Rupert Lowe won't save your castle Fear bureaucrats, not burglars

In 1762, Nathan Carrington, a government goon, broke into the home of Grub Street hack John Entick, wreaked havoc on his personal belongings, and ran off with his papers. Entick brought a case against him for trespass; Carrington defended himself by saying that he was acting on behalf of His Majesty’s Government. The court sided with Entick. “Our law holds the property of every man so sacred,” declared the Lord Chief Justice, “that no man can set his foot upon his neighbor’s close without his leave.” Pitt the Elder said much the same, in a bit of rhetoric that has reverberated through the centuries (its original context, oddly enough, was a debate over the tax on cider). “The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail — its roof may shake — the wind may blow through it — the storm may enter — the rain may enter — but the King of England cannot enter — all his force dares not cross the threshold of the ruined tenement.” Against the awesome power of the state, the plucky little Englishman had a little fortress of his own. His home, as the saying went, was his castle.

The worry today among Englishmen is less that the King of England will break down their castle’s door, than that he will look on passively when others do. The 21st-century Englishman doesn’t just fear that the state cannot defend his property; he fears that the state will punish him if he has the temerity to defend his property. Here is the essence of one of those celebrated mots du jour, “anarcho-tyranny”: the state is idle, even indulging, when violent criminals commit violent crimes; yet somehow it whirs into action when those crimes are resisted by upstanding, law-abiding citizens.

This is the diagnosis made by Rupert Lowe’s Restore Britain: the country nowadays, we learn from their recent policy paper, is “more coddling to the wicked than it is safe for the virtuous”. The “castle doctrine” used to be as dear to the heart of every freeborn Englishman as those other palladia of liberty, Magna Carta and the jury trial, and the “anarcho-tyranny” which reigns today is proof that it has been chipped away. The paper makes five concrete policy proposals for reversing this catastrophe, all, presumably, oven-ready in the unlikely event of a Restore Britain government. It is more likely that bits of it will be poached by Reform or the Tories in the run-up to the next election. Both parties are probably already sympathetic to the paper’s arguments, and the cause of beefing up the “castle doctrine” had already been taken up by Pierre Poilievre’s Conservative Party of Canada, which even after its defeat remains for them a source of inspiration. Therein lies the paper’s claim to our attention.

Its proposals are as follows. Pepper spray should be made legal, as it is in several other European nations, in order to give ordinary people a fighting chance against their assailants. The jury trial should be preserved for all criminal cases, as is already being urged by the legal establishment, because jurors tend to look more favorably than judges on violence committed in self-defense. The attorney general should be personally required to greenlight prosecutions brought for excessive force in self-defense (presumably it is envisaged here that future attorneys general will be of a higher caliber than Lord Hermer). Scotland’s Hate Crime and Public Order Act, which makes possible the prosecution for speech crimes even if the speech is uttered in the privacy of one’s home, ought to be repealed by Westminster forthwith. All these sound like good ideas. The last, especially, is essential for securing the boundary between public and private life that is at risk of breaking down completely.

The Restore Britain paper also calls, however, for “retaking the English castle” by establishing that householders have no duty of care to trespassers if the trespasser has criminal intent. No duty of care? Any criminal intent? Would it be fine, if some ruffian tries to make off with a £10 Amazon parcel from your front porch, for him to be killed? Some response, even a violent response, might of course be appropriate under such circumstances. But surely we owe people — even trespassers, and even trespassers with criminal intent — some basic duty of common humanity, and some principle of proportionality.

The report purports to set out, much in line with the new party‘s name, a grand project of restoration. It presents the theory that Britain has undergone a “silent regime change”: Blair and his band of Jacobins, an “unrooted ruling elite” of “card-carrying members of the Fabian Society”, razed the English castle to the ground; they “abolish[ed] our inherited folkways and common law traditions through a campaign of stealth”. There is, of course, a knee-jerk tendency on the Right — usually not without reason — to blame New Labour for any perceived deviation from Britain’s constitutional traditions. Here, however, matters are complicated by the fact that one of the report’s examples of an injustice produced by the legal status quo — Ted Newbery, who wounded a burglar with a shotgun, getting sued successfully for civil damages — occurred in 1988. Indeed, the law which Restore Britain wishes to amend was put on the statute books in 1984. If a precious English birthright has been sold for a mess of pottage, it was sold by Margaret Thatcher, not a stealth cadre of Fabians and Blairites.

Has a precious birthright been sold, though, and do we need wholesale legal reform to return us to the days of Entick and the Elder Pitt? The status quo, unusually in this instance, doesn’t seem all that bad. For one thing, home burglary, and other types of crime targeted by this proposal, are in decline. For another, there are already substantial protections for law-abiding individuals who are unlucky enough to end up in these predicaments. In 2018, Richard Osborn-Brooks, a pensioner, was attacked at his home in London by a pair of armed burglars; he stabbed one of them, Henry Vincent, with a kitchen knife. Osborn-Brooks was arrested on suspicion of murder. But he was, in the end, released without charge: the law is clear already that killing in self-defense is not murder.

The cause célèbre, mentioned in the Restore Britain report, is Tony Martin, who in 1999 killed a 16-year-old burglar with an unlicensed shotgun. He became a sort of martyr among the country gentry, around the time the fox hunting debate and foot-and-mouth were already radicalizing them against New Labour. He was convicted of murder, later reduced to manslaughter. Ironically — given the claims made in the report as to the natural sympathy of jurors, endowed with their earthy English common sense, towards Englishmen who defend their castle — it was a jury that convicted Martin of murder, even when the option of a manslaughter conviction was on the table. The reduction in his sentence was made, meanwhile, by three high court judges.

In any event, Martin shot the burglar while he was already fleeing, and there are good reasons why such action should not be legally permissible. In 2008 Munir Hussain was attacked at home by three masked intruders, in what was possibly an “honor” crime avenging some alleged infidelity; he and his family were beaten and tied up. After Hussain freed himself, he and his brother chased one of the intruders, Walid Salem, down the road, and attacked him with a cricket bat. Hussain was found guilty of GBH and given a 30-month prison sentence, which was later reduced on appeal.

Anybody can understand what motivated Hussain in those moments, and anybody can feel some of the concomitant revulsion that he was charged and convicted at all. But on closer inspection one realizes that this has nothing to do with the castle doctrine, or with self-defense, after all; and, indeed, that the whole drama serves as a good advertisement for the law being the way it is. As the judge said, in sentencing Hussain: “The prosecution rightly made it plain that there was no allegation… in respect of the force you used against Salem in defending your own home and family or of the force used by either of you in apprehending Salem.” In other words, the judge was as deferential to the principle that the Englishman’s home is his castle as the people at Restore Britain would want him to be.

So, too, as it happens, was the Director of Public Prosecutions at the time, noted card-carrying Fabian Keir Starmer QC. “There are many cases,” he said, “some involving death, where no prosecutions are brought… We would only ever bring a prosecution where we thought that the degree of force was unreasonable in such a way that the jury would realistically convict.” Everybody is agreed, it appears, that, if Hussein had killed Salem while breaking free, or while otherwise embodying the principle that the Englishman’s home is his castle, no legal action would have been forthcoming. In fact, though, Hussein, when he bashed Salem’s head in with a cricket bat, was embodying a very different principle of justice.

What happened to Salem was, said the judge, a “very violent revenge attack on a defenseless man”: and we do not want to live in a society where revenge attacks can go unpunished, and where the family feud supersedes criminal law. We want to live in a society where all justice is the King’s justice — what could be a more ancient and venerable principle of English law than that? — and for such a society to exist, we recognize that the state must have a monopoly on violence. We need restrictions on the principle of self-defense, because we know that the line between self-defense and vengeance is easily blurred. We need also to drag people — often, indeed, people who acted nobly under horrifying circumstances — over the coals of legal investigation in order to establish, to the satisfaction of the state and of the jury, that they acted out of one set of motivations and not the other.

The Restore Britain proposal, seen in this light, has the air of defeat. It takes the view that the state has already surrendered its monopoly on violence, and that, this being so, the best thing to do is to empower ordinary people to take their security into their own hands. It cannot be extricated from the burgeoning idea that the country is on the precipice of civil war (it is interesting that David Betz, the KCL academic who has gained prominence for propagating this view, appears in the acknowledgements to Restore Britain’s last policy paper). As Joe Gargery says in Great Expectations: “Still a Englishman’s ouse is his Castle, and castles must not be busted, ‘cept when done in war time.” Home burglaries may be down; the status quo may be fine; proportionate self-defense, even to the point of killing an intruder, may already be permitted. But, when war time comes — and perhaps it’s already here — an Englishman’s castle may be busted at any moment, and he must prepare himself accordingly. As such chatter grows louder on the Right, it’s not hard to imagine Reform or the Tories arriving at similar conclusions.

Such a view rests on the idea that the future promises more anarchy than tyranny. In reality, though, we should more fear tyranny than anarchy. The castle is under threat: by overbearing bureaucrats and petty police officers who feel empowered to arrest you for the things you say and do in private. Scotland’s Hate Crime and Public Order Act is, as the authors of the Restore Britain paper recognize, a case in point. So too might we think of the encroachments on privacy that accompanied the lockdown: the ban on visiting second homes, restrictions on whom you were allowed to invite into your house, Matt Hancock’s dictate that only those in an “established relationship” are allowed to have sex. We ought to recover the original meaning of the castle doctrine, in the sense that Pitt the Elder understood it and Entick and Carrington experienced firsthand. Intruders and burglars should know already the risks to which they are exposed if they cross your moat and drawbridge. It’s the King of England, now as ever, who has to be kept at bay.

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