Friday, 12 September 2014

A Policy A Day: Castle Doctrine

In the lead-up to the election, we are going to examine one policy per (working) day. We've selected policies to be as balanced as possible across a range of policy areas and across the political parties. The idea is to explain the background, analyse the policy to investigate the pros and cons, and give a verdict on the policy at the end. Inevitably, some opinion will make its way in and we make no apology for that - after all, we're voters too. Also, I say 'we' because this series will feature some guest posts from other young people, to share their thoughts and ideas as well. A list of all the articles is available hereEnjoy!

Today's post is by Bhenjamin Goodsir.


Today’s policy is the ‘Castle Doctrine’. This policy has taken many different forms but the basic idea is that a person’s house is their castle and they should be able to protect themselves and their property however they see fit. This is one of NZ First’s Law and Order policies and is also supported by Colin Craig and the Conservatives. Both parties say the main reason behind the policy is that even if it isn’t illegal to defend yourself in your own home, under the status quo those who do defend themselves often have to go through a trial before being found not guilty. Trial, they argue, is mentally taxing and expensive. Both parties seek to widen the scope of the self-defence and defence of property provisions so that people who defend their homes can avoid being charged and the costs associated with the trial.

The problem is that neither party is particularly clear on how the policy might actually work. Moreover, when it comes to the criminal law, many people are familiar with the concept of ‘self defence’ but less familiar with how it actually works in a trial. First then, I’m going to take a look at what the law is currently, then at how the parties a proposing to change it. Finally I’ll wrap up with what that all means practically.

Self-Defence in New Zealand
Section 48 of the Crimes Act defines Self Defence. When self-defence is raised, the court will consider the following:
Given the circumstances as the defendant believed them to be:
- Was the defendant acting in self-defence (or in defence of someone else)?
This is an important requirement. The defendant must have believed they were acting to protect themselves or someone else from imminent danger. It is not enough to simply be protecting your property.
- Was this exercise of self-defence reasonable?

The use of force in self-defence should be proportional to the danger faced. What is reasonable in the circumstances will be a question for the jury but it does not exclude the use of weapons and even firearms in self-defence.

If the answer to both of these questions is yes then we say that the defendant was justified in their actions and they are not held to be criminally liable for their actions. It is important to remember that these questions are considered based on what the defendant believed the situation to be, not what it actually was.

But what if the defendant doesn’t believe that they are in imminent danger? What if they are simply looking to defend their property?

Defence of Property
Under section 52 a person may use reasonable force to resist moveable property being taken by a trespasser so long as you don’t strike them or cause them bodily harm. Similarly, under section 55 a person my use necessary force to prevent someone else from breaking and entering, including after they have actually entered the house. ‘Necessary’ force here, is a tighter standard than ‘reasonable’ force. The distinctions between these defences and their effects are all a little bit difficult to understand, so let’s look at some examples.

R v Oates
In this case, 2 men wearing balaclavas and carrying shotguns entered Mr Oates’ house in the middle of the night. While his wife was being seriously assaulted, Mr Oates was able to escape and retrieve his gun. It was only after he shot one of the intruders that the assault stopped. He was charged with murder – the facts were a little more complicated but the prosecution basically argued that Mr Oates shot the intruder out of anger rather than self defence. The jury disagreed and found that he was acting in self-defence and that his action was reasonable.

Even if the intruders hadn’t been attacking Mr Oates’ wife it probably would have been enough that they were wearing balaclavas and carrying shotguns. A pre-emptive strike can still be reasonable. For NZ First and the Conservatives the issue in this case is not so much that Mr Oates was found not-guilty but rather that he was even charged in the first place.
Let’s look at another example

R v Frew
Mr Frew was moving into a new house and shifted most of his stuff in – he intended to move in with his family the next day. When he arrived the next morning he discovered that a lot of it had been stolen including a tent. After reporting the robbery the police warned Mr Frew that the thieves might return given they had forgotten to take the tent poles. Mr Frew arranged for his family to stay elsewhere for the evening while he slept at his new house with his gun. When the thief returned during the night, Mr Frew promptly shot him in the leg without warning and called the police. After the shooting Mr Frew was interviewed by the police:

P[olice]: What was your intention?
F[rew]: My intention was to shoot one and wait till the police arrived […]
P: So right from the outset your intentions were to shoot an offender?
F: Yeah, I'm no hero, I wasn't going to get up and grab one, he got no warning, just shot.
P: You shot him in the legs deliberately?
F: Yeah, there is no mistaking that, I could have shot him in a big part of his body but I deliberately shot him in the legs. From the time I heard him coming in the window I had the gun at leg height.
[1993] 2 NZLR 731

Mr Frew was found guilty of Wounding with Intent to Injure. He could not claim self-defence because he had no belief that he was in any personal danger. He tried to rely on the section 55 defence – that he had used necessary force – to prevent the breaking and entering. The jury disagreed.
It might have been open to the jury to conclude that shooting the thief in the leg was ‘reasonable’ (the legal standard for self-defence) but the section 55 standard was only what was 'necessary’Proponents of the ‘castle doctrine’ would very likely argue that Mr Frew was more than justified in shooting the intruder.

NZ First’s Policy
On their website NZ First describes their Castle Doctrine as ‘empowering New Zealanders to defend themselves and protect their homes and families with all necessary force.’ You’ll probably notice that this doesn’t really change the current law at all. A New Zealand Herald article on Richard Prosser (NZ First MP) suggests that homeowners should be able to use "’any firearm that is lawfully available to that person’ to defend themselves.” Again, this isn’t specifically excluded by the current self-defence provision. I would infer that they want to make it clear that to shoot someone in self-defence in your home is a special case that will be considered reasonable. This wouldn’t have helped Mr Frew though, who, as we saw, wasn’t acting in self-defence.

Mr Prosser also mentions they would base their law on the Irish Castle Doctrine law that was instituted in 2011. If a similar law were instituted in New Zealand it would do 3 things:

1. Allow a person to use ‘reasonable’ force to protect their house and property (rather than just necessary force).
2. Confirm that there is no duty to retreat (also known as a ‘Stand your ground’ law)
3. Confirm that a use of force shall not exclude the use of force causing death.

Essentially this would change the section 55 standard from ‘necessary force’ to reasonable ‘reasonable force’. If such a law had been in place for Mr Frew, would he have still been found guilty? Maybe, maybe not. It would still have been a question for the jury which means that he still would have gone to trial.

The Conservative Party’s Policy
On his ‘Ask Colin’ section, Mr Craig states that he supports a ‘Castle Doctrine’ law but the policy isn’t really fleshed out anywhere on their current site. At the last election however, the Conservatives had quite a detailed policy:
The [Conservative] Party supports the "castle" doctrine under which persons who invade others' homes or property have few rights, and law abiding citizens can – within some limits – do whatever they deem necessary to defend themselves or their property. Only in the rarest and most extreme circumstances should law abiding citizens find themselves facing charges arising out of situations where they have protected themselves against criminals threatening either themselves or their property. Those "rare and extreme circumstances" should be clearly stated and enshrined in legislation.

I assume that if they were to support such a policy in parliament in the future it might look something like this. This statement of the castle doctrine is, in my opinion, more extreme than NZ First’s and much more in line with similar laws in the United States. Although they haven’t stated what the ‘certain limits’ are if they are wide enough to let a person shoot an intruder then there won’t be much that is prohibited. This policy, or one like it, would go a long way towards preventing home owners from being charged for attacking intruders on their property. The question is, at what cost?

The role of the Judicial System
Underlying this whole discussion is the NZ Bill of Rights Act. Section 8 is the right not to be deprived of life. If the defence of property provisions swing too far in favour of the homeowner then we start to see a real danger of infringing on people’s rights – even where these people are committing crimes. Ultimately the role of the court and the jury system is to make these sorts of judgement calls on what, in the circumstances, is reasonable or necessary. There are real problems with giving homeowners carte blanche to act as they ‘deem necessary’ – the reason we have our jury system is to decide on questions such as this. The advantage of the current system is that the verdict is very much based on the specific facts of the case. If a ‘Castle Doctrine’ law were brought in, there is a real concern that in order to effectively prevent people from being charged in cases such as the examples we discussed, it would have to be written so widely that even people who probably should go to prison would be able to use the law to escape conviction.

We should also be asking ourselves whether this is even something we want in New Zealand. Should we be encouraging more widespread use of firearms for protection? We only need to look at the statistics in the USA to see that higher levels of gun ownership don’t correlate with lower levels of crime. Even if you accept that criminals who are shot or killed under this law ‘get what’s coming to them’ the reality is that by encouraging people to defend their houses with violence or lethal force, it is inevitable that innocent people will be hurt as well. Take for example, the man who shot and killed a policeofficer executing a no-knock search warrant (and was found not guilty for murder), or the grandmother who shot her 7 year-old grandson when she mistook him for a burglar.

Verdict: This policy plays on the public’s ignorance of the current law. The rhetoric of ‘get tough on crime’ politics is always very popular with voters, and particularly with the target demographic of NZ First and the Conservatives. I think that the current law is about right – the current defence provisions allow juries to make reasoned decisions based on the facts of each case. I think there is a real risk of innocent people being hurt and I’m not convinced that encouraging more widespread use of firearms will, in fact lead to a safer society. In short, it’s a no from me.

UPDATE (12/09/14 2:05PM)
Act Party Policy
Today’s post is apparently well timed because ACT has chosen today to release their ‘Right to Defence of Person andProperty’ policy. This seeks to address many of the same issues raised by NZ First and the Conservatives. ACT proposes the following law change:
“The onus of proof will be on the prosecutor to prove the accused did not believe, in their own mind, that they had to take whatever action they did to defend themselves or their property.”

My reading of this is that essentially it would change the legal test from an objective standard to a subjective standard. So instead of the jury deciding what was reasonable or necessary in the circumstances they would have to decide what the defendant thought was reasonable or necessary in the circumstances. The bit about the burden of proof isn’t any different to our current law. In general, this is out of step with the rest of the law where objective standards are used to provide certainty and consistency.

Additionally, ACT’s law change would seem to have the same standard of defence whether you a protecting yourself or your property. For me this is a bit concerning. I am not convinced that it should ever be reasonable to attack someone in order to protect, say, a teapot. I am reminded of the very controversial case where Bruce Emery stabbed and killed atagger after discovering that he had tagged all over his fence. Given that under the current law Mr Emery was convicted of manslaughter, a provision such as this might have been enough to allow him to escape without a conviction. Many may disagree but I think that would have been a grossly unjust.

In addition to changing the legal test ACT also proposes three other measures to protect home owners in cases such as these:
The decision to prosecute a home owner in cases such as these must be reviewed by the Solicitor-General based on a ‘public interest’ test.
It’s hard to analyse this without know the details of the suggested test. The biggest issue I see with this idea is that it would very likely open new avenues of appeal. The Solicitor-General’s decision would very likely be open to judicial review (Where the courts decide if the decision was made correctly) and this could extend the time it took for a case to get to trial and make any decision more uncertain.
- Where it is at least arguable that a person was acting in self-defence they will be entitled to legal-aid; and
- Where a person is acquitted of charges because they have successfully argued self-defence they will be entitled to full compensation from the crown.

These last two elements of the policy deal with the central issue that all 3 parties are trying to solve. There are certainly cases where people who have acted in legitimate self-defence and have nevertheless been put on trial. In law defences are categorised  as either ‘excuses’ or ‘justifications’. Self-defence is categorised as a justification where we say that they are not-guilty AND their actions were, in fact, justified. In cases such as these I see no problem with ensuring that a person who acted in self-defence does not suffer financially. How much this policy would cost the government is another question and unfortunately not one I have time to investigate.

Updated verdict: Of all the ‘Castle doctrine’ policies that I’ve considered, ACT’s is probably the most reasonable. I still don’t think there is any need to change the defence provisions and the change proposed by ACT is too uncertain I think. Covering the cost of people who are acquitted in such cases is a reasonable solution to the central issue here and there is no reason why this aspect of the policy couldn’t be implemented on its own.

Bhenjamin [Editor's Note: not a typo of his name] is a 3rd year student studying a conjoint degree in Law and a Bachelors of Arts in Criminology and French. He is politically neutral with no affiliations to political parties. He’s interested in public policy and the process of turning ideas into law but also cooking and dogs.

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