Lord Judge: angry homeowners cannot be expected to act rationally when confronted by burglars
PUBLISHED September 27, 2012
The country's most senior judge has defended the right of homeowners to fight back against burglars.
Lord Judge, the Lord Chief Justice, said angry and frightened people should not be expected to remain calm when confronted with intruders and should not be treated like criminals if they used force to repel them.
He said burglary was an "offence against the person" as well as against property, because a break-in destroys victims' peace of mind by violating the safe haven of their home.
"Occasionally it looks as though the householder is the criminal," Lord Judge said at his annual press conference at the Royal Courts of Justice, the day after two men were jailed over a raid on a remote cottage during which they were blasted with a shotgun. The victims were arrested and spent 40 hours in custody before being freed.
"The householder is not in a position to exercise calm, cool judgment."
He went on: "The householder is entitled to use reasonable force to get rid of the burglar, and in measuring whether the force is reasonable or not you're not doing a paper exercise six months later. You've got to put yourself in the position of a man or a woman who has reacted to the presence of a burglar and has reacted with fury, with anxiety and fear."
His comments come after a judge defended the rights of people to protect their homes, telling two burglars shot during a break-in: "That is the chance you take."
Joshua O'Gorman and Daniel Mansell were blasted with a legally-held shotgun after they smashed their way into the isolated rural home of a businessman, Andy Ferrie, and his wife Tracey last month.
The two men, who have a string of convictions between them, were arrested when they arrived at hospital seeking treatment for their injuries. Mr and Mrs Ferrie were also arrested and questioned for more than 40 hours on suspicion of causing grievous bodily harm. They were later released without charge.
O'Gorman and Mansell appeared at Leicester Crown Court where they were both jailed for four years after admitting burglary.
In a move welcomed by justice campaigners, Judge Michael Pert QC, told the pair they could not expect any leniency simply because they had been wounded in the incident.
He told them: "If you burgle a house in the country where the householder owns a legally-held shotgun, that is the chance you take. You cannot come to court and ask for a lighter sentence because of it."
O'Gorman, 27, and Mansell, 33, both of no fixed address, had pleaded guilty to breaking into the Ferries' isolated cottage in Welby, near Melton Mowbray, Leicestershire in the early hours of Sept 2.
Andrew Frymann, mitigating for O'Gorman, said that being shot had been like a "near-death experience" for which his client was not prepared. Responding to the barrister's suggestion that O'Gorman was traumatised by the experience, Judge Pert said the arrest of Mr and Mrs Ferrie was just as severe.
"Some might argue that being arrested and locked up for 40 hours is a trauma," he said.
The judge's remarks were widely welcomed by those arguing that the justice system needs to be more on the side of the victim of crime rather than the perpetrator.
Alan Duncan, the international development minister and the Ferries' constituency MP, backed the couple's actions at the time and welcomed the sentence and the judge's remarks.
Speaking from the United Nations in New York, the Tory minister said: "Three cheers for the judge; he has been robust and sensible. Justice has been done and, as I said from the start, the culprits are the culprits and the victims are the victims. The police did a very good job and investigated as thoroughly as they had to when a firearm is involved."
Patrick Mercer, an MP who has campaigned for a change in the law to allow home owners more protection when defending their property, also welcomed the sentencing remarks.
He said: "These are remarkably sensible comments from Judge Pert and will be widely welcomed. The judge has shown that he has his finger on the pulse of the nation and it is a welcome contrast to the extraordinary comments of Judge Peter Bowers when he recently described burglars as demonstrating bravery."
Mr Mercer added: "The criminal law needs to be brought in line with the civil law where the threshold is set at grossly disproportionate force, rather than simply unreasonable force."
Sir Clive Loader, the Conservative candidate for Police and Crime Commissioner in Leicestershire, said: "The penalty for burglary is not death, either by the State or by the person whose house you break into.
"But on the other hand, if you go into someone's home in the dead of night, wearing a balaclava in an extremely frightening way, what might follow as a result is not entirely predictable."
Mrs Ferrie's mother believed the burglars had got off lightly. Hazel Towell, 63, from Burton-on-Trent, said: "I don't think four years is nearly enough. It's no deterrent to villains like these.
"They put Tracey and Andrew through hell."
Alan Murphy, prosecuting, said Mansell was released from prison in May last year after serving part of a six-year sentence for wounding with intent. In total, his criminal record consisted of eight previous convictions involving 19 offences. O'Gorman had 16 previous convictions involving 27 offences.
The debate over the right to defend property began when Tony Martin killed a burglar at his Norfolk home in 1999 and was convicted of murder and jailed for life. The sentence was reduced on appeal to manslaughter and five years' jail.
Last year Peter Flanagan, who fatally stabbed an armed burglar at his home in Salford, Great Manchester, escaped prosecution after he was found to have been acting in self defence.