USA vs UK Where I come from, our homes are still our castles

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USA vs UK Where I come from, our homes are still our castles

Postby GOSA » Wed, 2008-03-12 13:09

Where I come from, our homes are still our castles
By Joyce Lee Malcolm


Sunday Telegraph 31 October 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 selfdefence. 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.
What have YOU done for YOUR rights today?
GOSA
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