By Robert Verkaik, Legal Affairs
Correspondent
05 May 2003
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.
|