Have-a-go hero fears over self-defence law

SCOTTISH ministers are to reject calls to give homeowners more power to protect themselves from intruders, on the grounds that such a move would lead to a spate of "have-a-go heroes".

Their rejection comes despite plans in England, unveiled last week, to toughen the law, giving householders the right to take on burglars without fear of prosecution.

The Scottish Conservatives last week wrote to the Lord Advocate Colin Boyd urging further explanation on exactly what householders could do to protect themselves within the law.

Scotland on Sunday understands that Boyd and other ministers have concluded there is no need for a change in the law and believe that any change to the current rules would in fact be counter-productive.

One source said: "What we definitely don’t want to do is to send out a message where you create a situation where people are sleeping with a knife under their bed."

The insider added: "We don’t want to encourage the have-a-go culture."

The Executive’s lawyers have also concluded that Scots law already deals adequately with the issue of the use of force against burglars.

Common law allows victims of housebreaking and violence to use whatever force is deemed necessary to restrain their attacker, but they are still open to possible prosecution.

Boyd and Solicitor-General Elish Angiolini last week trawled through Scotland’s case law history to see if there were any cases in which homeowners in Scotland had been prosecuted, but as yet they have not found any.

"There is a reason why we haven’t had a Tony Martin case up here. It’s because the law is different," said one insider.

Indeed, the only case they believe is relevant is a recent episode in Scotland in which a homeowner chased a burglar from his home, hoping to catch him, but was instead stabbed.

Officials fear that if they tell the public that they can attack with impunity, more such cases could develop.

But the Scottish stance could be at odds with the rest of the UK if the proposals to give homeowners more powers to defend themselves against burglars are pressed through.

The issue was thrust back into the public eye after retiring Metropolitan Police commissioner Sir John Stevens claimed that people who injure burglars should only face prosecution in "extreme circumstances".

It follows the fatal stabbing two weeks ago on his doorstep of City financier John Monckton, murdered by burglars. The question first arose five years ago after the jailing of Norfolk farmer Tony Martin, who shot dead a 16-year-old burglar.

Plans to tighten the law were introduced by the Tories last week, in which homeowners would be allowed to use "necessary force". At present, English law only allows the public to use "reasonable force". The moves were given thinly veiled support by Tony Blair who said he "entirely understood" the concerns over the issue.

In Scotland, Conservative justice spokeswoman Annabel Goldie last week called for further clarity on the matter. It followed comments by Tom Buchan, president of the Association of Scottish Police Superintendents, who said he believed householders should have the right to use weapons against intruders.

"If I heard intruders downstairs, would I lock myself in the bedroom and phone the police and shout: ‘Go away, bad burglar’, or would I go down the stairs? I think I am likely to do the latter... I would do what most people would and pick up the first thing that comes to hand."

A spokesman for the Scottish Executive said that there were "no plans" to change the law over the issue, adding that Justice Minister Cathy Jamieson did "not have a set view on it".

He added: "The law in Scotland is different to that in England and Wales. The common law of defence is applied more rigorously in Scotland. That is why we have never had a Tony Martin case in Scotland. Our justice system is much more based on case law than on statute."

A spokesman for the Scottish Conservatives said: "This is not about creating vigilantes; it is about explaining to people about whether they have the backing of the law. What we are saying is that there is a need to examine what needs to be done to do that."

He added: "You have to contrast this message with that given by Tony Blair, who is clearly thinking about an election round the corner."

John Scott, of the Scottish Human Rights Centre, said: "The law is clear, but whether people know about it is another matter. A householder is entitled to use reasonable force."

But he added that in practice, confrontations between householders and burglars rarely happened.

In his 18 years as a lawyer he had represented hundreds of housebreakers and he said that in that time only a dozen had been attacked.

He said: "In most cases, the reality is that housebreakers do not go looking for confrontation and they are most likely to run away should they encounter the homeowner."

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