Editorial: Burglars are already bashable

There is little a Conservative Party conference likes so well as to be given permission to bash a burglar; much better than being told to hug a hoodie. The new Justice Secretary's plans to allow householders to use "disproportionate" force against intruders might, therefore, always be expected to prove popular.

There are two problems. The first is that the law already says that disproportionate force is permissible, where homeowners act instinctively and fear for their safety. New legislation changing the language so that only "grossly disproportionate" force is outlawed will, in practice, amount to the same thing as the existing law.

The second difficulty is that, under Chris Grayling's new system, the two cases which particularly outrage the Tory right – that of Tony Martin, who fired a gun at a burglar who was running away, and that of Munir Hussain, who chased an intruder down the road and beat him with a cricket bat – would remain illegal.

The new legislation will, therefore, change little. What will make a difference is the way judges, prosecutors and the police interpret the law. And here, the necessary changes have already been made.

The Crown Prosecution Service updated its guidance in May, making clear that householders can use force if they genuinely believe themselves to be in peril and clarifying that one need not wait to be struck before defending oneself. Similarly, the Lord Chief Justice ruled last month that burgled householders should not be expected to exercise calm, cool judgement, and that if they legally own a gun any intruder must accept the risk of being shot.

Past problems have come from householders from being held by police until the CPS rules out a prosecution. It will still be incumbent upon the police to investigate, although recent signals from judges and prosecutors should discourage unnecessary arrests. With so much already in place, Mr Grayling's initiative looks little more than a conference crowd-pleaser.