Year: 2009

Calling back to a great scene in a classic 80s comedy film:

[youtube]http://www.youtube.com/watch?v=rdjblkRkoPU[/youtube]

You can’t have a discussion about self-defense in the United Kingdom without gun owners pulling Tony Martin out of their asses, but I often wonder how many gun owners have a deep understanding of the case, and what the facts were surrounding it. To understand why takes a bit of delving into self-defense law in both the UK and US. While I’m far from an expert on these topics, I think I do have enough rudimentary understanding to try to explain the background, and illustrate how the Martin case shows the differences in self-defense laws between the US and the UK.

Despite common belief, English self-defense laws have changed little since 1968.  You can see the current law here, which just clarifies the common law in England a bit. Self-defense in the UK can best be described as:

A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.

For contrast, you can find Pennsylvania’s law here. Pennsylvania justifies the use of force (not deadly force) under limited circumstances, and proscribes the use of deadly force except in extreme and dire circumstances.  American self-defense laws commonly make a distinction between the use of force and the use of deadly force, where as English law attempts to cover the whole spectrum of force through a reasonableness test.  If you use deadly force or force in most of the United States, you will still be subject to a similar reasonableness test, but a jury will be asked whether you acted reasonably, as a reasonable person, in terms of the circumstances under which you acted. In the United Kingdom, the jury will be asked whether the force you used was reasonable. In American law, that’s spelled out more distinctly. Pennsylvania, for instance, allows you to use whatever force is necessary, not  reasonable, though Pennsylvania requires that deadly force is only permitted in certain dire and extreme circumstances.

But despite the differences, to the extent that self-defense in danger across the pond, it’s largely because of shifting cultural attitudes away from the use of deadly force in self-defense. If you brought the self-defense laws of England over to the United States, practically speaking not much would change about self-defense, because most Americans believe that using deadly force on a home invader is reasonable, while Englishmen do not embrace the concept to such a great extent anymore. In addition, American jury verdicts require unanimity, whereas English juries do not require it. These factors promote differences in the kinds of cases that will be prosecuted in each of those respective jurisdictions. Prosecutors are going to respond to what they know they will get out of a jury. Practically speaking, even in a state like Pennsylvania, which does not have Castle Doctrine, a prosecutor is going to be reluctant to bring a case of a homeowner shooting a home invader because that case is highly likely to end in acquittal. He will take care to make sure the facts of the case show a serious wrong or error on the part of the actor, more care than his English counterpart, because his English counterpart only has to get 10 out of 12 jury members to believe that the homeowners use of force was out of proportion, and therefore not reasonable. While it’s still theoretically justifiable to use deadly force in self-defense in England, it is much more likely to result in prosecution there, because it’s much more likely to result in conviction. Self-defense has not been eradicated in the UK, but it has been weakened. Changing mores about self-defense are only part of the story. There’s a much larger story at play here, a big part of which is an increasing belief that jury trials themselves are anachronistic and outdated, as has been shown in the recent decision that juries in criminal trials are not strictly necessary in England and Wales.

It is in these two contexts that you have to consider the case of Tony Martin. To see details of the case, I would encourage folks to read this appeals ruling in the Marin case. From this you can get a hint of how the English legal system deliberates on the topic of self-defense:

So now we have the background on the appeal, whether Martin, who was found guilty of using excessive force against burglars, can be convicted of murder, or is merely guilty of manslaughter. But in the appeal, we have the facts of the case, and from that we can see where Mr. Martin likely got into trouble:

When he was interviewed under caution he gave an account to the police officers which was basically similar to that which he gave in evidence. He stated particularly that he wanted to make it clear that when he fired his gun he genuinely thought that his life was in danger. He asserted that he had never got to the bottom of the stairs and had gone no further than was necessary to see into the hallway; that was about as far as he dared to go.

He was cross-examined on the basis that his evidence and the account he had given in interview was untrue; that he had heard the two men approaching the house and had readied himself so that by the time they entered the breakfast room he was downstairs, lying in wait in the hall with his gun already loaded; and that he had stepped out into the breakfast room and fired three times with the intention of killing. Mr Martin denied this version; although he acknowledged the effect of the expert evidence about two of the shots at any rate, he insisted that he himself never got below halfway down the stairs, and that when he was interviewed he was clear as to where he had been

The problem Martin had was that the forensic evidence the Crown put forward did not match Martin’s statement, but rather matched up with those of the burglars.

Two areas of shot damage were found on the far wall of the breakfast room from the door at the foot of the stairs, one below the window out of which the two men exited, and one to its right in a door. All the experts agreed that these two areas of damage were not in the direct line of sight of a person standing anywhere on the stairs, so that the shots that caused that damage could therefore not have been fired from the stairs.

Under the circumstances described in this appeal, in many US jurisdictions, prosecutors would still have had statutory legal grounds to bring charges for murder (though there are a number where they would not). But statutory law is not necessarily the law as juries see it, since a jury and a prosecutor aren’t necessarily going to view the same set of circumstances the same way. I’m not certain that Martin would have been prosecuted in the US, because most juries are going to tend to acquit a homeowner for shooting a burglar, let alone two burglars, especially when the actor is an old man, and the burglars young men. I suspect had Martin had better representation from the start, and not given a statement to police without the advice of counsel, he might have been able to escape conviction in England as well. The Martin case isn’t as simple and straightforward as many imagine it to be, but in looking closely at the facts and rulings in the case, you can see clearly how the our respective cultures are parting in their treatment of self-defense.