Self-defence is a legal doctrine which says that a person may use reasonable force in the defence of himself or another. This defence arises both from common law and the Criminal Law Act 1967. Self-defence is a justification rather than an excuse, that is, the defence says that the person's actions were not a crime at all.
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Discussion
Common law (self defence)
Self-defence in English law is a complete defence to all non-sexual offences involving the unlawful use of force (i.e. anything from battery to murder). In other words, it results in a complete acquittal of the defendant. Generally speaking, the rationale is that the defendant is not guilty of the offence because the force used was not unlawful.
Because the defence results in a complete acquittal, the courts have interpreted the defence in a restrictive way so as to avoid acquitting too easily. For example, the courts will not usually acquit the defendant just because he thought the force used was reasonable -- whether or not the force used was reasonable will be objectively assessed by the jury and not simply according to what the defendant thought at the time.
"A defendant is entitled to use reasonable force to protect himself, others for whom he is responsible and his property. ... It must be reasonable." (Beckford v The Queen [1988] AC 130)
Lord Morris in (Palmer v R [1971] AC 814) stated the following about someone confronted by an intruder or defending himself against attack:
"If there has been an attack so that defence is reasonably necessary, it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his defensive action. If the jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought necessary that would be the most potent evidence that only reasonable defensive action had been taken..."
Reasonable force
Opinions differ as to what constitutes "reasonable force" but, in all cases, the defendant does not have the right to determine this because they would always maintain that they had acted reasonably and thus would never be guilty. The jury, as ordinary members of the community, must decide the amount of force reasonable in the circumstances of the case. It is relevant that the defendant was under pressure from imminent attack and may not have had time to make entirely rational decisions, so the test must balance the objective standard of a reasonable person by attributing some of the subjective knowledge of the defendant, including what he had believed about the circumstances, even if they were mistaken. However, even allowing for mistakes made in a crisis, the amount of force must be proportionate and reasonable given the value of the interests being protected and the harm likely to be caused by use of force. The classic test comes from the Australian case of Palmer v The Queen, on appeal to the Privy Council in 1971:
In R v Lindsay, the defendant, who picked up a sword in self-defence when attacked in his home by three masked intruders armed with loaded handguns, killed one of them by slashing him repeatedly. The prosecution case was that, although he had initially acted in self-defence, he had then lost his self-control and demonstrated a clear intent to kill the armed intruder. The Court of Appeal confirmed an eight-year term of imprisonment. It would not be expected that an ordinary householder who "went too far" when defending against armed intruders would receive such a long sentence.
Beliefs
The modern law on belief is stated in R v Owino:
To gain an acquittal, the defendant must fulfil a number of conditions. The defendant must believe, rightly or wrongly, that the attack is imminent. Lord Griffith said in Beckford v R:
The time factor is important. If there is an opportunity to retreat or to obtain protection from the police, the defendant should do so, thereby demonstrating an intention to avoid being involved in the use of violence. However, the defendant is not obliged to leave a particular location even if forewarned of the arrival of an assailant (see duty to retreat). Furthermore, a defendant does not lose the right to claim self-defence merely because they instigated the confrontation that created the alleged need for self-defence. A person who kills in the course of a quarrel or even crime they started might still act in self-defence if the 'victim' retaliates or counterattacks. In Rashford, the defendant sought out the victim, intending to attack him in revenge for an earlier dispute, but the victim and his friends responded out of proportion to the defendant's aggression. At this point, the defendant had to switch from aggression to defence. The Court of Appeal held that the defendant will only lose the defence by being the aggressor throughout. The question is whether the defendant feared that he was in immediate danger from which he had no other means of escape, and if the violence he used was no more than appeared necessary to preserve his own life or protect himself from serious injury, he would be entitled to rely on self-defence. On the facts, the jury's decision to convict was not unsafe.
R v Williams (Gladstone) (1984) also states reasonable force may still be used lawfully if mistaken. This case covered the use of force for self-defence when used mistakenly but under a genuine and honestly held belief. English law therefore has a more permissive standard than the law of most U.S. states, where the belief has to be honest and also reasonable. However, that more permissive standard is still reconcilable with international human rights law, including the European Convention on Human Rights.
Drink and drugs
The issue of belief is more complicated when the defendant has consumed alcohol or drugs. In R v Letenock, the defendant claimed mistakenly to believe that the victim was about to attack him. The judge directed the jury that his drunkenness was irrelevant unless he was so drunk as to be incapable of knowing what he was doing. The Court of Criminal Appeal quashed his conviction for murder and substituted a verdict of manslaughter. Lord Reading CJ said at 224:
This suggests that the question is whether there was any intelligible basis for the defendant's belief. Hatton held that a defendant who raised the issue of self-defence was not entitled to rely on a mistaken belief induced by voluntary intoxication, regardless of whether the defence was raised against a charge of murder or one of manslaughter. This applied the ratio decidendi in R v O' Grady for murder and R v Majewski for manslaughter. It follows that, if the defendant is voluntarily drunk and kills in what he mistakenly imagines to be self-defence because he imagines (as in Hatton) that the deceased was attacking him with a sword, he has no defence to a charge of murder; but if he claims to be so intoxicated that he is experiencing hallucinations and imagines that he is fighting giant snakes (as in Lipman) then he can be guilty only of manslaughter.
The House of Commons Library compiled a list of people who have acted in self-defence as part of its briefing on the Criminal Law (Amendment) (Householder Protection) Bill 2005.
Statutory provision
Section 3(1) of the Criminal Law Act 1967 provides that:
Section 3(2) states:
This abolished common law rules on what was "reasonable," such as the duty to retreat. Thus, reasonable force can be used in the prevention of any crime or in making an arrest to:
- allow the defendant to defend himself from any form of attack so long as the attack is criminal.
- prevent an attack on another person, e.g. in R v Rose, a young son shot dead his father to protect his mother from a serious assault, believing that this was the only practical way of defending her given his small physical size.
- defend his property against criminal attack in the widest sense, i.e. it can be physical possessions like a watch or credit cards demanded by a mugger (where there would also be physical danger to the owner) or, at the other extreme, possession of land.
The common law decision under R v Griffiths 1988 affirms the common law use of force as "an honestly held belief that you or another, are in imminent danger, then you may use such force as is reasonable and necessary to avert that danger"
The Human Rights Act 1998 incorporates into English law Article 2 Convention for the Protection of Human Rights and Fundamental Freedoms, which defines the right to life as follows:
Section 76 of the Criminal Justice and Immigration Act 2008 codifies English case law on self-defence. However it makes no changes to the law.
What Is Self Defence In Criminal Law Video
Arrest and private citizens
A private citizen does have a power to arrest and, where it is lawfully exercised, may use reasonable force and other reasonable means to effect it. In R v Renouf, the Court of Appeal ruled that s3(1) was available against a charge of reckless driving where the defendant had used his car to chase some people who had assaulted him and had manoeuvred his car to prevent their escape. Lawton LJ said:
Law enforcement by police officers
The use of force to prevent crime including crimes against property should be considered justifiable because of the utility to society, i.e. a police officer using reasonable force to restrain or arrest a criminal or suspect maximizes net utility. But, where the officers make mistakes, the law can be unpredictable. In R v Dadson, a police officer shot and wounded an escaping thief. At the time, any degree of force could be used to arrest a fleeing felon but, when he fired the gun, he did not know who the thief was. He was convicted of intentionally causing grievous bodily harm because the thief was shot and the gun was fired by a man not caring whether the shot was lawful or not. That the thief was later proved to be a felon did not prevent a concurrence between actus reus and mens rea at the instant the shot was fired, i.e. no retrospective justification is allowed. It is noted that the death of Jean Charles de Menezes at the Stockwell tube station, south London, on July 22, 2005 resulted from the use of a then secret shoot-to-kill policy called Operation Kratos. English law has no general defence of superior orders and the conduct of every police officer has to be judged on the facts as they believed them to be.
In R v Pagett, to resist lawful arrest, the defendant held a pregnant girl in front of him as a shield and shot at armed policemen who returned fire as permitted under their rules of engagement, killing the girl. It is a proportionate response to shooting, to shoot back. In balancing the harms, the greater harm to be avoided is a violent suspect firing and killing a police officer or any other bystander. On the issue of whether the defendant caused the victim's death, the Court of Appeal held that the reasonable actions of a third party acting in self-defence and defence of others could not be regarded as a novus actus interveniens because self-defence was a foreseeable consequence of his action and had not broken the chain of causation.
In Beckford v R the defendant police officer was told that a suspect was armed and dangerous. When that man ran out of a house towards him, the defendant shot him because he feared for his own life. The prosecution case was that the victim had been unarmed and thus presented no threat to the defendant. Lord Griffiths approved a model direction to juries, laid down by Lord Lane in R. v Williams:
The defendant therefore, had a defence of self-defence because the killing was not unlawful if, in the circumstances as he perceived them to be, he had used reasonable force to defend himself.
Law enforcement by soldiers
Since the "war on terrorism" began in 2001, the UK has seen a substantial increase in the use of armed police officers. The issue of the extent to which soldiers may be allowed to shoot a suspect in defence of themselves and others has therefore become more relevant to English law, although it has always been highly relevant given the role of the military in the policing of Northern Ireland. In AG for Northern Ireland's Reference, a soldier on patrol in Northern Ireland shot and killed an unarmed man, who ran away when challenged. The trial judge held that the prosecution had failed to prove that the soldier intended to kill or cause serious bodily harm, and that the homicide was justifiable under section 3 of the Criminal Law Act (Northern Ireland) 1967 (identical wording to the English section). The Lords decided that the Judge's ruling was purely one of fact, and therefore declined to answer the legal question of justification. But Lord Diplock commented:
In R v Clegg Lord Lloyd of Berwick said at 497:
One interpretation would be that, when a government deploys highly armed soldiers, equipped and trained to kill, in a civilian area, the law must give the armed forces greater licence to kill than would be granted to any other person including, presumably, a less lethally equipped police officer. In the event, Private Clegg was convicted of murder. He had been on patrol to catch joyriders, and fired three shots at the windscreen of a speeding car as it approached the checkpoint. He fired a fourth shot, killing a passenger, after the car had passed him and was speeding away. The first three shots were fired in self-defence, or in defence of fellow soldiers, but the fourth shot was not a response to imminent danger. The judge dismissed the evidence of bruising to a fellow soldier's leg as a fabrication to suggest injury to that soldier from the car. The Lords observed that army Rules of Engagement given to every soldier on a "yellow card" entitled "[i]nstructions for opening fire in Northern Ireland" could, on a literal reading, justify firing on a car where a person had been injured by it, irrespective of the seriousness of the injury. But, in any event, the Lords said that the card had no legal force because English law does not have a general defence of superior orders. Lord Lloyd of Berwick cited with approval the Australian High Court in A v Hayden (No 2) followed by the Privy Council in Yip Chiu-Cheung v The Queen where the "good" motive of the undercover drug enforcement officer was irrelevant (the accused conspired to take drugs from Hong Kong to Australia - as the officer intended the agreement to be carried out to break a drugs ring, a conspiracy between the two was proved. In A v Hayden, Murphy J. stated:
Defence of property
Reform
The Law Commission's report on Partial Defences to Murder rejects the notion of creating a mitigatory defence to cover the use of excessive force in self-defence, but accepts that the "all or nothing" effect can produce unsatisfactory results in murder cases. For example, a battered woman or abused child using excessive force because they are physically at a disadvantage and not under imminent attack, would be denied a defence. Further, an occupant not sure if violence to defend their property against invasion is reasonable, may feel forced to do nothing. It was always possible the same set of facts could be interpreted as either self-defence or provocation where there was a loss of control resulting in death. Thus, the Commission recommends a redefinition of provocation to cover situations where a person acts lethally out of fear. This reflects the present view of psychiatrists that most people act in violent situations with a combination of fear and anger in their minds, and to separate the two emotions is not legally constructive.
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