Is Your Home Your Castle? Apparently Not In U.K.

Great Debates
1

http://news.scotsman.com/uk.cfm?id=1377062004

I don’t want to exaggerate the differences between the U.K. and the U.S. I’d like to think the U.K. is not full of a bunch of pansy-ass el fagote criminal huggers, and the U.S. is not full of Rambo-esque kill-em-all vigilantes, to indulge in the two respective stereotypes.

But is there an insoluble chasm of opinion?

I can’t imagine most Americans identifying with this article, or with the rationale of the Tony Martin decision.

Let us put aside the generalized crime debate. Let us even put aside the gun control debate, writ large.

Isn’t it fair to say that most Americans, even including ones who would generally dislike the “gun culture,” would be somewhat open to the prevailing American view that one’s home is his castle, and that there is something “special” (and uniquely justifying of violent response) in having an intruder break into your home?

In most U.S. jurisdictions, a homeowner who shot a person intruding into his house at night would not, in fact, be prosecuted (unless I’m wrong), albeit most of these non-prosecutions would involve exercises of prosecutorial discretion (as the laws usually don’t explicitly make it lawful to shoot a home intruder). In a few states, the laws do explicitly make it lawful (IIRC, Texas allows you to shoot to kill any person committing a misdemeanor or felony on your property at night, which led to acquittal for a man who shot a kid stealing cassettes from his car’s stereo out in the driveway).

Agree, disagree, as you will. However . . . given that the U.S. “home is castle” jurisprudence originated (AFAIK) in English common law, how has the U.K. moved so far away from such principle, to the point that “experts” are advising as follows?:

Don’t let’s talk about America’s culture of violence, etc., or England’s endemic wimpishness (real though it might be?). My specific question is: Americans seem to recognize a special “home intruder” rule which would allow them to take any means necessary once a bad guy crosses their property line/threshold; other folk don’t. Why, and who’s right?

2

I’ve noticed reading these boards (75% US citizens, I guess) that violent retaliation to acts of violence is taken more as a given than in the culture (England 1960s-70s) I was brought up in, at any rate.

Thus, some of the comments made about the Pacers-Pistons game, especially Arnett’s (wrong name, but you know who I mean) right to go and punch the person who’d thrown a cup at him, left me shaking my head. The fellow gets something thrown at him (his body - his temple - his castle), and he is entitled - more than entitled - almost behoven to beat up the person who did it.

Intrusion is a different issue, but I note a similar difference between what I was brought up with (phone the police - get out the house through a window, etc) and the more assertive American approach.

With person-related “assaults”, I feel the “British” way is preferable. With intrusion, I think the English courts have gone too far. But the press stories may in fact only be harping on those few cases where British and American practices differ. All in all, there is much alignment between the two places in terms of cultural values. Thus, with regard to the Pacers case, it’s probably the fact that English sports events have known so much spectator trouble in the past 35 years that has ingrained in everybody involved in sport that players just don’t get involved. They would knock the other bloke’s block off if it happened down the pub.

3

What the bloody hell is “active passivity”?

4

I wondered too. My guess:

You start with passive aggressive. (I don’t know what that means either, but there you go; everybody chucks it about as if there’s no tomorrow.) You invert that. Always fun; I think Oscar Wilde did it with ‘Too True to be Good’. You then bowdlerise ‘aggressive’ because that’s not what you want at all. One possible replacement is ‘assertive’ (as in feminism), another ‘defensive’ (as in advanced driving). The former is too strong, the latter too weak. Voila!

Active passivity.

5

Nice one; actually, I’m pretty sure the quote means to implement a deliberate stratagem of compliance and passivity, but I’m pretty sure there’s a better way to say it than the apparently oxymoronic ‘active passivity’.

To the subject in hand though; yes, it is probably generally the case that the UK attitude to conflict and intrusion will primarily emphasise personaly safety and avoidance of escalation; certainly from my own personal point of view, I’d rather face certain loss of material property than significantly increase the risk of harm to my family or myself; I can buy another DVD player (or do without); I cannot reinstate my health or replace my children so easily.

6

Just to point out a couple of points about Tony Martin’s specific crime: Firstly, it used a pump action shotgun of a kind which is highly illegal here, such that he would have received at least a two year prison sentence just for possessing it. Secondly, the burglar was a teenaged boy who was running away, and Martin shot him in the back from some distance away.

Whatever the change in the burden of proof the new guidelines might set out, such that one can defend one’s home in pretty much any manner (even using licensed guns like rifles), Tony Martin would still have been sent to prison for years for serious firearm offences and gratuitous violence.

7

They were interviewing a judge about this on the radio this morning. He said that, if you apprehended a burglar, and whacked them over the head with a paperweight, and they fell and hit their head and died, you would indeed have to be tried for manslaughter, but that no jury in the land would convict you.

He said the only case in which there was doubt, in his recollection, was the Tony Martin case.

8

I don’t think it’s possible to discuss the differences without comparing and contrasting American and English cultural violence. Where did Americans get this idea that a man’s home is his castle? We got it from the English who colonized N. America. How come English law seems to punish those who defend their homes? I know I’d like to know.

As to why and who’s right? A man’s home is a refuge from the world where he can keep his posessions, have a little privacy, and above all a feeling of security. It is perfectly reasonable for the resident to respond in an aggressive manner. I’d say America has it right though I’m obviously biased.

Marc

9

My friend the criminal attorney says to budget 100,000 dollars for any instance that you shoot any person under any circumstances, self defense or otherwise, because that’s the minimum it will cost you if you are demonstrably innocent of a crime. (OK, he’s from the big city…)

In the USA (outside of Massachusetts) you may use deadly force in defense of yourself or another if you (or any “reasonable” man) have cause to fear death or bodily injury. Under this rationale, Tony Martin would have faced a charge of manslaughter or murder had he committed the same act in Fort Worth, Texas.
It really, really hurts your case when the intruder is too far away to have powder residue on his skin or clothes and the entry wounds are in his back side.

Killing a child or any unarmed person over whom you have an obvious advantage of strength may also lead to charges arising from excessive force. If the unarmed dead guy is 110 pounds and I’m 180, I’m expected to have options other than killing him. If, however, he’s 17 and I’m 91 years old, that presumption disappears. This is why we have prosecutorial discretion and juries. I’ve served on several juries (being retired means being selected), and I’m astonished at how conscientious and fair twelve people selected at random can be.

In telling horror stories about people who kill unarmed burglars going free, remember that the cases are frequently sensationalized in the media and that jury nullification does not mean there aren’t statutes against excessive force.

This said, there really are some loony policies in the British justice system. They might be related to the literally delusional attitudes and opinions many Britons hold about crime and crime rates in various countries. I’ve spoken with Londoners. for instance, who think they are relatively safe compared to urban Americans, when in fact London has a horrendous crime rate; far greater than New York, Boston or even Miami. Overall, the UK has a much higher crime rate than the US in every category except forcible rape and homicide.

As a visiting American, I was asked at a party if a member of my own family had ever been beaten, shot or robbed. I described the only case I could think of in the last forty years. My niece was on tour with a school group in a museum, when two thugs knocked her down, kicked her in the face and took her cell phone and camcorder, while thirty detesticulate citizens looked on and did nothing. They clucked sympathetically at this testimonial to American savagery. Then I mentioned that this had occurred in London.

10

Much higher? I’d certainly agree for burglaries, and that central London is more dangerous than elsewhere in the UK or other cities in the world. But the total rate is similar.

11

You might want to check out the Texas penal code before coming to such a conclusion.

Chapter 9 “Justification Excluding Criminal Responsibility” Texas Penal Code.

"§9.42. Deadly force to protect property.

A person is justified in using deadly force against another to protect land or tangible, movable property:

(1) if he would be justified in using force against the other under Section 9.41; and

(2) when and to the degree he reasonably believes the deadly force is immediately necessary:

(A) to prevent the other’s imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime; or

(B) to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property; and

(3) he reasonably believes that:

(A) the land or property cannot be protected or recovered by any other means; or

(B) the use of force other than deadly force to protect or recover the land or property would expose the actor or another to a substantial risk of death or serious bodily injury."

It seems to me that in Texas you can in fact shoot someone if their stealing your property. While I lived in Dallas there was more then one report in the news of someone killing someone stealing their property. In one case a repo man got killed while attempting to reposess a vehicle.

Maybe. Of course in Texas it depends on whether or not the jury believes that the “actor reasonably believed his conduct was necessary.” In 1992 a Japanese foreign exchange student named Yoshihiro Hattori was shot and killed in Louisiana. He was unarmed at the time but I don’t believe the shooter was actually in violation of LA law.

In some states it happens because the shooters acted within the bounds of the law.

Marc

12

You say that like being dragged through the courts and putting your life on hold for defending your property is a good thing :wink:

13

Although there are clear cultural differences, I think a good part of the reasoning behind the “actively passive” advice being handed out by the police and the writer of the article in the OP is based on practical risk-assessment. Most people being burgled are probably not in the right mental or physical condition to win a potentially very nasty fight with a probably adolescent, probably scared, possibly armed and possibly high burglar. It seems that in the sad case cited in the article in the OP, that the male victim did decide to aggressively defend his property and was stabbed in the ensuing fight. This is by no means to blame the victim - the killer bears all the responsibilty for the death. But it should be noted that an aggressive strategy is by no means necessarily a successful one, and that the victims of burglaries should ask themselves which they are most prepared to risk losing - valuables, or their life. This is the reason for the advice given by the police, who would prefer, for all sorts of reasons, to deal with burglaries rather than murders.

This risk-assessment does of course tie in to what may be quite a large cultural factor - that almost no British homes contain firearms, and that many American ones do. This of course substantially alters the risk-assessment in taking on a burglar. As the OP suggests, let’s not get into yet another gun-control debate, but it is, I think, an important factor in understanding the differences.

I also think that the pusillanimity of British law (e.g. English and Scottish - two separate systems and I’m not sure where, if at all, they differ on this matter) has been somewhat exaggerated. (For those not slavishly following the machinations of British politics, the whole issue has been made much of by the Conservative opposition in order to demonstrate their law and order credentials in the run-up to a May election. Hence I suspect a degree of exaggeration and hyperbole in the discussion). As the judge quoted above said, you do have the right to defend your home and you will almost certainly be acquitted by a jury of your peers. What you may not do is go beyond self-defence to retribution. E.g. shooting a fleeing burglar, staving in an intruder’s skull with the tenth blow of your trusty cricket bat to his prone form etc.) That you have to face a jury of your peers after defending yourself/your home may undoubtedly be an inconvenience - I submit that this is better than having the justice system take your word for it. Your home may be your castle, but it is not your personal fiefdom.

14

It’s gonna happen anyway if someone gets snuffed on your property. I for one am glad that there’s at least a little protection offered to potentially innocent victims of heavy-handed vigilantism.

Should you invite me to dinner, and after hearing one-too-many anecdotes about how I was Mollie Sugden’s bridesmaid, finally snap and clock me over the head with one of the charming pastoral figuirines on your mantlepiece that you bought from the back of the News of the World magazine, then call the rozzers and say “I done a burglar” to which they reply “Burglar? Oh that’s all right then, put the body out by the bins and let us know if you see anything else suspicious,” I’m glad there would be some kind of investigation into what had actually happened.

In seriousness, and purely in my opinion, there seems to be a prevailing cultural opinion in the UK (that might not even be in the majority) that human life trumps the protection of property, even if the life is that of the scumbag who is robbing you, and this influences the application of the law.

15

One point I feel can never be emphasised enough - a culture which accepts or encourages violent action against intruders inevitably results in many innocent people (often family members) being injured or killed. That, more than anything else, is why I feel safer with the British attitude.

16

As one who has drunkenly climbed in through a window having forgotten my keys, I am grateful that my then housemates called the police instead of twatting me round the noggin with a shinty stick.

17

But that’s not what I think is happening in “home is your castle” cases in the U.S. Rather, the motivating sentiment seems to be, not that your cassettes or whatever are precious and worthy or deadly-force protection, but that when your home is violated, it is no longer just a “property crime;” it is inherently a danger-to-you-and-your-family crime. No U.S. state that I know of allows deadly force for the protection of property, in general. While Tex. allows you to shoot the guy burgling your garage, or even your car, this is still predicated on these places being located on your homestead; you can’t shoot him if the car is in a municipal parking lot.

When I hear people talking about shooting intruders, it’s always tied to personal safety/safety of their family. I, too, have no idea what “active passivity” means, but if it means allowing yourself to be tied up, etc., the U.S. seems to have had too many well-publicized cases of home invasion, rape, murder for anyone to think that that sort of thing is going to lead to a good outcome. I’d say the prevailing point of view is kill them because they may well kill you if you don’t. But again, this is not tied to the fact that you own the house or its contents; its tied to the fact that the guy is invading the sanctuary where you live, and the “exception” de facto allowing deadly force against pretty much any attacker is limited to the home, which is viewed as “special.”

18

Incidentally, the title of this thread reminds me of a Viz ‘Top Tip’:

"Dear Top Tips,

It is not true that an Englishman’s home is his castle. I live in a two bedroomed flat in Peckham."

19

There should always be an investigation whenever deadly force is employed. Whether or not it should go to trial just depends on what the investigation uncovers.

I can understand that point of view but do you think people have any right to defend their property from theft? If so, what level of force should be permitted to defend property?

When I had roommates it wasn’t uncommon to hear odd noises during the night. When I lived alone it was quite another thing to hear odd noises at night.

Marc

20

Aha. Someone will correct me if I’m wrong, but I believe in the UK there’s no criminal law of trespass: it’s a civil matter - unless a) there’s breaking and entering and/or b) intent to do wrong.