Criminal Law is extremely interesting and as with many areas of law, it continually evolves to reflect the morals and ethical standards of society.
At just after midnight on Wednesday 4th April this year, a 78-year-old pensioner, Richard Osborn-Brooks, and his disabled wife, Maureen, were awakened at their home in Hither Green, South-East London, by two burglars. Mr Osborn-Brooks was forced into his kitchen by one of the burglars, Henry Vincent, who was brandishing a screwdriver, while the other burglar went upstairs. At 12.45am the Metropolitan Police received a call-out and when they arrived at the house they found that Henry Vincent had received a stab wound to the upper body during a struggle. He had collapsed and was taken to hospital, but pronounced dead at 3.37am. Vincent’s accomplice had fled the scene. Mr Osborn-Brooks was arrested and charged with GBH (causing grievous bodily harm) but the charge was amended to murder after Vincent died. There was uproar from the public – here was a pensioner being burgled at night by two younger men, at least one of whom had a weapon, and he was simply defending his home and his disabled wife. Why would the police charge him with murder? A petition was started and funds were collected for his defence.
So, the question here is: Are you entitled to kill a burglar who has broken into your home? As we are talking about legal points here, you will not be surprised that the answer can be either “yes” or “no” – it depends on the concept of “reasonable force”. Here are the basics. In law, killing someone unlawfully comes under the heading of “homicide”. But is there such a thing as “lawful” killing? The answer is yes – killing someone in self-defence and killing the enemy in time of war is lawful, and “necessity” can possibly be legal.
There was a case in 2000 of conjoined twins that left doctors facing a dilemma: if the twins were not separated within six months, they would both die, but if they were separated, the weaker of the two would certainly die. Would the doctor who separated them be guilty of murder? The matter went to the Court of Appeal because the parents, who were strict Catholics, refused consent for the twins to be separated on religious grounds and the hospital applied to the courts for permission. The court found that calculated killing could be justified in the circumstances because if nothing was done, both babies would die. If they were separated, the stronger one would live and it was therefore necessary for the weaker baby’s life to be terminated. This was a fascinating case – the judgment can be found online here.
Unlawful killing comes in two parts: murder (the stuff that keeps us glued to the TV in any number of crime dramas), which is basically intentional killing, and manslaughter, which is basically unintentional killing. Murder is the most serious of crimes, which on conviction carries a mandatory sentence of life imprisonment (this is the only sentence that the court can pass). Its seriousness is reflected in the fact that up to 1957 in Britain, the death penalty was imposed for all murders, and between 1957 and 1965, when the death penalty was abolished, it was imposed just for certain categories of murder (e.g. killing a police officer or a prison warden).
Murder is a common law crime, i.e. it is not designated by statute. Every crime in the UK contains two elements: (i) the criminal act (called the actus reus, i.e. the guilty act) and (ii) the necessary intention to commit that act (the mens rea, i.e. the guilty mind), and so, under the common law definition of murder as it has evolved, the actus reus is “causing the death of a human being” and the mens rea is “with malice aforethought”, which has further evolved into “an intention on the part of the accused to kill another human being, or an intention on the part of the accused to do grievous bodily harm to another human being, death resulting”.
Now, if you kill someone in self-defence, that is a lawful killing in law, i.e. it is a defence to murder. So, what constitutes self-defence? Section 3(1) of the Criminal Law Act 1967 provides: “A person may use such force as is reasonable in the circumstances in the prevention of crime …” Lord Morris, in R v Palmer [1971] AC 814, put it this way: “A straightforward conception, which required only common sense to be understood. A person can defend himself, another or his property using such force as is reasonably necessary in the circumstances.” But what does “reasonable in the circumstances” mean? The defence has developed since the 1970s in deciding what reasonableness means. The emphasis, at that time, was that a victim should try to retreat from the threat and should give only measure for measure. For example, if the attacker had no weapon, it would be unreasonable to respond with a weapon; if the attacker had a knife, it would be unreasonable to shoot him or her with a gun. A catalyst that was significant in the change of attitude to this was the case of R v Martin (Anthony) [2002] 1CR APP R 323 Court of Appeal, when a Norfolk farmer living in an isolated farmhouse shot at two teenage burglars who had entered his house one night. One of the teenagers was killed and the other was shot in the legs. Martin was charged and tried for murder, found guilty and sentenced to life imprisonment, despite pleading self-defence. There was a huge public outcry in favour of the farmer, whose conviction was quashed and replaced by one of manslaughter by reason of diminished responsibility.
The matter was enhanced to some extent by virtue of the provisions of s. 76 (2) (aa), (5)(A) and (6)(A) of the Criminal Justice and Immigration Act 2008, as added to by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and the Crime and Courts Act 2013. The current position is that self-defence also applies to “defence of property”. For a householder, the degree of force used against a burglar must be grossly disproportionate and not merely disproportionate for the defence to fail. The duty to retreat from the threat has been abolished, although a jury may take a non-retreat into consideration.
So, to return to the question: Are you entitled to kill a burglar? An affirmative answer is much more plausible than it used to be, but there will be no firm clarification on what a jury would find grossly disproportionate until one is confronted with such a case. In the meantime, what about Mr Osborn-Brooks? The good news (for him and for householders, but not for burglars, perhaps) is that the police have dropped the charge of murder.
If you are interested in studying Criminal Law, ILSPA provides a Criminal Law Diploma course at an advanced level. It is suitable for those who work in Criminal Law departments or for Legal Secretaries Diploma graduates who want to expand their legal knowledge. You can study online through distance learning and enrol at any time of the year. ILSPA graduates are eligible for a 20% discount on our Single Subject Legal courses. For more information, take a look on our website here.