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To what extent does the current law allow a householder to use fatal force against an intruder and is the current approach satisfactory?
Introduction
The contention that an individual needs to employ violence in self defense activities against the person attacking the same are securely inclined in societal ethics. Most of the individuals consider it an instant reaction to dangerous situations and life threatening instances. On a secondary level, the global community believes in the conviction that wars are permissible especially in instances where a country is attacked for no apparent reason. This explains why increasingly, countries continue to equip dangerous weapons on the pretext that they are expected to be used for self defense.
In addition, it can not be disputed that various nations across the globe are frequently engaging in wars f or purposes of self defense. Similar principles have also been employed at personal level and cases of self defense are increasingly being handled by the courts at different levels. It is against this background that this paper explores the extent to which the current law allows a householder to use fatal force against an intruder. In order to enhance a harmonic consideration, it also highlights whether the current approach is satisfactory.
The current law allows any individual to employ force in repelling any criminal activity that has the capacity to threaten the wellbeing of his or her property. Thus it is lawfully acceptable to employ the force in protection of one’s property. The law in this regard stipulates that an individual can use reasonable force in self protection or to protect other individuals, to prevent criminal activities, to protect one’s property or to help the law enforcers to arrest a suspect of crime. Notably, the notion of reasonable force has been a bone of contention since time immemorial.
Different parties have expressed their varied opinions and discontent in this regard and minimal efforts have been undertaken to provide a distinct value of reasonable force (Mickey & Christopher 34). This is contributed to by the nature of the crimes that are committed in this respect. Usually, the defendant does not have a chance to determine the amount of reasonable force, especially considering the fact that his or her own life could be threatened. In the court contexts, the defendant is also denied a chance to determine the force used due to the recognition that s/he is likely to maintain that the actions were reasonable. In the long run, irrespective of the fact that the same could have employed excessive force, it could be difficult to press charges accordingly.
In his review, Briggs indicates that it is for this reason that the members of the community and the jury are accorded the responsibility of determining the amount of force employed by the defendant in each circumstance (1991, 57). This usually puts in to consideration various factors. To begin with, Jamison asserts that it is worth acknowledging that the conditions of the case are unlikely to allow the defendant to make rational decisions in this respect (89). As such, the analysis of the amount of force often puts in to consideration the degree of subjectivity of the defendant. In particular, specific aspects of the perception of the offender are analyzed accordingly, regardless of the fact that they could be possibly mistaken. Nevertheless, the law contends that the force employed needs to be reasonable as well as proportionate. Essentially, there need to be a balance between the value of the various interests that are meant to be protected by the force and the harm that the respective force is likely to cause.
In his study, McCormack considers reasonable force to be necessary as well as proportionate (52). The amount of force according to this is usually depended on the threat that the person is facing. This is defined under the law of necessity of defense that defines the instances that justify the application of the same. To begin with, Briggs cites that the law allows use of defense of necessity in incidences where the case poses objective dangers that have the capacity to threaten the wellbeing of the accused as well as other individuals in that context (1992, 121) Then, this can only be availed in instances where the accused is perceived to be acting in a reasonable and objective manner to prevent serious injuries and/or death of any party. The jury should then be allowed to make final judgments regarding the conditions that compelled the accused to act in a certain manner. The final decision is also influenced by the assessment of the reaction of a normal person to the particular incident.
In order to enhance justice therefore, the amount of force employed does not entirely determine the nature of the sentence that the defendant might be accorded by the courts. The need to place limits to the employment of force was based on the recognition that the law enforcers rather than individuals should be responsible for upholding justice.
John and Stamimir indicate that there are inherent limits that ensure that these powers are used in a viable manner (67). In particular, it is indicated that in incidences where some form of violence is apparent and excessive force is used, the law denies the defendant a right to murder. In other words, in such cases, committing murder through employment of excessive force is not allowed or excused under any circumstances. On the other hand some jurisdictions tend to reduce the sentence in such instances to manslaughter on the premise that the defendant could have miscalculated the gravity of the force employed. Seemingly, the punishment enforced under such circumstances tends to be lighter than in the former.
Further, Dillmann and Chris postulate that in order for the defendant to be considered genuine, the householder needs to have undertaken necessary measures to avoid any form of conflict with the intruder (52). This provision is also apparent in the common law and stipulates that the defendant needs to have demonstrated a will to retreat from any form of conflict with the attacker. This according to the law is the most fundamental way of avoiding any form of attack. Alternatively, the defendant may exhibit the unwillingness to engage in a confrontation with the attacker by using reasonable force to withdraw and or escape from the same. In this respect, it is not necessary for the defendant to employ violence and fight the attacker accordingly. Instead, s/he can simply withdraw by escaping from the scenario.
In addition, an analysis is usually done to ensure that the defense is not triggered by the desire for revenge. At this juncture, Briggs ascertains that in some cases, the defendant tends to employ excessive force in as a form of revenge to the attacker (1992, 123). Notably, in such instances, the perceived defense is not entirely influenced by the need to protect oneself, one’s property or other individuals whose lives could possibly be at risk. This particularly tends to have adverse implications if murder is involved. In such cases, Mickey and Christopher assert that the defendant is unlikely to escape punishment (82).
Further, Briggs indicates that the physical and mental wellbeing of the accused plays a critical role in determining the viability of self defense (1992, 126). This is used by the jury and courts in determination of the reasonableness of the same. In particular, a person who is mentally unstable or physically handicapped may be accorded leniency in this regard. This is due to the fact that the activities that the person engaged in could possibly have been influenced by the health status, rather than his objective thoughts. This provision is not often extended to psychiatric individuals because of the severity of their actions.
Further, is indicated that the threat needs to be imminent, although not entirely spontaneous. In this regard, Briggs point out that the law permits an individual to prepare for self defense or to repel a conceived attack (1991, 71). A classic example in this respect is the confirmation of Lord Griffiths in the Beckford (1988) AC 130 case. In this, the accused had supposedly produced and stored in his shop several petrol bombs at a period when rioting was rampant in the region. According to the court of appeal, the jury lacked enough evidence to determine whether the bombs were expected to be employed in excessive force. Thus the accused was lawfully permitted to own the bombs.
In addition, Mickey and Christopher indicate that the accused needs not have in any way employed provocation or created a viable situation that would enable the same to use the defense (96). In this respect they assert that the implications for the defense are likely to yield negative outcomes if s/he in ay way provoked the attacker intentionally for other reasons. Common reasons for this include the need to injure the attacker or kill the same purportedly in self defense.
This is exemplified by the Manick (1989) Crim LR 451 case in which the accused made a visit to a man whom he perceived to have stolen the vehicles of his friend. Since he understood and new that the man was dangerous, he armed himself with rice frail for self defense. Unfortunately, he was arrested by the law enforcers before he arrived at the man he considered to have his friend’s vehicle. Notably, charges were pressed against him as his carrying of the weapon in anticipation of an attack was not justified.
Further, it is indicated that he law does not under any circumstance acknowledge and permit the existence of a defense weapon. Thus the householders are not permitted by the law to arm themselves with any form of weapon on the premise that it would be employed in self defense. However, it prescribes that any object that is considered to be employed for daily purposes may be employed in self defense. These include items such as umbrellas, combs and keys. Of great importance in this regard is the fact that the force employed in defense should be reasonable.
Usually, the law has strict consequences for personalities that exhibit excessive force. In particular, studies indicate that persons who use the same in self defense that leads to death of the attacker are often found guilty of the offense. However, as indicated earlier, if murder occurs and the defendant is not found to have employed excessive force, the sentence is usually reduced to manslaughter.
The use of self defense has in the past been compounded by various complexities. Nevertheless, it can be argued that the approach has instrumental in enhancing protection of individuals and their property. Dilmann and Chris indicate that the persons with military skills have particularly played a critical role in enhancing the apprehension of criminals (88). This is because of the fact that they have employed their skills and expertise in overpowering the attackers.
In addition, McCormack indicates that this law has effectively empowered the citizens to defend themselves and their property (68). Statistics indicate that very few cases relating to self defense have had negative effects on the wellbeing of the accused. This according to Briggs indicates that the public understands the specifications underlying its use and utilizes the same for their advantage (1992, 135). This has in return been elemental in fighting crime and enhancing increased collaboration between the law enforcers and the public in fighting crime.
At this point in time, Jaison appreciate that various controversies related to the need to inform the attacker about the skills of these personalities have arisen (99). In particular, studies indicate that this is expected to enable the attacker to make the decision regarding the next course of action. Addition, this information is vital as it frees the defender of the implications of excessive force.
However, Mickey and Christopher contest this and indicate that by deciding to attack, the attacker is deprived of the fundamental rights of defense and protection that are in return transferred to the defendant (64). In addition, considering the nature of the scenario, the possibility of the defendant informing the attacker is likely to be limited. Furthermore, studies assert that the likelihood of the attacker heeding the same is as likely to be limited. In the long run, this is unlikely to yield the desired effects.
Conclusion
From the analysis, it is certain that self defense is at the core of the national law. Seemingly, it is also reflected in the common law. The use of the principles underpinning the same is characterized by various factors. In particular, the notions of reasonable force, proportionality, extent of defense and eminency are considered very important in this respect. Furthermore, the characteristics of the accused that are largely defined by his health status are also given utmost consideration.
Of great importance however is the realization that this law allows for preparation to repel an attack but does not allow one to own any form of weapon on the premise that it is expected to be employed in defense. In general, the prerequisites for employment of this law are wide and varied. Nonetheless, they aim at ensuring that that justice is enforced and upheld at all levels. Notably, this provision has yielded desirable effects as the citizens have been empowered to deal with the challenges accordingly. In essence, it has played a leading role in fighting relative crimes like burglary.
Works Cited
Doug, Briggs. Self Defense Laws. USA: Beverly Book, 1991.
Doug, Briggs. Personal Protection. USA: Beverly Book, 1992
George, Dilmann & Chris Thomas. Pressure and Self Defense. USA: Merrill Pr, 2001
Gillespie Cynthia. Justifiable Homicide, Ohio: University Press1990.
Kevin, Jamison. Common Law Experience, 2003
Louis, John & Stanimir, Alexandrov. Understanding International Law. USA: Bill, 1996
Mickey, Dimic. & Christpoher, Miller. Martial Arts and Defense. UK: McGraw Hill, 2008.
Timothy, McCormack. International Law and Self Defense. USA: Macmillan 1996