PROPERTY AND THE RIGHT OF SELF-DEFENCE

UK ministers toughened up the laws relating to the right of self-defence when protecting property five years ago. The so-called ‘bash a burglar’ laws were introduced to dispel doubts over the right to fight back against housebreakers in England and Wales.

In Scotland, however, something of a grey area still remains.

Legislation was introduced south of the Border in April 2013 backing the ‘householder defence’, which means a homeowner, or an occupier of a property can use ‘disproportionate force’ in the heat of the moment.

A 2016 High Court ruling upheld the guidance from the Crown Prosecution Service – England’s equivalent of Scotland’s Crown Office – stating: ‘You are not expected to make fine judgments 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.’

Acts of revenge, however, are outside the remit of the law.

But in Scotland, the law was not altered to give greater defensive rights to homeowners because Scottish ministers feared it would lead to a growing number of ‘have-a-go heroes’.

Under Scots law, any self-defence still must be deemed ‘proportionate and reasonable’.

A senior legal expert has said that, if accepted by a jury, self-defence would have the effect of a ‘complete defence’. An accused would be acquitted of the charge of murder or culpable homicide if self-defence was successfully established.

The closest thing in Scots law to the householder defence which exists south of the Border would be the concept of provocation.

Provocation is not a complete defence, but would have the effect of reducing a charge of murder to one of culpable homicide if successfully established.

A NATIONAL debate about a homeowner’s right to defend their property took place in 1999 when farmer Tony Martin blasted 16-year-old Fred Barras with a shotgun during a late-night raid at his remote Norfolk home.

Barras was hit in the back and died at the scene after escaping through a window. His accomplice, serial burglar Brendon Fearon, then 29, was also injured during the burglary at Emneth Hungate.

Bachelor Mr Martin, then 54, said he had been burgled at least ten times and had lost about £6,000 worth of furniture.

But he was given a life sentence after he was found guilty of murder by jury with a majority of ten to two.

Prosecutors claimed he lay in wait for the intruders and opened fire from close range. Mr Martin, who said he shot at the intruders in the dark after he was woken by the sound of a window being broken, later had his term cut on appeal to five years for manslaughter on the grounds of diminished responsibility. He served three years in prison.

He has never returned to his home and now lives at a secret address. He is understood to have slept in his car on some occasions.

Mr Martin was arrested again in December 2015 after saying in an interview he still owned guns. No action was taken because all that was found was a faulty air gun which he held legally.

Fearon received a 20-month sentence. He has since been jailed for supplying heroin. He claimed to have been permanently disabled by Mr Martin but dropped a £15,000 civil claim when he was photographed walking and cycling.