Taking the law into one’s own hands
A group of campement owners in Grand Bay has recently formed an informal association to defend their homes against burglars. The initiative may not be a bad one as long as they do not understand that they have a right to defend their homes by any means. Let me remind them that in the United Kingdom Brett Osborn is serving five years for killing an intruder who had entered his house. A similar treatment was given to Tony Martin, a Norfolk farmer, who was sentenced to jail for shooting dead a burglar. Earlier in the year, the owner of an ice cream factory in Mauritius felt that he had done the right thing when he shot two intruders who had entered his property. The police adopted a lenient attitude and did not even consider it necessary to arrest the owner. When he was finally arrested after a public outcry, he was granted bail on the spot. The wrong signal was sent to the public, giving the impression that that person was being treated leniently for his crime. It is hoped that the Grand Bay group do not mistakenly assume that they can shoot a burglar at will and with impunity. Whilst the person may consider his campement as his castle, he would be well advised not to assume that it would be lawful for him to use any form of violence.
There is of course a possible defence open to the householder. Faced with a violent intruder who has broken into his house, he can always act in self defence. The essence of self defence however is that the use of force must be necessary, reasonable and proportionate to the threat. The “necessary” is a question of appreciation and inference in the light of all the circumstances of the case. But when it comes to reasonableness it may be more difficult to appreciate. Is it an objective or subjective test?
In any event it will depend on the facts of each case. It will be up to the prosecution in a case to disprove that the defendant genuinely and honestly believed that the use of force was necessary. But the fundamental question remains whether we should not have a law which entitles people to protect and preserve and protect their property. In the early sixties, the owner of a “chassé” shot a poacher who was hunting on his property. His defence, which was accepted by the court, was one of mistaken identity since he had shot in the direction of the bushes where he had seen movements and thought it was a deer.
A person attacked cannot of course be expected to weigh with precision the amount of force to be used to protect his family when facing the attacker. The court recognises that fact. Similarly the court will make a difference between an act of revenge and the hunter who shoots the intruding poacher mistakenly. In the case of Tony Martin, the Norfolk farmer, he had had numerous visits of intruders on his farm. On the day he shot and killed the person who had overstepped the threshold of his property, he was lying in wait. In those circumstances he was no different from the murderer who had premeditated his crime.
In a similar case, in Mauritius, three vegetable growers were lying in wait at night in the expectation that the thief who had been stealing their vegetables would turn up. In fact he did, and he was beaten up so badly that he died the next day in hospital. It is unlikely that in cases of that nature, the violence that was used can be a subject matter of self defence.
As far as self defence is concerned there is one law for all, including police officers. Force can be used as a last resort. Bearing that in mind, it would be wrong to create the impression that people who defend their homes have wider rights. In the context of community policing, citizens should not be under the impression that they can take the law into their own hands and become self-appointed vigilantes. The day this happens it will be anarchy.