Some states apparently suggest that if it can be done safely,
without a reasonable fear of death or bodily harm, a householder
armed with a gun should allow the intruder an opportunity
to retreat. I believe North Carolina was cited.
That is where the duty to retreat ought to lie: on the side of
the intruder, not the householder.
Even the Brits have reasonable guidelines on this:
HOUSEHOLDERS AND THE USE OF FORCE AGAINST INTRUDERS
Joint Public Statement from
the Crown Prosecution Service and
the Association of Chief Police Officers
What is the purpose of this statement?
It is a rare and frightening prospect to be
confronted by an intruder in your own home.
The Crown Prosecution Service (CPS) and
Chief Constables are responding to public
concern over the support offered by the law
and confusion about householders defending
themselves. We want a criminal justice system
that reaches fair decisions, has the confidence
of law-abiding citizens and encourages them
actively to support the police and prosecutors
in the fight against crime.
Wherever possible you should call the police.
The following summarises the position when
you are faced with an intruder in your home,
and provides a brief overview of how the
police and CPS will deal with any such events.
Does the law protect me?
What is `reasonable force'?
Anyone can use reasonable force to protect
themselves or others, or to carry out an arrest
or to prevent crime. You are not expected to make
fine judgements over the level of force you use
in the heat of the moment. So long as you only do
what you honestly and instinctively believe is
necessary in the heat of the moment, that would be
the strongest evidence of you acting lawfully and
in self-defence. This is still the case if you use
something to hand as a weapon.
As a general rule, the more extreme the
circumstances and the fear felt, the more
force you can lawfully use in self-defence.
Do I have to wait to be attacked?
No, not if you are in your own home and in fear
for yourself or others. In those circumstances
the law does not require you to wait to be
attacked before using defensive force yourself.
What if the intruder dies?
If you have acted in reasonable self- defence,
as described above, and the intruder dies you
will still have acted lawfully. Indeed, there
are several such cases where the householder
has not been prosecuted.
However, if, for example:
- having knocked someone unconscious, you
then decided to further hurt or kill them to
punish them; or
- you knew of an intended intruder and set
a trap to hurt or to kill them rather than
involve the police,
you would be acting with very excessive and
gratuitous force and could be prosecuted.
What if I chase them as they run off?
This situation is different as you are no
longer acting in self-defence and so the same
degree of force may not be reasonable. However,
you are still allowed to use reasonable force
to recover your property and make a citizen's
arrest. You should consider your own safety and,
for example, whether the police have been
called. A rugby tackle or a single blow would
probably be reasonable. Acting out of malice and
revenge with the intent of inflicting punishment
through injury or death would not.
Will you believe the intruder rather than me?
The police weigh all the facts when investigating
an incident. This includes the fact that the
intruder caused the situation to arise in the
first place. We hope that everyone understands
that the police have a duty to investigate incidents
involving a death or injury. Things are not always
as they seem. On occasions people pretend a burglary
has taken place to cover up other crimes such as a
fight between drug dealers.
How would the police and CPS handle the
investigation and treat me?
In considering these cases Chief Constables and
the Director of Public Prosecutions (Head of the CPS)
are determined that they must be investigated and
reviewed as swiftly and as sympathetically as possible.
In some cases, for instance where the facts are very
clear, or where less serious injuries are involved,
the investigation will be concluded very quickly,
without any need for arrest. In more complicated
cases, such as where a death or serious injury occurs,
more detailed enquiries will be necessary. The police
may need to conduct a forensic examination and/or
obtain your account of events.
To ensure such cases are dealt with as swiftly
and sympathetically as possible, the police
and CPS will take special measures namely:
- An experienced investigator will oversee
the case; and
- If it goes as far as CPS considering the
evidence, the case will be prioritised to
ensure a senior lawyer makes a quick
decision.
It is a fact that very few householders have
ever been prosecuted for actions resulting
from the use of force against intruders.
----------------------------------------------
British news coverage of the CPS release:
An "informal trawl" of CPS records found 11 people had been
prosecuted after attacking intruders in the past 15 years, five
of whom were convicted.
They included a man who laid in wait for a burglar on commercial
premises in Cheshire, before beating him up, throwing him into a
pit and setting him on fire.
A CPS spokesperson said the figures were not definitive because
(in general) prosecutions are not listed according to whether
they were committed by a householder on an intruder.
In one of Britain's highest profile cases, Norfolk farmer Tony
Martin was jailed for life for murdering 16-year-old burglar
Fred Barras, in 1999.
The conviction was later reduced to manslaughter on appeal and
the sentence cut to five years. Mr Martin was freed from prison
in July 2003.
Tony Martin's problem was "lying in wait" for the burglars then
lying to the investigating officers. Dozens of householders who
use "weapon at hand" from cricket bat to "skeet gun" loaded
with 00 have either not been charged or exonerated.
However, it is unfortunate that UK does not recognize self
defense as a justification to own a gun.