Has Chris Grayling actually read the law on household defence?

The law already provides a robust defence of those who used what they considered to be"reasonable force".

Confirming his status as the darling of the Tory right, Chris Grayling will announce in his speech to the Conservative conference today that the law will be changed to allow householders to use "disproportionate force" against burglars. The recently appointed Justice Secretary will say:

Being confronted by an intruder in your own home is terrifying, and the public should be in no doubt that the law is on their side. That is why I am strengthening the current law.

Householders who act instinctively and honestly in self-defence are victims of crime and and should be treated that way. We need to dispel doubts in this area once and for all, and I am very pleased to be today delivering on the pledge that we made in opposition.

But populism aside, it's hard to see why Grayling believes that a change in the law is either necessary or desirable. The current law, which allows householders to use "reasonable force", supports them provided that:

- they acted instinctively;
- they feared for their safety or that of others, and acted based on their perception of the threat (emphasis mine) faced and the scale of that threat;
- they acted to effect a lawful arrest or to prevent the escape of a person lawfully detained; and
- the level of force used was not excessive or disproportionate in the circumstances as they viewed them (emphasis mine).

Section 76.7 of the Criminal Justice and Immigration Act 2008 requires the court to take into account that "a person acting for a legitimate purpose may not be able to weigh to a nicety the exact measure of any necessary action", and that "evidence of a person's having only done what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken by that person for that purpose".

In other words, the law not only defends householders' right to use "reasonable force" but their right to use what they perceived to be "reasonable force" at the time. A Conservative source tells the Guardian: "This is not about letting people go on the rampage. There is a difference between grabbing a bedside lamp and whacking an intruder because you are worried about the children and hitting someone and then stabbing them 17 times". Yet the law, as it stands, already makes this distinction.

Indeed, as Keir Starmer, the Director of Public Prosecutions, has previously noted: "There are many cases, some involving death, where no prosecutions are brought. We would only ever bring a prosecution where we thought that the degree of force was unreasonable in such a way that the jury would realistically convict. So these are very rare cases and history tells us that the current test works very well."

Since, under Grayling's proposals, "grossly disproportionate" force will still be outlawed, it is unclear what will actually change. The danger is that his rhetoric will lead householders to falsely believe that they have an unqualified right to kill or maim a burglar and, ironically, increase the risk of prosecutions.

Grayling is right when he argues that "the public should be in no doubt that the law is on their side" - it already is. And the suggestion that is is not, will only spread dangerous and unnecessary confusion.

Justice Secretary Chris Grayling said "the public should be in no doubt that the law is on their side". Photograph: Getty Images.

George Eaton is political editor of the New Statesman.

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Theresa May's big thinker - an interview with George Freeman

The Conservative policy board chair on the meaning of Brexit, state intervention and whether "Mayism" exists.

Theresa May’s three months as Prime Minister have been marked by ruthless changes of both personnel and policy, from grammar schools to fiscal targets. The man tasked with overseeing the latter is George Freeman, a newly bearded 49-year-old who jokingly describes himself as “a designated thinker”.

“It’s a huge privilege,” Freeman told me when we met recently in Westminster. “As [May] has indicated, she’s determined to open up the policymaking process to good ideas from a much wider pool.”

After entering parliament as the MP for Mid Norfolk in 2010, Freeman distinguished himself as one of the most intellectually energetic Tory MPs. He founded the 2020 group of Conservative modernisers and became the first ever life sciences minister in 2014. Before this, he had worked for 15 years as a biotech entrepreneur.

Politics is in his blood. The Liberal prime minister William Gladstone was his great-great-great-uncle and Mabel Philipson, the first female Conservative MP, his great-aunt. Yet Freeman attributes his reformist zeal to the belief that “with privilege comes responsibility”. He boarded at Radley College after his parents, both alcoholics, divorced and has spoken of his “emotionally damaged” childhood.

It is unsurprising that May, confronted by the greatest policy challenge since 1945 – EU withdrawal – has called on his services. The chair of the Prime Minister’s policy board, to give Freeman his official title, was a passionate Remainer but told me “we are now all Brexiteers”. The “Brexit roar”, he explained, was “a mixture of very deeply felt concerns and complaints about globalisation, powerlessness and the growing gap between London and [other] places . . .

“There’s an understanding that if we simply delivered Brexit, and didn’t tackle the rest, we would only have dealt with some of the problem.”

His ambition was “to do for our generation what Disraeli did in the 19th century, in understanding that the extraordinarily challenging pace of franchise extension was also a huge opportunity to harness and fashion a New Model Conservative Party”.

Besides abandoning the surplus target (“to boost growth and investment in infrastructure”), Freeman cited welfare policy as a point of departure. The government would “better differentiate” between changes in the welfare budget and systemic reform – a division that May believes was eroded by George Osborne.

The Prime Minister underlined her commitment to industrial strategy by naming a new department after it. But what does it mean? “I think there is a recognition that we are embracing something unrecognisable from the failed ‘beer and sandwiches’ interventionism of the Sixties and Seventies,” Freeman said. “Twenty-first-century Conservative industrial strategy is about backing our science, innovation and knowledge economy, and other sectors where we have serious global leadership.” He spoke of “stepping in where only the state can”, citing the publicly funded Diamond Light Source synchrotron facility, which he recently visited with the astronaut Tim Peake. The government must be not merely “pro-enterprise”, but “more enterprising”.

May has endured her heaviest dissent over education, and Freeman was notably lukewarm about the idea of new grammar schools. “As well as her position” on the latter, he emphasised, “the Prime Minister set out a much broader vision”. Asked whether he understood MPs’ objections to academic selection, he said “there will be all the usual consultation and discussions through parliament about specific measures”.

The Prime Minister has entered office with greater ideological definition to her thinking than David Cameron, who struggled to reconcile his early vision with austerity. Can we speak of “Mayism”? “I’m not sure the ‘ism’ is helpful or appropriate at this stage. The Prime Minister is very strongly driven by her conservative values, and converting those values into effective policies to tackle the challenges we face. I think we have to wait for the judgement of history to define the ism.”

Freeman is close to “DC” (as he calls Cameron) and praised his premiership. “I was very sorry to see him go. But in the end, given the way the referendum turned out, it was inevitable. I thought he handled that whole last week in the most exemplary way: typical of the man. In time, I think he will come to be recognised as a transformational leader who brought the Conservative Party to terms with modern Britain.”

He rejected the former education secretary Nicky Morgan’s suggestion that May would struggle to “reach into” the marginal seats that the Tories won under Cameron. “Theresa May is appealing widely across whole swaths of the country as a One-Nation leader,” he declared.

With the re-election of Jeremy Corbyn, Freeman said, “the centre ground of British politics, once dominated by Blair and New Labour, has been vacated . . . That is a huge opportunity for a One-Nation Conservative Party to demonstrate our relevance beyond our core vote to those around the country who have clearly felt so marginalised.”

Corbyn’s triumph “illustrates the extraordinary challenge for mainstream political parties in this age of asymmetric, post-Brexit politics . . . We now have to use the opportunity of incumbency in government to tackle the root causes of the insurgency that has taken out the Labour Party.”

Freeman acknowledged the risk that Labour’s divisions would produce an internal Tory opposition.

“It also creates a question for the Conservative Party. Will we turn in on ourselves and generate our own arguments, or unite and reach out into the space that Corbyn has vacated?” 

George Eaton is political editor of the New Statesman.

This article first appeared in the 29 September 2016 issue of the New Statesman, May’s new Tories