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Self Defence or Retribution
There has been much publicity recently about the right of self defence.
That you acted in self-defence is a legal defence against a charge of assault.
If someone attacks or threatens you, your family or your property, you are entitled to use reasonable force to defend yourself.
Much has been made of the extent to which we can use force to defend our property and ourselves or family.
We hear of cases where home owners are prosecuted for causing injury to intruders.
The case of Tony Martin in 2003 highlighted the dilemma which we as individuals and society as a whole face.
You may remember that Tony Martin was convicted of the murder of an intruder at his farm when he shot him dead. The intruder, Fred Barras was disturbed as he burgled Tony Martin’s house and ran off. Tony Martin shot him as he escaped and was subsequently tried for murder. The jury convicted him as the force he used was not used to defend his property but to effect revenge. He was convicted of murder.
Tony Martin claimed that he acted in self defence.
As a lawyer I have no difficulty in dismissing this claim as fanciful but I have to accept that there are many people who applaud his actions and call for a change in the law to allow individuals greater scope to use force in the defence of their person or property.
In Martin's subsequent appeal it was held:
'In judging whether the defendant had only used reasonable force, the jury has to take into account all the circumstances, including the situation as the defendant honestly believes it to be at the time, when he was defending himself. It does not matter if the defendant was mistaken in his belief as long as his belief was genuine.
Accordingly, the jury could only convict Mr Martin if either they did not believe his evidence that he was acting in self-defence or they thought that Mr Martin had used an unreasonable amount of force.
These were issues which were ideally suited to a decision of a jury.'
As it happens Mr Martin's conviction was substituted on appeal with one of ‘guilty of manslaughter by reason of diminished responsibility’ and he was sentenced to 5 years imprisonment.
In 2010 we have heard of the case where Munir Hussain was convicted of assault on a burglar who had terrified his family but who had fled the scene, he was chased by Mr Hussain and his brother who caught him and set about him with a cricket bat, causing extremely serious injuries.
There is no doubt that the burglary was extremely serious. Mr Hussain and his family had been tied up and tortured. The intruders threatened to kill them.
When they fled, Mr Hussain and his brother chased after them.
They were both found guilty of causing grievous bodily harm with intent after the burglar suffered a fractured skull and was left with a permanent brain injury.
The judge said it was necessary to "make it absolutely clear that, whatever the circumstances, persons cannot take the law into their own hands, or carry out revenge attacks upon a person who has offended them".
The defence argued that Munir Hussain was the "real victim" who had acted in the heat of the moment under extreme stress.
In 2000 a notorious and dangerous criminal Kenneth Noye was convicted of murder in a road rage incident. He was driving a car when he was cut up by another driver. The driver's fiancé was Mr Stuart Cameron who was the front seat passenger. Noye got out of his car and was carrying a knife when he confronted Mr Cameron on the verge and a fight developed. He only used the knife when he was getting the worse of the fight and he stabbed Mr Cameron to death.
So in this incident Noye was the aggressor, Mr Cameron used reasonable force to defend himself, which includes fighting back, got the better of Noye who then produced the knife. Noye’s defence that he acted in self-defence was rejected by the jury who convicted him of murder and he remains in jail today.
Now as I’ve said, Noye was a notorious and dangerous criminal. Indeed the jury in that last trial knew this.
In 1985 he was under investigation for involvement in the Brinx Mat Robbery that took place in 1983, if not the robbery itself certainly the disposal of part of the £26 Million hoard of gold bullion and diamonds.
In 1985 an under cover detective John Fordham was staking out his home when Noye discovered him cornered by his three Rottweiler dogs. Noye’s defence was that he acted in defence of his property. That he came across a ‘would be’ intruder and in his words to jury ‘I happened to be carrying a knife by chance’. He stabbed John Fordham ten times fatally wounding him.
Noye was acquitted of murder. The jury gave him the benefit of his argument that he used reasonable force to defend his property at a time when he reasonably believed it to be under attack.
He was ultimately found guilty of receiving and sentenced to 14 years imprisonment.
There are calls to make the defence of self defence clearer and in particular to afford individuals greater flexibility in the use of force to defend their property and by some people to give individuals immunity from prosecution by extending the definition of defence to apprehension and carrying out summary justice.
Let us be clear, whilst it is the right for everyone to defend themselves, their family and their property against attack it is the responsibility of society to apprehend try and punish the perpetrators. Punishment must be measured. It must be even handed.
The punishment or retribution that one individual is capable of handing out or considers appropriate punishment for a particular offence will vary from one to another.
The punishment inflicted on the perpetrator of a crime must be proportionate to the offence and the perpetrator not exercised at the whim of the victim.
Of course the effect that a crime has had on a victim or their family is a factor that must be taken into account and they must be afforded the opportunity to participate in the sentencing procedure but they are not competent to meet out the punishment themselves.