Rapid responses

Domestic security

[Re: Should home owners have the right to use disproportionate force against intruders? Wednesday]

The current law provides homeowners with more than enough protection, and genuine mistakes about the need to use force are allowed for. A threat to property cannot outweigh the value of human life, but the burglary situation is different, as the homeowner will be in immense fear and may misjudge the amount of force that is needed to protect themselves. However, as long as their mistake is genuine the defence of self-defence will be available. Having a double subjective test in the law of self-defence will not have any effect in practice. Allowing the defence, not only where the defendant mistakenly yet genuinely believed lethal force was necessary, but also where the defendant mistakenly yet genuinely believed that gross force was a proportionate response, is not likely to make much difference to the jury. The jury will not credit the defence if it is clear that the defendant could not have held the belief that such disproportionate force was necessary. Hence, the more disproportionate the force used the more likely the jury will infer, as a matter of fact, that the defendant did not hold the subjective belief that such force was a proportionate response.

Dr Dennis Baker, School of Law at King’s College London

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