The London Sunday Telegraph Hasn't Given Up Yet

Here is today's entry into the Telegraph's efforts to alter the law to allow home defenders to use lethal force in defense of themselves and their property:

DPP: We must be able to fight off burglars
By John Steele, Home Affairs Correspondent, and George Jones
(Filed: 09/12/2004)

The right of home-owners to act in self-defence was backed by the Director of Public Prosecutions yesterday. He said people wanted to feel safe in their homes.

Well DUH!

In an exclusive interview with The Telegraph, Ken Macdonald, who is responsible for nearly 3,000 prosecuting lawyers in the Crown Prosecution Service in England and Wales, said that many burglaries took place when people were at home.

Like over half?

Prosecutors must recognise that householders who injured or killed in confrontations with intruders acted instinctively and in fear - and it was the fault of burglars that the owner felt frightened.

Tell that to the prosecutor that brought charges against Brett Osborne.

"If people do not feel safe in their homes, we are all in a very serious situation," Mr Macdonald said.

"You should feel safe everywhere but you really should feel safe in your own home."

He made his attempt to reassure the public that prosecutors were on the side of the home-owner, not the burglar, as Tony Blair publicly backed the call for greater self-defence powers for householders.

During heated exchanges in the Commons with Michael Howard, the Conservative leader, the Prime Minister abandoned the Government's previous stance that a change in the law was not necessary.

Challenged to support a private member's Bill introduced by a Tory MP to ensure that householders would not face prosecution unless they used "grossly disproportionate" force in self-defence, Mr Blair acknowledged there was public concern over recent violent attacks by burglars.

Pardon me, but who gets to determine what's "grossly disproportionate"? Tim Lambert indicates that Brett Osborne stabbed Wayne Halling in the back. So? If lethal force is justified, what difference does the entry wound angle matter? Does that make it "grossly disproportionate"? Apparently so. So it would appear to me that the proposed new law is, in effect, no different from the existing law.

One fact seems clear: Parliament isn't going to pass a "Make My Day" law, but Patrick Mercer, author of the current legislation says Osborne would not have been prosecuted under his bill.

Let me settle that issue now. The term "not grossly disproportionate" will allow home owners a much greater degree of latitude in tackling burglars. They will be able to do whatever they think is necessary to defend themselves when confronted by an intruder. What they will not be entitled to do is chase a burglar down the street and plunge a knife into his back once he is off their property. My Bill is not a licence to commit murder – it is not an English version of the Oklahoma law that indemnifies home-owners from prosecution no matter what they do to an intruder.

Under my Bill, the farmer Tony Martin would still have broken the law – for he shot Fred Barras, one of the two burglars who entered his house, in the back as he was running away. Martin's use of force was grossly disproportionate. If he had injured or even killed Barras in a struggle to repel him and his partner-in-crime while they were in his home, then Martin's actions would – under my Bill – have been perfectly legal.

Earlier this year, The Sunday Telegraph highlighted the case of Brett Osborn, who is now in prison because he defended himself against an intruder. Under my legislation, there would be no question of prosecuting a man such as Osborn. He stabbed a blood-covered, drug-crazed intruder who forced his way into a house to molest one of the women staying with him. Mr Osborn confronted and fought with the intruder and in the struggle stabbed him with a kitchen knife.

Osborn is serving a five-year sentence for manslaughter. One of the issues that led to the decision to prosecute him for murder was that he failed to "warn the intruder that he had a knife and might stab him with it if he did not desist".

This is preposterous – but it is the kind of thing that happens under the present law. Cases such as Osborn's give the lie to the claim, made so often by government law officers, that "no one has been unjustly convicted" under the existing legislation. Many more people have had to endure the stress and strain of having a prosecution hanging over their heads for months – only for the judge to dismiss the case as "manifestly absurd" once it comes to court. Those people do not end up in prison but they do suffer the protracted torture of the legal process.

Under my Bill, no one will be prosecuted for taking the kind of action Osborn took. We will frame the Bill's language very carefully to ensure that result.

Pardon me if I take that with a grain of salt. Anyway, continuing with the original Telegraph piece:

He said the Government was looking at whether the law needed to be clarified "so that we send a clear signal to people that we are on the side of the victim not the offender.

I think it's more than fair to say that, thus far, that signal has been clear as mud.

"Mr Macdonald said it was for Parliament, not the Crown Prosecution Service, to decide whether the law on self-defence against intruders should be changed.

He challenged the public perception that homeowners were being taken to court for tackling burglars. The CPS knew of few such prosecutions beyond the case of Tony Martin, the Norfolk farmer who was jailed for shooting dead a 16-year-old burglar.

But those few have received a LOT of press.

"There have been cases in which burglars have been stabbed or shot and we have not prosecuted," he said.

And those cases have received very little press. So the public has been convinced that acting in one's own defense is legally risky, and so have the burglars.

But Mr Macdonald acknowledged that the right of self-defence was a legitimate concern, as so many burglaries took place when people were at home.

He cited the case of a couple who were upstairs in their bedroom, with their children in the next room, when they heard a noise downstairs and were worried that the intruder might be armed.

"Let's suppose he turns out not to be armed," Mr Macdonald said. "That does not matter. It is what the householder believes.

"If you put yourself in that individual's position, that is what we as prosecutors ask ourselves. What is excessive in that situation?

"What could be more frightening than going downstairs and finding some man in a balaclava in your kitchen?"

Mr Macdonald said it was the right of a person to use legal force to defend himself, or another person, to defend property or to prevent crime.

Note that: "LEGAL" force, not "LETHAL" force.

The law recognised that people who were being attacked were frightened and it needed to recognise that people who were being attacked could not judge precisely their response

"When people are frightened, they behave in ways they would not behave if they were not. Frankly, it is the burglar's fault that the person is frightened.

"We are not saying that if someone is burgling your house, you had better stop and think really hard, because the law does not expect that and we are not calling for that." Mr Macdonald said the police had to conduct an investigation when they arrived at premises and found a body.

But, as a prosecutor, he would look for clear evidence of "very excessive force" before considering a prosecution.

But, unstated, is the idea that lethal force is, by definition, "very excessive."

"If it is not excessive, it is reasonable," he said. Chasing an intruder down the street, for example, and stabbing him could not fall into the category of self-defence.

Now when did the citizen lose his power to apprehend a criminal fleeing from the scene of a crime? When did that become the exclusive power of the Police? When was Sir Robert Peel's Seventh Principle invalidated?

Police, at all times, should maintain a relationship with the public that gives reality to the historic tradition that the police are the public and the public are the police; the police being only members of the public who are paid to give full-time attention to duties which are incumbent on every citizen in the interests of community welfare and existence.

Isn't capture of a fleeing criminal a net societal good? Is that not a duty incumbent on the citizen? And if that fleeing criminal resists arrest, and dies in that resistance, why is that not a case of self-defense? Tim Lambert provided some pages from a law text a while back that stated:

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 it actually was.

It appears, then, that there is a double-standard for police and for regular citizens. (Aside from the fact that regular citizens are pretty much prohibited from using firearms in self defense.)

Mr Blair's clash with Mr Howard over the need to give householders greater rights of self-defence occurred during Prime Minister's Questions.

Mr Blair said the Government would now consult chief police officers, the Crown Prosecution Service and the Attorney General on whether the law should be changed.

He said he shared the "general comments" of Sir John Stevens, the outgoing Metropolitan Police commissioner, who told The Telegraph that householders should be able to use whatever force was necessary to defend their homes.

"I understand the concern on this issue," Mr Blair said. "So if we get the right response back from those people, then of course we will support a change in the law."
The Government has put law and order and the fight against terrorism at the heart of its legislative programme for what is expected to be the last session of Parliament before the election.

But Mr Blair is worried that the Tories have exposed Labour's flank by demanding greater rights for householder protection.

Sir John welcomed Mr Blair's backing of a review of householders' rights to tackle burglars.

He said last night that the law needed to be changed. Since the Martin case, people had found it difficult to know what they could do.

"I have not come out with this comment off the top of my head. It is as a result of listening to what people say."

Tim Lambert has finally weighed in on the topic, calling the Telegraph's campaign "cynical and dishonest." Color me surprised. The funny part?

The truly disgraceful thing about their scare campaign is that it could convince people that self-defence is unlawful and frighten them out of defending themselves against an attacker, resulting in injury or even death of a crime victim. I am disgusted.

Note to Tim: They're already so convinced. They're already dying. And it's you who will not recognize this fact, and I'm disgusted by that.

Perhaps Tim didn't see the report on the home-invasion assaults on 89 year-old Annie Hendrick and 81 year-old Sally Skidmore. That report stated:

(A) survey conducted by The Sunday Telegraph showed overwhelming public support for a change in the law to give people new powers to fight back against intruders.

The poll, conducted by ICM, revealed that 72 per cent of people believe that the current law, allowing householders to use only "reasonable force" against intruders, is "inadequate and ill-defined".

A similar proportion, 71 per cent, say that householders should have an unqualified right to use force, if necessary deadly force, against people breaking into their homes.

More than half (51 per cent) do not believe that the police can protect householders against intruders; 70 per cent believe the government could do more to reduce the risk of burglaries; and an overwhelming 81 per cent say burglars should not have any rights to to sue householders if they, the intruders, suffer any injuries during the break-in.

I guess that 72% are all just "gullible gunners."

And I'd appreciate it if Tim could tell me how these two old ladies were supposed to defend themselves against multiple young male attackers? After all,

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?

Right, Tim. Neither the attackers nor the defenders in these two cases had guns (that we know of). So the old ladies had every opportunity to defend themselves, right?

And I suppose Tim didn't see the story about the home-invasion murder of an 85 year-old grandmother, who dialed 999 to report a burglary in progress. Nor did he read the stories of previous victims the Telegraph reported. One was Eric Butler, the gentleman mentioned in Dave Kopel's All the Way Down the Slippery Slope who said:

"The concept of reasonable force is nonsense. I should know: when I defended myself, I had the book thrown at me."

In 1987, Mr Butler's plight provoked an outcry. He was attacked on a London Underground train by a man who kicked him in the face, grabbed him by the throat and began banging his head against the carriage.

Only Mr Butler knew that the walking stick he carried concealed a four-inch ornamental blade. As the grip around his neck tightened and he felt his consciousness fade, Mr Butler unsheathed the blade and fought back.

The attacker was taken to hospital with abdominal wounds and later received an 18-month prison sentence. Mr Butler was convicted of carrying an offensive weapon, fined £200 and given a 28-day suspended prison sentence. On appeal the sentence was quashed but the fine raised to £300.

How dare he carry a weapon with which to defend himself! He should have just allowed his attacker to choke him to death like any good prole!

Or what about Mark Mercer:

"At long last someone is coming out against the asinine law that protects burglars' rights."

In January Mr Mercer, who owns a security camera company, held a burglar at bay with his pocket knife while his wife, Mary, telephoned the police. A second intruder escaped.

"As we waited for the police our burglar, who had a small injury that did not require so much as a sticking plaster, sat on our sofa and announced, 'I am going to sue you for this.'

"These men entered our house noisily, presumably confident that we would not dare to disturb them.

"What really gets me is that they felt secure in their belief that if action was taken against them they could probably do better out of the compensation than they could out of the burglary."

But the Telegraph's campaign is going to frighten the public and prevent them from defending themselves?

Then we have Simon Jones, former police officer and apparently a victim of the Telegraph's disgusting propaganda:

"If the definition of reasonable force was cleared up, there wouldn't be the problem of criminals suing for compensation. Everyone would know where they stood."

Mr Jones confronted armed burglars in his home last year, outside a room where his wife and two-year-old daughter were cowering. When they pulled out a 7in knife and threatened to cut his head off, Mr Jones gave them the keys to the Volvo and the Mercedes on his drive. The men were never caught. "I would like to know, for future reference: is the golf club by my bed a weapon or not?"

If a former police officer doesn't know, how the is the rest of the public supposed to? I'd also like to know how England's knife laws managed to disarm the attacker with the 7" blade, and how Mr. Jones was supposed to defend himself and his family from multiple burglars with his golf club.

No, I guess Tim must have missed those pieces. Read the rest of those stories, if you haven't already.

In related news, Lord Goldsmith, the government's attorney-general, protested that a change in the law would infringe on a burglar's right to protection from violence! And to that my response is, SO? Read that whole piece, and think of the mantra repeated by the anti-gun forces when CCW is considered: "Wild-west," "blood in the streets," "road-rage shootouts over fender-benders." It's precisely the same psychology: Don't trust your fellow citizens.

Then there's this piece that discusses Tim's position:

Some people say the present law works just fine for householders -- these people would disagree
By Karyn Miller
(Filed: 12/12/2004)

Jon Pritchett threw off the bedcovers, reached for his 12-bore shotgun and ran out into the garden where the shrill sound of his burglar alarm was piercing through the chilled darkness. Instinctively, he fired four warning shots into the air. Or, at least they were intended as warning shots.

There were two burglars that night at the property in Borough Green, Kent, but unknown to Mr Pritchett, 60, one was crouched on the roof of his barn. Until then, the burglars' evening had been going well. They had been raiding the barn's store of wine made from the grapes on Mr Pritchett's small vineyard. As the bullets went whizzing by, one of the burglars was hit in the arm, while the other fled for dear life.

With his heart still pounding wildly, Mr Pritchett telephoned the police for help. They arrived 45 minutes later – and promptly arrested him.

The two burglars, both drug addicts with a string of convictions between them, were found guilty but walked free on probation for two years. When one of the men was asked if the incident had put him off burglary, he said: "It shook me up, certainly."

Their victim was also shaken up, but his real ordeal was just beginning. It highlights why The Sunday Telegraph launched the "Right to Fight Back" campaign to allow people to protect their homes and families from violent intruders without fear of prosecution or claims for compensation from burglars injured while breaking the law.
Last week Tony Blair, Michael Howard, the Metropolitan Police Commissioner and the Director of Public Prosecutions, among others, lined up to voice their support for the campaign. However, some critics argue that a change in the law is unnecessary because any householders who are arrested and charged invariably end up being acquitted. Such opponents have clearly never been in the same position as that of Mr Pritchett.

The 60-year-old businessman was stripped naked before being made to wear only a paper boiler suit for his overnight stay in a filthy police cell. Ten years on, the memory of the ordeal causes his voice to crack and falter and he struggles to get the words out.

"My wife and I don't talk about what happened, because it is still upsetting and Margaret doesn't like it," Mr Pritchett said. "This is the first time I have talked about it for a long time," he said.

"On the night it happened and I was taken away, Margaret was left in the house. Naturally, she was distraught. She didn't sleep for the rest of that night. She was left on her own – no one was with her."

When the police attempted to interview Mr Pritchett the next morning, he opened his mouth to explain what happened and nothing came out. He had developed a severe stammer overnight. "It was partly due to the stress of what had happened," he said. "I really thought I had killed someone. And it was partly due to being shut in a dirty cell, not knowing what would happen next. They had to call the police surgeon for me. He said it was shock."

Mr Pritchett was bailed and sent home but six months later he was charged with three counts of intent to cause grievous bodily harm. Another six months after that – a period he describes as one of "stomach-churning fear" – the case finally came to court. "Can you just imagine: sitting there for six months, not knowing what would happen to you? It was horrendous.

"When it came to the preliminary hearing, the counsel for the Crown said in my presence – which I found quite astounding – that he didn't know why the Director of Public Prosecutions was pursuing this case because the Crown hadn't a hope in hell of winning it. Why they did [pursue it], I still don't know."

Mr Pritchett was tried before a judge and jury, cleared of all charges and left to pick up the pieces of his life with nothing but an award of £10 compensation for the damage done to his property during the burglary. He sleeps through the night now but still suffers from a stammer and surfaces "like a machine-gun" whenever he is anxious or upset. "You have to get on, but life is never the same," he says, sadly.

Four years ago, in attempt to leave the experience behind them, Mr Pritchett, now 69, and his wife Margaret, 71, emigrated to Western Australia. At about the same time, in the summer of 2000, Lee Gapper, a 20-year-old builder from Peterborough, interrupted a burglar in his home.

He fought the man off with a baseball bat while his lodger, George Goodayle, also 20, tackled the burglar with his fists. The blows had the desired effect and the man, a local heroin addict, fled empty handed. Mr Gapper immediately telephoned the police to tell them what had happened – only to find himself handcuffed, bundled into the back of a police van and charged, by a grinning constable, with attempted manslaughter.

"Two police officers came," he recalled. "One shook my hand and said, `Good on you.' The other officer, who was younger, threw the book at me. Someone radioed through to say that they had found the burglar at his mum's house, bleeding. The younger policeman said that it wasn't looking good for me. He said that I had used `unreasonable force'. They asked us to stay in my house. I was petrified.

"At dinner time, two more officers came to the house and arrested us both. One of them was smirking. I felt so sick. I had called them and I had been truthful about what happened. I expected that they would take me to the station, maybe interview me in the waiting room, to find out what I had done and why. That would have been fair enough. I didn't expect to be handcuffed.

"I did use a lot of force. But you have such an adrenaline rush and your heart beats so fast, when you find a burglar. When you don't know what to expect, the first thing you do is lash out with whatever you have to hand."

The burglar, who was taken to hospital with a broken wrist, fractured elbow, cracked ribs and a fractured skull, was later sent to prison for one year. Meanwhile, the attempted manslaughter charge against Mr Gapper, which carries a maximum sentence of life imprisonment, was never formally dropped.

"The worst thing was living in fear and worrying," he said, though he adds that the death threats, the bricks coming through the window at night and the children taunting and spitting at him on the street rank highly. "I don't think you can recover from that. I don't think I ever will. Being in that police cell was a more distressing experience than confronting the burglar, if I'm honest."

There are others, many others, who can attest to this. In 1995, Nick Baungartner fought to the death with an armed burglar at his home in Ockbrook, Derbyshire. Armed with a shovel, Robert Ingham, 22, ambushed Mr Baungartner, a tennis court builder from Hungary who was 53 at the time of the attack. The struggle lasted for 20 minutes and Mr Baungartner broke bones in both his hands. The burglar died of a neck injury, which had cut the blood supply to his brain and caused heart failure.

Mr Baungartner had to wait three weeks while the Crown Prosecution Service deliberated over his case, before he was told that he would not be charged. "My life is shattered," he told a reporter at the time.

A year later, an inquest concluded that Ingham's death was accidental. But even five years on Mr Baungartner was reported to have said: "I have not been able to work since. I still have pain in my wrist and in my face where I was kicked and punched."

In the same Derbyshire village in August this year, Kenneth Faulkner, a 72-year-old farmer, was being burgled for the third time. On this, the latest occasion, he fired a shotgun at an intruder who was trying to gain access to a garage at his home. The 22-year-old man, who was wounded in the leg. Mr Faulkner was arrested after he dialled 999 to report what had happened, but in October a sympathetic judge declared that his actions "could not be criticised".

"I just want to get on with my life now," was all Mr Faulkner would say outside the courtroom. "It's something I want to forget."

The same month, Arlindo Caeiro, 33, a Portuguese-born bar supervisor living in Great Yarmouth, Norfolk, was arrested on suspicion of assault after he stabbed an intruder in his family home with a breadknife. The man had attacked him with an iron bar. The case was dropped in September, but Mr Caeiro sent his 14-month-old daughter back to Portugal with a view to following her. "I have been through agony," he said. "The solicitor at the police station said my case was like Tony Martin's."

Despite such well-documented cases, Ken MacDonald, the Director of Public Prosecutions who earlier this week backed the rights of householders to defend their homes against intruders, challenged the idea that people who did so were prosecuted. Mr MacDonald said that he knew of few such cases beyond that of Tony Martin, the Norfolk farmer who was jailed for shooting dead a 16-year-old burglar.

Yesterday, from his home in Australia with his wife at his side, an upset Jon Pritchett took issue with the comments. "That's a load of tripe," he said angrily.

"We went through a whole year of hell. If The Sunday Telegraph's campaign gives other people the right to defend their homes against those who wish to destroy their lives, I hope it succeeds."

Right, Tim. The law works perfectly, and it's just us "gullible gunners" who think it needs to be changed.