escalating violence in our community Become a member of the Sensible Sentencing Trust

Mouseover links or blue arrows above for full page descriptions

Greg Carvell and the Right to Self Defence

We held a protest outside the Auckland District Court on the morning of 6th December, when Greg faced the initial charge of possession of a firearm without lawful proper or sufficient purposes. He elected for a trial by jury. The pre-depositions hearing will be on February 12th.
A petition has been set up, which is available here

Update : the charges were dismissed by the presiding judge on June 6th 2007, Herald story is here. This is a reasonably good outcome, although there is still the issue of the cost and stress that Greg was put through as a result of the charges. Unfortunately, as the charges were dismissed, no legal precedent has been set enabling people to act in self-defence where necessary.

The commonsense comments of one member of our judiciary, Judge Rhys Harrison should also be noted and commended, from story here. "Judge Harrison said he felt a "sense of injustice" that Carvell had been charged. "I am most concerned that Mr Carvell, acting in his own defence and in the defence of another employee, is facing serious criminal charges. There is an element of unfairness in this."

Well said Judge Harrison!

The Right to Fight Back

Ray Carvell, whose son was attacked by a large and imposing machete-wielding robber, spoke at the SSANZ AGM held recently in Auckland. Ray’s son Greg has been charged by Police under Section 45 of the Arms Act with possessing a firearm without lawful reason; this in an F-Category licensed gun shop which has the legal right to load and test-fire any firearms on its premises. The police position appears to be that, because SAI gunshop staff had realized that one day a violent robbery would occur and had prepared for such an eventuality, this one gun, (kept securely in a screened off, non-public area), was available there solely for self-defence. In the eyes of police hierarchy and their legal advisers, that is not a legitimate reason for having a weapon. Police are now putting the word around that every gunshop risks similar prosecution unless they make themselves easier to rob and become safe working environments for violent criminals. Is this what we pay police to do?

This new legal development has huge implications for every single New Zealander who may need to use force to defend themselves or someone else from criminal violence. Should police win this case, then any woman who has a rolling pin or a bread-knife by her bedside and uses it to save her life from a would-be rapist will be guilty of having a weapon without lawful purpose, because said rolling pin or knife was not properly kept in a kitchen context and was clearly for self-defence. Anyone who legally owns a gun and takes it (or indeed any other means of self-defence) along with them “just in case”, could just as easily find themselves in Greg’s shoes if ever confronted by a violent criminal.

So what precisely should we do when faced with such a dangerous and potentially fatal situation? Police interviewed on a recent “Sunday” program had no answers for this, or indeed any other question put to them by the reporter. In a recent UK case where an isolated farmer Tony Martin shot a thug who had repeatedly terrorized and assaulted him in his own home, police were asked the same question; what should someone in this same situation have done? “Shout loudly” was the best the Chief Constable could come up with. However, New Zealanders don’t even have the right to “shout loudly” as we learnt when NZ Police deliberately (and apparently quite legally) blocked the cell phone of a rural Te Puke woman whose husband was being savagely beaten.

Section 48 of the Crimes Act 1961 unambiguously states that; “Everyone is justified in using, in the defence of himself or another, such force as, in the circumstances as he believes them to be, it is reasonable to use”.

Similarly, Police General Instructions to Staff; F61 Use of Firearms by Police states; “Police shall not use firearms except in the following circumstances”, (includes), “To defend themselves or others (Section 48 Crimes Act 1961), if they fear death or grievous bodily harm to themselves or others and they cannot reasonably protect themselves or others, in a less violent manner”. In this respect police rely on exactly the same provision in the law (Section 48) that Greg Carvell did. Since Police incident cars almost always carry firearms around “just in case they’re needed” why is doing exactly the same thing illegal for a member of the public? Surely it is still one law for all?

Police are in print, defending one of their own in a police shooting of a motorist, by saying; “All, (a police officer), needs to be able to say is, when the job came in, I honestly felt I may need a firearm to protect myself or someone else and you will be justified in wearing it”. The spokesperson, a Chief Inspector and Firearms Coordinator added, “It means they don’t have to break the law when they carry their firearm, so long as they can justify their actions later”. So the reality is, if you wear a blue uniform, police hierarchy will defend both your right to have a firearm available to hand and the right to use it for self-defence. But if you don’t wear a blue uniform, they’ll go out of their way to prosecute you. Seems what we now need is a new law of self-defence to specifically protect us both from violent criminals AND from NZ police!

HOW DID SUCH A TRAVESTY COME ABOUT?

In the 1992 petition of Mr. John Blackie and others seeking clearer powers of self-defence, D.B. Kerr, the then Chief Legal Advisor for police stated to the Select Committee that, “The police believe that the jury decisions to date acquitting homeowners in these circumstances have occurred because in each instance, irrespective of the homeowners particular actions, the persons shot were in fact unlawful intruders and the jury would have asked themselves, “What would I have done if I had a gun and a person broke into my home to rape or steal. Police are addressing these concerns by prosecuting such homeowners wherever there is evidence of excess or unnecessary force, thereby establishing a prima facie case”.

So the police tactic ever since has been to prosecute to the max in an attempt to get enough favourable case law to justify their elitist belief that only police should have guns for self-defence. How is it we are the ones always criticised for having an agenda?

Dramatic UK U-Turn in Self-Defence Law

Police National HQ has, as far as we know, never made any real honest effort to educate New Zealanders as to exactly what their self defence rights really are. However they then happily prosecute them over fine points of law, such as in the SAI case. This is no longer the case in the UK. A recent pamphlet titled, “Householders and the Use of Force Against Intruders” was a joint statement from the Crown Prosecution Service and the Association of Chief Police Officers. It was delivered to every letterbox in the UK. It states;

“What is the purpose of this statement? It is a rare and frightening prospect to be confronted by an intruder in your own home. The Crown Prosecution Service and Chief Constables are responding to public concern over the support offered by the law and confusion about householders defending themselves. We want a criminal justice system that reaches fair decisions, has the confidence of law-abiding citizens and encourages them actively to support the police and prosecutors in the fight against crime”.

(SSANZ adds here as background that a recent poll in the UK determined that 75% of Britons believed the use of self-defense against intruders was justified;75% also did NOT believe the present law of “reasonable force” provided them “sufficient protection against prosecution”. What would such a poll reveal of New Zealand?)

The pamphlet continues… “What is reasonable force? Anyone can use reasonable force to protect themselves or others, or to carry out an arrest or to prevent crime. You are not expected to make fine judgments over the level of force you use in the heat of the moment. So long as you do only what you honestly and instinctively believe is necessary in the heat of the moment that would be the strongest evidence of you acting lawfully and in self-defence. This is still the case if you use something to hand as a weapon. As a general rule, the more extreme the circumstances and the fear felt, the more force you can lawfully use in self-defense”.

In strong contrast, NZ Police advice in a relatively recent Arms Code were a bit more curt. If you are in a deadly situation and are tempted to use a firearm in self-defense, their advice was simple; “Don’t”. A clear case of policy being used to override the law.

The UK publication continues…. “In some cases, for instance where the facts are very clear, or where less serious injuries are involved, the investigation will be concluded very quickly, without need for an arrest. In more complicated cases, such as when death or serious injury occurs, more detailed enquiries will be necessary. The Police may need to conduct a forensic examination and/or obtain your account of events. To ensure such cases are dealt with as swiftly and as sympathetically as possible, the Police and CPS will take special measures namely: An experienced investigator will oversee the case; and If it goes as far as CPS considering the evidence, the case will be prioritized to ensure a senior lawyer makes a quick decision. It is a fact that very few householders have ever been prosecuted for actions resulting from the use of force against intruders”.

It adds: “How would the police and the CPS handle the investigation and treat me? In considering these cases Chief Constables and the Director of Public Prosecutions are determined that they will be investigated and reviewed as swiftly and as sympathetically as possible”. It is relevant here to point out that Greg Carvell had to wait 16 nail-biting weeks for police to make a decision to charge him. Even worse, he first learnt of this when the media rang him to ask how he felt about being charged! Police didn’t even have the decency to ring the shop and advise him beforehand. How’s that for “sympathetic”?

We were told recently that the New Zealand Police Commissioner receives some $ 470,000 a year salary. His background includes a stint in 2003-4 working for the UK Police Standards Unit in the UK Home Office, contributing to a major police reform project there. We would be very surprised, therefore, if he is not fully aware of the statements made by his UK counterparts, such as Sir John Stevens, the retiring Metropolitan (London), Police Commissioner and his successor Sir Ian Blair. Both openly supported lifting the hurdle necessary before someone could be prosecuted for using self-defence from the present “reasonable force” to “not grossly disproportionate”. Sir John was quite adamant that this would send a strong message to the underworld and would reduce crime. So SSANZ is in very good company and clearly has a better understanding of the basic principles underpinning law and order than our present highly paid police hierarchy.

Now Ireland too.

We would imagine that NZ Police Commissioner Mr. Howard Broad, would also be fully aware of the Irish situation, where a long-awaited consultation paper by the Irish government-appointed legal watchdog on self-defense has very recently called for the introduction of new laws to safeguard homeowners who are confronted by violent offenders. Eight people have been killed in their homes in Ireland since 2000, four in the last 14 months alone and there are an estimated 500 burglaries carried out each week. The commission said it was vital that homeowners are entitled to clear legal guidance on the amount of force they are allowed to use to defend their property

It said that defence of legitimate defence, incorporating the limited licence to kill, should be set out in comprehensive criminal statute. “Limitations should be specified in clear rules and not swept up in a meaningless legal concept of reasonableness”, said Mr. Finbarr McAuley, a commissioner who co-authored the report. He added, “In a democracy, a citizen is entitled to detailed guidance on the proper limits of what he or she can lawfully do. Self defence is one example of when citizens are entitled to know what legal limits apply”.

The NZ police website states that, “We aim to build safer communities”. It explains that they wish to achieve this by “working in partnership to build safer communities by empowering communities to deal with issues of community safety”. Also that they will “help to support and rehabilitate victims” and “increase people’s personal safety”. It is hard to understand precisely how prosecuting the victim of a machete attack fits in with any of that.

At the SSANZ AGM Ray Carvell made it clear that his son deliberately chose not to use lethal force and as a result, the attacker is still alive today. Also that Greg warned the offender repeatedly, to put the weapon down. Ray said that frontline police who investigated the case were entirely fair and reasonable, but that somewhere down the line their apparent decision not to prosecute was overturned. He fully intends to use the legal powers of discovery to find out on what basis that was justified and by whom. He added that there was nothing his son did that they did not think was entirely legal at that time. In fact, Greg told us that at no time in his career has he ever been told he couldn’t use a firearm in self-defence, and nothing in the current Police Arms Manual mentions such a rule. Nor is it spelt out in law.

The fact that police appear to routinely prosecute virtually every non-police self-defence case in the apparent hope of getting a lucky conviction (and therefore more case law to justify subsequent prosecutions) is a concern and needs proper scrutiny by a fully independent authority –possibly by the law and order select committee. We also suggest Members of Parliament look at British MP Patrick Mercer’s private members bill and enact something similar here. Finally, it is not impossible for Parliament to reduce any future Police budget by whatever amount they use to bring any prosecutions subsequently deemed frivolous or malicious by the courts. We believe the Police Commissioner should have to take personal responsibility for any such prosecutions and that this should be done against a clear set of guidelines that rebalance the present legislation in favour of the person defending themselves or their property.

Effective self defence is not, as police appear to believe, a privilege but the most important and basic human right we have. After all, if you don’t have both the right and the means to protect your own life, or that of your co-worker or a family member, you don’t really have the right to much of anything.

Overwhelming Support

Greg Carvell has received an avalanche of support often from the most unlikely sources. People who have no association with the shooting sports whatsoever have called to offer their support and donations for Greg’s defence fund. More than a thousand letters, phone calls and personal visits have been received not just from customers, but business rivals, serving police officers and crime victims. In particular, the overwhelming support has been from the ordinary public. The law and order lobby group Sensible Sentencing are now backing Greg too. Police legal advisers appear to have very seriously underestimated public support for Greg and his actions. Ultimately, as happened in the UK, that public opinion and support may well see the right of self defence moving back to where it is most effective and where it really belongs- in the hands of ordinary citizens, the usual victims of crime.

Let’s not forget however, that if Greg is found guilty, he could face years in jail. Even if he only pays a fine, the staff in the shop have all been notified they will lose their dealer’s licenses and therefore their livelihoods. Anyone wishing to help can donate to the “Greg Carvells Defence Fund” by contacting any branch of Westpac Bank. The fund account is 03-1527-000 3691-00 0. Or simply go to the SAI website, www.guns.co.nz

Article is sourced from Sporting Shooters Association Of New Zealand Inc November Newsletter