Killing no murder
Tony Martin's conviction for murder after he killed the
burglar Fred Barras, raises these important issues: the right
of self-defence; the protection of property, the general use
of police resources; the policing of Martin's locality, the
fairness of Martin's trial and, above all, the relationship
between the individual and the state.
The right to self-defence
Any attempt at definition short of giving a person an
absolute right to defend themselves how they will is doomed
to failure. Once a definition includes general qualifications
such as "reasonable force", it becomes unworkable, because
the qualifications are hideously imprecise. The practical
result is confusion and uncertainty and anyone who defends
themselves is at risk of prosecution. The problem is
exemplified in comments by Ann Widdecombe, the Conservative
home affairs spokesman who recently said "People whose person
or property is attacked should be able to defend themselves
without fear of penalty from the law" (Daily Telegraph
24/4/2000), but then qualified this by saying that
prosecutions could still take place in extreme circumstances,
Once that qualification is made, the uncertainty returns.
What is required is a definition which is realistic in its
appreciation of human behaviour and removes from any victim
of an attack the fear that they may be prosecuted however
they defend themselves.
The law on reasonable force as it is presently interpreted
goes something like this: if you are attacked with a knife
you may defend yourself with a knife: if you are attacked
with bare fists you may defend yourself likewise. Do more in
either instance and you will be in danger of being charged
with an offence against the person, anything from common
assault to murder. Pedantic proportionality is all. If you
carry on assaulting your assailant after he is disabled, you
will most likely face charges. If you have the opportunity to
run away but do not, that may count against you in any
assessment of whether you should be prosecuted. All this is
demonstrably absurd. It assumes that people under attack can
reasonably be expected to make judgements in the heat of the
moment which in reality require calm consideration.
Consider a few of the variables in assessing what is
"reasonable force". Women, the disabled, children and older
men cannot reasonably be expected to defend themselves from a
simple physical assault from a fit, strong assailant. Other
things being equal, a small man cannot be expected to fight a
large man; an older man a younger man, a fit man an unfit
man. But, of course, other things are often not equal.
Many men who are physically capable of fighting are
absolutely hopeless at it. I have known a man of six and a
half feet allow himself to be beaten by a man a foot smaller.
Fighting is a matter of heart above all else. But it is also
a matter of practice. Most men throwing a punch at someone's
face would be more likely to harm their fists than their
opponent because they have never been taught to punch
correctly. (For those without any experience of fighting, I
would recommend the knee in the groin or a good-old fashioned
headbutt.) More importantly, those who are not used to
fighting (and middle-class men generally fall into this
category) are not psychologically prepared for a fight. This
will mean one of two things: the person either capitulates
utterly or goes into a berserk rage and keeps on damaging
their opponent until the rage passes.
To these disparities of size, sex, age and mental and
physical competence, we may add others. Someone who is
assaulted does not know whether an assailant is going to
restrict themselves to simple assault without a weapon. They
may be armed for all the victim knows. Nor need this be
obvious. To take a recent well publicised case, that of
Kenneth Noye who was convicted of murder in a road-rage
incident. Noye carried a knife when he got out his car to
confront his victim, but he only produced and used the knife
when he began to get the worse of things as the two fought.
(Noye is also a good example of the effect of age on the
ability to fight. He was 48 at the time of the murder. His
victim was in his twenties. Noye was a career criminal with a
reputation as hard man. Yet until he produced a knife, he
got the worst of a fight he might reasonably have expected to
win. Age had caught up with him). It is also true that even
if an assailant does not have a weapon, the victim cannot
know how far the assailant is likely to go. Will he restrict
himself to punching? Or is the assailant the sort to put the
boot in when someone is on the floor? No one can know,
Perhaps even the assailant does not know.
The obviously armed assailant presents a particular problem
in judging what constitutes proportionality of response. If
someone comes at you with a knife, is it in order to use a
gun? If the assailant has a club, may one use a knife? The
law as it stands gives no clear guidance. It is all "every
case has to be judged on its merits".
Then there is the question of what happens should you disable
your opponent. Suppose that a small man fells a much larger
man with a lucky blow of, shall we say, a candlestick. The
smaller man is then left with the problem of what to do next.
If he allows the more powerful man to recover, the smaller
man will in all probability end up being badly hurt. The
smaller man might be able to avoid that fate simply by
running away (this is what the law would want you to do), yet
he may be unable to reasonably do this even if he wishes to.
That would be the case if the temporarily disabled man was a
burglar and the smaller man's wife and children were in the
house where the fight took place. Let us further assume that
there is no phone and the house is isolated as was the case
with Tony Martin. In such circumstances, it could be argued
with some force that it was reasonable to deliberately
disable the burglar by a further assault while he was
unconscious to prevent the chance of violence from the
burglar when he recovered consciousness.
Behind all these circumstantial problems stand the very human
emotions of panic and rage. When one is attacked, the only
desire is to ensure one's safety. Adrenaline flows and to say
that any human being is in control of themselves in such
circumstances is patent nonsense. The law does in practice
take into account panic, but again it is all very
hit-and-miss. Rage on the other hand is no excuse for what
is judged a disproportionate assault.
The law as it presently stands effectively ignores human
nature. It says that someone who is attacked must exercise
truly marvellous self-control. In defending himself, the
victim must not lose his temper and carry on attacking the
attacker after the attacker has been disabled. This is
utterly unrealistic. Someone in a blind rage or panic is
manifestly not in control of their actions. There are good
evolutionary reasons for that. When someone is responding to
an attack, an uncontrolled response is the best way of
responding to protect oneself. The evolutionary bottom line
is: dead attacker equals safety.
What then is a reasonable law of self-defence? The great
bugbear at present is proportionality of response. In
drafting a new law, I would start from the premise that an
attacker forfeits his right to the protection of the law,
that he literally takes his life into his hands. If the
attacker is seriously wounded or even killed, that should be
seen simply as a reasonable consequence of the attack. The
test of "reasonable force" would become defunct. All that
would have to investigated after an assault was whether
there was evidence which suggested that the claimed attacker
was in fact not the attacker. Provided such evidence did not
exist, the person assaulted would have no case to answer. I
would also remove from an attacker who suffers injury any
opportunity to take civil action against his victim.
The great danger with such a law is that murder could take
place under the guise of self-defence. I would make two
responses to that. Firstly, murder is very rare in Britain.
It has been rare historically. The Canadian criminologist,
Leyton Elliott who made a study of murder in Britain (Men of
Blood) concluded that murder in England was astonishingly
rare and had been, relatively speaking, since the middle
ages. In other words, there good sociological reasons to
believe that few murders would take place under such an
amended law. Approximately 800 murders take place in England
and Wales each year. The majority are "domestics", ie the
murder of a sexual partner. Murder for criminal reasons is
rare.
My second point is that a claim of self-defence would still
have to conform to the facts of the death. It would be no
use, for example, claiming that a fight had taken place
at on the morning of May 3 if the forensic evidence clearly
showed that the body had been dead before that time.
A law on the lines I have suggested would not be perfect.
There would still be problems about establishing who was the
assailant and who the victim. But that problem already exists
under the present law. What such a law would definitely do is
prevent the prosecution of householders such as Tony Martin
who surprise those within their homes.
My proposal would also accommodate perhaps the most
contentious part of self-defence, namely pre-emptive action.
An assault which results in physical action against someone
is clear cut. But the law does not say that to commit assault
physical violence has to be used. A person may believe
themselves to be in imminent danger of being assaulted -
someone may be making threatening statements or carrying a
weapon or coming rapidly towards someone else. In such
circumstances, the law gives the person who fears he or she
is about to be assaulted the right to defend themselves
before they are assaulted. However, a person who engaged in
such behaviour as things presently stand would have the
greatest difficulty in sustaining such a claim if reliable
witnesses were not present at the time. And if such witnesses
were present, a prosecution might well be result on the
grounds that the presence of witnesses made an assault
unlikely or one that could have been resisted. It is a
ticklish problem to say the least. But one could use one of
the main criteria for determining whether a physical assault
had taken place to decide whether an assault was like to take
place, namely the credibility of the witnesses.
In short, all my law would require someone to do would be to
show that they had been assaulted. If that was proved, no
prosecution would take place. There might be some rough
justice in that, but less than there is at the moment.
Moreover, what rough justice there was would most probably be
at the expense of the wrongdoer rather than the law-abiding
citizen.
The right to defend property
The cry "It's only property!" is often heard. But the loss of
property for many is not an inconvenience, but a severe blow
to their lives. Property crimes are overwhelmingly directed
against the poor. Most burglars "work" fairly close to where
they live, which tends to be the poorer areas. If you are
poor, then a burglar stealing your TV and microwave, your
life savings stuck under the mattress or a burglar
vandalising your home is a major event. Those are most
pressing grounds for allowing people to defend their
property.
In theory, a person may use reasonable force to defend their
property. In practice, this right evaporates because of the
way that the law is interpreted. It is the self-defence mess
with bells on. Any attempt to prevent damage or theft is
likely to result in a charge of assault or worse.
I would obviate this by treating the theft or damage of
property as an assault. The owner would then be able to take
action without fear of repercussions in the same way as the
could resist an assault.
The general use of police resources
That there are plenty of police officers can be seen when
they are required to police demonstrations or state visits
such as that of the Chinese President, Jiang Zemin. Yet the
number of police engaged in visible general policing has
declined substantially. Why? The whole thrust of British
policing in the past thirty years has been to move from
community policing to rapid response, from the beat to Panda
cars. One may add to that the Police and Criminal Evidence
Act (1984 - PACE) which greatly complicated police
procedures and resulted in a vast increase in paperwork. The
formation of the Crown Prosecution Service, which took away
from the police the decision to prosecute, had a similar
effect to PACE. Nor has the undue emphasis on meeting
"targets" been helpful, because it has given the police a
powerful incentive to go for soft offences such as motoring
while ignoring real villains. All those are substantial
reasons for the decline of community policing, yet they are
far from a complete explanation of our present
circumstances.
Political correctness and in particular "anti-racism" has
resulted in large amounts of time and money being spent on
what is essentially political indoctrination. This pernicious
behaviour has developed over the past quarter of a century.
In the aftermath of the Stephen Lawrence enquiry it has got
completely out of hand. A special Scotland Yard unit has been
set up (The Racial and Violent Crime Task Force) and all
police officers are to be subjected to additional "racial
awareness training." "Stop and Search" has been cut back
because of police fears of being accused of racism if they
stop blacks and Asians with the result that street crime has
risen substantially. Not only that, but any complaint by a
black or Asian of police racism or incompetence that gets
publicity now results in a quite disproportionate amount of
police time and money being devoted to investigations, which
frankly have little chance of being successful.
An additional result of the Lawrence enquiry is that the
police have become so nervous of their public image, that
disproportionate efforts are also being made with other
high-profile cases which have no racial content. The classic
instance of this is the murder of the broadcaster, Jill
Dando. More than a year after here death 40 detectives are
still employed full time on the case. Common sense suggests
that if the police have not solved the case after more than a
year of immense effort, it is unlikely that they will do so
in the future simply by carrying on in the same way. The only
likely means by which the police will now solve the Dando
murder is through an informant, most probably a disaffected
ex-partner of the killer. The police must know this, yet they
carry on the pantomime of maintaining 40 detectives on the
case. It is pure PR.
The policing of Martin's home area
"A Women's Institute survey last year found that more than 70
per cent of rural communities had no police presence. In
Norfolk, figures released on the day of the Martin shooting
revealed that the area had fewer police officers per
head of population than any other county. The western
division, which covers 550 square miles, has 130 officers
to cover any 24 hour period. In the past decade there
has been a sevenfold increase in crime." (Sunday
Telegraph 23/4/2000).
Tony Martin lived in the western division. He, like many
others in the area, had found that reporting crimes or
threats of crimes to the police was a waste of time.
Considering the minute numbers of police in his area that is
scarcely surprising. But the inadequacy of the law went far
beyond the failure of the police to take action. Both Barras
and Fearon had multiple criminal convictions. Yet time and
again they received either no prison sentence or only a minor
one. In a sense, one can understand why the police were less
than enthusiastic about investigating crimes committed by
such people. But there was another good reason why they were
dilatory.
The curse of political correctness
The dead boy, Fred Barras and his wounded accomplice,
Brendan Fearon, came from gipsy stock (or traveller or Romany
or whatever you wish to call them). The media coverage of
this point was muted, doubtless because of the fear of being
accused of racism. Yet it was clearly relevant to the Martin
case.
In Tony Martin's part of the world, West Norfolk, there is a
strong Gipsy presence. The Sunday Telegraph (23/4/2000)
reported that "more than 30 legal and illegal gipsy
campsites. Other gipsies travel into the area to commit
crimes, some from as far afield as Yorkshire. Brendan
Fearon, for instance, the man wounded in the Martin burglary,
is a gipsy from Nottinghamshire."
An ex-police officer, Tony Bone, who runs an organisation
called "Farmwatch" in Tony Martin's area, had no doubts
about the problems posed by gipsies: "There is an underlying
issue with the growing numbers of travellers who have set up
here over the past few years, " Mr Bone said. "Many of them
have made criminal activity a very sophisticated business.
The police have a policy of non-harassment of the
gipsies, which has not helped. It is a big issue, And it
has been going on for a protracted period.
"People see their property stolen and damaged. Then they
see police unwilling to go on to the sites to look for it. 1
do not blame the individual officers, They are based too
far away, don't know the local areas and have received
instruction not to harass travellers. But it has a very
debilitating effect on the local population, who feel they
are victimised by people who are living beyond the law."
(Sunday Telegraph 23/4/2000).
A spokesman for Norfolk police made this response when asked
whether it was true that organised gipsy gangs were behind
much of the criminal activities, he said: "Travellers are
classed as an ethnic minority group. They need to be given
the same level of respect as any other group. We are not in
the business of encouraging any type of prejudice. As an
organisation we do not want to point the finger at any
minority groups."'(Sunday Telegraph 23/4/2000). In other
words, the police are constrained by political correctness in
their treatment of gipsy crime.
There in all probability is the primary catalyst which
created the conditions which drove Tony Martin to arm himself
illegally. "Anti-racism" (in reality anti-white majority
racism) is perverting our society generally. If you are a
member of a minority which is willing to create trouble to
defend its members, the police will largely turn a blind eye
to anything but the must serious crimes.
Was Martin Guilty?
Was Tony Martin guilty under the law as it stands? It is a
moot point. Many people reading newspaper reports of the case
might well conclude he was. Martin fired a number of shots.
Fred Barras was shot in the back. Martin did not call the
police until the following day. In addition, Martin's
violent views on gipsies and his possession of an illegal
pump action shotgun must have counted against him with the
jury.
But perfectly reasonable explanations can be given for
Martin's actions. He claims he fired in panic. This would
account for the multiple shots. He claims that he thought
both the intruders had escaped. Hence his failure to call for
an ambulance. Quite reasonable in view of the fact that Fred
Barras died quickly. In the circumstances it would also be
reasonable for Martin not to have gone outside until morning.
As to expressing violent views against gipsies prior to the
killing, his defence team tried to prevent these becoming
part of the trial on the grounds that they were prejudicial.
They failed and are using the failure as one of the grounds
for martin's appeal.
It might seem reasonable that Martin's views on gipsies were
admitted to the trial. Yet who can say they have not at some
time said they would kill someone? Such comments do not mean
much. By admitting the comments to the trial, the judge
almost certainly prejudiced the jury. The law provides for
the exclusion of evidence which is not directly related to a
crime. A classic example of a judge excluding such evidence
occurred in the trial for murder of some of the suspects in
the Stephen Lawrence case. The police had secretly bugged the
houses of one of the suspects. Several of the suspects were
recorded making grossly racist statements and pretending to
use knives. The judge refused to allow the material in
evidence because the recording contained no reference to the
suspects killing Lawrence. I think that Martin had at least
as good a case for the evidence of his feelings about
traipses not being admitted.
Why did the jury convict? Well, juries are odd beasts at the
best of times and I can well imagine that they may have
been swayed not only by Martin's comments about gipsies, but
also by the fact that Barras was shot in the back and left to
die. But there is a complication. Since the trial ended there
have been persistent reports of the intimidation of the jury
by members of Barras and Feardon's families and generally by
the gipsy population in the area.
What credence should be given to these stories is debatable.
However, members of Barras and Fearon's families attended the
court in force throughout the trial. Not only that but when
Tony Martin was found not guilty of the attempted murder of
Daniel Fearon, there was by all accounts a tremendous
explosion of anger from his family and others in the public
gallery. At that point the jury had not given a verdict on
the murder charge. They then withdrew and came back later to
deliver a guilty verdict on Barras' killing. After that
verdict was given there was again a most aggressive display
from the public gallery, but this time in celebration.
The jury members may well have had reason to fear the
consequences of a not guilty verdict to the murder charge.
The hard truth is that while individual travelling folk may
be perfectly amenable in their individual dealings with those
from the mainstream, their group behaviour leaves much to be
desired. Anyone who has ever had to deal with gipsies en mass
will know, their group behaviour is all too often
unequivocally antisocial. There are good sociological
reasons for this: (1) they see themselves as separate from
mainstream society and (2) they have the nomad's mentality.
(1) means that they will have a first loyalty to their own
group and (2) creates a contempt for their immediate
surroundings because they know they will soon move on.
That Martin was found guilty of murder and not guilty on the
attempted murder charge is perverse. Both Fearon and Barras
were shot in the same circumstances. Logically, both charges
should have resulted in the same verdict, whether it was
guilty or not guilty. One of Tony Martin's grounds for appeal
will be that the murder verdict was perverse.
The relationship between the state and the individual
There is an implicit contract between the state and the
individual: the individual gives up his right to absolutely
control his personal security on the understanding that
they state will provide both physical security and
meaningful redress for injuries which the individual may
suffer from others. Patently this contract was broken in
Martin's case, who was left with the effective choice
between defending himself and his property or letting
criminals do much as they wanted. How he went about defending
himself is another matter, but that was the objective
choice.
The police did more than fail to protect Martin and his
property, they denied him the legal means to protect himself.
Martin killed with an illegal pump action shotgun.
Previously he had owned an ordinary shotgun. Martin lost this
because his licence was taken away after he had fired a
warning shot to deter some intruders (he did not hit them).
Had his licence not been taken away, Martin would, in all
probability, never have purchased the pump-action shotgun. If
that had been the case, he would have faced Barras and Fearon
with an ordinary shotgun with two shots only immediately
available. With only that weapon, Martin might never have
shot anyone. He might have been deterred from firing because
he knew he only had two shots. If he had fired, two shots
have more chance of missing that half a dozen. The case also
shows how easy it is to get guns illegally despite the
draconian laws which now exist. The anti-gun fanatics might
care to reflect on that.
Tony Martin may possibly have been guilty as the law stands,
but I cannot see that he was morally culpable. He was doing
the most natural of things, protecting himself from men who
had intruded into his most private place, his home.
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