Daily Archives: September 5, 2012

Killing no murder – the right of the individual to defend their home

The arrest of Andy Ferrie and his wife Tracey after they allegedly  used a legally held shotgun to repel burglars is an all too familiar and disheartening story. Like the farmer Tony Martin who was convicted of  the murder, later reduced to manslaughter on appeal,  of a burglar, the Ferries live  in an isolated house and had suffered previous burglaries (three in their case) – see  http://www.telegraph.co.uk/news/uknews/crime/9520899/Businessman-arrested-over-burglar-shooting-was-living-in-fear.html. The burglar who was shot, Daniel Mansell, has already pleaded guilty to burglary  with intent to steal (http://www.telegraph.co.uk/news/uknews/crime/9522512/Shot-burglar-was-in-couples-bedroom-wearing-mask.html), but despite that admission of the crime against which they were defending themselves, the Feries have been bailed while the police investigate whether they should be  charged with GBH for shooting the man.

Update: The police have now said they will not be charged ( http://www.telegraph.co.uk/news/uknews/crime/9524168/Couple-who-shot-masked-burglars-will-not-be-charged.html) , but their arrest means their fingerprints and DNA will have been taken and placed on the Police National database. That is significant because it is  very difficult to get the police to remove such records regardless of innocence.

After Tony Martin was convicted I wrote Killing no murder which I reproduce belowIt covers not only Martin’s case but the general problem of people who find themselves in a situation where they have to defend themseves.


Killing no murder

By Robert Henderson

Tony Martin’s conviction for murder after he killed the burglar Fred Barras, raises these important issues: the right of self-defence; the protection of property, the general use of police resources; the policing of Martin’s locality, the fairness of Martin’s trial and, above all, the relationship between the individual and the state.

The right to self-defence

Any attempt at definition short of giving a person an absolute right to defend themselves how they will is doomed to failure. Once a definition includes general qualifications such as “reasonable force”, it becomes unworkable, because the qualifications are hideously imprecise. The practical result is confusion and uncertainty and anyone who defends themselves is at risk of prosecution. The problem is exemplified in comments by Ann Widdecombe, the Conservative home affairs spokesman who recently said “People whose person or property is attacked should be able to defend themselves without fear of penalty from the law” (Daily Telegraph 24/4/2000), but then qualified this by saying that prosecutions could still take place in extreme circumstances. Once that qualification is made, the uncertainty returns.

What is required is a definition which is realistic in its appreciation of human behaviour and removes from any victim of an attack the fear that they may be prosecuted however they defend themselves.

The law on reasonable force as it is presently interpreted goes something like this: if you are attacked with a knife you may defend yourself with a knife: if you are attacked with bare fists you may defend yourself likewise. Do more in either instance and you will be in danger of being charged with an offence against the person, anything from common assault to murder. Pedantic proportionality is all. If you carry on assaulting your assailant after he is disabled, you will most likely face charges. If you have the opportunity to run away but do not, that may count against you in any assessment of whether you should be prosecuted. All this is demonstrably absurd. It assumes that people under attack can reasonably be expected to make judgements in the heat of the moment which in reality require calm consideration.

Consider a few of the variables in assessing what is “reasonable force”. Women, the disabled, children and older men cannot reasonably be expected to defend themselves from a simple physical assault from a fit, strong assailant. Other things being equal, a small man cannot be expected to fight a large man; an older man a younger man, a fit man an unfit man. But, of course, other things are often not equal.

Many men who are physically capable of fighting are absolutely hopeless at it. I have known a man of six and a half feet allow himself to be beaten by a man a foot smaller.Fighting is a matter of heart above all else. But it is also a matter of practice. Most men throwing a punch at someone’s face would be more likely to harm their fists than their opponent because they have never been taught to punch correctly. (For those without any experience of fighting, I would recommend the knee in the groin or a good-old fashioned headbutt.) More importantly, those who are not used to fighting (and middleclass men generally fall into this category) are not psychologically prepared for a fight. This will mean one of two things: the person either capitulates utterly or goes into a berserk rage and keeps on damaging their opponent until the rage passes.

To these disparities of size, sex, age and mental and physical competence, we may add others. Someone who is assaulted does not know whether an assailant is going to restrict themselves to simple assault without a weapon. They may be armed for all the victim knows. Nor need this be obvious. To take a recent well publicised case, that of Kenneth Noye who was convicted of murder in a road-rage incident. Noye carried a knife when he got out his car to confront his victim, but he only produced and used the knife when he began to get the worse of things as the two fought. (Noye is also a good example of the effect of age on the ability to fight. He was 48 at the time of the murder. His victim was in his twenties. Noye was a career criminal with a reputation as hard man. Yet until he produced a knife, he got the worst of a fight he might reasonably have expected to win. Age had caught up with him). It is also true that even if an assailant does not have a weapon, the victim cannot know how far the assailant is likely to go. Will he restrict himself to punching? Or is the assailant the sort to put the boot in when someone is on the floor? No one can know, Perhaps even the assailant does not know.

The obviously armed assailant presents a particular problem in judging what constitutes proportionality of response. If someone comes at you with a knife, is it in order to use a gun? If the assailant has a club, may one use a knife? The law as it stands gives no clear guidance. It is all “every case has to be judged on its merits”.

Then there is the question of what happens should you disable your opponent. Suppose that a small man fells a much larger man with a lucky blow of, shall we say, a candlestick. The smaller man is then left with the problem of what to do next. If he allows the more powerful man to recover, the smaller man will in all probability end up being badly hurt. The smaller man might be able to avoid that fate simply by running away (this is what the law would want you to do), yet he may be unable to reasonably do this even if he wishes to. That would be the case if the temporarily disabled man was a burglar and the smaller man’s wife and children were in the house where the fight took place. Let us further assume that there is no phone and the house is isolated as was the case with Tony Martin. In such circumstances, it could be argued with some force that it was reasonable to deliberately disable the burglar by a further assault while he was unconscious to prevent the chance of violence from the burglar when he recovered consciousness.

Behind all these circumstantial problems stand the very human emotions of panic and rage. When one is attacked, the only desire is to ensure one’s safety. Adrenaline flows and to say that any human being is in control of themselves in such circumstances is patent nonsense. The law does in practice take into account panic, but again it is all very hit-and-miss. Rage on the other hand is no excuse for what is judged a disproportionate assault.

The law as it presently stands effectively ignores human nature. It says that someone who is attacked must exercise truly marvellous self-control. In defending himself, the victim must not lose his temper and carry on attacking the attacker after the attacker has been disabled. This is utterly unrealistic. Someone in a blind rage or panic is manifestly not in control of their actions. There are good evolutionary reasons for that. When someone is responding to an attack, an uncontrolled response is the best way of responding to protect oneself. The evolutionary bottom line is: dead attacker equals safety.

What then is a reasonable law of self-defence? The great bugbear at present is proportionality of response. In drafting a new law, I would start from the premise that an attacker forfeits his right to the protection of the law, that he literally takes his life into his hands. If the attacker is seriously wounded or even killed, that should be seen simply as a reasonable consequence of the attack. The test of “reasonable force” would become defunct. All that would have to investigated after an assault was whether there was evidence which suggested that the claimed attacker was in fact not the attacker. Provided such evidence did not exist, the person assaulted would have no case to answer. I would also remove from an attacker who suffers injury any opportunity to take civil action against his victim.

The great danger with such a law is that murder could take place under the guise of self-defence. I would make two responses to that. Firstly, murder is very rare in Britain. It has been rare historically. The Canadian criminologist, Leyton Elliott who made a study of murder in Britain (Men of Blood) concluded that murder in England was astonishingly rare and had been, relatively speaking, since the middle ages. In other words, there good sociological reasons to believe that few murders would take place under such an amended law. Approximately 800 murders take place in England and Wales each year. The majority are “domestics”, that is,  the murder of a sexual partner. Murder for criminal reasons is rare.

My second point is that a claim of self-defence would still have to conform to the facts of the death. It would be no use, for example, claiming that a fight had taken place at on the morning of May 3 if the forensic evidence clearly showed that the body had been dead before that time.

I would introduce one further criterion to determine whether self-defence was proved, namely was the threat offered by the assailant credible. For example, most people have encountered the mad old lady who suddenly for no apparent reason sets about people in the street with a newspaper or some other equally inoffensive instrument. Clearly such a person would not present a credible threat to anyone other than another old lady or a young child. It would be ridiculous for a fit, younger adult to be able to claim self-defence against such an assailant. If on the other hand that same old lady entered someone’s house uninvited in the middle of the night and was struck down and killed by the householder in the dark under the apprehension that she was a burglar, that would be self-defence.

A law on the lines I have suggested would not be perfect. There would still be problems about establishing who was the assailant and who the victim. But that problem already exists under the present law. What such a law would definitely do is prevent the prosecution of householders such as Tony Martin who surprise those within their homes.

My proposal would also accommodate perhaps the most contentious part of self-defence, namely pre-emptive action. An assault which results in physical action against someone is clear cut. But the law does not say that to commit assault physical violence has to be used. A person may believe themselves to be in imminent danger of being assaulted – someone may be making threatening statements or carrying a weapon or coming rapidly towards someone else. In such circumstances, the law gives the person who fears he or she is about to be assaulted the right to defend themselves before they are assaulted. However, a person who engaged in such behaviour as things presently stand would have the greatest difficulty in sustaining such a claim if reliable witnesses were not present at the time. And if such witnesses were present, a prosecution might well result on the grounds that the presence of witnesses made an assault unlikely or one that could have been resisted. It is a ticklish problem to say the least. But one could use one of the main criteria for determining whether a physical assault had taken place to decide whether an assault was like to take place, namely the credibility of the witnesses.

In short, all my law would require someone to do would be to show that they had been assaulted by an assailant in circumstances where a credible threat existed. If that was proved, no prosecution would take place. There might be some rough justice in that, but less than there is at the moment. Moreover, what rough justice there was would most probably be at the expense of the wrongdoer rather than the law-abiding citizen.

The right to defend property

The cry “It’s only property!” is often heard. But the loss of property for many is not an inconvenience, but a severe blow to their lives. Property crimes are overwhelmingly directed against the poor. Most burglars “work” fairly close to where they live, which tends to be the poorer areas. If you are poor, then a burglar stealing your TV and microwave, your life savings stuck under the mattress or a burglar vandalising your home is a major event. Those are most pressing grounds for allowing people to defend their property.

In theory, a person may use reasonable force to defend their property. In practice, this right evaporates because of the way that the law is interpreted. It is the self-defence mess with bells on. Any attempt to prevent damage or theft is likely to result in a charge of assault or worse. I would obviate this by treating the theft or damage of property as an assault. The owner would then be able to take action without fear of repercussions in the same way as they ould resist an assault.

The general use of police resources

That there are plenty of police officers can be seen when they are required to police demonstrations or state visits such as that of the Chinese President, Jiang Zemin. Yet the number of police engaged in visible general policing has declined substantially. Why? The whole thrust of British policing in the past thirty years has been to move from community policing to rapid response, from the beat to Panda cars. One may add to that the Police and Criminal Evidence Act (1984 – PACE) which greatly complicated police procedures and resulted in a vast increase in paperwork. The formation of the Crown Prosecution Service, which took away from the police the decision to prosecute, had a similar effect to PACE. Nor has the undue emphasis on meeting “targets” been helpful, because it has given the police a powerful incentive to go for soft offences such as motoring while ignoring real villains. All those are substantial reasons for the decline of community policing, yet they are far from a complete explanation of our present circumstances.

Political correctness and in particular “anti-racism” has resulted in large amounts of time and money being spent on what is essentially political indoctrination. This pernicious behaviour has developed over the past quarter of a century. In the aftermath of the Stephen Lawrence enquiry it has got completely out of hand. A special Scotland Yard unit has been set up (The Racial and Violent Crime Task Force) and all police officers are to be subjected to additional “racial awareness training.” “Stop and Search” has been cut back because of police fears of being accused of racism if they stop blacks and Asians with the result that street crime has risen substantially. Not only that, but any complaint by a black or Asian of police racism or incompetence that gets publicity now results in a quite disproportionate amount of police time and money being devoted to investigations, which frankly have little chance of being successful.

An additional result of the Lawrence enquiry is that the police have become so nervous of their public image, that disproportionate efforts are also being made with other high-profile cases which have no racial content. The classic instance of this is the murder of the broadcaster, Jill Dando. More than a year after here death 40 detectives are still employed full time on the case. Common sense suggests that if the police have not solved the case after more than a year of immense effort, it is unlikely that they will do so in the future simply by carrying on in the same way. The only likely means by which the police will now solve the Dando murder is through an informant, most probably a disaffected ex-partner of the killer. The police must know this, yet they carry on the pantomime of maintaining 40 detectives on the case. It is pure PR.

The policing of Martin’s home area

“A Women’s Institute survey last year found that more than 70 per cent of rural communities had no police presence. In Norfolk, figures released on the day of the Martin shooting revealed that the area had fewer police officers per head of population than any other county. The western division, which covers 550 square miles, has 130 officers to cover any 24 hour period. In the past decade there has been a sevenfold increase in crime.” (Sunday Telegraph 23/4/2000).

Tony Martin lived in the western division. He, like many others in the area, had found that reporting crimes or threats of crimes to the police was a waste of time. Considering the minute numbers of police in his area that is scarcely surprising. But the inadequacy of the law went far beyond the failure of the police to take action. Both Barras and Fearon had multiple criminal convictions. Yet time and again they received either no prison sentence or only a minor one. In a sense, one can understand why the police were less than enthusiastic about investigating crimes committed by such people. But there was another good reason why they were dilatory.

The curse of political correctness

The dead boy, Fred Barras and his wounded accomplice, Brendan Fearon, came from gipsy stock (or traveller or Romany or whatever you wish to call them). The media coverage of this point was muted, doubtless because of the fear of being accused of racism. Yet it was clearly relevant to the Martin case.

In Tony Martin’s part of the world, West Norfolk, there is a strong Gipsy presence. The Sunday Telegraph (23/4/2000) reported that “more than 30 legal and illegal gipsy campsites. Other gipsies travel into the area to commit crimes, some from as far afield as Yorkshire. Brendan Fearon, for instance, the man wounded in the Martin burglary, is a gipsy from Nottinghamshire.”

An ex-police officer, Tony Bone, who runs an organisation called “Farmwatch” in Tony Martin’s area, had no doubts about the problems posed by gipsies: “There is an underlying issue with the growing numbers of travellers who have set up here over the past few years, ” Mr Bone said. “Many of them have made criminal activity a very sophisticated business.

The police have a policy of non-harassment of the gipsies, which has not helped. It is a big issue, And it has been going on for a protracted period. “People see their property stolen and damaged. Then they see police unwilling to go on to the sites to look for it. Ido not blame the individual officers, They are based too far away, don’t know the local areas and have received instruction not to harass travellers. But it has a very debilitating effect on the local population, who feel they are victimised by people who are living beyond the law.” (Sunday Telegraph 23/4/2000).

A spokesman for Norfolk police made this response when asked whether it was true that organised gipsy gangs were behind much of the criminal activities, he said: “Travellers are classed as an ethnic minority group. They need to be given the same level of respect as any other group. We are not in the business of encouraging any type of prejudice. As an organisation we do not want to point the finger at any minority groups.”‘(Sunday Telegraph 23/4/2000). In other words, the police are constrained by political correctness in their treatment of gipsy crime.

There, in all probability, is the primary catalyst which created the conditions which drove Tony Martin to arm himself illegally. “Anti-racism” (in reality anti-white majority racism) is perverting our society generally. If you are a member of a minority which is willing to create trouble to defend its members, the police will largely turn a blind eye to anything but the must serious crimes.

Was Martin Guilty?

Was Tony Martin guilty under the law as it stands? It is a moot point. Many people reading newspaper reports of the case might well conclude he was. Martin fired a number of shots. Fred Barras was shot in the back. Martin did not call the police until the following day. In addition, Martin’s violent views on gipsies and his possession of an illegal pump action shotgun must have counted against him with the jury.

But perfectly reasonable explanations can be given for Martin’s actions. He claims he fired in panic. This would account for the multiple shots. He claims that he thought both the intruders had escaped. Hence his failure to call for an ambulance. Quite reasonable in view of the fact that Fred  Barras died quickly. In the circumstances it would also be reasonable for Martin not to have gone outside until morning. As to expressing violent views against gipsies prior to the killing, his defence team tried to prevent these becoming part of the trial on the grounds that they were prejudicial. They failed and are using the failure as one of the groundsfor Martin’s appeal.

It might seem reasonable that Martin’s views on gipsies were admitted to the trial. Yet who can say they have not at some time said they would kill someone? Such comments do not mean much. By admitting the comments to the trial, the judge almost certainly prejudiced the jury. The law provides for the exclusion of evidence which is not directly related to a crime. A classic example of a judge excluding such evidence occurred in the trial for murder of some of the suspects in the Stephen Lawrence case. The police had secretly bugged the houses of one of the suspects. Several of the suspects were recorded making grossly racist statements and pretending to use knives. The judge refused to allow the material in evidence because the recording contained no reference to the suspects killing Lawrence. I think that Martin had at least as good a case for the evidence of his feelings about gipsies  not being admitted.

Why did the jury convict? Well, juries are odd beasts at the best of times and I can well imagine that they may have been swayed not only by Martin’s comments about gipsies, but also by the fact that Barras was shot in the back and left to die. But there is a complication. Since the trial ended there have been persistent reports of the intimidation of the jury by members of Barras and Fearon’s families and generally by the gipsy population in the area.

What credence should be given to these stories is debatable. However, members of Barras and Fearon’s families attended the court in force throughout the trial. Not only that but whenTony Martin was found not guilty of the attempted murder of Daniel Fearon, there was by all accounts a tremendous explosion of anger from his family and others in the public gallery. At that point the jury had not given a verdict on the murder charge. They then withdrew and came back later to deliver a guilty verdict on Barras’ killing. After that verdict was given there was again a most aggressive display from the public gallery, but this time in celebration.

The jury members may well have had reason to fear the consequences of a not guilty verdict to the murder charge. The hard truth is that while individual travelling folk may be perfectly amenable in their individual dealings with those from the mainstream, their group behaviour leaves much to be desired. Anyone who has ever had to deal with gipsies en mass will know, their group behaviour is all too often unequivocally antisocial. There are good sociological reasons for this: (1) they see themselves as separate from mainstream society and (2) they have the nomad’s mentality. (1) means that they will have a first loyalty to their own group and (2) creates a contempt for their immediate surroundings because they know they will soon move on.

That Martin was found guilty of murder and not guilty on the attempted murder charge is perverse. Both Fearon and Barras were shot in the same circumstances. Logically, both charges should have resulted in the same verdict, whether it was guilty or not guilty. One of Tony Martin’s grounds for appeal will be that the murder verdict was perverse.

The relationship between the state and the individual

There is an implicit contract between the state and the individual: the individual gives up his right to absolutely control his personal security on the understanding that they state will provide both physical security and meaningful redress for injuries which the individual may suffer from others. Patently this contract was broken in Martin’s case, who was left with the effective choice between defending himself and his property or letting criminals do much as they wanted. How he went about defending himself is another matter, but that was the objective choice.

The police did more than fail to protect Martin and his property, they denied him the legal means to protect himself. Martin killed with an illegal pump action shotgun. Previously he had owned an ordinary shotgun. Martin lost this because his licence was taken away after he had fired a warning shot to deter some intruders (he did not hit them). Had his licence not been taken away, Martin would, in all probability, never have purchased the pump-action shotgun. If that had been the case, he would have faced Barras and Fearon with an ordinary shotgun with two shots only immediately available. With only that weapon, Martin might never have shot anyone. He might have been deterred from firing because he knew he only had two shots. If he had fired, two shots have more chance of missing that half a dozen. The case also shows how easy it is to get guns illegally despite the draconian laws which now exist. The anti-gun fanatics might care to reflect on that.

Tony Martin may possibly have been guilty as the law stands, but I cannot see that he was morally culpable. He was doing the most natural of things, protecting himself from men whohad intruded into his most private place, his home.

See also http://englandcalling.wordpress.com/2012/04/11/the-right-of-self-defence-in-england-2/

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