What Can I Do to Defend My Property?

It is widely thought that the use of force in defending one’s property is not permitted, but this is not in fact the case. There is a right under common law to defend one’s property when there is an unlawful or criminal threat to it.

However, there have been many cases brought against property owners in which it has been alleged that they used excessive force against trespassers. What are the main issues?

The court will first ask the question whether the force used was reasonable to defend property from an unlawful or criminal act. If the force used was not reasonable, then there is no defence. If the force used was reasonable, the court will consider whether the defendant honestly believed that the circumstances warranted the action and whether the action taken was necessary and proportionate. For example, if other measures could have been taken which would have rendered the use of force unnecessary, or there was a delay before the action was taken, the defence will normally be lost.

In a recent case, protesters who chained themselves to agricultural machinery, in order to prevent the planting of genetically modified crops, were charged with aggravated trespass. They claimed that they had acted in defence of property by taking this action (i.e. reversing the normal situation in which it is the property owner who pleads that the force they have used was reasonable). In court, their argument was that genetically modified crops would harm the local environment and nearby crops and animals. They were successful in the first instance, but the prosecution was successful in obtaining an order to convict in the Divisional Court.