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Killing in Self-Defence$

Fiona Leverick

Print publication date: 2006

Print ISBN-13: 9780199283460

Published to Oxford Scholarship Online: January 2009

DOI: 10.1093/acprof:oso/9780199283460.001.0001

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Killing to Protect Property

Killing to Protect Property

Chapter:
(p.131) 7 Killing to Protect Property
Source:
Killing in Self-Defence
Author(s):

Fiona Leverick

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199283460.003.0007

Abstract and Keywords

This chapter is the first of two chapters dealing with the issue of proportionality in self-defence. It examines the issue of whether or not it is ever permissible to kill in defence of property. The approaches taken to the issue in the various major common law jurisdictions are examined. It is argued that it is never permissible to kill in defence of property where there are no reasonable grounds for believing that there is an accompanying threat to life or of serious injury. This applies even where the property is in the home or the property in question is the home itself.

Keywords:   defence of property, proportionality in self-defence, defence of the home, law relating to the defence of property

7.1 Introduction

Thus far, the focus has been on issues relating to the necessity of using defensive force. This chapter turns to the issue of proportionality.1 At the outset, it can be said that the requirement for proportionality between force used in defence and the magnitude of the threat faced is a cornerstone of the law in common law jurisdictions.2 Thus this chapter and the one that follows will focus not on the general principle of proportionality, which is relatively uncontroversial, but on two particular examples: killing to protect property and killing to prevent rape. The question this chapter attempts to address is whether there are any circumstances in which the accused should be permitted a complete defence where she has killed to protect property.3

It might be thought that the answer to this question is obvious, given the line of argument already developed. The premise of this text is that all human beings, even those who commit or attempt to commit serious crimes, have a right to life. The reason we are permitted to kill someone who threatens our life is that the right to life of the aggressor is temporarily forfeited by virtue of becoming an unjust immediate threat to the life of another. Starting from this premise, it is difficult to see how lethal force could possibly be permissible against lesser threats than a threat to life. This is not a universally accepted position, though, and this chapter assesses some of the arguments that have been made in support of the principle that lethal force is permissible in defence of property. None of the arguments is convincing and the conclusion is reached that the right to life cannot be forfeited by becoming a threat to property because no item of property is of such value that it outweighs the value of human life.

(p.132) 7.2 Approaches to the defence of property

In some common law jurisdictions, statute or case law specifically provides that the accused who kills to protect property does not have a defence to homicide. The Canadian Supreme Court, for example, confirmed in R v Gunning 4 that lethal force can be used only in defence of persons and never in defence of property.5

In Scots law, no modern reported case has directly addressed the issue. The leading authorities on self-defence suggest, however, that it would not be sanctioned. In McCluskey v HM Advocate,6 the Lord Justice-General (Clyde) refused to extend the plea of self-defence to the prevention of a sexual assault by one man on another because of the ‘principle of the sanctity of human life’.7 When the same issue was considered in Elliott v HM Advocate,8 the Lord Justice-General (Emslie) approved the trial judge's charge to the jury that ‘homicide will not be justified by self-defence unless it is committed of necessity in the just apprehension on the part of the killer that he cannot otherwise save his own life’.9 Given these comments, and the strict rules relating to other aspects of self-defence,10 it can probably be concluded that the acquittal of an accused who had killed in defence of property could not be legally justified.11

The situation is slightly less clear in English law. Here, defence of property can fall to be considered either under the common law or statute. Whichever approach is taken, the test applied is the same: whether or not the force used was reasonable.12

The relevant statutory provision is the Criminal Law Act 1967, which provides that ‘a person may use such force as is reasonable in the circumstances in the prevention of crime’.13 No further guidance is given in the Act as to the level of force that might be permissible in preventing a crime against property and thus what constitutes reasonable force is a question for the jury.14

If the defence of property falls to be considered under the common law, the same principle applies. In DPP v Bayer,15 Brooke LJ stated that ‘[i]t is a (p.133) principle of the common law that a person may use a proportionate degree of force to defend himself, or others, from attack or the threat of imminent attack, or to defend his property or the property of others in the same circumstances’.16

If force has been used in defence of property, an English court should ‘consider the facts as the defendants honestly believed them to be, and should then determine objectively whether the force used was no more than was reasonable in all the circumstances’.17 As it is under the statutory provisions, this question is for the jury and is not a point of law.18

The issue of whether killing to protect property is permissible has never directly arisen in any reported English case.19 There is certainly no indication in existing case law that a judge could withdraw the defence on the basis that, as a matter of law, the use of lethal force could never be reasonable to protect property. This leaves open the possibility that a jury might acquit a defendant who had used lethal force in this context, although this is an unlikely outcome.20

The US Model Penal Code explicitly rules out the use of deadly force to protect property21 and US states appear, for the most part, to have followed this.22 Likewise, the use of deadly force to protect property is explicitly ruled out in at least one Australian state.23

By contrast, a jurisdiction that does permit killing to protect property is South Africa. This is clear from Ex p die Minister van Justisie: In re S Van Wyk.24 Van Wyk was a shopkeeper who had experienced a number of night-time burglaries. He eventually resorted to setting up a shotgun that would be triggered by anyone coming into the shop outside of opening hours and put up a notice stating what he had done. The shotgun was triggered by a burglar, who was hit in the chest and killed. Van Wyk was charged with murder but acquitted on the basis of private defence. This resulted in a reference to the Appellate Court on the issue of whether or not a person can rely on the (p.134) doctrine of private defence when he kills in order to protect his property. The court concluded in the affirmative and the majority of the judgment was concerned with the narrower issue of what would constitute adequate warning to a burglar in circumstances akin to the Van Wyk case.

It may be, however, that if a case of this nature was now to arise for decision, the outcome would be different. In Ex p The Minister for Safety and Security and the National Commissioner of the South African Police Service: In re The State v Walters and Walters,25 it was hinted that allowing killing in defence of property might be unconstitutional.26 The case concerned the use of lethal force in effecting an arrest and the Constitutional Court concluded that killing a fleeing suspect who did not pose a threat of violence or was suspected on reasonable grounds of having committed a crime involving the infliction of serious bodily harm violated her right to life under the South African Constitution.27

7.3 Is Killing to Protect Property ever Justified?

As a starting point, it should be said that it is accepted here that it is permissible to use some force in the defence of property. The issue in question is the degree of force that should be permitted and, in particular, whether there are any circumstances in which lethal force is acceptable. It should be said immediately that the view taken here is that there are not. Although killing in defence of property is not regarded as justifiable here, however, that is not to say it cannot be justified on an alternative theory of self-defence. If one accepts that the right to life is forfeited in circumstances other than when a person becomes an unjust threat to the life of another person, then killing to protect property is potentially justifiable.

This is the way in which the permissibility of killing in defence of property was justified in South Africa by the Appellate Court. In Ex p die Minister van Justisie: In re S Van Wyk,28 the Lord Chief Justice took the approach that the person who attacks property infringes the rights of its owner and in doing so should accept that there is an accompanying risk to his own life:

One who invades another's rights, who defiantly ignores the prohibition, warning and resistance of the defender so that he can only be prevented by the most extreme measures can with good reasons be seen as the author of his own misfortune. It is he who is the outlaw, and if he is prepared to risk death by violating another's rights, (p.135) why should the defender, who is unquestionably entitled to protect his rights, be viewed as the one acting unlawfully if he uses deadly force rather than sacrifice his rights?29

This is effectively a version of the rights/forfeiture argument,30 where the right to life is forfeited by becoming a threat to property. Such an argument is comprehensively rejected here on the basis that human life is always worth more than property.31

Equally, if the use of defensive force is justified via a consequentialist approach,32 a different outcome in respect of the defence of property might result. This can be seen in German law, where there is only a very limited requirement for proportionality between the defended interest and the means of defence. Under the consequentialist approach taken by German law, on one side of the equation lies the value of the life of the attacker or thief. On the other side of the equation lie two distinct interests. The first is the value inherent in the life, bodily integrity, or property of the individual threatened. The second is the public interest in defending the legal order. Permitting defensive force signals to an attacker that she cannot violate the legal order without consequence. It is thought under German law that the value of these two interests together (the individual's life/property and the protection of the legal order) outweighs the value of the life of the person who threatens these interests.33 In this way, killing in defence of property, at least in certain circumstances, is justified in German law. Earlier in this text,34 however, consequentialist justifications of the permissibility of self-defensive force were rejected because they fail to pay adequate attention to issues of rights. For the same reason the German approach to the justification of lethal force in defence of property is not accepted here, on the basis that it ignores any notion that the taker of the property might have a right to life.

The permissibility of killing in self-defence is grounded here in the notion that the right to life is possessed by all human beings and is forfeited only by virtue of becoming an unjust immediate threat to the life of another person. The person who threatens merely to deprive us of or destroy our property does not pose a threat to our life or any equivalent interest. If killing in defence of property were to be permitted, it would involve a violation of that person's right to life and a value judgement that property (or at least some items of property) is worth more than human life. That value judgement is rejected here.35

(p.136) This line of argument rests, however, on the fundamental assumption that human life is always worth more than property. Is it credible that there might be some types of property that are worth more than human life? Simester and Sullivan put forward this possibility:

It is often said that it is never justified to kill in order to protect property. Yet it is not obviously a categoric truth that any individual's life is of more intrinsic worth than any item of property. Is it necessarily unreasonable to kill a terrorist if such is the only means of preventing the destruction of priceless historic artefacts?36

Muth and Blumstein also see this as an argument that is ‘theoretically defensible’, on the basis that ‘in situations involving the irretrievable loss of property of great value, the property may be as important as life to the owner’.37

There are both practical and conceptual difficulties with this line of argument. In practical terms, it is difficult to envisage how a rule permitting lethal force based on the value of the property would operate. Deciding where to draw the line between property deemed worthy of protection and property not deemed so could be nothing other than entirely arbitrary. A rule based on financial value seems absurd. It could lead to a criminal conviction for someone killing to protect a painting worth £100 million but not for someone killing to prevent the destruction of a painting worth £101 million. Difficulties would also arise in obtaining agreement on valuation, especially given the social, cultural, and historical factors upon which the value of some items of property are contingent. A rule based on something other than objective financial value, such as the subjective value of the property to the owner, seems even more difficult to apply and potentially subject to abuse.38

More importantly, the ‘valuable property’ argument is rejected here on the basis that the value of human life outweighs that of any mere property, even the value of a terrorist's life over Simester and Sullivan's valuable and irreplaceable historic artefacts. As Chapter 3 argued, the deprivation of life is a loss that cannot be remedied or compensated for in any meaningful way. This cannot be said of items of property. It may be that the loss of a particularly valuable or treasured item of property can never be fully compensated in financial terms, but compensation is at least a meaningful concept in this context. There is little more that can be said in defence of this position other than arguing for it on the basis of the core values that one holds,39 however, and it is recognized here that if one genuinely believes in the value of certain (p.137) types of property over human life, then it follows that killing in defence of such property might be permissible. This is not the view held here and even if it was, the formidable practical difficulties of formulating a rule to this effect remain.

7.4 Is there Something Different about Defence of Property in the Home?

Those who reject the permissibility of killing to protect property as a general principle have sometimes suggested that it is different if the property in question is the home.40 Indeed, in a number of US states, an exception to the general rule that deadly force cannot be used to protect property is made where the defendant is threatened with the dispossession of her dwelling41 or in order to prevent burglary42 or arson.43

There is some suggestion that a similar principle once operated in English law, based on comments made in R v Hussey 44 and R v Porritt.45 In Hussey, the appellant had rented a room but had been asked to leave by the landlady. When he refused to do so, the two complainants attempted to force their way into Hussey's room with a view to evicting him. Hussey fired a gun and injured both of them. He was convicted of unlawful wounding. In quashing the conviction on appeal, the Lord Chief Justice quoted with approval the following passage from Archbold's Criminal Pleading, Evidence and Practice:

In defence of a man's house, the owner or his family may kill a trespasser46 who would forcibly dispossess him of it, in the same manner as he might, by law, kill in self-defence a man who attacks him personally; with this distinction, however, that in defending his home he need not retreat, as in other cases of self-defence, for that would be giving up his house to his adversary.47

A similar line was taken in Porritt where, although it was not the central issue, it was assumed by the court that killing in defence of the home was (p.138) permissible. The passage in question comes from the judgment of Ashworth J, who stated that:

At the trial it was conceded on behalf of the Crown that if the jury took the view that the firing was done in the honest belief that it was necessary for the protection of his stepfather, then the proper verdict was one of not guilty, and a similar concession was made in regard to the possibility of an honest belief that it was reasonably necessary to protect the house by shooting.48

Porritt and Hussey seem to suggest that English law did permit killing in defence of property where an attempt was made to dispossess the defendant of her home. Hussey was, however, decided over 75 years ago and commentators have doubted that it would apply today. Lanham, for example, comments that: ‘in an era when the sanctity of life takes precedence over the sanctity of possession, Hussey's case makes strange reading’.49 Smith and Hogan suggest that ‘[e]ven if this were the law at the time, it would seem difficult now to contend that such conduct would be reasonable’.50 Getzler has pointed out that the Lord Chief-Justice was a ‘notoriously tough judge’ and that in later editions of Archbold the passage in question was removed.51

Is there any merit, then, in the argument that lethal force to protect the home should be permissible? At the outset, it is necessary to define precisely the issue that is being addressed. In particular, defence of the home should be distinguished from retreat from the home.52 The issue of defence of the home is one of proportionality: should a defendant be permitted to kill someone who, say, threatens permanently to dispossess her of her home? The issue of retreat is one of necessity: should a defendant be required to take a safe opportunity to escape rather than use force in self-defence if escape would require her to leave her home?

In addition to this, defence of property is sometimes confused with whether or not it is permissible to use lethal force against an intruder, an issue that periodically attracts political and media attention,53 with a recent example being the campaign of a British newspaper to lobby for a change in the law in England in the belief that this was necessary to prevent householders from being prosecuted for protecting themselves or their families from violent (p.139) intruders.54 This led the Crown Prosecution Service in England to issue guidelines reassuring householders that they are extremely unlikely to be prosecuted for using even lethal force against an intruder, unless they act in malice or revenge.55 The campaign was always misplaced, as it confused the issue of the use of lethal force where the householder believed that the safety of herself or her family was threatened and where the householder was acting solely to protect her property. The former has always been permitted in English law.56 It is the latter that is of concern here.

Finally, it is important to define exactly what is meant by the property in question being the home. A distinction can be made between someone who forcibly enters the accused's home in order to steal the property contained within the home and someone who threatens to dispossess the accused of her home itself.

The first of these is the more common scenario. When someone breaks into a dwelling, it is most likely because she wishes to steal the property contained within, not because she wishes to take possession of the dwelling itself. There are, perhaps, two possible lines of argument for permitting the defence where lethal force has been used in these circumstances.57 The first is that there is something about a threat of theft that takes place in the home that is intrinsically more dangerous than a threat of theft outside the home. This argument can be seen in the Commentary to the US Model Penal Code, which justifies the defence of the home exception to the rule prohibiting lethal force in defence of property by stating that ‘any persistent effort to break into a home is likely to arouse in the householder a reasonable fear for his own safety, unless he knows that the assailant is breaking in under a claim of right’.58 A similar argument can be found in State v Barr:59 ‘It is common knowledge that burglaries under such circumstances often result in the death (p.140) of some of the inmates of the dwelling upon which the burglary is committed and for that reason it might well be held that a burglary of that kind could rightfully be prevented by such means as might result in death.’60

But it is important to unpack exactly what is being argued here. The argument seems to be that because break-ins to the home are sometimes accompanied by a threat of death or serious injury, this threat should be presumed whenever an intruder unlawfully enters the home. Indeed, this is precisely the presumption made in the criminal codes of some US states.61 This presumption, however, demonstrates conceptual confusion between the threat to property and any additional and accompanying threat to life. Simply because some housebreakers threaten the life of the inhabitants, it does not follow that all housebreakers should be assumed to carry such a threat.62 This is not even an obviously reasonable presumption. The primary concern of the majority of housebreakers might equally be to escape with the householder's property without having any contact with the occupants of the house.63 Where there are reasonable grounds for a belief that a housebreaker poses a threat to the life of the occupants,64 lethal force should be permitted on the basis of that threat to life with, of course, some allowance being made for reasonable mistake on the part of the householder in the heat of the moment. As Green states, ‘having one's home invaded by an unknown intruder, particularly at night, is likely to be a terrifying experience for most homeowners. One cannot reasonably expect occupants to interview intruders about their intentions before using defensive force.’65 But to permit lethal force in defence of property contained within the home where there are no reasonable grounds for a belief that the housebreaker threatens the life of the occupants is to show a lack of respect for the life of the housebreaker and should be rejected on this basis.66

A second possible line of argument is that the thief who attempts to steal property from the home does more than simply threaten to deprive us of that property. In addition, by entering our home without permission, she violates our right to privacy. It is this additional violation that grounds the permissibility of killing a housebreaker. This line of argument is used by Dressler:

The home is a . . . source of privacy where the most intimate activities in life are conducted, and from which people seek to exclude the prying eyes and ears of (p.141) strangers and of the government . . . When a wrongdoer seeks to enter a person's dwelling, therefore, more than property is invaded. In common law terms, the fortress has been attacked; a person's primary source of safe and private habitation has been jeopardised.67

This line of argument is comprehensively rejected here. To accept it would be to accept the proposition that the right to life is forfeited by an invasion of another person's privacy. This conclusion would contradict the central principle of this text: that the right to life is possessed by all human beings and is forfeited only by becoming an unjust immediate threat to the life (or equivalent interest) of another. It might also open up the permissibility of killing in other situations in which privacy is seriously invaded, such as exceptionally intrusive photography or journalism.68

Let us turn, then, to whether there are any arguments that support the killing of someone who threatens to dispossess us of our home itself (as opposed to the property within it). Certainly the drafters of the US Model Penal Code seem to think that there is something special about killing in defence of the home, as the Code contains an exception to the general rule that lethal force may not be used in defence of property ‘where the person against whom the force is used is attempting to dispossess [the accused] of his dwelling otherwise than under a claim of right to its possession’.69

There are two arguments that might be put forward for this position.70 The first is that one's home is such an expensive and significant possession that its value outweighs the value of human life and lethal force should therefore be permitted in its defence. The ‘valuable property’ argument has already been considered and rejected71 and the fact that the valuable property in question is one's home does not seem a good reason in itself to change the conclusion reached that human life is always of more intrinsic value than mere property.72

(p.142) A second possible argument is that there are certain types of property that are essential in sustaining life and the home is one of these. It is conceded that there are certain types of property that are essential to the preservation of life. One might take the example of insulin to a diabetic or a life-support machine to a person in a coma. If an individual threatens unjustly to remove genuinely life-sustaining property, this is not just a threat to property, but is also a threat to life and it follows that killing in self-defence should be permitted, providing the necessity requirements of the defence are made out.

It is unlikely, however, that this would ever be the case where the property in question is the home. If an individual's home is taken away, in all but the most exceptional circumstances this would not constitute a threat to life. That individual would generally be able to find somewhere else to shelter and even if she could not (say her property was uninsured and destroyed by fire, she had no money and no one else would take her in), she would be unlikely to die simply because she does not have a roof over her head. Extreme hypothetical scenarios can be constructed where the loss of one's home would genuinely threaten one's life (say, the isolated cabin in the wilderness in the middle of a blizzard), but otherwise, the ‘home as essential to the preservation of life’ argument does not hold as a justification of killing in defence of the home.

What is perhaps true is that a home is necessary for a certain quality of life. Without doubt, if an individual's property is burnt down by arsonists, leaving her temporarily homeless, that person's life, at least for a time, will be disrupted, uncomfortable, and stressful. But accepting that it is permissible to kill in defence of a certain quality of life is a slippery slope. It could, for example, open the way to permitting the accused to kill her employer if this was the only way to prevent the employer from unjustifiably dismissing her from her job.

In conclusion, then, the argument that it is permissible to kill in defence of property is rejected here. The value of human life is thought always to outweigh the value of property. This is the case even where the property in question is one's own home. Granted, some threats to property will carry with them an accompanying threat to life. One might think here of the hostage-taker who deprives her diabetic hostage of insulin. Other threats to property might lead the accused reasonably to believe that her life is threatened. One might think here of the night-time housebreaker who carries a torch that could reasonably be mistaken for a gun. The use of lethal force should be permissible to defend against both of these types of threat but this is on the basis of the actual or reasonably perceived threat to life, not on the basis of the threat to property.

Notes:

(1) For an explanation of the distinction between necessity and proportionality, see Chapter 1.

(2) Shaw v R [2001] UKPC 26, at [19] (Privy Council); McCluskey v HM Advocate 1959 JC 39, at 43 (Scotland); Viro v R (1978) 141 CLR 88, per Mason J at 147 (High Court of Australia).

(3) See also M Jefferson, ‘Householders and the use of force against intruders’ (2005) 69 JCL 405–13; B Hogan, ‘Defence of property’ (1994) 144 NLJ 466–8 and 471; P Lanham, ‘Defence of property in the criminal law’ [1966] Crim LR 368–79 (part one) and 426–35(part two); RJ Muth and AL Blumstein, ‘The use of deadly force in the protection of property under the Model Penal Code’ (1959) 59 Columbia Law Review 1212–32; DR Stuart, ‘Killing in defence of property’ (1967) 84 SALJ 123–31.

(4) [2005] 1 SCR 627.

(5) ibid [26]. The Supreme Court merely confirmed what lower courts had previously held: R v Baxter (1975) 27 CCC (2d) 96 (Ontario Court of Appeal); R v Clark (1983) 3 CCC (3d) 264 (Alberta Court of Appeal).

(6) 1959 JC 39.

(7) ibid 43.

(8) 1987 JC 47.

(9) ibid 50.

(10) J Chalmers and F Leverick, Criminal Defences and Pleas in Bar of Trial (2006), chapter 3.

(11) This seems to have been borne out in Gillingham v HM Advocate The Scotsman, 24 April 2001. Here, a man who set an automated trap in a toolshed on his land in order to try and catch vandals was convicted of attempted murder when the trap injured an intruder. Although cf Hume, i, 220, 221, and the discussion in chapter 3 of Chalmers and Leverick, Criminal Defences.

(12) Devlin v Armstrong [1971] NI 13, per MacDermott LCJ at 33; R v McInnes [1971] 1 WLR 1600, per Edmund Davies LJ at 1610.

(13) Criminal Law Act 1967 s 3.

(14) Attorney-General for Northern Ireland's Reference (No 1 of 1975) [1977] AC 105, per Lord Diplock at 137.

(15) [2003] EWHC Admin 2567.

(16) ibid [21]. See also R v Martin [2001] EWCA Crim 2245, at [4].

(17) Bayer, at [30].

(18) R v Martin [2001] EWCA Crim 2245, at [7], following R v Beckford [1988] AC 130 and R v Owino [1996] 2 Cr App R 128.

(19) It did not in Bayer. Here, the respondents were initially acquitted after using force to prevent the planting of genetically modified crops and thus, they argued, to protect the surrounding environment and property from damage. The Queen's Bench Division of the High Court overturned the acquittal on the basis that they were not defending the property in question from an unlawful act. See, however, the obiter comments in R v Hussey (1924) 18 Cr App R 160 and R v Porritt [1961] 1 WLR 1372 discussed in Section 7.4 below.

(20) And indeed, if this is a legal possibility, it may well violate Art 2 of the European Convention on Human Rights (see Chapter 10).

(21) § 3.06(3)(d), but with an exception where the defendant faces an attempt to dispossess her of her dwelling (§3.06(3)(d)(i)) (discussed in Section 7.4).

(22) Although, following the Model Penal Code, some state codes make an exception to this general principle where the property in question is the defendant's home.

(23) Crimes Act 1900 s 420 (New South Wales).

(24) 1967 (1) SA 488 (AD), extracted in J Burchell and J Milton, Cases and Materials on Criminal Law (2nd edn, 1997), at 151, and discussed in Stuart, ‘Killing in defence of property’.

(25) (2002) 7 BCLR 663 (Constitutional Court of South Africa).

(26) ibid [53]. This was certainly the conclusion reached about the effect of Walters in J Burchell, Principles of Criminal Law (3rd edn, 2005), at 254.

(27) For further discussion of the case, see D Bruce, ‘Killing and the constitution: arrest and the use of lethal force’ (2003) 3 South African Journal on Human Rights 430–54.

(28) 1967 (1) SA 488 (AD).

(29) Van Wyk, per Steyn CJ (translated) at 151 of Burchell and Milton, Cases and Materials on Criminal Law.

(30) See Chapter 3.

(31) And it may be that a South African court would now reject this argument too: see Section 7.2 above.

(32) See Chapter 3.

(33) This explanation is drawn from TM Funk, ‘Justifying justifications’ (1999) 19 OJLS 631–47; and K Bernsmann, ‘Private self-defence and necessity in German penal law and in the penal law proposal: some remarks’ (1996) 30 Israel Law Review 171–87.

(34) See Chapter 3.

(35) See also Hogan, ‘Defence of property’, at 466.

(36) AP Simester and GR Sullivan, Criminal Law: Theory and Doctrine (2nd edn, 2004), at 626.

(37) Muth and Blumstein, ‘The use of deadly force’, at 1225. Cf M Kremnitzer and K Ghanayim, ‘Proportionality and the aggressor's culpability in self-defense’ (2003–4) 39 Tulsa Law Review 875–99, at 894.

(38) Although in South African law, which permits lethal force in defence of property, account is taken of the value the accused placed on the property defended and not merely its objective value (S v Mogohlwane 1982 (2) SA 587 (T)).

(39) Simester and Sullivan, Criminal Law, at 626; Muth and Blumstein, ‘The use of deadly force’, at 1222–3.

(40) J Dressler, Understanding Criminal Law (3rd edn, 2001), at § 20.03; SP Green, ‘Castles and carjackers: proportionality and the use of deadly force in defence of dwellings and vehicles’ (1999) University of Illinois Law Review 1–41.

(41) 18 Pa Cons Stat § 507(c)(4)(ii).

(42) Alaska Stat § 11.81.350; Ark Code § 5-2-608(b)(2); NY UCC Law § 35.20(3). In Maine, deadly force is permitted where the defendant reasonably believes such force is necessary ‘to prevent or terminate a criminal trespass by such other person’ who she reasonably believes ‘has entered or is attempting to enter the dwelling place’ and ‘is committing or is likely to commit some other crime within the dwelling place’, although the defendant has a duty first to ask the intruder to terminate her trespass, unless the making of such a request would be dangerous to herself or another person (Me Rev Stat Ann tit 17-A § 104).

(43) Alaska Stat § 11.81.350; Ark Code § 5-2-608(b)(2); Colo Rev Stat § 18-1-704.5; Me Rev Stat Ann tit 17-A § 104; Or Rev Stat § 161.225(2)(b).

(44) (1924) 18 Cr App R 160.

(45) [1961] 1 WLR 1372.

(46) There is some doubt as to whether the victims in Hussey actually were trespassers. Nonetheless, this seems to be the basis upon which the case was decided.

(47) Hussey, at 161.

(48) Porritt, at 1375, emphasis added.

(49) Lanham, ‘Defence of property’, at 372.

(50) D Ormerod, Smith and Hogan Criminal Law (11th edn, 2005), at 340. This conclusion does seem to have been borne out in R v Hastings [2003] EWCA Crim 3730. Here, the appellant was convicted of manslaughter after disturbing a housebreaker. It was dark and the appellant thought that the deceased was armed so he used a knife and stabbed him twelve times.

(51) J Getzler, ‘Use of force in protecting property’ (2005) 7 Theoretical Inquiries in Law (on-line edition).

(52) Considered in Chapter 4. For an example of confusion between the two concepts see the passage in State v Patterson 45 Vt 308 (1873) commencing ‘The idea that is embodied in the expression that, a man's house is his castle . . .’ (at 9), where the Supreme Court of Vermont begins with a statement about defence of the home but, by the end of the passage, is referring to retreat from the home.

(53) For comment on the way the media has dealt with the issue, see Jefferson, ‘Householders and the use of force against intruders’.

(54) The Daily Telegraph, ‘The right to fight back’, 12 December 2004. See also the private members bills that were drafted in the wake of the Tony Martin case: the Criminal Law (Amendment) (Householder Protection) Bill 2004; the Criminal Justice (Justifiable Conduct) Bill 2004. Neither was successful. On the same theme, see the proposals in Italy to create an irrebuttable presumption that force used against an intruder in the home is legitimate self-defence, discussed by S Skinner, ‘Populist politics and shooting burglars: comparative comments on the Lega Nord's proposal to reform Italian self-defence law’ [2005] Crim LR 275–84.

(55) Householders and the Use of Force against Intruders, Joint Public Statement from the Crown Prosecution Service and the Association of Chief Police Officers, issued 1 February 2005. The guidance is available at <www.cps.gov.uk/publications/prosecution/householders.html> (accessed on 12 April 2006). For critical comment on the CPS guidance, see Jefferson, ‘Householders and the use of force against intruders’, at 405–6.

(56) As the Law Commission suggested in its Report on Partial Defences to Murder (Law Com No 290, 2004), public fear about defending against intruders is almost certainly based on a misunderstanding of the law. In fact, as the law in England permits the defendant to act on the basis of an honest but unreasonable belief that force was reasonably necessary, the leeway allowed to householders in England is greater than in Scotland, where only a reasonable belief in an imminent attack will suffice (see Chapter 9).

(57) These are drawn, with some modification, from Green, ‘Castles and carjackers’.

(58) Commentary to the Model Penal Code, at 93.

(59) 39 P 1080 (1895) (Supreme Court of Washington).

(60) 39 P 1082 (1895) (Supreme Court of Washington).

(61) eg Tenn Code Ann § 39-11-611(b). Florida goes further and presumes a threat of death or great bodily injury where an intruder attempts to enter an occupied vehicle: Fla Stat § 776.013(1)(a).

(62) This conceptual confusion can be seen in State v Patterson 45 Vt 308 (1873) (Supreme Court of Vermont), at 316.

(63) In England and Wales in 2004/5, 321,459 domestic burglaries were recorded by the police. In only 13 per cent of these was violence used or threatened. See S Nicholas, D Povey, A Walker, and C Kershaw, Crime in England and Wales 2004–05 (2005), at section 4.2 and supplementary table 1.08.

(64) The need for such a belief to be reasonable is defended in Chapter 9.

(65) Green, ‘Castles and carjackers’, at 29.

(66) Cf David Burnside, the former Ulster Unionist MP, quoted in the Sunday Telegraph 24 October 2004: ‘Once a burglar enters someone's home with the intent of robbing them or hurting them, they should lose their rights to protection from the law’ (the quote is taken from Jefferson, ‘Householders and the use of force against intruders’, at 412 n 11).

(67) Dressler, Understanding Criminal Law, at 238–9.

(68) Although, against this, it might be argued that no intrusion of privacy other than one that breaches the sanctity of the home is serious enough to ground the permissibility of killing the invader.

(69) Model Penal Code § 3.06(3)(d). The state of Louisiana has extended this concept to cover attempts to dispossess a person of her motor vehicle (La Rev Stat § 14:20(4)(a)). Here, only the arguments relating to the home will be considered, because if killing in defence of the home is rejected, it is assumed that killing in defence of a motor vehicle is likewise. For criticism of the Louisiana provisions, see SM Gerling, ‘Louisiana's new “kill the carjacker” statute: self-defense or instant injustice?’ (1999) 55 Washington University Journal of Urban and Contemporary Law 109–34.

(70) Once again, these are drawn (with some modification) from Green, ‘Castles and carjackers’.

(71) See Section 7.3 above.

(72) If this line of argument were to be accepted (which it is not here), it would seem anyway to rule out killing to protect homes that have only a very low financial value or where the occupant has no property rights in the home.