Egg-shell skulls, burglars and Col Gaddafi.
The "egg-shell skull rule" is a fascinating principle of Common Law. If we accept it for the victims of burglary, should we also acknowledge its relevance for the victims of tyranny?
The "egg-shell skull rule" is a fascinating principle of Common Law. Someone who commits a wrong must "take the victim as he finds him”.
Say (for example) you deliberately or negligently hurt someone, and that someone unbeknownst to you has a pre-existing medical condition (eg an unusually thin skull) which your misdeed aggravates. The law holds you responsible for any further damage arising from that pre-existing condition.
Is this fair? Why should you be held responsible for damage which you could not expect and which you did not intend? On the other hand, this rule sends a strong signal to would-be malfeasors: be careful, lest your bad actions have unexpectedly bad results for which you can and will be held responsible!
Hence the noisy announcement last week by the Justice Minister Ken Clarke that the law is to be changed to protect homeowners who use "instinctive" force against unlawful intruders.
The measures include:
· Strengthening people’s rights to use force to defend themselves from intruders in their own homes
What is the issue here?
English law concerning burglars and their supposed rights has drifted from common sense.
A homeowner who defends his/her person and property by attacking and hurting a burglar takes a risk as he/she can’t be sure that he/she won’t be prosecuted because the priggish police - with one eye on Human Rights legislation concerning the ‘right to life’ - deem the level of force used to have been "unreasonable". Burglar metamorphoses into victim. Truly, we are all guilty.
The proposed changes in the law in effect are said to create an "egg-shell skull" principle for burglars. A burglar entering a house must risk all consequences of the ‘instinctive’ reactions of anyone living inside it, some of which may be painful and extreme.
In some US states the law is skewed much more unambiguously in the homeowners' favour -- a homeowner is deemed to presume that an intruder has entered the premises with violent intent, and to react forcibly without fear of prosecution. In areas where this robust proposition applies the number of burglaries is much reduced.
Given the publicity which this new initiative has generated, it ought to be easy to find on the Ministry of Justice website precisely what radical action is planned to change the law here.
Not so. You have to pore through masses of turgid statutory amendments on the Parliamentary website to find Notices of Amendments: 25 October 2011: 3616
Surprise. It turns out that almost nothing significant is being changed.
“Defence of property” becomes a legitimate purpose of self-defence (it wasn’t previously?!). And a tweak is applied to one possible (and ridiculous) legal interpretation of s76 of the 2008 Criminal Justice and Immigration Act which itself codified common law principles of self-defence and how reasonableness is applied to them:
“In deciding the question mentioned in subsection (3), a possibility that D could have retreated is to be considered (so far as relevant) as a factor to be taken into account rather than as giving rise to a duty to retreat”
So, listen judges! There is no ‘duty’ to run away to help someone prove the reasonableness of any self-defence if he/she is attacked, OK?
Will the Ministry also issue guidance to courts and police on homeowners defending themselves or their property, with a strong steer not to prosecute anyone for defending themselves unless the violence used is unbelievably ‘disproportionate’. Who knows? The MoJ website doesn’t tell us.
Reasonableness and proportionality have not been removed completely. No British politician dares say that under extreme stress people may behave "unreasonably" and suffer no legal consequence.
It’s one thing (they imply) furiously to attack an intruder in your house in the heat of the moment. Quite another to stalk then attack intruders, and/or to chase an intruder down the street and launch a merciless attack far away from your home.
"Reasonableness" is a profound idea. It brings with it many assumptions, but above all the attractive idea that "reason" itself is the highest value of civilisation, even in the direst circumstances.
The rights and wrongs of any conceivable situation are looked at from a point of view of how a reasonable person (typically a man, not a woman) would weigh the options, bringing to bear a combination of intelligence, clear thinking and good old British common sense. Some of the logical refinements to the basic idea are very subtle.
Yet the hard fact is that English reasonableness as a legal principle evolved over long decades, in largely calm political circumstances featuring steadily growing prosperity.
And while it was evolving we were dishing out plenty of executions and other harsh punishments, now seen as barbaric. ‘Hanging, drawing and quartering’ was abolished as a punishment only in 1870.
All of which brings us to Col Gaddafi’s final moments. Ghastly images on the Internet show what looks like a knife or stick being thrust up his rectum while he was still alive. What are we to make of this, and of the howls of anger from assorted progressives that it is a monumental stain on the conscience of the world in general - and of CameronBlairBushHitler in particular - that Gaddafi was denied a fair trial?
When I was British ambassador in Bosnia I met the Mufti of Bihac. I asked him about the Pope John Paul II’s message when he had visited Sarajevo in spring 1997: “The two hardest things are to forgive, and to ask for forgiveness". Was that idea strong in the Islamic faith too?
"We look at things differently"came the cold reply. "If a snake bites you, kill it quickly before it bites you again.”
This unyielding philosophy too is surely ‘reasonable’, insofar as it coincides with what most people who ever lived on Earth have thought (and still think) about such matters. We Western liberals perhaps need to show modesty in lecturing others on how far they have fallen from our lofty, clever standards.
Last week I was denounced on Twitter by @HelenBLaRouge for supposedly ‘excusing’ Gaddafi’s awful end because I had insisted that wicked behaviour tended to have wicked consequences:
“An eye for an eye”? Not my philosophy
I replied that in Gaddafi’s case it had been “an eye for thousands of eyes”, a not irrelevant consideration.
Dictators! Bear in mind the wisdom of the Common Law egg-shell skull rule. You take your victims as you find (or create) them.
We are wholly dependent on the kindness of our readers for our continued work. We thank you in advance for any support you can offer.