h2g2 The Hitchhiker's Guide to the Galaxy: Earth Edition

Elsewhere (F19585?thread=202750&skip=48), the case of Tony Martin has been mentioned. Now I *know* this is well after the event, but in an effort not to drag that other thread off topic, I'm going to ask this here.

Background detail: Fred Barras and Brendan Fearon broke into the remote farmhouse of Tony Martin. Martin shot them both with a shotgun, for which he had no licence. Barras, who was aged 16, died, and Martin was tried and convicted of murder. Fearon is now, apparently, suing Martin for damages for shooting him.

As I understand the charge of murder, it requires some degree of premeditation. I may be wrong, and I hope someone will point it out to me if I am. I fail to see how it is possible to premeditate the killing of someone who has broken into your house without warning.

My own opinion is that the law should not protect those who are actively engaged in the commission of a crime. I see no reason why a person should be able to choose to disregard the law as it applies to them, and then complain that while doing so the law failed to protect them. If you want the protection of the law, it is easy enough to abide by it. If you want to knowingly break it, then you should take responsibility for that action personally, and not be able to blame anyone else for anything that might happen to you as a result.

Opinions?

H.

I don't know the details of the case, and specific laws change from country to country anyway, so I'll just reply generally.

If you shoot someone in the back, the case for self-defence is, if not totally destroyed, at least badly damaged, especially when using lethal force - how can you claim that you had an *immediate* fear for your life if the person was facing away from you at the time? Okay, there may be arguments against this, but generally it would be pretty damaging to a claim of self-defence.

Keeping a weapon, particularly if it's loaded, in your home which is unlicensed is dangerous. If it's licensed, and you have a legitimate use for it, then the case is different. If it's unlicensed, then you might have a problem... okay, being a farmer you can say he had a legitimate use for the weapon, but if he's able to get to the gun, load it and shoot an intruder, then there's a pretty good case that the weapon was not stored in accordance with law (if the law requires it, as it usually would - kept locked in a secure box, ammunition separate, etc.). All that would add up to the weapon possibly being kept *for* household defence - in other words, it was being kept for (amongst other reasons) shooting intruders. Hence premeditation.

Now, that said, I'm against the protection of those engaged in criminal activities; a burglar suing you for injuries sustained when he stepped on a knife left on the sink after he'd broken in through the kitchen window, for example. But when it comes to things like this, a bit of reason must be applied. If there is complete immunity for victims of crime, then you could retaliate to anything in any way you wanted - you could shoot someone who punched you. A good guide is the "use of force' continuum that security officers in Australia must follow - if you're ejecting a trespasser you can use one level of force above what they use. So passive resistance means you can use 'soft' force : restraint holds, wrist locks, that sort of thing. Active resistance means you can use 'hard' force : punches, throws. Physical force (punching, etc.) means you can use non-lethal 'filled hand' : baton, capsicum spray, etc. But you can only use lethal force if someone is threatening your (or someone elses) life. Theoretically you can use a gun if someone's threatening you with a piece of wood, but it's not generally a good idea.

Do you see what I mean? There has to be some level of relativity in the force used; if the two offenders had guns or knives themselves, and were at least facing him, then he would very likely not have been charged with murder (I can't say for sure, as I said exact laws are different for different places) but he still would probably have been charged with a firearms offence for example.

Ok. To clear up one thing, if anybody runs to the Currant Bun with that quote, I'll probably lose my job, so please don't . I'm *not* a spokesman for the CPS, but an individual who works within it.

Having said that, I can at least point you in the genral direction of what *might* go through the minds of somebody investigating such an offence.

1) If the wound is inflicted from behind, at point blank range what *immediate* threat did the deceased pose to the defendant at the time the shot was fired?

2) Was the force used appropriate to the threat posed?

3) What other measures has the defendant taken to protect his home/demostarte his state of mind? Has he for example, booby trapped the stairs?

4) Has he repeatedly stated his vile and bigoted opinions about gypsies and thtravelling fraternity as a whole? Has he made statements that might lead one to conclude that he has a difficulty in deakling with the travelling fraternity which goes beyond the opinions of normal society?

And I still ask-is the suggestion here that the Prosecution in some way warped the facts to get a conviction in this case? Is there a suggestion that Tony Martin was treated differently to other suspects in such cases? Is the suggestion that the CPS *and* the police dealt with the matter in some way differently from the way it *should* have been dealt with? Is it suggested that the Police *and* the CPS for some reason decided that there sympathies lay with a burglar and not a murderer?

Is it suggested that the Jury somehow decided that they supported the idea of a burglar being able to enter their homes and steal from them without them being able to protect themselves.

Or did they do what *nobody* *except* them was in a position to do, and consider the evidence that was put before them and come to a conclusion that this was murder, not self-defence?

"if the two offenders had guns or knives themselves, and were at least facing him"

Why should it be the victim's responsibility to find out what level of force his attackers are prepared to use, and what weapons they've brought with them? (and make no mistake, up to the point he pulled the trigger, Martin was a VICTIM of crime, not a perpetrator). These people were IN HIS HOUSE in the middle of the night having broken in. It was dark. There were no lights on in the house. In such a situation, with more than one persons unknown in your house in the middle of the night and no hope of police attention on the scene for some time, I personally think it is reasonable for a lone householder to assume his life is in immediate danger and respond accordingly.

H.

Blues - sorry.

Didn't mean to cause a problem.

H.

"Has he repeatedly stated his vile and bigoted opinions about gypsies and thtravelling fraternity as a whole? Has he made statements that might lead one to conclude that he has a difficulty in deakling with the travelling fraternity which goes beyond the opinions of normal society?"

And the relevance of that is...?

To respond more fully...

"1) If the wound is inflicted from behind, at point blank range what *immediate* threat did the deceased pose to the defendant at the time the shot was fired?"

The deceased was one of a group of more than one in his house in the middle of the night. The direction he was facing in the home of the victim is secondary, in my opinion, to his illegal and therefore inherently threatening presence there. The *immediate* threat was from a group of intruders of unknown intentions and capabilities. The sensible course of action in such a situation is to disable the group one by one starting with the nearest, regardless of what each of them happens to be doing at the time.

"2) Was the force used appropriate to the threat posed?"

Like I said, it should not be the responsibility of the victim to work out the precise level of threat he faces from each attacker before responding.

"3) What other measures has the defendant taken to protect his home/demostarte his state of mind? Has he for example, booby trapped the stairs?"

And what if he has? By definition the only people who could be injured by a booby trap on his stairs are criminals, otherwise they wouldn't be there. (I didn't think Martin had booby trapped his house, but I'd be happy to be corrected). I fail to see why a burglar should have any grounds to complain about the acid filled pit under my stairs if I didn't invite him in.

"4) Has he repeatedly stated his vile and bigoted opinions about gypsies and thtravelling fraternity as a whole? Has he made statements that might lead one to conclude that he has a difficulty in deakling with the travelling fraternity which goes beyond the opinions of normal society?"

I say again - what if he has? What possible relevance has his opinion about "gypsies and the travelling fraternity" got to do with his response to two or three criminals being in his house in the middle of the night? Is it being suggested that he somehow knew the racial background and/or lifestyle of the burglars? Is it being suggested that he should have dealt with them differently because they were gypsies/travellers, and if so how? Are you implying it have been *more* acceptable for him to shoot them if they *hadn't* been gypsies, or if he hadn't had such opinions? If not, what's the relevance?

"And I still ask-is the suggestion here that the Prosecution in some way warped the facts to get a conviction in this case?"

No. The gripe I have is with the law as it stands. The prosecution had no need to warp the facts - the law was on their side.

"Is there a suggestion that Tony Martin was treated differently to other suspects in such cases?"

No, none at all.

"Is the suggestion that the CPS *and* the police dealt with the matter in some way differently from the way it *should* have been dealt with?"

No, because I don't know enough about the way it was dealt with. But I certainly don't know of anything that either the CPS or the police did which was anything other than completely correct in that case. I'm sure that if they had, it would have been leapt upon by the tabloids. It wasn't.

"Is it suggested that the Police *and* the CPS for some reason decided that there sympathies lay with a burglar and not a murderer?"

I hope that there were no sympathies in either direction, and that the case was handled objectively. I hope...

"Is it suggested that the Jury somehow decided that they supported the idea of a burglar being able to enter their homes and steal from them without them being able to protect themselves."

No. As I said in the other thread - this case is not as clear cut as I'd like. Martin held the gun illegally. He was a known eccentric who had problems with the police and with gypsies. And as you say, I didn't sit through all the evidence like they did. Nor, as you say, did anyone else here.

This thread is NOT about that case, per se. It's about the principle, as I say in the subject line, of the limits of legal protection and the right to self defence. The Martin case is just the most recent and closest example there is, and I didn't originally bring it up. I acknowledge its weakness as an example.

BUT - if a clay pigeon enthusiast and pillar of the community blows away two guys who are burgling his house tomorrow night, he'd *still* be at risk of being charged with murder. It's the principle I'm getting at here.

H.

I'm not sure it was actually point blank range. I seem to remember something about gun angles and lines-of-sight being an issue in the trial?.

I presume people are supposed to be in genuine fear of their life (or defending someone else who they thought was in mortal danger) before using lethal force, but it can be very difficult knowing what was in someone's mind at the time. Even if someone was knowingly overreacting, it seems likely they would later claim to have felt their life was in danger. (Usually works for police firearms officers, even in the case of unarmed (+/or entirely innocent) people.)

Given that it is illegal to lay traps for trespassers (whether one agrees with that or not), if someone does apparently have a prior intent to harm trespassers on their property, that does have a bearing on other people's judgements about their state of mind at the time and previously.

In the end it does come down to a jury decision. If they think that in a given case the circumstances that might justify fear (nighttime, intruders) were not sufficient for the type of force employed, and the manner of the use of that force, they have to be able to declare that the killing was unjustified, whether as murder, or some kind of manslaughter.
However a law is drafted, short of a black-and-white 'all trespassers can be killed' version, there will be areas where people have to balance the risk they think someone should have felt against the action that person took. It's almost guaranteed that in many cases, there will be strongly differing opinions about whether a given decision was correct.

Blues Shark, you're being a little unfair.

Martin had been burgled on many occasions by the "travelling community" as far as I'm aware. Yes, this would cause him to have a prejudiced opinion of them, but one based on experience. I can't really see how that could be equated with bigotry which relies on "hand-me-down" ignorant prejudices.

From what I can tell about Tony Martin he was something of an "oddball". He was also paranoid about being burgled, having had it happen before. His response was extreme but let's not kid ourselves that we couldn't have ended up in the same state of mind in the same circumstances.

I think he's guilty of manslaughter, not murder. He was pushed into a situation, he wasn't just some cold-blooded thug with sneering contempt for human life.

One of the (few) things I have learned in this life is that we never know how we will react when push comes to shove.

And anyone who thinks that they DO know how they will react has only come to push, and not not shove.

Ben

I'm pretty sure that if people had broken into my house in the wee hours, I'd be in genuine fear of my own life. In the middle of the night, if someone's property is being trespassed upon, it seems unreasonable to question whether or not they'd fear for their own life. I would imagine that in such a situation it is difficult to discern between "run-of-the-mill house robbers" and "axe murderers".

Also, why is it that police officers (in the midwestern part of the States anyway) can get away with shooting unarmed criminals in the dark but citizens cannot? The pollice are trained to handle such situations; ordinary people are not and asking them to be pacifistic when their home is being invaded is unreasonable.

That's true Ben... which is why it's dangerous to keep a loaded weapon in your house. *If* you get taken to court it's saying to a judge/jury that you're willing to use lethal force if need be. If it can be demonstrated that you were in immediate fear for your life (and the immediate part is *very* important in any law of self-defence I know of) then you might be okay. If, however, you shoot someone in the back (I stress again that the posts in this thread are all I know of this particular case) then it's hard to show that there was an immediate threat to your life. *Even* if the other person also has a gun. That's a legal point, not a moral one.

Mind you, I'm just assuming that the gun was loaded, or at least kept very close by with ammunition. It all looks bad, as though the only reason you're keeping the weapon is for the defence of your house against intruders, and that is a *very* bad impression to be giving a jury. The *vast* majority of burglaries are commited by unarmed people, or by people wielding blunt instruments; you cannot use lethal force to protect property - that, however, is a moral consideration, not necessarily a legal one. So if you're keeping a firearm to protect yourself against burglary, then a defence of self-defence is difficult to prove because you're showing that you're willing to use lethal force *before* there is an immediate threat to your life. Add in the shot-in-the-back part, and... again, it just doesn't look good to a jury.

Gunshot angles and line-of-site *may* have played a part in Martin's defence, but the fact of the matter was that the gun was close enough to Barrass that there were burn marks on his clothes. Many questions have been asked about the way in which his defence was conducted, but you pays your money and takes your p

The law on murder in the Uk is very simple. To convict of murder, a jury must be satisfied so that they are sure that at the time the injury resulting in death was caused that the defendant intended to cause 'really serious injury' to the deceased. The circumstances of the actions are largely irrelevant, I'm afraid.

I'd suggest under those circumstances, the jury had little or no option but to convict him.

Ben, you ask what the relevance of his comments about gypsies and travellers were. Simply put, they may be used top indicate the way in which his mind-set worked, along with the illegal booby-trapping of his house and his illegal possesion of a loaded fire-arm.

Just as a counter, I'd ask if you thought the rascist and bigoted comments made by the officer investigating the OJ Simpson case were relevant to the trial?

>The circumstances of the actions are largely irrelevant, I'm afraid.<

Whoops. Of course, you can stillclaim self-defence, use of reasonable force, legitimate fear etc, but the *location* of the offence makes very little difference.

For what it's worth, the last time I had a defendant who had let lose with shot-gun at an intruder in his four time burgled antiques shop, the Judge gave him a conditional discharge, and a good laugh was had allround at the thought of matey disappearing over the yard wall with an arse full of buckshot.

Compare and contrast:
From Post 3: "Is there a suggestion that Tony Martin was treated differently to other suspects in such cases?"

My response at the time was - no, there is no such suggestion. However...

From Post 14, same author: ", the last time I had a defendant who had let lose with shot-gun at an intruder in his four time burgled antiques shop, the Judge gave him a conditional discharge, and a good laugh was had allround at the thought of matey disappearing over the yard wall with an arse full of buckshot"

Interesting difference in attitude. An intruder, shot in the back with a shotgun by someone defending, not even his home, but a shop. Someone who, presumably because of the history of burglaries, had a ready shotgun in his SHOP. Obviously the burglar survived, but a conditional discharge? I'm curious - was the charge "attempted murder", and if not, why not? (no need to answer specifics here, principles would be just as instructive)

Now, I admit I don't know the full facts of either case... but do they seem comparable to anyone else?

All of which gets away from the point I was getting at. My gripe is not with the *application* of the law in specific cases. My gripe is that the law continues to protect those who are IN THE PROCESS of breaking it. I understand that it would not be acceptable to shoot a burglar who has left your property at speed - that way vigilante justice lies. But WHY does the law protect the life and limb of someone who has, illegally and entirely by their own choice, invaded my home in the middle of the night? And why is their safety my responsibility?

I understand what the law is - and I believe the law is wrong. I think what I'm looking for is for someone, anyone, to explain why people who have demonstrated by their actions that they have no use for the law can expect its protection.

H.

So if I have reason to worried about a person or persons unknown entering my property without my agreement with unknown intent, am I supposed to just sit there and wait for it to happen? Be all surprised and so forth when it happens? I don't know about other peoples combat skills but personally I am not violent or particularly capable in that area. So what am I supposed to do? Sit back and let them burgle me / assault me and then hope the police sort it out? I guess that's the answer the police would give but it's hardly satisfactory and would certainly have a negative emotional impact on me. So I make sure i have weapon. A pipe, a stick whatever. But what if the assailant with a big stick is physically more powerful than me such that I would stand no chance of stopping or detering them? So I get a gun? But legally I have to keep it locked and away from the ammo and unloaded, so am I supposed to ask the intruder to wait a minute whilst I get the gun and load it? I can see the thought process here. Now personally I don't think I'd be willinf to shoot to kill someone, anyone, but it could happen accidentally and then I'd have to prove that I wasn't aiming to kill?

I understand what is being said above, the assumption is that if shot in the back then the person is going away from you, but why? To get a bigger stick? or to leave? I keep coming back to the 'they threatening me by their very presence and I do not know their intentions, until they are gone, and gone for good, I must assume their intentions are the worst as assuming anything else could have fatal consequences for mine.'

Just some thoughts for discussion really.

I find this very hard to reconcile as on the one hand I do not believe anyone deserves to be killed, but on the other hand you have to balance that against what they intend to do to me / mine. In an ideal world I guess I;d be a sharp shooter and just kneecap the b*st*rd and phone the police. But it isn;t and I'm not!

peace.

The difference between the two cases, HVL, is that in the case I mention, we had a man who was manifestly a burglar who had provided a false statement to the police, stating that he was not and inventing a cock and bull story stating that he had a legal reason for being in the premises. He there fore could not be relied upon as a witness of truth, and the Crown could not mount a sensible case against the owner of the shot gun.

As I understand it, the survivor of the Martin case made no bones about the fact that they were burglars, and that there presence in the house was illegal. That is a matter that the Jury are entitled to consider when reaching their verdict. I assume that they did consider that, and came to the conclusion that even so, the force used was innappropriate.

As to fleeing the premises, Barrass was half-way *OUT* of the window when he was shot. I believe his fellow burglar gave evidence to the fact that they had seen the gun and decided to leg it pretty sharpish.

Ictoan wrote: "In an ideal world I guess I;d be a sharp shooter and just kneecap the b*st*rd and phone the police. But it isn;t and I'm not!

peace."

GOTTA love that sig!

H.
(anyone any idea why the first post keeps getting pulled?)

It may also be worth mentioning that at the time, several of my colleagues, and myself, thought that the chances of obtaining a conviction in the martin case was virtually nil.
We could not envisage that any Jury, which is bound to made up of householders (at least in the majority), would convict a man who was doing, on the face of it, nothing more than protecting his property.

The role of the jury *has* been overlooked in this discussion, I feel. Juries have continuously shwon that they are capable of acquitting people whatever the legal niceties of a case (the last example being the two guys who helped that guy escape to Russia-I forget their names, and indeed his).

There was clearly something in this case that led that jury to conclude that Tony martin was guilty. As we cannot be party to what goes on in Jury rooms, we shall never know what tipped the balance, but they did decide he was guilty.

It's still not me.

Sit tight and wait for the e-mail, I guess