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Assaults - defences - the use of force
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Self-defence and prevention of crime are not strictly defences, but justification for the use of force

Important information

Self-defence and prevention of crime are not really defences but can justify the actions of the accused.  There is no denial that the accused acted with the necessary mens rea but that he was justified in so doing.

 

The force used can be against a person or damage to property.

If D claims justified use of force, the prosecution has to disprove this beyond reasonable doubt.

Beckford v R [1988]
Lord Griffiths

"...self defence, if raised as an issue in a criminal trial, must be disproved by the prosecution."

The use of force is justified in self-defence or prevention of crime

Self-defence

 

Prevention of crime

Often referred to as...

  • Private defence (Self-defence)

  • Public defence (Prevention of crime).

Private defence (common law) e.g. self-defence

The private defences are concerned with using reasonable force in self-defence, defence of others, defence of property, ejecting trespassers.

 

Public defence (statute based) e.g. prevention of crime

The public defences are concerned with using reasonable force in the prevention of crime or to effect a lawful arrest.

There is some overlap

Force can be justified in self-defence (defending yourself from as assault) and preventing a crime (the assault) in R v Cousins (1982) CA both defences were available to an accused on the same facts.

 

There are circumstances where a person cannot rely on the statutory defence.  For example, where the person against whom force is to be used is below the age of criminal responsibility, is insane or is acting in a state of automatism and would not be capable in law of committing a crime. In these circumstances, since no crime will have been committed, the person will be able to rely only on the common law defence. Even then the use of force must be to resist unlawful force, and persons acting under a disability such as being under 10 cannot commit an unlawful act.

In both the amount of force used must be reasonable in all the circumstances.

 

The public defence

Statutory provisions

If is necessary to prevent a crime by causing damage or assaulting an attacker in self-defence, this is allowed by s3 Criminal Law Act 1967.

 

This is what is referred to as public defence. Preventing a crime is protecting the public, even if you are defending yourself.

 

The force used must be reasonable in the circumstances. What is reasonable is a decision for the jury.

 

s. 3(1) Criminal Law Act 1967

" A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or in assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large".

Article 2 of the Convention on Human Rights concerns the most fundamental right of all: the right to life. The sanctity of life is a principle which finds expression in all civilised societies throughout the world.  But this right can be lawfully violate in extreme circumstances

Article 2 provides for the ultimate use of force in three clearly defined circumstances:

(1) Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

(2) Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is
no more than absolutely necessary:

(a) in defence of any person from unlawful violence;

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c) in action lawfully taken for the purpose of quelling riot or insurrection.

 

The private defence

Defence of property

In R v Hussey Lord Parker CJ:

".... where a forcible and violent felony is attempted upon the person of another, the party assaulted, or his servant, or any other person present, is entitled to repel force by force, and, if necessary, to kill the aggressor ....".

Defence of property

No more force may be used than is necessary for the purpose.

 

Where a person in defending his property is also acting in the prevention of crime, he may use such force as is reasonable in the circumstances.

 

Where no crime is involved, as where there is merely a trespass, the same rule of reasonable force in the circumstances is applicable.

 

It would not, in general, be reasonable to kill in defence of property alone, although it has been held that a man may lawfully kill a trespasser who would forcibly dispossess him of his house (R v Hussey). 

 

In determining whether the force used was reasonable the court will take into account all the circumstances of the case, including the nature and degree of force used, the seriousness of the evil to be prevented and the possibility of preventing it by other means.

 

If the trespass was initially peaceful he must first request the trespasser to leave Green v Goddard (1702).

 

Why peaceful trespass is effective as a means of protest

In Collins v Renison (1754) it was held that a defendant is not justified in overturning a ladder on which the claimant is standing, where the claimant is trespassing on the defendant’s land and refuses to leave on request he must not wound the claimant while turning him out of his house Moriarty v Brooks (1834).

 

The growth in trespass as a means of protest, and the restriction on the amount of force to eject has led to changes in legislation to create criminal offences of trespass in specified circumstances, see Criminal Justice and Public Order Act 1994.and these have created a series of cases of their own, see DPP v Bayer (2003) DC.

 

Killing in defence of property is not acceptable

It is difficult to imagine circumstances today where it would be reasonable to kill a trespasser (unless he was also offering very serious personal violence).

 

Forceful resistance would no doubt be in order (which might unintentionally cause death) but deliberate killing would be hard to justify given the availability of legal remedies against unlawful eviction.

 

R v Martin (Anthony Edward) [2001]

The Norfolk farmer Tony Martin discovered this when he was convicted of manslaughter defending his home from burglars one of whom he killed.

 

The Private Defence; defence of another

The defence of self-defence also extends to defence of another, Duffy [1967].

 

R v Duffy [1967]

 

 

Important information

D wounded another whilst assisting her sister.

Held: acquitting her of unlawful wounding,
Edmund-Davies J.

"there is a general liberty even as between strangers to prevent a felony..."

The Concept of Reasonableness & Commensurate force

Commensurate to force offered

Both defences involve the concept of reasonableness.

Generally, the force used in self-defence must be roughly commensurate with the threatened force.

 

Whether or not to use force is subjective

What is reasonable is judged on the basis of matters as the defendant believed them to be, whether or not this belief was reasonable in itself.

 

Not what a reasonable person would have believed

The test is a subjective test; the question is what that particular defendant did believe.

 

It is not an objective test; what they should have believed or what a reasonable person would have believed.

 

Even if his is mistaken

This applies even if D was mistaken and the force he used was unreasonable as long as it mistake was genuinely made.

 

But, there are limits as to what the courts will accept as to whether the belief was honestly held

Gladstone Williams (1984).

Lord Lane,

"If however the defendant's alleged belief was mistaken and if the mistake was an unreasonable one, that may be a powerful reason for coming to the conclusion that the belief was not honestly held and should be rejected."

Can an unreasonable belief be honestly held?

If a belief was unreasonable then the jury may consider that D did not really hold it honestly.

 

Thus a conviction would still be gained but by following a different route.

 

The test is what D honestly believes

Therefore, the principle is that defendants are to be judged on the facts, as they believe them to be.

Force against a police officer who is lawfully arresting you can never be self-defence

The use of force has to be unlawful force being used against D.

 

Browne [1973]
Lowry LJ

"if a police officer is acting lawfully and using only such force as is reasonable in the circumstances...self defence is not available as a defence".

Self defence can only be used to repel unlawful force

In Re: A (Children) [2000] CA the spectre of an imaginary child under 10 using a machine gun in a playground was held not to be unlawful force, but quasi-self-defence would allow the child to be stopped.

 

Lawful authority, especially in relation to the police

Lawful means acting within the law. A police officer will use such reasonable force as is necessary to fulfil his duties.  This includes force making an arrest, but would not include clipping children round the ear for misbehaving.

 

Self-defence is lawful only against unlawful force.

 

A person being arrested is being subjected to lawful for so it is unlawful to assist them or to resist a lawful arrest.

 

Lawful authority, in relation to prison officers

In July 2010, the restraint and self-defence measures approved by the Ministry of Justice contained in a manual, "Physical Control in Care" were made public.  They include ramming knuckles into ribs and raking shoes down the shins. also:

    "Use an inverted knuckle into the trainee's sternum and drive inward and upward."
    "Continue to carry alternate elbow strikes to the young person's ribs until a release is achieved."
    "Drive straight fingers into the young person's face, and then quickly drive the straightened fingers of the same hand downwards into the young person's groin area."


Published by the HM Prison Service in 2005 and classified as a restricted government document, the manual guides staff on what restraint and self-defence techniques are authorised for use on children as young as 12 in secure training centres.

The centres are purpose-built facilities for young offenders up to the age of 17 and run by private firms under government contracts.

Pre-emptive strikes

By a pre-emptive strike, we mean attacking first (in self defence) to prevent you from being attacked

Threat must be imminent

Evans v Hughes [1972] QBD

Any threat must be "imminent" before it could ground a reasonable excuse.

There is no duty to retreat before using force

R v Bird [1985] CA
Girl attacks male with glass. Evidence that D tried to retreat would certainly be powerful evidence that he was neither the aggressor nor seeking revenge, but that was all.

 

R v Beckford [1987] PC

D killed a man who ran out of the house. A man about to be attacked does not have to wait for his assailant to strike the first blow circumstances may justify a pre-emptive strike.

 

R v Bullerton (1992)  (Jamaica)

D acquired a "screech box" next abusive caller received permanent damage to his ear. This was lawful to use self-defence in anticipation of imminent attack, rather than wait until a blow had been struck.

 

Taking a weapon before leaving home is not OK. Picking up a weapon to repel an immediate threat may be OK

Attorney General's Reference (No. 2 of 1983) [1984]
Lord Lane set out some criteria for pre-emptive strikes.

 

It does seem clear that acts immediately preparatory to justifiable acts of self-defence are also justifiable.

 

A defence that the purpose of a knife was for self-defence in case of an attack can cover possessing an offensive weapon for self-defence.

 

Provided D could show lawful authority or reasonable excuse. This is unlikely to succeed if D armed himself before leaving home, as opposed to picking up a weapon whilst under fear of an attack.

 

The offence of possessing an offensive weapon, included here for the sake of completeness, (not part of your syllabus)

S1 (1) Prevention of Crime Act 1953

"Any person who without lawful authority or reasonable excuse, the proof whereof shall lie on him, has with him in any public place any offensive weapon shall be guilty of an offence and shall be liable..."

 

S1 (4) amended by the Public Order Act 1986

An offensive weapon is defined as: -
"any article made or adapted for use for causing injury to the person, or intended by the person having it with him for such use by him or by some other person."

It is lawful to make petrol bombs to protect yourself, family against unlawful attack

Attorney General’s Reference (No. 2 of 1983) [1984]
D made some petrol bombs (explosives other than for a lawful purpose) in order to defend himself. Rioters had attacked his shop and he feared further attacks.

Lord Lane C.J.

"the defence of lawful object is available … if he can satisfy the jury on balance of probabilities that his object was to protect himself or his family against imminent apprehended attack and to do so by means which he believed were no more than reasonably necessary to meet the force used by the attackers."

The amount of force:

Reasonable force

 

Important information

This is objectively judged, unlike the decision to defend oneself, which is subjectively judged.

 

So, if you think you are being attacked, no matter how ridiculous your fear is, provided it is honestly held belief it is OK.

 

However, if you respond with force that a responsible and sober onlooker would judge as excessive then it is not OK.

 

Tip

Think how you would react if Mike Tyson were going to hit you. Now think how you would react if your aging law lecturer was going to do the same.

Your response, to defend yourself would be the same but the amount of force needed would not.

 

Earlier cases were widely criticised as being too subjective

Court of Appeal reviewed the situation in Owino [1996]

 

The amount of force is to be judged objectively

Owino is now the test as to whether the amount of force used was reasonable.

 

Scarlet (1993) CA

Before Owino the amount of force could be judged subjectively:

 

D a publican killed a visitor he ‘bundled’ out of the door and who fell down 5 steps, fatally striking his head.
Held:

"the jury should not convict unless they are satisfied that the degree of force used was plainly more than was called for by the circumstances as he believed them to be and, provided he believed the circumstances called for the degree of force used, he was not to be convicted even if his belief was unreasonable".

R v Owino [1995] CA

 

Important case

D a senior registrar in  microbiology,

  1. Fractured his wife’s wrist

  2. Gave her a black eye,

  3. Hit her about the head causing possible damage to her eardrum, threw her out of the flat, injuring her right thumb,

  4. Lifted her up and put her out of the house.

  5. In relation to counts 3 and 4, self-defence was raised.

Held:

A jury must decide whether a defendant honestly believed that the circumstances were such as required him to use force to defend himself from an attack or threatened attack. A defendant must be judged in accordance with his honest belief, even though that belief may be mistaken.

 

However, the jury has then to decide whether the force used was reasonable in the circumstances, as he believed them to be.

 

A belief that the degree of force he was using was reasonable will not enable him to do what he did. If that argument was correct, then it would justify, for example, the shooting of someone who was merely threatening to throw a punch, on the basis that the defendant honestly believed, although unreasonably and mistakenly, that it was justifiable for him to use that degree of force. That clearly is not, and cannot be, the law.

 

The burden was on the Crown to disprove self-defence.

 

This means that the test is now Owino:

Important information

On the circumstances as D believed (subjectively), was the level of force for this defendant reasonable (objectively - but in relation to that particular defendant)?

Problems with the use of force

Reasonable test is objective in manslaughter

The belief in the level of force to be necessary is subjective.

 

The test for manslaughter is objective, for example, gross negligence will be decided by the jury looking at the actions taken by D and decide that the reckless (or negligent) conduct renders D liable for the crime.

 

The two do not sit comfortably together.

 

Private Clegg’s use of force

The most recent famous case illustrating excessive force is that of Private Clegg. It also illustrates the unfairness of different rule in manslaughter.

 

R v Clegg [1995] HL

D fired several shots at a car whilst he was on check point duty in Northern Ireland. The car was approaching the checkpoint at speed and did not appear to be going to stop. One of the passengers was killed. Clegg was charged and convicted of murder.

 

It was argued that the House should make new law by creating a new qualified defence - available to a soldier or police officer acting in the course of his duty - of using excessive force in self-defence, or to prevent crime, or to effect a lawful arrest.  By doing so it would reduce murder in such cases to manslaughter.

 

Held: Lord Lloyd, whilst not averse to judicial law-making - citing R v R as a good example of it – said that he had no doubt that they should abstain from law-making in the instant case since the reduction of murder to manslaughter was essentially a matter for Parliament, and not the courts.

 

The issue of self defence (and therefore excessive force) did not strictly arise in this case as when the shot that killed the girl was fired, the vehicle in which she was travelling had passed Clegg. However, they did review the law on excessive force.

The Home Office released Clegg which sparked off several riots in Northern Ireland at the time.

 

D’s conviction was later quashed on different grounds.

 

Consent

Consent in relation to public and private defences, simply because it does not apply; but it may raise its head in the guise of mistake.

 

The position of parents and guardians smacking children

Parents and guardians under common law can chastise their children

However, not for their "gratification of rage or passion" Hopley (1868)
 

A v UK (1998)

The use of force against children

The use of force on a child by its parent or guardian is lawful.

 

The law treats children as a discrete group, and allows parents, and in some cases guardians to assault them to impose discipline, or moderate correction [R v Hopley (1860) Cockburn CJ].

 

The Children Act 2004 establishes a Children's Commissioner who is able to represent the views and interests of children, rather than safeguard their rights.

 

The Act allows mild smacking of children, while barring any physical punishment which causes visible bruising.

 

However, corporal punishment of children in schools has effectively been banned by the School Standards and Framework Act 1998, even though schoolteachers are acting in the place of parents (loco parentis).

 

Corporal punishment is neither contrary to the prohibition on torture, inhuman and degrading treatment or punishment contained in the European Convention for the Protection of Fundamental Rights and Freedoms (1950)A v United Kingdom (Human Rights: Punishment of Child) [1998] ECtHR.

 

Many people consider the use of force against children should be unlawful.

 

Searching schoolchildren and Further Education students for weapons

Sec 47 of the Violent Crime Reduction Act 2006 allows head teachers and college principals and persons they have authorised to search pupils for weapons, to seize weapons and to use force to do so.

 

Children & Young Persons Act 1933

Section 1
(1) If any person who has attained the age of sixteen years and [has responsibility for] any child or young person under that age, wilfully assaults ... in a manner likely to cause him unnecessary suffering or injury to health ... person shall be guilty of a misdemeanour, and shall be liable--

 ... to a fine ... or to imprisonment.

(7) Nothing in this section shall be construed as affecting the right of any parent, teacher, or other person having the lawful control or charge of a child or young person to administer punishment to him.

 

Abolition of corporal punishment in schools.

The School Standards and Framework Act 1998 Section 131 effectively prohibits corporal punishment (by a teacher or any other employee) in any school (including private schools) to a child under 18.

 

Threat of war

The use of force to defend against a possible war is discussed in "mistake" here.

 

Jack Straw's proposals

The Ministry of Justice has published measures on the use of force when tackling criminals. The statement follows up the political statement by Jack Straw at the Labour Party conference in September 2007.

The proposal is to amend the Criminal Justice and Immigration Bill. They are intended to give the public confidence that the law is on their side if they act reasonably in using force, including the fact that:
- they acted instinctively;
- they feared for their safety or that of others, and acted based on their perception of the threat faced and the scale of that threat;
- the level of force used was not excessive or disproportionate in the circumstances as they viewed them.

The amendments attempt to clarify the existing common law defences and the statutory provisions under the Criminal Law Act 1967. The Criminal Justice and Immigration Bill was published in June 2007.

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