This is how Hugh Samuel describes the burglary that he and his wife suffered at their home in southwest London: “It was about 3.30am in August, one of the hottest nights of the year, and the main bedroom window was open. This chap had broken into our summer house and taken a ladder and climbed in the window.
“He was standing in the room absolutely silent. My wife sensed something wrong and must have surprised him. He tried to put his hand on her mouth and she struggled and screamed. I rushed in and we both fought against the guy.”
Samuel, now 71, was 69 at the time; his wife, Ute, was 61. They found themselves fighting for their lives.
“He had a gun and my wife shouted ‘gun’. She was attacking his face and I was trying to stop him using the gun.
“He hit me on the top of the head with the gun and I was bleeding like a pig and lost the sight in my left eye from the blood. I was worried I might lose the sight in the right eye as well. The struggle seemed to go on for a terribly long time but the police later told me it was probably only about a minute and a half.
“In the end we bundled him out of the window.”
The burglar, who was later caught with an imitation gun, handcuffs and industrial tape, fell onto a low roof, escaped serious injury and ran off — much to Samuel’s chagrin.
“When I saw him in my house I was damned annoyed and if you are so angry, you don’t have time to be scared.
“I would have been delighted to have done him substantial injury. You don’t give a damn if you feel you are fighting for your life. I’d like to feel we had inflicted a bit of damage on him but I think all he had were a few scratches.”
Samuel, though, believes that if he had caused the burglar serious injury, he might well have been prosecuted. And, regardless of whether he would have been convicted, he believes that is wrong.
“If we had physically chucked him out of the window and he had landed on the ground rather than the roof, we would have been in trouble as the law stands,” he said.
Like many others, he perceives the law as weighted against householders who defend their property and he welcomes proposals to make matters clearer. The Tories are calling for the law to be changed so that householders will not be prosecuted for attacking burglars unless they use “grossly disproportionate” force. At present, “reasonable” force is allowed.
Sir John Stevens, commissioner of the Metropolitan police, has also entered the fray, saying: “People should be allowed to use what force is necessary and they should be allowed to do so without any risk of prosecution.”
Last Wednesday Tony Blair, who can spot a bandwagon faster than most, hopped aboard. “It is worth looking into whether we need to clarify the law,” said Blair, “in order to send a clear signal to people that we are on the side of the victim, not the offender.”
Does the law need changing, however? And are the courts seriously putting the rights of burglars before those of their victims? Nick Ross, the television presenter and chairman of the Jill Dando Institute of Crime Science at University College, London, dismissed proposals for a new law as “playing politics with people’s fears”.
IT IS a deep human desire to feel safe in your own home and any burglary, violent or not, is a devastating violation. So it is no wonder that people are feeling worried and angry.
The first thing to get into perspective is the risk of burglary, which has fallen during the past decade, and the risk of violent burglary, which is small.
Among the 21m homes in England and Wales, there were 403,000 recorded domestic burglaries in 2003-04 — down 8% in the past year and at the lowest level for 20 years.
It is not encouraging to think that one in 50 homes is broken into each year, but crime is far higher in some areas than in others. Also, in half of all cases nobody is at home during a burglary.
Is the risk of violent burglary rising, as some have suggested? Earlier this month, for instance, thugs threatened to chop the fingers off a pensioner and to slit her throat in front of her husband as they burgled the couple’s east London home.
The evidence of a rise in violent burglary is mixed. The number of aggravated burglaries (those in which the burglar was recorded as being armed) has jumped 16% since 1997, with 3,399 cases last year. However, the number of cases in which violence was actually used against a homeowner has stayed the same for the past five years. According to the government’s British Crime Survey, some form of violence against the homeowner occurs in 7% of burglaries. In more than two-thirds of those cases, the burglar was not a stranger but somebody the victim “knew well”.
“There is clearly a time lag between perception and reality when it comes to fear of crime,” Stevens told The Sunday Times last week. “Recent murders as the result of aggravated burglary obviously hit the headlines and, no doubt, affect the fear of crime; but the reality is that the level of burglary in London remains at its lowest level for 29 years.”
Nevertheless, there are still an estimated 48,000 domestic burglaries a year in England and Wales in which violence is used or threatened. Where do those victims stand if they fight back? The law says that people are entitled to use “reasonable force” to protect themselves, their family or another person and their property. It is up to a jury to decide what is “reasonable” and jurors can take into account many factors.
Were you alone when you tackled the burglar? Did you think your children were at risk? How many intruders were there? Did they have weapons? How frightened were you? If you “honestly believed” you were in danger — even if it turns out that you were not — the jury must take that into account. Also, judges tend to direct juries that if a defendant “was or may have been” acting in self-defence, the defendant is “entitled to be found not guilty”.
These factors mean that a householder who claims self-defence is unlikely to be found guilty of injuring or killing a burglar. It is not the case, as The Daily Telegraph claimed last week, that the onus is on a householder to prove their innocence. The onus is on the prosecution to show that the force was unreasonable.
“I have never known anyone to be convicted who genuinely defended himself,” said David Bentley, a criminal barrister for 20 years. “If a burglar sits down and begs forgiveness and you still hit him with a baseball bat, that is unreasonable.
“However, if you meet a burglar on the stairs and you deliver one blow across the head with a crowbar, that is reasonable, even if you kill him. The jury is allowed to decide that in your fear and panic the force was disproportionate but reasonable.”
Take the case of Thomas O’Connor, a blind 63-year-old. An intruder split open O’Connor’s door and threatened to attack him. O’Connor grabbed a knife and fatally stabbed the man. He was deemed to have acted lawfully and was not prosecuted. Despite all this, people’s perception of the law has become extremely skewed in recent years.
THE tipping point came in 1999 with the case of Tony Martin, a Norfolk farmer. He had suffered persistent trouble with intruders at his isolated farmhouse and when two men broke in again, he was waiting with a gun.
Martin shot and killed Fred Barras, one of the intruders, as the young man was running away. He was convicted of murder, but the charge was reduced to manslaughter on appeal. An outcry ensued. Many were outraged at Martin’s conviction, believing that it undermined a person’s right to defend their home and family.
In 2002 Barry Hastings, 25, was jailed for five years for stabbing a man when he returned home and found his front door had been forced open. Hastings grabbed a kitchen knife but tackled the burglar outside his house when, the judge concluded, the immediate danger was past. Hastings stabbed the burglar 12 times.
“What you did could not possibly have been done while you were still under attack,” explained the judge. “You were engaged in retaliation.”
Martin and Hastings were special cases - they had gone beyond reasonable force - and they are the only two people to have been imprisoned in recent memory for using force against burglars.
The damage, though, was done. The perception hardened that the law favoured burglars. In a poll by the BBC Radio 4 Today programme in January, people clamoured for a law to allow householders to use “any means” to defend their homes. The murders of two householders attacked in their homes in London recently has compounded the climate of fear.
Now the Conservatives are pressing for change, suggesting that householders should be prosecuted only if they use “grossly disproportionate” force.
Professor Gary Slapper, director of law at the Open University, says such a move would be dangerous. “It would become much easier to disguise killings,” he said. “You could engineer someone’s presence in your house and beat the living daylights out of him with impunity.”
Michael Wolkind QC believes that it is hard to improve on the current law. “The phrase ‘grossly disproportionate’ is nonsense,” he said. “It suggests that using quite disproportionate force is okay.”
Like Slapper, Ross believes that the wrangling is political point-scoring. He does, however, admit that there are cases where people have been wrongly prosecuted. One example might be that of Glen Kinch, who suffered years of vandalism at his allotment and shed. Last year he cornered a vandal in the act and arrested him at the point of a garden fork.
Kinch was charged with assault. “I’m angry that the Crown Prosecution Service (CPS) took the vandal’s word against mine,” he said last week. “I had to spend four days in court which was completely unjustified.”
The law, however, did work: he was cleared and the judge expressed his disappointment that the case had been brought. Even Kinch is wary of a change to the law that might provoke more violence. “These people saying we should shoot burglars I find absolutely astonishing,” he said. “If burglars think householders are going to shoot them, they are much more likely to go armed.”
To Ross the law is not the problem. “It is reasonable to criticise two or three occasions where the police or the prosecuting solicitors have been over-zealous,” he said. “But that’s not because the law is wrong — it’s because people were over-zealous, either because of political correctness or fashion.”
Better than changing the law would be for the government to give clear guidance to the police and the CPS that cases should be prosecuted only on strong evidence of unreasonable force. Last week Ken Macdonald, director of public prosecutions, appeared to do just that as he tried to reassure householders, saying he would look for “very excessive force” before prosecuting anybody for tackling a burglar.
There was another sign, too, that the pendulum of perception is swinging back. Samuel, who threw the burglar out of his window, was given a Binney award for bravery. Far from being prosecuted, he has ended up being feted.
HOUSE-BREAKING BY NUMBERS: THE REAL RISKS AND THE LAW EXPLAINED
Total recorded domestic burglaries 402,333.
Last year 3.2% of all households were victims but it varies by area:
Inner city 5.3%
Urban 3.3%
Rural 1.9%
Contact with burglars
Somebody was at home: 51% of cases
They saw the offender: 24%
There was no violence: 88%
Threats or violence were used: 12%
Violence was used: 7%
(2002-03 BCS figures, all burglaries).
Burglaries solved 13% (2003-04).
What can you do to fight back?
The law says that householders are entitled to use “reasonable force” to protect themselves, their family and their property. What is “reasonable” depends on the circumstances.
Using ordinary household items — such as a cricket bat, golf club or poker — to defend yourself or your home is considered reasonable.
If you genuinely believe that a burglar is armed with a weapon such as a knife or a gun, using a kitchen knife or a shotgun would also be considered reasonable.
In a recent case Kenneth Faulkner, 73, defended his remote farm by shooting an intruder in the leg. He was arrested but was not prosecuted. At the burglar’s trial the judge said that, in the circumstances, it was a “pity” that the Crown Prosecution Service had even contemplated prosecuting Faulkner.
The law, however, does not permit “retaliation” against a burglar. Chasing a burglar down the road and stabbing him in the back is not reasonable. “It is not for victims, vigilantes or anyone else to take the law into their own hands,” says the Home Office.
Is the civil law on the burglar’s side?
No. In 2003 the government changed the law so that a burglar who is injured by a householder in the course of committing an imprisonable offence cannot sue for compensation unless given permission by a court.
