Most TCW readers will have welcomed the decision to bring no charges against the Hither Green pensioner who, cornered in his kitchen by a thug armed with a screwdriver, somehow managed to kill the intruder. Most will also have few good words for the police who locked him up for two nights, leaving his disabled wife without care, or for the hapless CPS, which took a day or more to reach the sensible decision that no proceedings were necessary.
There is no doubt that householders should not have the prospect of this kind of treatment held over them. Even missing out the obvious US comparison, police and prosecutors elsewhere in Europe are far more blasé: it is difficult to imagine a gendarme or an agente giving the homesteader anything other than a discreet thumbs-up in the majority of such cases. But for once, our police and prosecutors are, one suspects, the wrong target. So also, perhaps surprisingly, is the government, which in 2013 actually tried to legislate to stop this happening by supplementing the right to use reasonable force with a provision protecting householders whose acts were not ‘grossly disproportionate’.
The real villain of the piece you may already have guessed. It’s the European Convention on Human Rights, regarded as little short of Holy Writ by the great and the good, who as ever regard it as the highest virtue to insist that every jot and tittle of it be observed. It is this document that forms a large part of the training of every policeman (no argument allowed), and sits metaphorically on the shoulder of every CPS functionary from morning to night. In the present case there is little doubt that, rather like Ed Miliband dancing to the puppet strings of Nicola Sturgeon in the 2015 Tory general election poster, both police and CPS were doing exactly what they were told by the human rights lawyers.
The problem is the innocent-sounding Article 2, stating that ‘Everyone’s right to life shall be protected by law’: a provision which, though ostensibly aimed at the state, has for some time been construed as effectively requiring the state to criminalise all killing by private people within very narrow limits (force ‘no more than absolutely necessary’ to prevent unlawful violence). The difficulty with this article arises in two forms.
The first is that it has, to all intents and purposes, been successfully invoked to stymie the government’s 2013 reforms. In 2015, following a thief’s death in a householder’s arm-lock and the CPS’s subsequent refusal to prosecute relying on the new law, the thief’s family sued, arguing that the reformed law had infringed his right to life. They failed, but only because the court construed the new law narrowly as still requiring force to be reasonable. Had the reform actually given cast-iron protection to householders not guilty of ‘grossly disproportionate’acts, as it was fairly clearly intended to do, the court said – of course with the gleeful approbation of academic and bien-pensant commentators – that it would have infringed Article 2. No wonder the CPS took their time to be absolutely certain that they would not face a similar challenge from the family of the scapegrace of Hither Green.
All right, but what about the police’s clapping the 78-year-old householder in the cells for two nights? Surely this could have been avoided, and a convenient chat over a cup of tea substituted. He was, after all, hardly likely to abscond or re-offend. Er . . . not so fast. Article 2, you see, goes further: it requires close and vigorous investigation of deaths. Any attempt to set up a standard under which alleged victims got more favourable treatment, and less close grilling, than alleged burglars where a death was caused might equally have opened up a potential human rights challenge. Rather like Tom Lehrer’s US Army, which ‘carried the American democratic ideal to its logical conclusion, in the sense that not only do they prohibit discrimination on the grounds of race, creed, and colour, but also on the grounds of ability’, it seems that the police are now actively encouraged, courtesy of equality and human rights thinking, to avoid any discrimination on grounds of decency or respectability in hauling people in for questioning.
We have dealt before in a number of other connections (for example, here and here) with the malign influence of the ECHR. This episode is one more demonstration of the pressing need to get rid of the whole thing (it requires only six months’ notice to denounce) and replace it with something more reflecting our own concerns rather than those of a distant Euro-elite. Concerning the facts of the present case, there is some doubt whether a Bill of Rights-style document ought to go outside controlling the state and regulate the actions of private parties at all: the issues are, after all, quite different. But entirely separately from that, this is one more in a long litany of egregious human rights overreaches. Human rights are special rights. Infringements ought to amount to matters so clear-cut that no state deserves to be called civilised if it commits them. Can anyone honestly say this of a decision by an elected Parliament to give automatic protection to a householder and burglary victim who uses disproportionate, but not grossly disproportionate, force against the burglar? If any system of rights protection seriously takes this view, this alone indicates that it is high time we traded it in for a better model.