A 78-year-old man remains in custody today (April 4) after being arrested on suspicion of murdering a suspected burglar at his home in Hither Green.

Police said the pensioner caught two men in his house in South Park Crescent after midnight and following a struggle one of the men was stabbed in the upper body and later died in hospital.

But many people have jumped to the defence of the 78-year-old for defending his home against the alleged intruders.

What does the law have to say on the subject of self-defence during a burglary though?

The Law

The Crown Prosecution Service (CPS) states in the context of a violent incident: “it is important to ensure that all those acting reasonably and in good faith to defend themselves, their family, their property or in the prevention of crime or the apprehension of offenders are not prosecuted for such action.”

The CPS add that self-defence is a valid legal defence in cases involving crimes committed by force.

The law (Palmer v R 1971) states: “It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do, but only do, what is reasonably necessary."

This is also referenced in the Criminal Law Act 1967: “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.”

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What is reasonable force?

As stated above, reasonable force can be used as a defence in court in cases where violence is a factor.

Reasonable force refers to the use of force in an appropriate response to a perceived threat, for example if an intruder was armed with a weapon it could be considered reasonable to use a weapon of equal strength in self-defence.

Householders are more specifically defended from prosecution as long as they defended themselves “honestly and instinctively” at the time, meaning they could claim they had acted in self-defence even if there was not a significant threat to them – so long as they believed they were in danger.

This means a person does not have to be physically attacked first in order to use self-defence as a legal argument.

Prosecutors are generally asked to try and establish whether:

• The use of force necessary in the circumstances, i.e. Was there a need for any force at all? and

• Was the force used reasonable in the circumstances?

Does it make a difference if the intruder dies?

The law referring to reasonable defence still applies, but depending on the circumstances there may be an increased chance of a jury finding the defendant may have acted with “very excessive and gratuitous force”, such as attacking someone who is unconscious.

In conclusion

As mentioned above, while there are some defences in place and references in legislation to self-defence against the threat of violence, there are few objective ways of proving guilt.

In reality there have been few prosecutions in instances such as these, but cases will be dealt with on an individual basis and in many circumstances a jury will have the final say.