THE debate on stand your ground is not new nor is it novel. Our country is listed sixth in the world in terms of crime per capita, and it is only natural that a debate is sparked over what is a proportional response to the current increase in crime.

The Firearms Act was enacted to govern and regulate a citizen’s ability to access a legal firearm through a firearm user’s licence (FUL). Sections 16-22 of the act state the provisions in applying for and receiving an FUL. There are also various safeguards built within the act, for example, the Commissioner may revoke a licence in any case he/she sees fit.

My understanding of the process is that money is not a pre-qualification to acquire an FUL nor is race a prerequisite. The provisions of the act set out a number of requirements and leave the decision solely at the discretion of the Commissioner of Police.

Having acquired a licensed firearm, you are now asked to show reasonable force in the face of certain threats to life. This is what we refer to in law as proportional response. It is a subjective test which is based on a case-by-case basis.

The current position on self-defence can be found in the Privy Council case of Palmer v R. Lord Morris stated therein:

a) A person who is attacked has every right to defend himself (force can be met with force).

b) In defending himself, he may do only what is reasonably necessary.

c) What is reasonably necessary is dependent on the context of the attack. d) The retaliation must not be disproportionate to the attack. In other words, you cannot use a hammer to kill a fly.

e) If the perceived threat is imminent and grave, then it would be necessary to use such force as is reasonable.

f) A person defending himself is not expected to weigh to a nicety of the exact amount of force which is necessary to repel the attack.

g) In ‘a moment of unexpected anguish’, the response must be judged by what the person thought was sufficient and necessary.

Another Privy Council case affirmed the principles that:

1. A person may use any force believed necessary to repel an attack, even where the belief was mistaken.

2. A homeowner is entitled to use a pre-emptive strike to prevent an attack where he perceives a grave and imminent threat to himself, his family and his property (Beckford v R).

The body of law surrounding self-defence is subjective and therefore determined on a case-by-case basis. Oftentimes when a homeowner uses force to repeal an attack or an invasion of his home, he is treated as the criminal by the police. In the event he uses a legal firearm, his FUL may be suspended. In the event he uses force, the use of that force and whether it was proportional is called into question and assessed. This is the uncertainty I believe has to be addressed, and can be addressed through legislation.

The body of legislation surrounding trespass or unlawful entry treats with punishment after an accused is captured, arrested, charged and found guilty. For example, 13 (A) (1) of the Firearms Act states: a person who while he has a firearm with him enters or is in any building or part of a building or any land as a trespasser without reasonable excuse commits an offence and is liable on summary conviction to a fine of thirty thousand dollars and to imprisonment for five years; and (2) the onus of proving reasonable excuse shall be on the accused.

It is in this factual matrix that there is a call for stand your ground legislation as opposed to common law application of the law on self-defence. The call is specifically for legislation to defend yourself in specific circumstances. It does not appear to be a call for the right to bear arms like the USA and not the right to shoot anytime, anywhere.

To me, it appears to be a situation where the common law already incorporates self-defence and, in so doing, stand your ground. However, there is obviously a lack of clear and appropriate application of the current law, mainly by the TTPS (Trinidad and Tobago Police Service).

The call for statute to be implemented seems to be a fair and reasonable request to set out the fundamental principles of the law for the benefit of citizens who must obey the law and the police who must enforce it. It is a call on our elected Government officials and parliamentarians to sit and solidify the law on stand your ground and self-defence. It appears to be a call for Parliament to tell us, the citizens, exactly what is permitted and when. Nothing more.

The legislation ought to provide clear and unambiguous guidelines to citizens about when and where force is appropriate to resist an attack. It is not uncommon in similar legislation to set out therein that a person does not have the right to shoot in public, or shoot without warning. It will also provide the police with much-needed doctrine to guide them on who ought to be charged and what situations will fall short of an offence.

I therefore find it peculiar that the current administration will not seize an opportunity to tackle crime, and the chance to draw a line in the sand for citizens and clarify the law on self-defence. I see no prejudice in circumstances where the current administration has the power to draft and propose a law they are comfortable with. I find it difficult to understand their current approach, and I cannot see how it assists the law-abiding citizen.

The current call for stand your ground legislation is reasonable, justifiable, fair and practicable.

Richard Jaggasar attorney-at-law