The lines are drawn, but where?

A recent case got me thinking again about juries and whether the current jury system truly serves justice to the people. Two separate case at two separate times resulted in one man going to prison for life and the other walking free. Did vigilante justice pervade over legally defined borders of criminality?

You will recall the case of Tony Martin (R v Martin [2001] EWCA Crim 2245), the farmer who was found guilty of murder when he shot a 16-year-old intruder and the jury rejected self-defence. I remember the chat show hosts getting very excited: 'Now we can't even defend our own homes!'

As it happens, his conviction was overturned on the grounds of diminished responsibility, but his argument of self-defence was clearly rejected in the Court of Appeal.

The case prompted a massive public debate and resulted in an 'overhaul' of the law on self-defence with s.76 of the Criminal Justice and Immigration Act 2008. I am sure you all know it well: the section which clarified what reasonable force meant by simply restating the law as it always had been! Revolutionary or not, it allowed The Guardian to say 'New self-defence laws back 'have-a-go heroes'.'

Martin, now a free man, has recently been reported as saying that he would do the same again and that it was a mark of civilised society that a man had the right to defend his home. But does a civilised society through the eyes of the jury really think it is OK to kill a burglar with a gun? Is that really a civilised view or a vigilante view?

Peculiar to its own facts

The jury in the recent case of Batchelor (Maidstone Crown Court, 11 March 2009) was no doubt reassured by defence counsel that there had been a change of law since Martin's conviction and the situation now was different; that it was OK to acquit as the victim was an ill-tempered bully and their client was truly in fear. Once again, a householder had picked up a gun and killed an intruder. The prosecutor summed the key issue up well when he said: 'the case enters that very difficult area '“ the degree to which a householder can use violence to defend himself. What is reasonable and what is unreasonable'¦It is for the jury to decide where the line should be drawn...'

Now, that is some responsibility for a juror: one side of the line, the defendant gets his life porridge and the other, he walks a free man.

Of course, we never really know why a jury comes to a certain conclusion; was there truly a forensic dissection of the niceties of the law or was it a more illogical refusal to convict? The difficulty with the Batchelor case was that the defendant said he had fallen as a result of the actions of the burglar and that the gun just went off as he fell backwards. Ultimately, he seemed to be arguing that it was all an accident. Whether that was the deciding issue for the jury, we will never know.

I recall defending a case several years ago when my client was stroking the trigger of a gun when it accidentally went off and shot the victim through the neck. Ultimately it was accepted that it was an accident and my client walked away leaving the victim in his wheelchair, wondering.

So where is the distinction between the decision in Martin and in Batchelor? Was it the introduction of s.93? But hold on, did s.93 actually change the law on self-defence? Maybe it was the passage of time and that a 2009 jury refused to recognise the rights of the burglar over the householder? Or maybe the distinction between the two cases was that Martin had shot the victim in the back causing him to fall the wrong side of the line, rather than the act of Batchelor, an accidental shooting against a notorious villain and bullyboy who was himself fond of an Uzi? The only sure thing is that the jury was clear that he wasn't guilty of murder.

Re-drawing the line

The whole jury system is about the public 'drawing the line', rather than the judges and the lawyers. Maybe the line has been redrawn since Martin's conviction 10 years ago, and the jury has reflected that new position of society that 'being shot and killed is just one of the occupational hazards of being a burglar.' Now, redrawing lines to reflect changes in thinking is not necessarily a bad thing, as long as the line doesn't keep on getting redrawn in every case. It cannot be justice that one person gets off because, somehow, the jury sympathises with the defendant in a particular case, otherwise mitigation becomes the new 'super defence'.

That said, maybe all the jury said was that Batchelor did not deserve to go to prison for life for what he did, raising once again issues around mandatory life sentences for murder. I do think, however, that we need to know more about how juries think; it cannot be justice for the grieving families of victims of crime not to know why there are acquittals. The grief cannot be any less for the family whatever the victim's own history.

The judge in the Batchelor case said 'no one should draw any conclusions of a general kind on this case. The defendant has been acquitted of the charge of murder, each case depends upon its merits.'

Right... well the line's, um, a lot clearer now, but I still can't see it.