Law Relating to Self Defence
LAW RELATING TO SELF DEFENCE
Eric Baskind LL.B
(Hons), LLM, MCIArb, FRSA, FHEA, MEViPRG
This information is provided for guidance purposes only.
Current legislation and case law are subject to frequent change. Professionals
have a continuing responsibility to keep themselves up-to-date with any changes
that may affect their area of practice. Whilst it is our intention to keep
updated the information contained in these pages we accept no responsibility or
liability whatsoever for any action taken in relation to the information
contained in these pages and recommend that appropriate legal advice be taken
having regard to a client’s own particular circumstances. By accessing these
pages you are deemed to have accepted these conditions.
There is concern that individuals may face legal proceedings if they
use force against an assailant and in so doing cause injury (or death) to that
assailant. The law relating to self defence is extremely complex and these
pages aim to provide a comprehensive insight into the subject.
We have endeavoured to state the law as it stood on 02 December 2013.
lawyers' practitioner’s text (Archbold 19-41) states:
both good law and good sense that a man who is attacked may defend himself.
It is both good law and good sense that he may do, but only do, what is
A person may need to avail himself of this legal defence if he faces
charges following an incident where he has used force to defend himself,
another person, property, or as a result of attempting to prevent a crime. The
defence, therefore, goes much further than just "self defence".
The concept of the defence exists both at common law and by statute. At
common law the defence has existed for centuries and permits a person to use reasonable
- defend himself from attack
- prevent an attack on another person
- defend his property
In addition to the common law defence, section 3 (1) of the Criminal Law
Act 1967 (the statutory defence) provides (see, also, the Criminal Justice
and Immigration Act 2008, below):
person may use such force as is reasonable in the circumstances in the
prevention of crime, or in effecting or assisting in the lawful arrest of
offenders or suspected offenders or of persons unlawfully at large."
An interesting point of construction arises in connection with the
statutory defence where it can be seen that the section refers specifically to
the use of force. What is not clear is whether anything less than force may be
used. It is submitted that since the common law permits conduct which amounts
to less than force and since section 3 (1) permits the use of reasonable force,
anything less than force ought to be permitted.
However, this may not be the position following the Divisional Court's
ruling in Blake  Crim LR 586. A vicar was one of a group of
demonstrators protesting about the use of force by the allied coalition against
Iraq. He was charged with causing criminal damage after he used a marker pen to
write a Biblical quotation on a concrete pillar next to the Houses of
Parliament. He argued that he was carrying out the instructions of God and
therefore had a lawful excuse under section 5 (2) (a) of the Criminal Damage
Act 1971 and, further, relying on section 5 (2) (b) of that Act, his actions
were intended to protect the property of another. His appeal against conviction
for causing criminal damage was dismissed. The Court also considered whether
his actions may have been justified by section 3(1) of the Criminal Law Act
1967 and held that his conduct was "insufficient to amount to the use of
force within the section".
What would have been the position had Blake used a chisel or other tool
to cut the letters into the concrete instead of using a marker pen? Would this
have constituted force for the purpose of the legislation? To the extent that Blake
suggests that actions which are less serious than using force might not be
excused when the use of actual force might be, a further authority on this
point would be helpful.
Self defence: a common law or statutory
There is considerable overlap between the common law and statutory
defences (see below). It was held in Cousins  QB 526 that both
defences are available to an accused on the same facts. Section 3 (2) of the
Criminal Law Act 1967 provides that the statutory defence should be used in
preference to the common law rules in cases where there is overlap.
If the victim strikes an attacker in self defence, he could contend at
common law that he was using reasonable force to defend himself. He could also
contend that he was using reasonable force to prevent a crime from being
committed, namely an assault against himself. This second argument is the
In the statutory defence, a person is permitted to use reasonable force
to prevent the commission of a crime, in circumstances where he cannot so avail
himself at common law. For example, if a person uses force to prevent another
from supplying a controlled drug, he cannot rely on the common law defence and
the statutory defence will therefore apply.
A good example of the statutory defence can be seen from Renouf
 2 All ER 449 where the accused was charged with reckless
driving after having forced another vehicle off the road and rammed into it
after the occupants of the other car had assaulted him and caused damage to his
car. The Court of Appeal held that his actions were intended to assist in the
lawful arrest of the occupants of the other car. The question of whether or not
the amount of force used was reasonable was a matter to be determined by the
Conversely, there are circumstances where a person cannot rely on the
statutory defence: for example, where the perpetrator of the offence he is
trying to prevent is below the age of criminal responsibility (doli incapax)
or is insane or is acting in a state of automatism and for these reasons is not
considered 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. The House of Lords held in Jones (Margaret)  1 AC
136 that the word "crime" in relation to section 3 (1) refers
only to a crime under English law and not to a crime that exists only under
international law. In this case, the accused was an anti-war protestor who had
trespassed and caused damage to military bases in the United Kingdom in protest
against the war in Iraq. She sought to rely on the defence under section 3 (1)
on the ground that she was attempting to prevent an international crime of
aggression being committed against Iraq. Since aggression is not a criminal
offence under English law, the defence failed.
Similarly in Bayer  1 WLR 2856 the defence was
rejected where the accused attached themselves to tractors to try and prevent
the planting of genetically modified maize. They had argued that the
maize would cause damage to neighbouring property. The court rejected the
defence because as the maize was being planted lawfully they were not acting to
prevent a crime.
A defence of "quasi self defence" was noted by the Court
of Appeal in Re A (Children) (Conjoined Twins:
Medical Treatment)  2 WLR 480 which concerned the lawfulness of the
medical separation of the conjoined twins Mary and Jodie. The medical evidence
was that Mary (who was the weaker of the twins) was, by sharing Jodie's heart,
killing Jodie. Lord Justice Ward stated that the availability of such a plea of
quasi self defence, modified to meet the quite exceptional circumstances nature
had inflicted on the twins, made intervention by the doctors lawful,
notwithstanding that no crime had been committed.
See, also, the Criminal Justice and
Immigration Act 2008, below.
The wider meaning of "self defence".
If ever there was any doubt as to the authority for using self defence,
the words of Lord Parker CJ in Chisam (1963) 47 Cr App Rep 130 are
helpful. His Lordship said:
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 ....".
The authority for self defence, of course, doesn't stop with defending
oneself from attack. It is perfectly permissible to use reasonable force to
assist another person who is under threat of attack. For example, in Rose
(1883) 15 Cox CC 540 the accused was acquitted of murdering his
father, whom he shot dead, whilst the father was launching a murderous attack
on the accused's mother.
Similarly, in Duffy  1 QB 63 the court held that the
accused was justified in using reasonable force in order to defend her sister;
not because they were sisters, but because "there is a general liberty as
between strangers to prevent a felony".
The court in Hussey (1924) 18 Cr App Rep 160 held that
the defence may also be used in the protection of property. In this case, the
accused had fired a gun through a hole in the door which was made by his
landlady who was attempting (wrongly) to evict him from his home. The landlady
was injured. Lord Hewart CJ said that the accused was in exactly the same
position as a man who was defending his home and that such actions could be
Does a trained person need to warn an attacker before taking steps to
There is a common misconception that a person who has received training
in combat skills is under a duty to warn his attacker of this expertise prior
to him taking any physical steps to defend himself. This is not the case. Such
a person is treated the same as an untrained person although it is open to a
jury to find that because of his training his actions were not reasonable.
Is the defender under a duty to retreat?
The answer is "no" although it will be compelling evidence for
the jury that the defender acted reasonably if he retreated as far as he
possibly could before responding physically. However, this has not always been
For example, in the case of Julien  1 WLR 839 the
court held that retreating was seen as a pre-requisite of establishing the
defence of self defence. It was said that the defender must "demonstrate
by his actions that he doesn't want to fight". This case was followed by McInnes
 1 WLR 1600 where the reasonableness of the defender's actions
might be looked at in the light of his willingness to "disengage and
temporise". However, this is no longer the current position in English
The present position is stated in Bird  1 WLR 816 where
the Court of Appeal said that a demonstration by the defender's conduct that he
did not want to fight is the best evidence that he was acting reasonably and in
good faith in self defence; but it is no more than that. A person may in some
circumstances act lawfully in self defence without temporising, disengaging or
However, if the only reasonable course of action is to retreat, then to
stand and fight would likely be seen as using unreasonable force.
The response must be reasonable/proportionate: "reasonable
This is the most important aspect of the defence. Despite the suggestion
of total objectivity in the word "reasonable", the test of whether
the accused acted reasonably is judged by the reactions of the reasonable
person, who finds himself in the accused's situation.
In Palmer  AC 814 (Privy Council) Lord Morris said:
there has been an attack so that the defence is reasonably necessary, it will
be recognised that a person defending himself cannot weigh to a nicety the
exact measure of his necessary defensive action. If a jury thought that in a
moment of unexpected anguish a person attacked had only done what he honestly
and instinctively thought was necessary that would be most potent evidence
that only reasonable defensive action had been taken."
Thus, for example, in Reed v Wastie  Crim LR 221 Lane
J was satisfied that a considerable amount of force was reasonable and
justified in circumstances where a violent and abusive driver was obstructing
In Cross v Kirkby, The Times, 5 April, 2000,
Mr Cross attempted to disrupt a hunt. Upon seeing his partner being led
forcibly away by Mr Kirkby he produced a baseball bat and attacked Mr Kirkby
with it. Mr Kirkby managed to gain control of the bat and hit Mr Cross, with
considerable force, causing a fracture of the skull. In an action for damages
Mr Cross was awarded damages in respect of the fractured skull. Mr Kirkby
appealed against the award, arguing that he had acted in self defence and that
in any case Mr Cross should not be allowed to rely on his own unlawful conduct.
The Court of Appeal allowed his appeal and held that although the medical
evidence showed that the blow suffered by Mr Cross was harder than average,
that did not displace the conclusion that Mr Kirkby had acted in self defence,
which was supported by other evidence.
In the alternative, Mr Cross's case would also fail
on the ground that it arose from his own unlawful conduct. The principle ex
turpi causa non oritur actio ("from a dishonourable cause an action
does not arise") means that a claimant is prevented from succeeding in a
claim intrinsically related to his own illegal conduct in which the court would
be seen to condone such behaviour. It was not necessary for the claimant to
rely on or plead his own criminal conduct for the principle to apply, as long
as the action was inseparably linked to the unlawful conduct.
These cases acknowledge the fact that whilst a court can take its time
to consider the reasonableness of the accused's response, the accused himself
has no such luxury and must act instantaneously and, therefore, exact
proportionality is not considered necessary. This was confirmed by the Court of
Appeal in Oatridge (1991) 94 Cr App Rep 367 where it was held that
one of the matters which needed to be determined by the court was whether the
accused's response was "commensurate with the degree of danger created by
Of course, it follows that a threat of force may be held to be
reasonable where actual force would not be: Cousins  QB 526.
Guidance as to whether the degree
of force used was reasonable in the circumstances of a case can now
be found in the Criminal Justice and Immigration Act 2008, section 76 (7)
of which provides:
(a) that a person acting for a legitimate purpose may not be able to
weigh to a nicety the exact measure of any necessary action; and
(b) that evidence of a person's having only done what the person
honestly and instinctively thought was necessary for a legitimate purpose
constitutes strong evidence that only reasonable action was taken by that
person for that purpose.
The "legitimate purpose" referred to in section 76 (7)
(a) means the purpose of self-defence or the defence of another person under
common law or the prevention of crime or effecting or assisting in the lawful
arrest of persons under section 3 (1) of the Criminal Law Act 1967 and section
3 (1) of the Criminal Law Act (Northern Ireland) 1967 which relate to the use
of force in the prevention of crime or making an arrest.
The question of proportionality arises in the 2008 Act. Section 76 (6)
makes plain that the degree of force used by a person is not to be regarded as
having been reasonable in the circumstances as he believed them to be if it was
disproportionate in those circumstances.
The Act makes plain in section 76 (8) that the above is not to be read
as preventing other matters from being taken into account by a court where
they are relevant in deciding the question of whether or not the force
used was reasonable in the circumstances. There is, in effect, no material
difference between the 2008 Act and the common law in this regard although we
now have for the first time a statutory framework for determining what amounts
to “reasonable force” for the purposes of the common law of self defence as
well as the defences provided by section 3 (1) of the Criminal Law Act
1967 and section 3 (1) of the Criminal Law Act (Northern Ireland) 1967 (see
Section 76 has been criticised. Professor Michael Allen, Commissioner at
the Criminal Cases Review Commission and formerly Professor of Law at Newcastle
Law School has described it as "one of the worst examples of gesture
politics resulting in pointless legislation... To the extent that it simply
legislates for what case law has already established, it was pointless"
(Textbook on Criminal Law, 2009, Oxford University Press).
Householders and Intruders - "Grossly disproportionate" force.
Partly in response to concerns that householders were afraid to tackle
intruders in case they were later sued by the intruder, section 329 of the
Criminal Justice Act 2003 provides that where a person has been convicted of an
imprisonable offence he will only be entitled to sue for trespass to the person
(the civil equivalent of an assault) in relation to the same incident where the
amount of force used against him was "grossly disproportionate" in
the circumstances. It is submitted that the "grossly
disproportionate" test is fairer to a person seeking to plead self defence
than the test of "reasonable force". However, with the limited
exception of the specific circumstances provided in section 329, the test for
self defence remains that of reasonable force.
It is a fact that very few householders have ever been prosecuted for
actions resulting from the use of force against intruders.
One recent case which provoked considerable public concern is the case of Hussain & Hussain  EWCA Crim 94. In this case, the defendants chased after and beat intruders who had burgled their home where they were subjected to a very serious attack by four armed intruders. The Lord Chief Justice of England and Wales, Lord Judge, stated in relation to the force they used against some of the intruders whom they chased and caught:
"This was not vigilante activity. This was
not a planned attack. It did not follow careful or even momentary reflection.
Munir Hussain acted under extreme provocation. His involvement in this
serious violence was a response to the dreadful and terrifying ordeal, and
the emotional anguish which he had undergone. He had used some minor,
entirely legitimate, violence towards Walid Salem when he threw the small
table at him in his house and so helped set off the chain of events which
brought the ordeal of his family to an end. Once he had been violent, his relief
that his family and he himself were safe, and his understandable fury at what
had happened, combined to make a decent, peaceful man act entirely out of
character, in hot blood and, unsurprisingly, without detached reflection. His
home had been invaded by a gang of armed men. He and his family were treated
with contumely. They were in effect kidnapped in their own home. He feared
for their lives. He feared for the honour of his wife and daughter. He did
not know what had happened to his youngest son, and feared for what might
already have happened. Those fears were amply justified. Thanks to his own
efforts, at least in part, all of them were lifted. He might have reacted, as
some would, with an overwhelming sense of relief and fatigue, and become incapable
of any action. He did not. Nevertheless, it remains the fact that whatever he
did in the immediate aftermath was a reaction. In such a fraught situation,
provoked beyond endurance, and without contemplating what to do for the best,
he reacted against one of the men who was responsible for everything that he
and his family had undergone."
As a result, the sentence handed down to Munir Hussain was reduced from 2 years, 6 months' immediate imprisonment to 12 months' imprisonment suspended for 2 years and the sentence of Tokeer Hussain was reduced from 3 years and 3 months' imprisonment to a term of 2 years' imprisonment.
How is the "reasonableness" test assessed - objectively or
In Owino (1996) 2 Cr App Rep 128 the accused assaulted
his wife and was charged with an assault occasioning actual bodily harm,
contrary to section 47 of the Offences Against the Person Act 1861. His defence
was that he had used no more than reasonable force to defend himself. The trial
judge directed the jury to the effect that the prosecution had to prove that
the accused did not believe that he was using reasonable force. He was
convicted. His appeal against conviction was on the basis that the trial judge
had not stated that the test of what force was reasonable was to be
subjectively assessed. The appeal was dismissed. It was held that a person may
only use such force as is (objectively) reasonable in the circumstances as he
(subjectively) believes them to be and is not entitled to use the degree of
force which he believes to be reasonable. Thus the trial judge had been more
favourable to the accused than he needed to be. This case has clarified the
uncertainty which may have existed following the decision in Scarlett 
4 All ER 629 where the Court of Appeal held the test to be
The judgment in Owino has made it clear that although the accused
is entitled to be judged on the facts as he believed them to be (the subjective
element), it is the jury which decides how much force is reasonable (the
objective element). To adopt the words of the Court of Appeal, a person
"may use such force as is (objectively) reasonable in the circumstances as
he believes them to be".
In Drane  EWCA 1746 the Court of Appeal criticised the trial judge
who directed the jury in the following words: "... The first question is
'Was it necessary to do what he in fact did?’ If it was not necessary then that
is the end of self-defence". This was put in language as to what the
objective observer might consider to be necessary without any reference to the
accused himself. Quashing the accused's conviction for assault, the Court of
Appeal said that this direction failed properly to direct the jury that they
must be satisfied that the accused did not act in a way which was justified on
the basis of what he himself believed to be the position, thus confirming the
part-subjective nature of the defence.
The dual objective/subjective aspect of the defence is replicated in section 76
(3) and (4) of the Criminal Justice and Immigration Act 2008.
It is also reflected in the direction that trial judges provide to juries, as
set out in the Judicial Studies Board specimen direction on self defence:
"You must first ask whether the defendant honestly believed that
it was necessary to use force to defend himself at all …
If you are sure that the defendant did not honestly believe that it
was necessary to use force to defend himself, he cannot have been acting in
lawful self-defence, and you need consider this matter no further. But what
if you think that the defendant did honestly believe or may honestly have
believed that it was necessary to use force to defend himself?
You must then decide whether the type
and amount of force the defendant used was reasonable. Obviously, a person
who is under attack may react on the spur of the moment, and he cannot be
expected to work out exactly how much force he needs to use to defend
himself. On the other hand, if he goes over the top and uses force out of all
proportion to the [anticipated] attack on him, or more force than is really
necessary to defend himself, the force used would not be reasonable. So you
must take into account both the nature of the attack on the defendant and
what he then did…".
The accused's characteristics.
Another important question arises in relation to the accused's physical
and mental characteristics. If an accused has a physical handicap such that he
might not be able to escape a threatened attack which an able-bodied person
might be able to escape from can be taken into account by a court when
considering the reasonableness of the accused’s actions. However, a person’s
psychiatric condition, which might make him perceive the circumstances as being
more dangerous than a person without such a condition cannot be taken into
account. Thus, in Martin (Anthony Edward)  QB 1 the Court of
Appeal held that the farmer who had disturbed burglars in his isolated
farmhouse and had fired his shotgun at them, killing one and wounding the
other, was not entitled to admit as evidence his psychiatric condition that
meant that he would have perceived the circumstances as being more dangerous
than would a person without such a condition.
This decision is unnecessarily restrictive and worrying. Proper
psychiatric evidence may be of crucial importance as to the accused’s belief as
to the circumstances and the danger. It is also inconsistent with other aspects
of the law. For example in Martin (David Paul)  2 Cr App R 42 the
Court of Appeal allowed the accused to adduce psychiatric evidence as to his
beliefs in respect of the defence of duress. It is also inconsistent with
the decision of the Privy Council in Shaw  1 WLR 1519 where it was
decided that issues involving the determination of reasonable force should be
dealt with by taking into consideration not only the circumstances of the
incident but also the danger that the defendant believed existed.
If the accused acts by mistake in using force.
Where the accused believes that he is under attack and acts with
reasonable force in self defence to repel the attack, and it turns out that,
in fact, he was mistaken and that he was not under attack after all, he will
still be entitled to rely upon the defence of self defence, as the court
considers the defence from the accused's own viewpoint. In other words, in
this regard, the test as to whether the accused was acting in self defence is
In Oatridge (1991) 94 Cr App Rep 367 the accused believed
that her partner was about to kill her since he had a history of previously
abusing her. The Court of Appeal held that provided the accused had acted
under an honest mistake of fact a trial judge should direct a jury on whether
her response was commensurate with the attack which she believed she faced.
In Williams (Gladstone)  3 All ER 411 the accused
believed that he was witnessing a person being assaulted, whereas in fact,
the person was being lawfully arrested. The accused intervened and in so
doing attacked the man making the arrest. At his trial, the accused said that
he intended only to use lawful force to prevent what he thought was a crime
from being committed. The Court of Appeal quashed his conviction holding that
he was to be judged on the facts as he honestly believed them to be whether
or not that belief was a reasonably held one. As Lord Lane CJ pointed out at
"Even if the jury come to the conclusion that the mistake was
an unreasonable one, if the defendant may genuinely have been labouring
under it, he is entitled to rely on it".
The decision in Williams
(Gladstone) was approved by the Privy Council in Beckford v The Queen
 AC 130 and has now also been placed in statutory form by the
enactment of the Criminal Justice and Immigration Act 2008, sections 76 (4),
(5) and (6).
The exception to the rule that a
mistaken belief need not be reasonably held is in relation to agents of
the state. It was held in Caraher v United Kingdom (2000) 29
EHRR CD119 that mistakes made by agents of the state must be based on both
honest and reasonable grounds so as not to violate the European Convention on
Williams (Gladstone) is a criminal
case. In civil cases, any mistake must be both honestly held and reasonable:
see, Ashley & Another v Chief Constable of Sussex Police, below.
However, if the accused's mistaken belief arises out of his own voluntary
intoxication, he will not be permitted to rely on the mistake in his defence.
The following case illustrates this position clearly.
In O'Grady  3 WLR 321 the accused had been
drinking with the deceased and they returned to his flat where they both fell
asleep. The accused was awoken by blows to his head by the deceased, and
retaliated with what he considered to be a few mild blows, after which he fell
asleep again. When he later awoke, he found the body of the deceased who had
died as a result of his blows. At his trial, he claimed that because he was
drunk, he had mistaken the amount of force he needed to protect himself from
the deceased's assault. The trial judge directed the jury that the accused
was entitled to rely on the defence of self defence, and that he was to be
judged on the facts as he believed them to be, but added that he was not
entitled to go beyond what was reasonable by way of self defence and the fact
that he might have mistakenly exceeded this position because he was drunk,
did not afford him a defence. His conviction was upheld on appeal. Lord Lane
CJ said that where the mistaken belief as to the amount of force needed to
defend himself arose because of self-induced intoxication the defence of
mistake would not be available.
Finally, mention should be made to cases where the accused applies
force to either a police officer or officer of the court which would be
reasonable if that person were not a police officer or officer of the court
and the accused honestly believed that that person was not such an officer.
In these circumstances, it was held by the Court of Appeal in the civil case
of Blackburn v Bowering  3 All ER 380 that provided the
accused's belief was honestly held he will be able to avail himself of the
defence of self defence even if his belief was unreasonably held.
The threatened harm must be imminent, although the response need not
The law permits a person to prepare to repel an attack. In Attorney-General's
Reference (No.2 of 1983)  QB 456 the accused had produced and kept
in his shop petrol bombs at a time when there was extensive rioting in the
area. The Court of Appeal held that there was evidence on which the jury
might have decided that the use of the petrol bombs would have constituted
reasonable force in self defence against an attack and, if so, the accused
would have had the petrol bombs for "a lawful object". The Court of
Appeal emphasised the need for any threat to be imminent. This position was
confirmed by Lord Griffiths in Beckford v The Queen  AC 130
The accused must not have deliberately provoked or created the
situation for which he intends to rely on the defence.
The defence of self defence will fail where the accused intentionally
provoked the attack so as to kill or otherwise injure, purportedly in self
defence. In the Northern Irish case of Browne  NI 96 Lowry
"The need to act must not have
been created by conduct of the accused in the immediate context of the
incident which was likely or intended to give rise to that need … Where a
police officer is acting lawfully and using only such force as is
reasonable in the circumstances in the prevention of crime or in effecting
the lawful arrest of offenders or suspected offenders, self defence against
him is not an available defence."
In Malnick  Crim LR 451 the accused was travelling
to see a man whom he believed to be in possession of stolen vehicles
belonging to his friend. He understood that this person was violent and, for
this reason, took with him a martial arts weapon known as a rice-flail. He
was arrested before he reached the other person's property. His claim that
since he feared attack he was justified in carrying the rice-flail was
rejected on the ground that the danger was of his own making.
The Court of Appeal pointed out in Rashford (Nicholas)  Crim
LR 547 that a person may still plead self-defence in a case where he
killed another during an argument which he himself started, either by
provoking it or willingly entering into it, and the other person then
retaliated. The mere fact that a defendant went somewhere to exact revenge
from the victim did not of itself rule out the possibility that in any
violence that ensued self defence was necessarily unavailable as a defence.
Similarly, in Keane
 EWCA Crim 2514 the Court of Appeal ruled that just because a
defendant had either started the fight with the victim or entered it willingly,
he was not barred from raising self defence as a defence at his trial. Thus, self defence
could arise in the case of the original aggressor, but only where the violence
offered by the victim was so out of proportion to what the original aggressor
did that the roles were in effect reversed. The Appeal Court in Keane also confirmed that there was no
law which stated that if a defendant set out to provoke another to punch him,
and succeeded, then the defendant was entitled to punch the other person.
The accused aims a blow at X but inadvertently injures Y.
A situation might arise where a person aims a blow at X but misses his
intended target and instead injures Y who is an innocent bystander. The law
relating to this kind of situation is known as “transferred malice”. This is
perhaps an unfortunate term since it might suggest that the accused has acted
with malice although this is not a requirement for a person to be convicted.
In Latimer (1886) 17 QBD 359 the accused aimed a blow at his
intended target which glanced off him and struck another person who was
standing nearby causing her serious injury. The court held that Latimer could
be convicted of maliciously wounding the woman on the grounds that his
intention was to injure and that it was not relevant that the victim was not
his intended target.
The position is, however, different where a person acts with the mens
rea (guilty mind) of one offence but commits the actus reus
(physical act) of different offence except in circumstances where the offence
in question is one where the mens rea can be satisfied with
recklessness and the accused was reckless as to the risk of the kind of harm
he actually caused. An example of this type of situation can be seen from Pembliton
(1874) LR 2 CCR 119 where the accused, who had been fighting with others
in the street, threw a stone at them which missed and instead smashed a
window in a nearby public house. His appeal against conviction for
maliciously damaging the window was allowed because he had acted with the
intention of injuring persons and not with the intention of damaging
property. The court observed that had the jury found that Pembliton had been
reckless as to the risk of damaging property then his conviction would have
been upheld because recklessness was a sufficient mens rea for the
The consequences of a person's actions were unexplained.
It was held by the Court of Appeal in
Attorney-General's Reference (No.2 of 1983)  QB 456 that it is
irrelevant if the consequences of an accused’s actions were unexpected.
Therefore, if the accused shoots his victim intending to kill him but the
bullet misses and instead strikes a box of fireworks nearby which sets off an
explosion that kills the victim, it is wholly irrelevant that his victim is
killed by the resulting explosion rather than the intended bullet.
The Human Rights Act 1998/European Convention on Human Rights.
Article 2 of the European Convention on Human Rights provides:
- 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.
- 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
(b) in order to effect a lawful
arrest or to prevent escape of a person lawfully detained;
(c) in action lawfully taken for the
purpose of quelling a riot or insurrection.
Where a person uses reasonable force to defend himself, and in so
doing kills his attacker, the attacker’s right to life under Article 2 will
not have been infringed because the attacker’s initial act of aggression will
have negated this right. If excessive force has been used then Article 2 may
have been infringed.
It was noted above that the rule in Williams (Gladstone)
entitles a person to be acquitted where he has used reasonable force but was
mistaken as to the need to use that force. Such a person may nevertheless
have infringed Article 2 because under ECHR law any such mistake must be
reasonable, objectively assessed, rather than just honestly and maybe
unreasonably made, which is subjectively assessed under the rule in Williams
This presents a potential conflict between English law and that laid
down by the ECHR and there are arguments that English law is incompatible
with the European Court of Human Rights’ jurisprudence. The main thrust of
these arguments of incompatibility are that a person’s right to life (under
Article 2) cannot be sufficiently protected if he may be killed by force that
has been used against him without reasonable grounds for so doing. Article 2
allows for a life to be taken only where “absolutely necessary”. Under
English law, a person may be acquitted of murder even where his use of force
was completely unnecessary.
In one of the leading cases decided by the European Court of Human
Rights, McCann v UK (1996) 21 EHRR 95, the Court said that an accused
needed to have “good grounds” to use force. These words imply an objective
test whereas English law sets this test as subjective: Williams
(Gladstone), requiring only that the defendant’s use of force was based
on a genuine belief. However, Article 2 does not appear to demand a change to
English law on this point and in Bubbins v UK (2005) 41 EHRR 458 the
Court refused to condemn the English subjective approach to this test and
stated that the defendant held “an honest belief which was perceived for good
reason to be valid at the time but which was mistaken”.
As yet, there has been no English case before the ECHR where a person
has killed another based on a wholly irrational mistake and if such a case
arose then the ECHR may well have to deal with this incompatibility. However,
the (English) Court of Appeal has recently upheld the decision of Collins J
in R (Bennett) v HM Coroner for Inner London  EWCA Civ 617, a
case concerning a judicial review of a coroner's decision. A person was
killed after being shot by a police officer. A witness had given evidence
that the deceased was carrying a gun and that two firearms officers were
present. In 30 seconds, one of the firearms officers had fired six shots,
four of which struck the deceased in his back and side and one of which
proved fatal. The coroner refused to leave to the jury a verdict of unlawful
killing. The jury then returned a verdict of lawful killing. The application
for judicial review was on the grounds that the coroner's direction to the
jury on self defence had disregarded Article 2.
Collins J stated that "the European Court of Human Rights has
considered what English law requires for self defence, and has not suggested
that there is any incompatibility with Article 2. In truth, if any officer
reasonably decides that he must use lethal force, it will inevitably be
because it is absolutely necessary to do so. To kill when it is not
absolutely necessary to do so is surely to act unreasonably. Thus, the
reasonableness test does not in truth differ from the Article 2 test as
applied in McCann.”
It should be noted that Article 2 is more restrictive than English law
where a person may be acquitted where he has killed another person in
response to an attack on property (see, for example, Hussey (1924) 18 Cr
App Rep 160, above). It can be seen from the wording of Article 2 that
the position would be different under the ECHR.
Articles 3 (freedom from torture and inhuman and degrading treatment)
and 5 (right to liberty) also need considering. In Rivas v France 
ECHR 131 the European Court of Human Rights stated that these rights are
subject to implied exceptions in cases where a person's injuries have been
inflicted in self defence. It follows, therefore, that a person will not
infringe another's Article 5 rights by restraining and detaining him to
prevent a further unlawful attack.
The law does not recognise the concept of a "defensive
weapon". You are not permitted to carry an offensive weapon - even to
defend yourself. You may, however, provided it constitutes reasonable force,
defend yourself with an ordinary everyday object, such as keys, an umbrella
or a comb, provided you have them with you for their ordinary everyday
The consequences of using excessive force - an 'all or nothing'
If the Court finds that the accused has used excessive force then his
defence of self defence will fail and he will be guilty of the offence
charged. If he has killed the other person, supposedly in "self
defence", and has been charged with murder and the Court finds that he
has used excessive force, his conviction will not be reduced to manslaughter
and he will be guilty of murder, provided the Court is satisfied that he
intended to kill or cause serious bodily harm from which the death resulted.
This was seen in the case of Clegg  1 All ER 334 where
the accused, a soldier on duty in Northern Ireland fired four shots at a car
(later known to be stolen) which failed to stop at a checkpoint. The Court
accepted that the first three shots were fired either in self defence or in
defence of the accused's colleagues, but the fourth, which killed a joyrider
in the car, was not so fired on the ground that the car had by then passed
the checkpoint by some 50 feet. The House of Lords upheld the accused's
conviction for murder. It made no difference that the force had been used in
the prevention of crime or arresting an offender or that the accused was a
soldier or police officer acting in the course of his duty.
Loss of Control - a partial defence.
On 4th October 2010 a new
defence was introduced into law by section 54 of the Coroners and Justice Act
2009. This defence, abolishing the old defence of provocation, is referred to
as a “loss of control” and prioritises the emotion of fear as a justification
for killing. As with the old law of provocation, it applies only in
circumstances where the accused has killed another person. There are three
key elements to this defence:
a loss of control;
a qualifying trigger; and
a requirement that a reasonable person, of the accused's sex and age,
with a normal degree of tolerance and self-restraint, finding himself in the
circumstances of the accused, would have reacted in the way that the accused
If sufficient evidence is adduced to raise an issue with respect to
this defence, the jury must assume that the defence is satisfied unless the
prosecution proves (beyond reasonable doubt) that it is not (section 54 (5)).
Unlike the law of self-defence which, if successful, provides a
complete defence to the charge, this defence, if successful, is only a
partial defence and will mean that the accused is not guilty of murder but
guilty of manslaughter.
In order for this defence to apply, the accused must have lost their
self-control at the time of the killing. The loss of self-control need not be
sudden (section 54 (2)) although any delay could be construed as evidence
that the accused had not actually lost his self-control but acted out of
revenge. The defence will not apply to any killing consequent upon a
considered desire for revenge (section 54 (4)).
The “qualifying trigger” noted above is defined in section 55 and
includes where the accused’s loss of self-control was attributable:
to his fear of serious violence from the deceased either against
himself or another identified person – but not against an unidentified group
of people (section 55 (3))
to a thing or things done or said which constituted circumstances of
an extremely grave character and caused the accused to have a justifiable
sense of being seriously wronged (section 55 (4))
to a combination of the above (section 55 (5))
It can be seen, therefore, that the defence will be available in
circumstances where there is fear and where there is anger. This was partly
justified by the Law Commission which pointed out that there is evidence that
fear and anger are not distinct emotions but are frequently seen together in
acts of violence.
The “fear of serious violence” as noted in section 55 (3) could be
used in cases of self defence or where the accused kills a person burgling
his home. In cases of self defence, the defence could be used even in cases
where the defence of self defence could not be used, for example, because the
accused’s reaction is deemed to have been disproportionate or where there was
no imminent threat from the deceased. This is an important point because it
provides a partial defence and thus avoids the “all or nothing” approach of
self defence. The qualifying trigger of a fear of serious violence from the
deceased will be assessed subjectively. There is no requirement, therefore,
that this fear be reasonable: it only needs to be honestly held.
Interrelationship with civil law.
Even in circumstances where the
accused has a defence of self defence to a criminal charge, he may still be
held liable in the tort of negligence in respect of the same act: Revill v
Newbery  2 WLR 239. Thus, where an occupier of premises comes
across a burglar on his land he cannot act with total disregard to the
burglar's safety and the maxim ex turpi causa non oritur actio ("from
a dishonourable cause an action does not arise") cannot be invoked to
provide the occupier with what would amount to a complete defence to the
burglar's claim for damages. However, even though such a complete defence may
not be available to the occupier, the courts are likely to reduce the amount
of the claimant's award on the ground of contributory negligence: Revill v
Newbery  2 WLR 239 (where the damages awarded to the claimant were
reduced by two-thirds).
A further distinction between the
civil and criminal law was recently explained by the House of Lords in Ashley
& Another v Chief Constable of Sussex Police  UKHL 25. One of
the issues for determination was whether a plea of self defence to a
civil law claim for assault and battery (trespass to the person) in a case where the
assailant acted in the mistaken belief that he was in imminent danger of
being attacked requires that the assailant acted under a mistaken belief that
was not only honestly but also reasonably held.
It will be recalled that the Court of Appeal in the criminal case
of Williams (Gladstone) held that the mistake must be
honestly, although not necessarily reasonably, held (see above). In
Ashley, the House of Lords confirmed the correctness of this decision insofar
as it relates to a criminal trial but held that where self defence is at
issue in a civil action the position is that “the necessity to take action in
response to an attack or imminent attack must be judged on the facts as the
defendant honestly believed them to be, whether or not he was mistaken, but,
if he made a mistake of fact, he can rely on that fact only if the mistake
was a reasonable one for him to have made”, per Lord Scott.
The House of Lords rejected the argument that the criteria for self
defence in civil law should be the same as for criminal law because “the
ends to be served by the two systems are very different”. Lord Scott stated
that "To hold, in a civil case, that a mistaken and unreasonably held
belief by A that he was about to be attacked by B justified a pre-emptive
attack in believed self defence by A on B would, in my opinion, constitute a
wholly unacceptable striking of the balance. It is one thing to say that if
A's mistaken belief was honestly held he should not be punished by the
criminal law. It would be quite another to say that A's unreasonably held
mistaken belief would be sufficient to justify the law in setting aside B's
right not to be subjected to physical violence by A. I would have no
hesitation whatever in holding that for civil law purposes an excuse of self
defence based on non-existent facts that are honestly but unreasonably
believed to exist must fail".