Government lawyers say burglars 'need protection' [in Britain]
The Independent (UK) | 05 May 2003 | By Robert Verkaik, Legal Affairs Correspondent
Government lawyers trying to keep the Norfolk farmer Tony Martin behind bars will tell a High Court judge tomorrow that burglars are members of the public who must be protected from violent householders.
The case could help hundreds of criminals bring claims for damages for injury suffered while committing offences.
In legal papers seen by The Independent, Home Office lawyers dispute Mr Martin's contention that he poses no risk to the public because he only represents a threat to burglars and other criminals who trespass on his property.
They say: "The suggestion ... that the Parole Board was not required to assess the risk posed by Mr Martin to future burglars or intruders (on the grounds that they do not form part of the public at large) is remarkable."
"It cannot possibly be suggested that members of the public cease to be so whilst committing criminal offences, and whilst society naturally condemns, and punishes such persons judicially, it can not possibly condone their (unlawful) murder or injury."
A recent report by the Law Commission, which advises ministers on proposed changes to the law, argued that judges had been too willing to reject criminals' claims for damages. The commission insisted that "even a criminal who has committed a serious offence" must be allowed to exercise their civil rights. In recent years, the courts have accepted a number of arguments to defeat actions brought by criminals on the basis of the principle that "crime should not pay".
Legal experts say the case for treating criminals as ordinary litigants will have been boosted by the arguments raised by the Home Office lawyers in Martin's case.
But Oliver Letwin, the shadow Home Secretary, said the rights of the victim needed to be addressed. "There certainly seems to be an imbalance [between the householder and burglar] made clear by the fact that burglars can sue for damage done to them in the course of committing a crime. We've put forward an amendment to the Criminal Justice Bill which would rebalance the law in the appropriate way."
Norman Brennan, a serving police officer and the director of the Victims of Crime Trust, said that, by committing crime, burglars gave up "any rights". He added: "The public in this country are sick and tired of all these organisations pandering to the offender. Burglary is a despicable offence." He said: "sensible and reasonable" members of the public knew that, when criminal committed crime, they were putting themselves at risk.
Martin, 59, wants the court to order the Parole Board to reconsider its decision that he is not a suitable prisoner for early release. He was sentenced to life imprisonment for murdering 16-year-old Fred Barras at his Norfolk farmhouse, Bleak House, in August 1999 but his conviction was later reduced to manslaughter by the Court of Appeal when he was given a five-year prison sentence.
A second burglar shot by Martin, Brendan Fearon, was granted legal aid to sue him for damages. Fearon's claim was thrown out by Nottingham County Court last month.
Martin's barristers, Bitu Bhalla and Tony Baldry, of One Essex Court chambers in London, will tell the judge tomorrow that their client's application "concerns the liberty of the citizen which is a matter of paramount concern in English law". They will tell Mr Justice Kay that the Parole Board failed to acknowledge the true extent of Martin's remorse or properly consider the risk he posed to the public.
In Martin's application for judicial review, his lawyers argue: "The risk that has to be assessed in Mr Martin's case is any risk of the use of excessive force when he is either burgled or attacked in his home."
Martin's solicitor, James Saunders, says that this risk is significantly diminished since he no longer owns a gun and has agreed to fit an air-raid siren to his home that "could be heard all over the Fens".
The court will decide tomorrow whether to grant Martin a full review hearing. He is due for release at the end of July.
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