When have a go means death

Nick Baungartner, shocked, bruised, cut and with his wrist in plaster, is at home today recovering from a violent struggle with a man 33 years his junior who he alleges broke into his home at the weekend.

But the Hungarian-born 54-year-old's physical and mental injuries may be the least of his worries, for Mr Baungartner may soon find himself in court in connection with the death of Robert Ingham, the intruder he encountered in the kitchen of his four-bedroomed Derbyshire home. Mr Baungartner has described as "terrifying" the desperate struggle which ensued and spilled over into his garden. Mr Ingham died later.

The Crown Prosecution Service has yet to decide if Mr Baungartner will be charged in connection with Mr Ingham's death. But the popular press has already added the tennis court contractor to its list of have-a-go heroes whose fighting attitude and use of force - sometimes considerable - to defend property, family and self it commends and champions.

At a time when crime dominates the political agenda and the government and police response to it is pilloried as pathetically inadequate, the Baungartners of this world seem to inspire a beleaguered public, proving that the law-abiding citizen can stand up against the ever-growing army of law-breakers. That they might be charged for their actions in that defence outrages many. With the fear of crime perhaps at its highest level, everyone can imagine the terror, panic and perhaps fury of an encounter with a criminal or intruder who might easily prove violent.

So three days after his break-in Mr Baungartner is already a member of a small but celebrated club of have-a-goers which includes Hugh Williamson, 60, who in August 1994 stabbed a robber in the neck; Tony Evans, 66, who shot an intruder following eight burglaries at his Kent home, and 84-year- old Ted Newbery, of Ilkeston, Derbyshire who was ordered to pay pounds 4,000 damages after firing a 12-bore shotgun at a man who broke into his allotment.

The latest case once again highlights the difficulty in interpreting the law which entitles a citizen to use "reasonable force" to defend himself, others and his property. Four months ago Michael Howard, the Home Secretary, announced that the CPS would consider introducing new charging guidelines for police officers dealing with such cases. After a spate of have-a-go cases Mr Howard argued that the "victims" in such cases should be treated with more sympathy by the police and criminal justice system. "The impression is sometimes given that the victim is treated more harshly than the villain," he insisted.

Yesterday Brian Mackenzie, president of the Police Superintendents' Association, articulated the popular public point of view in a strong condemnation of the CPS and police's readiness to prosecute and charge victims who fight back. He argues that something is wrong when "a pensioner who tackles two heroin addicts burgling his home finds himself complained about by the burglar and arrested for assault."

He says that the law on "reasonable force" is fine as it stands but supports Mr Howard's call for guidelines. With clearer guidance he believes the police and CPS may be less ready to instigate prosecution when a burglar or criminal is injured or even killed by his victim. Redress to the courts in such circumstances would only take place in the rarest cases. He insists it is not a matter of civil liberties or a question of citizens taking the law into their own hands but a matter of justice and common sense.

"If you tell the man in the street that someone broke into someone's house and was assaulted by the homeowner they are going to say it serves him right," he said. " In my view possible attack is the occupational hazard for the burglar. He is liable to be clobbered if he is caught. It is his own misfortune. The same rule applies when someone attacks a police officer.

"Only in exceptional cases - say where a gun was used but not necessarily when someone dies as the result of a struggle - should there be a prosecution. The fact is that juries are very reluctant to convict in these cases. We shouldn't be arresting victims, rushing them down the station and charging them. As officers we should be applying the test of what the man in the street would think reasonable."

Such views worry Robert Roscoe, chairman of the Law Society's criminal law committee, who warns they could create a "vigilante culture". He agrees that the law as it stands citing the use of "reasonable force" does not need to be amended. But he also insists that new guidelines are not needed and warns that if they are introduced it would be dangerous to leave decisions to police officers about whether to charge victims when they are accused of inflicting serious injury or causing death. The CPS should always take the decision in such cases.

"There is no difficulty the way things stand," he said. "When it comes to what constitutes reasonable force every case is different. I don't think that anybody would expect somebody defending lives and property to judge the legal niceties of the situation. But it is for a jury to decide - not the police - what is reasonable.

"The duty of the police is to make as full an inquiry as possible. The danger of course is that you could have someone using too much force and then pretending they did so because their lives were at risk." Mr Roscoe warns that a face value acceptance of the level of force employed by the victim could create a "murderer's charter". Any relaxation in the examination of accusations against the victim could open the way to abuse - as in the film Sleuth, for example, a jealous husband could set up his wife's lover as a burglar entering their home, then murder him in the certainty that the case would not be properly investigated and the prevailing wisdom would be that the criminal got what he deserved.

"It is galling when your car is vandalised or your home is burgled and you suffer long-term trauma but being attacked by someone when you cross their field is just as bad," he warns.

Members of the judiciary have expressed similar sympathy with public hostility to the notion of the victim being in any way at fault in the way he responds to attack. Juries seldom convict and jail sentences are unpopular with the public.

But judges warn that the public cannot be allowed to take the law into its own hands. Mr Justice Rougier, the judge who ordered allotment owner Ted Newbery to pay damages, defended his decision with vigour. Those who maintained that owner-occupiers were entitled to shoot a burglar whatever the circumstances should ask themselves where such a principle would take society, he said. "Is the farmer entitled to shoot with impunity the boy scrumping apples in his orchard?"

Philip Leach, legal officer with civil liberties organisation Liberty, said: "The public should be entitled to use reasonable force to defend themselves but no more than that. They cannot take the law into their own hands. People who break the law are nevertheless entitled to the rule of law."

Yesterday, Mr Baungartner's local MP Angela Knight was quick to defend his actions. She was sad someone had died but added: "Self defence is a natural reaction. We want to protect our families and possessions ... I think the issue had to be looked at from the angle of self-defence."

Helen Peggs, spokesperson for the national office of Victim Support, said: "If you go down the stairs at night and meet a burglar you don't hang around wondering what constitutes reasonable force. You might run away, you might be calm enough to call the police and you might have a go. But until you are there you don't know how you will react. Many of those who have a go would never have expected it of themselves but it's instinctive once the adrenalin starts to flow. I have my doubts about people who have weapons ready or go around armed, but for most people in these situations it's very difficult to know how you will behave. Lots of people describe burglary as a kind of rape. It's a violation. They feel their space is invaded. It makes them feel physically attacked. It's very territorial."

But the situation is confused when the victim uses force on the attacker. Ms Peggs says that some cases are prosecuted in certain parts of the country while charges are never brought in others. "It is very, very complicated and they are not getting it right yet. The CPS and police have to work out what is a reasonable and consistent approach."

The ones that didn't get away - cases of victim turned defendant

May 1987

Eric Butler, 56, a retired clerk, had a charge of malicious wounding withdrawn by the Crown Prosecution Service after he stabbed a mugger on the London Underground with a swordstick. However, he was later convicted of carrying an offensive weapon. He was fined pounds 200, given a 28-day suspended sentence and had the swordstick confiscated. The sentence and forfeiture order were quashed on appeal the following year.

May 1991

Kenneth Carrera, a disabled middle-aged man, was charged with murder after he was attacked with a knife by a drunken, drugged mugger but succeeded in turning the weapon on his assailant. His counsel said of the accused: "All he wanted to do was to walk the streets peacefully, a basic human right to which we are all entitled." The jury agreed: Carrera was acquitted, though not before he had spent eight months in Brixton prison.

June 1993

Duncan Bond, 35, and Mark Chapman, 29, were sentenced to five years in jail after being convicted of kidnapping 16-year-old Gavin Last in Harleston, Norfolk, whom they suspected was involved in a robbery of Bond's father's workshop. The sentences were cut to six months on appeal, but the Lord Chief Justice stressed that "civilised society cannot tolerate individuals taking the law into their own hands".

June 1993

Tony Evans, 66, shot an intruder with a small-bore shotgun after eight burglaries and the loss of property worth pounds 50,000 from his home in Pluckley, Kent. The Crown Prosecution Service recognised that few juries would convict a man in such circumstances, and Sir Nicholas Lyell, the attorney-general, ruled that Evans acted in self-defence.

August 1994

Hugh Williamson, 60, a retired businessman, disturbed a burglar at his home in Otford, Kent, and inflicted a deep wound on his neck with a kitchen knife. The case was studied by police for two months; Williamson was eventually told that he would not face charges.

December 1994

Ted Newbery, aged 82, of Ilkeston, Derbyshire, was ordered to pay pounds 4,033 in damages after he fired a 12-bore shotgun at Mark Revill, who had been trying to break into his garden shed. Newbery was acquitted of a charge of unlawful wounding, but Revill then launched civil proceedings, claiming damages for assault. Newbery's appeal against the award was dismissed.