‘Stabbing Burglars; Not a Criminal Offence’– Ken Clarke

Headlines are not law. Reading into the latest sweeping statement from Ken Clarke regarding the right to defend oneself and ones property, the perception is given that stabbing an intruder, hitting them over the head with a spade or any other form of ‘self defence’ which results in serious injury or fatality will be clear cut and legal.

It rather opens the door to more of a vigilante culture, one where people exert ‘punishment’, rather than the courts.

Now I’m not on the side of the burglar or any criminality, far from it. What concerns me is that such sweeping statements are likely to end up criminalising people who take such action to defend themselves, thinking the law is on their side.

It sounds like the government are planning to ‘clarify’ the law by putting the right to ‘self-defence’ into statute law, an area where the burden of evidence required to defend an action in court is higher.

All the commentators are correct when they say that the right to self-defence already exists in common law; which is the area of law we examine when teaching the ‘Use of Force’ in the context of a Conflict Management & Resolution Training, a Physical Intervention Training or a Personal Safety for Lone Workers Courses.

The great mistake made by Mr Clarke, is his assumption that ‘"We all know what we mean when we say a person has an absolute right to defend themselves and their home and reasonable force…” how wrong he could be. Most people did not have the benefit of his education or his access to the best legal advice and guidance he has received on these matters over the years.

We teach many people who have to deal with Workplace Violence on a regular basis and part of that training is to review the law in this area. We discuss the issue of the use of force and what levels are appropriate and legal in different situations. It is very rare that we come across a learner who sits there and has a clear understanding of the law in this respect.

When we discuss the ultimate right to self-defence, which may result in the need to cause serious injury in order to disable another person and potentially take another person’s life in the process, we have to demonstrate the extreme circumstances which must exist for this to be defensible in court; we also need to explain extensively the approach to a legal defence that an individual should take and the burden of evidence they will be expected to demonstrate.

If I were to stand up in front of a group of learners and make a general statement that ‘it is ok to stab an intruder’ not only would it be considered highly irresponsible, but potentially seen as encouraging people to use the ultimate deterrent without considering the alternatives or the consequences.

During his interview Mr Clarke made indirect reference to the Tony Martin case, stating that people obviously knew the difference between right and wrong and that stabbing an intruder was ok, but shooting one in the back was clearly not… what then about stabbing an intruder in the back?

The problem with his statement in reference to this case is that his suggestion is that the Tony Martin case was clear cut, which it certainly wasn’t. The case set a precedent and is often used as an example when similar incidents have taken place, but it needs to be studied and understood before using it as a relevant example, not something a simple headline or sound-bite is going to achieve.

I hope that no one takes this latest ‘clarification’ too seriously otherwise I fear some people who ‘defend’ their property or themselves too vigorously, will find themselves in the dock. The line between self-defence and retribution is a very fine one.

I’m all for giving people the right to defend themselves in their homes (property) and they have that right under common law in certain circumstances already. What Mr Clarke has done seems to me to be giving people the right to predetermine how they ‘defend’ themselves and a predetermined action and self-defence are not comfortable bed-fellows.

What Ken Clarke should maybe take a little more time to consider is why, if he thinks burglary is a serious enough crime for someone to defend themselves by physically harming an intruder, if that same intruder is caught by the police rather than the home owner, it is a suitable for the courts to only impose a sentence of just a few hours community service or a conditional discharge? It doesn’t really clarify anything…

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Source – BBC

Date – 29^th June 2011

Submitted by – Peter Mayhew

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