases, and they've lead us to the conclusion that private citizens in Britain had best not resist attack, or face prosecution for usurping the authority of the State in its monopoly on the legitimate use of force. My primary objection to the news story was that it reinforces that conclusion. If you are a reader of that story, ignorant as to the details, in combination with all the other similar stories of people prosecuted after defending themselves, the message is "don't resist, you'll go to jail."

In a later comment, I added:

You object to our near unanimous conclusion that "self defense in the UK is illegal," poo-pooing it as "gullible," but for all practical purposes that assertion is true. Stories like the Scotsman piece reinforce that understanding. All it said was (in abbreviated form) "One man attacked by four. One of the four had a gun. Man defended himself with a sword, killing one of the four. Defender sentenced to eight years." When faced by four attackers, one armed with a firearm, it seems the "instinctive" reaction the government wants is for the victim to curl into a ball and surrender. Any other action is deemed "antisocial," apparently.

Tim and I (and others) continued this debate over the course of the next couple of months. Tim posted a follow-on piece, Gullible Gunners, Again in response to my comments in which he states:

Baker continued to insist that self defence was illegal in practice in the UK. His argument was that England’s “laws concerning weapons make self-defense, for all intents and purposes, a lost cause”. His argument is badly wrong for two reasons.

1. Using a weapon is not the only way to defend yourself.

2. If the law disarms attackers, then it can make self defence possible where it would have been impossible if the attacker was armed.

My response was a post of my own. Tim responded in the comments of Gullible Gunners, Again, where he said:

As far as I can tell, American pro-gunners are constantly on the lookout for news stories about how terrible things are in the UK. So far they have found a total of exactly zero cases where someone has genuinely acted in self-defence and been convicted of (or even prosecuted for) a crime. That's zero. But you seem to think that it happens all the time.

and

Next we come to your bizarre misreading of my statement:

"If the law disarms attackers, then it can make self defence possible where it would have been impossible if the attacker was armed."

You claimed that I was somehow saying that "Honest citizens should never use a weapon in self defense" even though I wasn't and insisted that was the only possible meaning even though I had written nothing the slightest bit even remotely like that. Consider two scenarios:

1. Attacker has a gun. Defender does not.

2. Attacker does not have a gun. Defender doesn't either.

Self defence is possible in the second scenario while it isn't in the first one. Is that clear now?

One of my commenters, Sarah, rephrased Tim's statement thus:

If the law disarms citizens, then it can make self defence impossible where it would have been possible if the citizen was armed.

That about covers that.

I responded here. You can see this exchange has been quite involved. (I doubt many people have bothered to read this far, though I'm sure this post will draw some comments. If you really have struggled through to read to this point, please, let me know.)

Tim then posted his third piece, Gullible Gunners, Part 3 on May 4. In that piece he states:

He (that would be me) has “spent a considerable amount of time trying to do archive research through UK online newspapers for stories on self defense”, and found not one story where someone was prosecuted for defending themselves. So where do we stand here? Despite strenous efforts, we have not one case where the British courts have charged someone for defending themselves. All we have is two cases (Lindsay and Martin) where the killing was not self-defence, but were presented by pro-gunners to make it look like it was.

Now, if you've taken the hour or two necessary to slog through this entire discussion; links, comments, etc., to this point, I applaud you. There are probably forty-thousand words or more to this point, and we rambled on over a fairly wide variety of topics. But it all comes down to the original point: Is self defense in the UK legal in practice? I've already noted that it is legal by statute, but I have held that prosecution of what appears to we "gullible gunners" open-and-shut cases of self defense in fact proves that the State does not uphold the idea that violence in self defense is acceptable. Tim claims that I have found "not one story where someone was prosecuted for defending themselves," "...we have not one case where the British courts have charged someone for defending themselves."

There's that tricky semantics question again. Just what constitutes "prosecution for self defense?" I imagine Tim's definition is considerably more strict than mine. I did, in fact, point to this story in which a wheelchair-bound man used teargas to defend himself against a mugger. Teargas is considered an "offensive weapon" in the UK and is illegal (for a subject) to possess. The man was charged for possession of the teargas, but not, apparently, for using it. Was he "prosecuted for self defense"? I think so. Tim probably would not. I think that New York resident Ronald Dixon was "prosecuted for self defense" when he was charged with having an unlicensed firearm after he used that firearm in self defense. I think that Cook County Illinois showed decency and good sense when it chose NOT to prosecute Hale DeMar for the same "crime" when he used his handgun in self defense.

Now, consider those two American cases. In both, the home of the gun owner was invaded by a man. The owner did not know if the invader was armed, but in both cases the owner used deadly force against the intruder. In neither case was the owner charged for the use of deadly force, but only risked prosecution for having a weapon he was not legally entitled to have. It was patently obvious to the investigators that an intruder was in the home, and it was patently obvious that the homeowner had the right to use lethal force against the intruder. In both cases the intruder could have died. Contrast that to the case of Thomas O'Connor, a 63 year-old nearly blind man whose home was invaded by a 23 year-old man who broke the front door in, knocking it off the hinges and out of its frame. Mr. O'Connor grabbed a knife and stabbed the invader, giving him a fatal wound. Mr. O'Connor then suffered through a seven week murder investigation before the Crown decided not to prosecute because - and I quote - "[I]t is not believed we would be able to disprove a case of self defence against [this man]."

Still, it seems from Tim's writing that if I could come up with just one example of the government prosecuting someone for an obvious case of self defense, I would prove my point that government discourages the act of self defense by making it legally risky to do so. I promised that I would do more research and respond.

Well, I have, and this is it. (Hell of a prologue, no?)

First, let me go back again to the comments in Tim's posts. A couple of cases were brought up that Tim decided were at best inconclusive. The first was the case of Mark Barnsley, and second was that of Satpal (or Saptal, depending) Ram. Tim didn't comment on the Mark Barnsley case, but concluded based on this page that the Ram case couldn't be self defense because Mr. Ram had apparently also stabbed someone in the back. It's been said that on the internet anyone can write anything, so I'm not exactly certain why that one page makes Mr. Ram's claims of self-defense invalid. According to this Guardian article Mr. Ram was supposedly assaulted by a man using a broken glass as a weapon. His crime was apparently not backing down and being a good (read "meek") subject in the face of racism. Mr. Ram defended himself against attack, got a lousy lawyer, and received a life sentence. Hmm... So which version is true? You be the jury.

The case of Mark Barnsley seems less ambivalent to me. He was attacked by a group of as many as 15 drunken college students, and defended himself while receiving a severe beating. He, according to the story, picked up a knife dropped by one of his attackers and hung onto it during the attack to keep from having it used against him. Some of his attackers received wounds. Mr. Barnsley was the only person charged. What's the truth? I don't know, but I know what it looks like from what I've been able to read. I'll leave it to those interested to do the research for themselves, and again be the jury.

I've spent quite a few hours scouring the various UK newspaper online versions for stories of self defense. I have reached one fairly strong conclusion - either it doesn't happen much in the UK, or the papers simply won't report it unless it's a spectacular case. However, if someone is severely injured or killed, it is apparent to me that the Crown will file a charge unless, as it was in the case of Mr. O'Connor, it is blindingly obvious (no pun intended) that they cannot disprove self defense.

I said early on that self defense was legally risky in the UK because by exercising your right you run the very real risk of being prosecuted. That legal risk has a chilling effect on the exercise of the purported right. So let's look at a couple of examples I found.

First, there's the 2002 case of Barry-Lee Hastings, who was cleared of a murder charge, but convicted in a 10-2 jury decision of manslaughter and sent to jail for five years. (Tony Martin was found guilty of murder in a 10-2 jury decision as well.) This case has very much in common with the one that started all of this. Mr. Hastings, visiting the home of his estranged wife, found one Roger Williams burglarizing the home. Mr. Hastings, unaware that his wife and children were not at home, grabbed a bread knife from the kitchen and attempted to intervene in the belief that the burglar was armed with a machete and that his wife and children were at risk. Mr. Williams was stabbed 12 times - in the back - and died of his wounds. Here's what the prosecutor said:

"The law recognises a man is entitled to defend himself, his family and his property - only if his action does not go beyond the reasonable and the necessary.

"There is no doubt Mr Hastings stumbled across a burglary. There is no doubt that Roger Williams was a thoroughly bad hat in the eyes of the law.

"But, none the less, as a human being he is just as entitled to the freedom to live as anyone else. We argue that in this case, alas, this man overstepped the mark and went some distance beyond that."

But here's what the law says, as provided to me by Tim Lambert:

Section 3 of the Criminal Law Act 1967 provides that a person may use such force as is reasonable in the circumstances in the prevention of crime, and the question of reasonableness is subject to the amplifications contained in such cases as R v McInnes and R v Palmer. It has been held that "if a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary, that would be most potent evidence that only reasonable defensive action had been taken." Normally only reasonable force is acceptable but if in the unexpected anguish of the moment excessive force is used it may still be acceptable, if the defendant honestly and instinctively believed it was necessary. It has been long established (prior to either the Criminal Law Act 1967 s 3 or AIDS) that a woman may take the life of a man attempting to rape her, though she may not generally carry a weapon to achieve this.

A fact that renders the right to use lethal force essentially meaningless, but I digress.

When a defendant deliberately used a lock knife he had opened prior to an incident, and stabbed an assailant after the defendant had received a single blow to the face, it was held that this could not possibly be reasonable.

On the other hand, if a plea of self-defence is raised when the defendant had acted under a mistake as to the facts, he must be judged according to his mistaken belief of the facts regardless of whether, viewed objectively, his mistake was reasonable. So where a policeman shot dead a man who was unarmed and had already surrendered he was still entitled to claim his action was self-defence if he honestly believed this to be the situation. The test is whether his action was reasonable in the situation as he perceived it, rather than as it actually was.

Note, it's apparently OK for cops to shoot people they believe to be armed, but not for people to stab - in the back - people they believe to be a danger. Now, contrast this case to the Hale DeMar and Ronald Dixon cases. In both of those cases the homeowner shot the intruder - a definite use of lethal force - yet neither was charged with attempted homicide or excessive use of force or anything having to do with the woundings. It was, to Americans, an absolute case of righteous self defense. In the case of Mr. Hastings, he believed that his wife and children were at home and at risk, and he attacked to protect them. Yes, the burglar was stabbed in the back. So? If you're grappling with an attacker with a knife in your hand, where is the blade going to go? Mr. Hastings' lawyer said:

"We are shocked by the verdict. The evidence clearly showed that Barry-Lee Hastings acted in self-defence. Most people will recognise that the verdict today represents an appalling miscarriage of justice and flies in the face of common sense."

Apparently he's another "gullible gunner."

Then there's this case from 2000 in which a homeowner beat the snot out of a burglar wth a baseball bat.

A judge yesterday reignited the debate over the law on self-defence by asserting that a householder who repeatedly beat a burglar with a metal baseball bat had been using "reasonable force".

David Summers, 21, a drug addict, suffered a broken wrist, fractured elbow, cracked ribs and a cracked skull. He had broken into the Peterborough home of Lee Gapper, 20, and his lodger George Goodayle, 21, both self-employed builders.

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Mr Gapper and Mr Goodayle were arrested by Cambridgeshire police and held for 12 hours. The crown prosecution service decided not to bring charges against them.

Last week the Tory leader, William Hague, said the law on self-defence should be changed to give greater protection to people who were forced to defend their homes against intruders. He was accused of trying to exploit public outrage at the murder conviction of the Norfolk farmer Tony Martin, who shot dead a teenage burglar.

Gee, ya THINK? Still, they weren't actually charged.

And there's this case from 2003 in which an evil rich capitalist company director was charged with manslaughter in the death of a burglar. Acting as temporary night watchman, one Steven Parkin intervened in an attempt to steal a truck from his business, using a pickaxe handle and, supposedly, a knife with which he slashed the man across the back of the knee. However,

Judge Richard Pollard directed the jury to return a verdict of not guilty after a pathologist told the court he could not rule out the possibility death was caused by an accident.

Sounds like Mr. Parkin dodged a bullet, so to speak. But he was definitely charged and tried.

Still, there's other good news. In this case homeowner John Lambert (any relation?) was cleared by a jury in a case where he stabbed a burglar to death. Apparently this time the burglar wasn't stabbed in the back. Still, Mr. Lambert was held for two days before being released on bail prior to the inquiry that found his action to be defensive. I'd find that idea chilling - that for defending my wife and home I had to spend two nights in jail.

But this is all so confusing, isn't it? Well, this BBC piece from January 2003 says yes:

MP calls self-defence laws unclear

A Norfolk MP has said people are not sure what they are allowed to do to protect themselves and their property from burglars.

Henry Bellingham, a Conservative representing north west Norfolk, told the Commons the law should be made clear.

He said: "If lawyers, safe in their offices, can't work out what is right how can the householder be expected to weigh up the pros and cons in the middle of a violent struggle in the dark?

Damned good question. It goes right to the heart of that "reasonableness" argument, doesn't it? And the question of what you believe even if your belief is wrong.

People who believe they or their family are in imminent danger are allowed to use "reasonable force" to defend themselves but cases are examined individually and a decision to prosecute is based upon the circumstances.

And those decisions appear to be somewhat random and capricious. Not something you want associated with the law when your life and your freedom are in question.

One of Mr Bellingham's constituents is farmer Tony Martin, who was jailed for shooting dead a teenage burglar.

It would appear that Mr. Martin's case stirred up a hornet's nest of controversy concerning self defense in the UK.

So, have I found that one case that proves my point? I think so, and it just so happens to come from the very same paper that started all of this, The Scotsman:

Man Who Stabbed Blood-Soaked Cocaine Addict Jailed

By Simon Baker, PA News

A 23-year-old man was jailed for five years today for stabbing to death a cocaine-addled and blood-soaked intruder who terrified a group of friends after he smashed his way into a flat.

Brett Osborn knifed Wayne Halling five times in the back after the 30-year-old burst into the property in Romford, east London, following a drug-fuelled rampage on August 24 last year.

Mr Halling – a cocaine addict who had taken a massive dose of the drug – had already caused himself around 90 separate injuries by smashing the windows and doors of several other houses on Regarth Avenue.

Woolwich Crown Court heard that the huge cocaine dose had made him numb to pain and had also pushed him into a paranoid search for his girlfriend, who lived with him on the same street, but who was away on holiday.

Osborn, who had also taken a small amount of cocaine and had been drinking, told police that he stabbed Halling to protect himself and those at the flat, including a pregnant woman.

Mr Halling, who was “streaming with blood”, had already smashed his way into the maisonette once but had been kicked out by a friend of Osborn.

After the stabbing, paramedics were were unable to save Mr Halling and he was declared dead on arrival at hospital.

Osborn, of Upminster, east London, denied any wrong-doing on the grounds of self-defence, but then at a court hearing earlier this week admitted manslaughter by reason of provocation.

Judge Shirley Anwyl QC said that she accepted that Halling could have been perceived to be “dangerous to others”.

But she added: “With hindsight it is clear that Halling was presenting no real danger to anyone but himself.

Hindsight. It's always 20/20, isn't it? But that's not what the law is supposed to be based on, is it?

“By your plea you have accepted that you intended real serious injury. Your use of violence was not wholly unpremeditated in that you did equip yourself with at least one knife.

She added: “I am in no doubt about your genuine remorse and your appreciation of the appalling effect that the killing of Halling has and continues to have on his relatives and friends.”

The court heard that Osborn is already serving a two-and-a-half-year jail sentence handed down earlier this month at Grimsby Crown Court for his part in a benefit fraud conspiracy.

Not "unpremeditated" because he picked up a knife.

Mr. O'Connor "picked up a knife" and he didn't get charged. Mr. Lambert "picked up a knife" and he didn't get charged. But Carl Lindsay picked up a knife and got a manslaughter conviction. It appears that Osborne, like Satpal Ram, had a lousy lawyer.

That's not the only version of the story. There's one on the London Times site, but I'm not paying £10 to get it. There's also this version from The Telegraph:

Five years in prison for acting in self-defence

By Alasdair Palmer
(Filed: 09/05/2004)

On the night of August Bank Holiday 2003, at about 11.30, Brett Osborn, a 23-year-old casual labourer, killed Wayne Halling, a stranger who had forced himself into the house where Osborn and four friends were watching television over a drink.

When Halling entered the house he was covered in blood and was in a frenzy. He seemed impervious to pain and was suffering from drug-induced delusions. He had been smashing the windows of other houses in the street with his fists and head, giving himself more than 90 wounds - his wrist was cut to the bone and he had sliced half through one of his toes.

By the time he arrived at 19 Regarth Avenue, Romford - where Osborn was sitting with his friends - he was, as every witness who was interviewed stated, a "terrifying sight".

He got in because one of Osborn's companions, Kelly Hinds, had heard the commotion and gone outside. The drug-crazed Halling took her for "Emma", the girlfriend who, he screamed, had "set him up". Miss Hinds recalled that he "grabbed me and pushed me against a parked car. I immediately got blood from him on my top. I managed to push him away".

Halling pursued her back to the house. Miss Hinds managed to get inside but, even with the help of her pregnant sister, Jodie, was unable to close the door against his weight or stop him from pushing his way in. He staggered along the corridor, smearing the walls with blood. Jodie Hinds screamed "He's in the house! He's in the house!" and Jay Westbrook, her boyfriend, struggled with him, knocking him down. But he got up again and kept going.

Osborn recalls: "There is blood everywhere, things are flying everywhere, the girls are screaming hysterically. I just don't know what to do. Then he starts coming towards me." In fear and confusion, Osborn picked up a steak knife with a 6in serrated blade that he says was on the floor.

He would later tell the police: "I didn't know what he was going to do to me." Also, knowing that Jodie Hinds was pregnant, he was terrified of what might happen if she were attacked. "He came towards me, sort of grabbed me," says Osborn, "and I lunged, and stabbed him that was the only thing I could think to do. It was just the panic. He's mad, he's crazy, he's just smashed up three houses, attacked people, beaten up my friend. I didn't know what was going to happen. There's blood all over him. The only thing I could think of was to protect myself and the other people in the house."

Halling fell to the floor. Police and an ambulance then arrived: there had been several calls to the emergency services, but because of fights in Romford as the pubs closed, officers had been slow to get to the scene.

The wounded intruder refused to let paramedics treat him. He fought them off until he was handcuffed by the police. PC Joanne Allan recalls that she had "never witnessed anything like this in my life. I was terrified, as I had no idea what was happening". She even considered using her CS spray to control the struggling man, who was lunging and striking out wildly. Sergeant Paul Darham, the second police officer on the scene, agreed that "the scene of blood and a male shouting and behaving irrationally was extremely distressing and frightening".

The "irrational male" was bundled into the ambulance but died on the way to hospital. Brett Osborn had stabbed him five times. Three of those stab wounds were superficial, barely breaking the skin. But one had punctured his assailant's lung. It was this injury that killed him.

An autopsy revealed that Halling had taken a massive dose of cocaine - it may have been in the form of "crack" - that night. It was the cocaine that had caused his delusions and made him impervious to pain.

There could be little doubt that Brett Osborn had not planned to kill Halling, or even that he never intended to do so. Halling was unknown to him until he had forced his way into 19 Regarth Avenue. He stabbed him because he feared for his own life and the safety of his friends. Yet, astonishingly, the Crown Prosecution Service decided to prosecute Osborn for murder - a crime that carries a minimum sentence of life imprisonment.

"The law," explains Harry Potter, the barrister who, with Charles Bott, would defend Osborn, "does not require the intention to kill for a prosecution for murder to succeed. All that is required is an intention to cause serious bodily harm. That intention can be fleeting and momentary. But if it is there in any form at all for just a second - that is, if the blow you struck was deliberate rather than accidental - you can be guilty of murder and spend the rest of your life in prison.

"Moreover," Mr Potter continues, "while self-defence is a complete defence to a charge of murder, the Court of Appeal has ruled that if the force you use is not judged to have been reasonable - if a jury, that is, decides it was disproportionate - then you are guilty of murder. A conviction for murder automatically triggers the mandatory life sentence. There are no exceptions."

The legal situation was explained to Osborn by his defence team. Mr Bott and Mr Potter advised him that although they thought it very unlikely that any jury would reject his plea that he had stabbed Halling in self-defence, they could not, in all honesty, claim that it was a certainty. There was a small chance that a jury might decide that his use of the knife was "disproportionate". The jurors would then be bound, under the law, to convict him of murder.

And remember, they don't need a unanimous jury decision in the UK anymore.

It was explained to Osborn that he could avoid that risk only if he elected to plead guilty to manslaughter as a result of provocation. He would then probably be sentenced to a maximum of three years. His defence team did not advise him to take that option: they merely set out the alternatives in front of him.
Osborn decided that he could not face the risk of life imprisonment. "You see it in the paper," Osborn has said, "that bloke Tony Martin who shot the kid who was burgling his house. He went to prison for years. I didn't want to waste my life because [Halling] burst through the door. Why did he have to ruin my life?"

Tony Martin was convicted of murder after a jury rejected his claim that he had acted in self-defence when he shot dead a burglar who had broken into his isolated farm house. He was sentenced to life imprisonment. The Appeal Court decided to quash his conviction for murder and substitute one for manslaughter on grounds of diminished responsibility. Martin, who was jailed in April 2000, was freed in July 2003.

Osborn chose to plead guilty to manslaughter through provocation. He did not, however, receive a three-year sentence. At his sentencing hearing on April 21 at Woolwich Crown Court, Judge Shirley Anwyl decided that he should serve five years. He is now in Belmarsh Prison.

"We couldn't believe it," Denise Osborn, Brett's mother, told The Telegraph. "Brett has never been violent. He has never been involved in any kind of violent behaviour at all before this. He has a conviction for benefit fraud, but nothing to do with any kind of violence. He was devastated at being the cause of another man's death. It is a terrible thing for him. He never meant to kill anyone. To treat him like a rapist or someone who coldly sets out to kill another human being is just so unfair and wrong."

Osborn's barristers are appealing to get his sentence reduced. They believe that the Court of Appeal's judgment in the Hastings case - Barry Hastings was convicted of manslaughter after killing an intruder and had his sentence cut from five years to three on appeal - demonstrates that the most Osborn should have received for his plea of manslaughter was three years.

Malcolm Starr, a friend and supporter of Tony Martin, said: "This case shows that it is not so much that the law needs changing but rather that some common sense should be applied. Anyone attacked in their own home should be given the benefit of the doubt whatever the circumstances.

"People have a choice whether to break into someone's home and frighten them to death. How you would react to that happening to you is something you won't know until it happens to you."

The dead man's family, however, insist that Halling was "unarmed" when he was stabbed. They are wanting Osborn's sentence increased. They also point to the fact that Osborn, while he handed the police the knife he used to stab Halling on the night of the crime, did not admit to having used it himself immediately. He did so only at a later police interview.

They also say that Osborn's claim that he stabbed Halling in the course of a struggle is not substantiated by the location of his stab wounds, which were to Halling's back, not to the front of his body. In his interview with the police, officers asked Osborn if he had "warned" Halling that he had a knife and would stab him if he did not desist. Osborn had to admit that he had not warned him.

"That is just ridiculous," says Mrs Osborn. "A man behaving like a lunatic, covered in blood, is coming towards him, and my son is supposed calmly to warn him that he might be stabbed if he attacks?"

The determination of the dead man's family to see Osborn punished may have been what persuaded the CPS to take the decision to prosecute Brett Osborn for murder. "I think the law is contemptible," says Mrs Osborn. "How can it be right to put my son in jail for defending himself and killing someone by accident? That law has to be changed. There's got to be a recognition that when you did the kind of thing Brett did, you are not a murderer and you don't deserve to rot in jail. People have got to realise that it could happen to anyone. It could be you.

"For us, the whole thing has just been a nightmare. I keep hoping I will wake up and Brett will walk in through the door of my home. But he won't. He's in prison and he won't be released for years. It is so wrong."

I'm certain Tim will point to the fact that Halling was stabbed in the back as indication that it wasn't self defense. I'm sorry, Tim, but I disagree. If I'm defending others from a blood-drenched maniac, I'm not going to give a shit whether I stab the guy in the back or in the chest. Or if I shoot him, which side the bullets go in. It's defense of self or others. It's the legitimate use of violence to stop a crime. It's justified, and this is part and parcel of what we see coming out of the UK, and what residents there see just as well - just another example of the fact that self defense there is actively discouraged, regardless of the written law. Had Mr. Halling been shot by an armed police officer in the same situation, I have absolutely no doubt that the officer would have been exonerated. Instead, Brett Osborne - convinced by his attorney to plead, just as Satpal Ram was convinced by his attorney to not to claim self defense - gets to spend five years in prison for doing the right thing.

And you know what I didn't find in all that research? A single case of successful self defense that didn't involve some sort of weapon.

But I found a lot of crimes committed by bad guys with knives, guns, and even a handgrenade.

Ladies and gentlemen of the jury, I rest my case. What say you?