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.