The passing of Tony Martin

Some may remember Tony Martin who, after having has his home invaded by burglars many times found himself facing a murder charge because he discharged a shotgun and one of the criminals was shot dead.

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He was convicted of murder and sentenced to life imprisonment in 1999, which many felt was an unfair result. It looks very much as though that sentiment was also mirrored in circles that mattered as in 2001, at his appeal, the sentence was reduced to five years, one that was commensurate with manslaughter, which in itself is odd, and he was released after serving just three.

Tony Martin was poorly represented. Most solicitors and likely most barristers simply don't understand the English law on self-defence well enough. You might think that odd, but you would be surprised at how useless most of them are.

Going by the number of successful appeals in this area Judges haven't much of a clue either.

Had Tony Martin been properly advised and properly defended he would not have been convicted.

A key argument used was that the offender was running away, but there is little reason to accept that as the reason his back was turned when he was shot. The fact that he received the wound in his back does not mean he was running, how could the act of running be determined from a corpse? Perhaps, he turned to pick up another weapon or to call for one from his accomplice or was seeking just to get out of the line of fire with a view to find some other way to injure Mr Martin. It is a key point of law, and one which some judges get wrong too, that the jury must consider the state of mind of the accused as they imagine it might have been at the time the incident happened and not on the cold light of a courtroom day. Whilst you, today, might think that the only reason the deceased’s back was turned could have been because he was escaping with a view to completely vacating the property and doing no further harm to Martin, that may not have been the understanding that Martin had at the time, and that is critical.

The only way a jury can properly make such a judgement is if the defence effectively places each and every one of them psychologically in that same situation with a comprehensive description of how one feels when threatened by extreme danger.

A competent defence would have embedded into the minds of the jury that in a terrified state, all Martin was concerned with was his safety and his life. He would not have considered that the people who violently broke into his house, who outnumbered him might abandon their attempts to injure him, which would be a prominent concern. After all, he had discovered them and therefore presented a risk to them of identification, capture and imprisonment.

His natural sense of self-preservation, in a moment of extreme stress and fear, would have, as it would for almost anyone, cause him to act irrationally. The pull of a trigger is a momentary action where rational thought is abandoned and replaced by the overwhelming need to protect oneself.

Fight-and-flight is a physical, biological response to fear, where energy is diverted to extremities and muscles that need it urgently, and away from other areas of the body including immune system responses and rational thinking processes. In short, when we are terrified, we act without thinking, sometimes completely freezing, sometimes lashing out at the threat. It is well known that extreme stress is a major cause of illness and for the same reasons. The enormous amount of energy the immune system needs just isn’t available in times of extreme stress in the same way that analytical skills are simply not present either.

When being chased by a lion you will not play your best game of chess.

Contrary to popular belief, the law around self-defence, protection of others (named relatives), protection of property and the prevention of a felony is quite sound, fair and offers lawful protection of people, provided it is well understood. As I've said, unless you have someone who is an expert in this, and there aren't many, your common or garden solicitor or barrister will be as useful as your mate down the pub. The problem is that you think they know what they're doing but they don’t, and largely they don’t care much either. For them it’s just another process to follow and your guilt or otherwise is quite irrelevant.

Certain rules should always be followed. Firstly, if you are involved in an incident that might lead to you being charged, say nothing to the police other than confirming who you are. Even if you think you are in the clear still say nothing until they confirm to you in writing that you aren't going to be charged with anything.

Remember that other parties in the incident will lie their heads off and anything you say that could possibly be misconstrued will be filtered out of context and used against you in court, evidence is what the prosecution present in court, and they’ll only present what they believe is best for their case. Remember they aren’t interested in the truth, only winning. They'll have a record of everything you say but you won't. That puts you at a severe disadvantage. Hence just shut up. You are not obliged to say anything at all and ignore the threat in the caution. Evidence is only that presented at the trial. However, write down everything you can remember about what happened at the time or shortly after, because a record taken then is much more persuasive than a recollection 12 months later. It’s better that you have the record and not the police.

Secondly, never ever plead guilty, regardless of the pressure they’ll put on you. Insist on a jury trial because it's their job to prove it. They like people giving up and will do anything to make you give in. Remember, promises of lower sentences is no match for walking out a free person.

The law on self-defence is there to allow you to use force, even lethal force, if considered reasonable at the time. It should not be abused, but it does allow you the freedom to act reasonably and as explained above there is great leniency to what you can consider reasonable under extremely stressful conditions. It’s just that it’s the responsibility of your defence to know that and make sure the jury knows it.

Many years ago, I was in the process of writing a book on self-defence. Part of the book was to be on the physical aspects of learning defence methods from my many years as a Kyokushinkai Karate instructor, part of it would have been personal testimony of people who had been in that position and importantly part of it was to provide a comprehensive understanding of the law with regard to self-defence.

Regarding that last part, I researched pretty well all the cases that have been used to establish case law, including overseas cases and successful appeals. I was aided by a good friend and quite well-known solicitor who invited me to the law society to research the documents they had there. I spent about a year on understanding this and it is from that I offer the descriptions above. The book, sadly, didn’t progress.