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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Leader: Labour is failing. A hard Brexit is looming. But there is no need for fatalism

There is nothing inevitable about the right’s supremacy or a catastrophic Brexit.

Democracy depends on competent opposition. Governments, however well intentioned, require permanent and effective scrutiny to meet the public interest. For this purpose, the role of Her Majesty’s Opposition was enshrined in law 80 years ago. However, at present, and in the week Article 50 is invoked, this constitutional duty is being fulfilled in name alone. (The Scottish National Party speaks only for the Scottish interest.)

Since re-electing Jeremy Corbyn as its leader, the Labour Party has become the weakest opposition in postwar history. It lost the recent Copeland by-election to the Conservatives (a seat the Tories had not held since 1931) and trails the governing party, by up to 19 points, in opinion polls. The Tories feel no pressure from Labour. They confidently predict they will retain power until 2030 or beyond. Yet as the poll tax debacle and the Iraq War demonstrate, prolonged periods of single-party rule run the danger of calamitous results – not least, this time, the break-up of Britain.

Under Mr Corbyn, who formally lost the confidence of 80 per cent of his MPs last summer (and has not regained it), Labour has the least impressive and least qualified front bench in its history. Its enfeeblement has left a void that no party is capable of filling. “The grass-roots social movement of the left that was supposed to arrive in Jeremy Corbyn’s wake has not shown up,” the academic Nick Pearce, a former head of Gordon Brown’s policy unit, writes on page 36.

In these new times, the defining struggle is no longer between parties but within the Conservative Party. As a consequence, many voters have never felt more unrepresented or disempowered. Aided by an increasingly belligerent right-wing press, the Tory Brexiteers are monopolising and poisoning debate: as the novelist Ian McEwan said, “The air in my country is very foul.” Those who do not share their libertarian version of Brexit Britain are impugned as the “enemies” of democracy. Theresa May has a distinctive vision but will the libertarian right allow her the time and space to enact it?

Let us not forget that the Conservatives have a majority of just 15 or that Labour’s problems did not begin with Mr Corbyn’s leadership. However, his divisiveness and unpopularity have accelerated the party’s decline. Although the Unite general secretary, Len McCluskey, elected by a fraction of his union membership, loftily pronounced that the Labour leader had 15 months left to prove himself, the country cannot afford to wait that long.

Faced with the opposition’s weakness, some have advocated a “progressive alliance” to take on the Conservatives. Labour, the Liberal Democrats, the Greens and the nationalist parties are urged to set aside their tribalism. Yet it is fantasy to believe that such an alliance would provide stable majority government when nearly four million people voted for Ukip in 2015. There has also been chatter about the creation of a new centrist party – the Democrats, or, as Richard Dawkins writes on page 54, the European Party. Under our first-past-the-post electoral system, however, a new party would risk merely perpetuating the fragmentation of the opposition. If Labour is too weak to win, it is too strong to die.

The UK’s departure from the EU poses fundamental questions about the kind of country we wish to be. For some on the right, Brexit is a Trojan Horse to remake Britain as a low-tax, small-state utopia. Others aspire to a protectionist fortress of closed borders and closed minds. Mr Corbyn was re-elected by a landslide margin last summer. The Leave campaign’s victory was narrower yet similarly decisive. But these events are not an excuse for quietism. Labour must regain its historic role as the party of the labour interest. Labour’s purpose is not to serve the interests of a particular faction but to redress the power of capital for the common good. And it must have a leader capable of winning power.

If Labour’s best and brightest MPs are unwilling to serve in the shadow cabinet, they should use their freedom to challenge an under-scrutinised government and prove their worth. They should build cross-party alliances. They should evolve a transformative policy programme. They should think seriously about why there has been a post-liberal turn in our politics.

There is nothing inevitable about the right’s supremacy or a catastrophic Brexit. At present, the mood on the Labour benches is one of fatalism and passivity. This cannot go on.

This article first appeared in the 30 March 2017 issue of the New Statesman, Wanted: an opposition