Sir Desmond Swayne TD

Sir Desmond Swayne TD

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Burglars At Risk

09/04/2018 By Desmond Swayne

My second reaction to the news of the arrest last week of pensioner Richard Osborne-Brooks, was of dismay at the prospect of a deluge of quite properly outraged emails that I knew I would receive because of it.
How on earth could an elderly man be arrested for defending himself when being robbed in his own home, even if that defence ended with the death of his robber?
That outrage was only set to multiply as more information emerged, that his assailant had a formidable criminal record involving the targeting vulnerable pensioners.
I was naturally relieved, when Mr Osborne-Brooks was released without charge.

My first, reaction however, at hearing the news was one of total bemusement. It was early in the morning when I first heard the newscast: was I dreaming it?
Surely it couldn’t be happening, because I remembered that we had fixed the problem: after years of effort didn’t we change the law to protect the likes of Mr Osborne-Brooks?
The Answer is yes.
For years in opposition we attempted to get two private members’ bills through and failed, but we managed get the law changed under the coalition government in 2013. That change that we secured enabled anyone finding a burglar in their home to defend themselves, and to be protected from prosecution if they killed or injured the intruder, unless it can be proved that wholly disproportionate force was used.
So how come Mr Osborne-Brooks was even arrested?
Clearly, he shouldn’t have been.

Imagine yourself, disturbing a burglar in the dead of night. You hear a noise downstairs, you go to investigate, in the kitchen someone leaps out at you, it’s dark, you can’t see if your attacker is armed, but instinctively you grab the bread knife and take a lunge at him. Unfortunately, your attacker is killed, and subsequently discovered to have been unarmed after all. Have you committed an offence?
I do not believe that a public prosecutor would go to the expense of proceedings, because there would be no reasonable prospect of a jury being persuaded to convict.
If however, your burglar fled and you chased him down the garden path and you stabbed him in the back as he tried to get away. Well, then there might be more of an argument as to whether wholly disproportionate force had been used, a day in court therefore would not be an unreasonable expectation.

Ultimately, whatever the words in the law say, we have to rely on the good sense and judgement of 12 jurors.

Filed Under: DS Blog

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