Where I come from, our homes are still our castles
By Joyce Lee Malcolm
(Filed: 31/10/2004)
If someone breaks into your home in the middle of the night you can presume he is not there to read the gas meter. But current British law insists that he have the freedom of the premises. When, last Christmas, thousands of Radio 4's Today listeners called for legislation authorising them to protect their homes by any means necessary, the proposal was immediately denounced as a "ludicrous, brutal, unworkable, blood-stained piece of legislation". Until recently that "unworkable, blood-stained" legislation was the law of the land. There was no need to retreat from your home, or from any room within it. An Englishman's home was his refuge, and, indeed, his castle.
But no more. Rather than permitting people to protect themselves, the authorities' response to the recent series of brutal attacks on home-owners has been to advise people to get more locks and, in case of a break-in, retreat to a secure room - presumably the bathroom - to call the police. They are not to keep any weapon for protection or approach the intruder. Someone might get hurt. If that someone is the intruder the resident will be sued by the burglar and vigorously prosecuted by the state. I heartily applaud The Sunday Telegraph's campaign to end this lamentable state of affairs.
Happily for us Americans, English common law prevails in the US; our homes are still our castles. Californians, for example, are entitled to use force to protect themselves and their property. Legislation in Oklahoma which allowed the home-owner to use force no matter how slight the threat has reduced burglary by nearly half since it was passed 15 years ago. What British police condemn as "vigilante" behaviour has produced an American burglary rate less than half the English rate. And, while 53 per cent of English burglaries occur when someone is at home, only 13 per cent do in America, where burglars admit to fearing armed home-owners more than the police. Violent crime in the US is at a 30-year low.
Whatever became of the Englishman's castle? He did not lose the right and means to protect himself at once. It was teased away over the course of some 80 years by governments claiming to be fighting crime, but actually fearful of revolution and disorder. When the policy began, crime was rare. For almost 500 years, until 1954, England and Wales enjoyed a declining rate of violent crime. In the last years of the 19th century, when there were no restrictions on guns, there was just one handgun homicide a year in a population of 30 million people. In 1904 there were only four armed robberies in London, then the largest city in the world.
The practical removal of the right to self defence began with Britain's 1920 Firearms Act, the first serious limitation on privately-owned firearms. It was motivated by fear of a Bolshevik-type revolution rather than concerns about householders defending themselves against robbers. Anyone wanting to keep a firearm had to get a certificate from his local police chief certifying that he was a suitable person to own a weapon and had a good reason to have it. The definition of "good reason", left to the police, was gradually narrowed until, in 1969, the Home Office decided "it should never be necessary for anyone to possess a firearm for the protection of his house or person". Since these guidelines were classified until 1989, there was no opportunity for public debate.
Self defence within the home was also progressively legislated against. The 1953 Prevention of Crime Act made it illegal to carry in a public place any article "made, adapted or intended" for an offensive purpose "without lawful authority or reasonable excuse". Any item carried for defence was, by definition, an "offensive" weapon. Police were given broad power to stop and search anyone. Individuals found with offensive weapons were guilty until proven innocent. The scope is so broad that a standard legal textbook explains that "any article is capable of being an offensive weapon". The public were told that society would protect them and their neighbours. If they saw someone being attacked they were to walk on by, and leave it to the professionals.
Finally, in 1967, tucked into an omnibus revision of criminal law, approved without discussion, was a section that altered the traditional standards for self-defence. Everything was to depend on what seemed "reasonable" force after the fact. It was never deemed reasonable to defend property with force. According to the Textbook of Criminal Law the requirement that an individual's efforts to defend himself be "reasonable" is "now stated in such mitigated terms as to cast doubt on whether it still forms part of the law". Another legal scholar found it "unthinkable" that "Parliament should inadvertently have swept aside the ancient privilege of self defence. Had such a move been debated it is unlikely that members would have sanctioned it." She was confident that Parliament would quickly set things right: "In view of the inadequacy of existing law there is some urgency here." That plea was written 30 years ago, and the situation is infinitely more urgent now.
At the same time as government demanded sole responsibility for protecting individuals, it adopted a more lenient approach toward offenders. Sentences were sharply reduced, few offenders served more than a third or a half of their term, and fewer offenders were incarcerated. Further, they were to be protected from their victims. Tony Martin, the Norfolk farmer jailed for killing one burglar and wounding another, was denied parole because he posed a danger to other burglars. "It cannot possibly be suggested," the government lawyers argued, "that members of the public cease to be so whilst committing criminal offences" adding, "society can not possibly condone their (unlawful) murder or injury".
Meanwhile, much of rural Britain is without a police presence. And the statutes meant to protect the people have been vigorously enforced against them. Among the articles people have been convicted of carrying for self defence are a sandbag, a pickaxe handle, a stone, and a drum of pepper.
This trade-off of rights for security has been disastrous for both. Crime has rocketed. A UN study in 2002 of 18 developed countries placed England and Wales at the top of the Western world's crime league. Five years after the sweeping 1998 ban on handguns, handgun crime had doubled. As was forecast at the time, the effect of outlawing handguns has been that only outlaws have handguns.
In recent years governments have even felt it necessary to prevent the public from defending themselves with imitation weapons. In 1994 an English home-owner, armed with a toy gun, managed to detain two burglars who had broken into his house while he called the police. When the officers arrived, they arrested the home-owner for using an imitation gun to threaten or intimidate. In a similar incident the following year, when an elderly woman fired a toy cap pistol to drive off a group of youths who were threatening her, she was arrested for putting someone in fear. Now the police are pressing Parliament to make imitation guns illegal.
The impact on law-abiding citizens has been stark. With no way to protect themselves, millions of Britons live in fear. Elderly people are afraid to go out and afraid to stay in. Self defence, wrote William Blackstone, the 18th-century jurist, is a "natural right that no government can deprive people of, since no government can protect the individual in his moment of need". This Government insists upon having a monopoly on the use of force, but can only impose it upon law-abiding people. By practically eliminating self defence, it has removed the greatest deterrent to crime: a people able to defend themselves.
Joyce Lee Malcolm is Professor of History at Bentley College, Massachusetts, and Senior Advisor, MIT Security Studies Program. Her book, Guns and Violence - the English Experience, is published by Harvard University Press.
