A Little Clarity is What the SUBJECTS Want, Too!

I believe I've mentioned before on this blog the case of Harry Stanley, a good-ole boy (British type) who stopped by the pub on his way home from a furniture repair shop with a table leg in a plastic bag. Some Brit, being a gun-phobe apparently, called the cops with a claim that said table leg was a sawed-off shotgun. Mr. Stanley, after finishing his pint, picked up his table leg and proceeded towards home - however he was met by two "armed response" officers. Fearing his "shotgun," they both fired at him when he turned at their call. One to the hand, one to the head, Mr. Stanley was dead.

To add insult to injury, just two days before his doctor had told him that his battle against colon cancer was over - he'd beaten it.

That was five years ago.

The initial inquest cleared the two officers of any wrongdoing. After all, under British law it didn't matter that the officers weren't actually in any danger, the fact that they believed they were made it OK to use deadly force in self-defense.

Except that only seems to work when the one on the deadly-force inflicting side is a police officer. Remember several months ago while I was arguing discussing this topic with Tim Lambert? He provided pages from an English law text explaining the specifics of the use of force in self-defense. Let me quote that again:

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. (R v Whyte [1987] 3 All ER 416)

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 in 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. (Beckford v R [1987] 3 All ER 425)

So, in this case, the police actually thought they were in danger because they believed (erroneously) that the table leg was a sawed-off, and thus their use of deadly force was justified. Tragic, but I can understand the reasoning.

Contrast this to the case of Brett Osborn, which I detailed here. Mr. Osborn was confronted by a drugged out maniac, slathered in his own blood, who had broken into Mr. Osborn's residence and who appeared to be dangerous as hell. Go read the whole sordid story, but here are the highlights: Mr. Osborne stabbed Wayne Halling with a steak knife - which didn't seem to have much effect, but eventually caused Mr. Halling's demise since Halling fought off any attempt by EMTs (or their British equivalent) to aid him. Mr. Osborn was then charged with murder! Instead of risking life imprisonment in a jury trial, Mr. Osborn pled guilty to manslaughter and was sentenced to five years. The judge on the case was quoted:

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.

But the law isn't supposed to depend on hindsight. It's supposed to depend on what you believe at the time - erroneous or not.

Now, here's how Mr. Osborn's lawyer explained the law, circa 2004:

"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 apparently that understanding is the one the judge had, because she said:

“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.”

In her infinite leniency, she only gave Mr. Osborn five years. I'd have given him - at most - a brisk slap on the wrist. (And a pat on the back, in chambers.)

Now, I'd say that deliberately arming oneself with a firearm, aiming that gun at someone, and pulling the trigger would meet the definition of "premeditation," "an intention to cause serious bodily harm," and "intending real serious injury," wouldn't you? And with hindsight (being 20/20 and all) it is clear that Mr. Stanley was presenting no real danger to anyone, including himself, right? So why should the cops get a different standard?

Now I find out through Mr. Free Market that this current interpretation of the law is apparently going to be applied to police officers - and they're not at all happy about it. The widow of Harry Stanley has fought for five years to change the decision clearing Police Constable Kevin Fagan and Inspector Neil Sharman of the killing of her husband - and she won. Both officers have been suspended for "unlawful killing" after a second inquiry. (Hindsight must improve with time.) Apparently no charges of murder or manslaughter have been filed against them as of yet.

But other "armed response" officers protested - and turned in their firearms, threatening a strike - because they don't like the idea of being second-guessed over making life-or-death decisions in split seconds.

Why not? It's exactly the position that every other British subject is in. Only they don't get firearms to defend themselves with. They get steak knives.

If they're lucky.

The BBC asked the question Were police right to hand in their guns? Here are some of the responses, but RTWT:

As a serving PC this case illustrates to me why I would never want to carry a firearm at work. I would never want be in the position of having to make the decision to kill another person. I feel that the only route now open for police officers in the UK now is for us all to refuse to carry firearms, then perhaps there will be a real debate.
Alex, Exeter, Devon

No guns for anyone - let's rid the world of them. You know it make sense.
Jo, Brighton, UK

Oh, right. I'll just put on my magic shoes, click my heels three times and chant "there's nothing like disarmament, there's nothing like disarmament, there's nothing like disarmament" and they'll all just vanish!

This is a sadly typical legal minefield where the only winners are the lawyers. Police officers (and members of the armed forces) are placed in an impossible situation, having to make a split second decision. When later the information they had at the time proves to be wrong they are then accused of wrongful killing. People making these judgements have a lot more information and the benefit of not facing a possibly "armed" adversary. The rules covering armed officers should have been made clear in the legislation so that officers know they will not be maliciously prosecuted if they made a mistake, providing the rules of engagement had been strictly followed.
Ian Hanson, Stockport, UK

And, Ian, please explain to me how the police differ from someone whose home has been broken into by a crack addict looking for something to steal? Why is it that the homeowner must live up to a higher standard than the police officer?

More:

I am a serving Police officer. Although I sympathise with the family in this tragic case we must give officers more protection. What we have in essence is a split second decision to shoot analysed with the benefit of hindsight over five years. I have noticed a real trend towards prosecuting officers any chance given. We are falling over ourselves to be seen to be fair whilst ignoring the effect this has the wellbeing of the officer involved and the moral of their colleagues.
Andy, Bucks

It seems to me, Andy, that the system "falls all over itself to be fair" to the burglars and muggers at the expense of the law-abiding. How about both they AND you getting the benefit of the doubt? The citizens have noticed a "real trend towards prosecuting" THEM at "any chance given," too. Not much fun when the shoe's on the other foot, is it?