The Law Relating to Self Defence
by Eric Baskind LL.B (Hons)

This article is intended to provide a general review of the law relating to self defence and therefore cannot be relied upon for any particular case. Specific legal advice should be sought in individual cases.

A question that is asked frequently by self defence students concerns the legal aspects of self defence since they are concerned that they may face legal proceedings if they take physical action against an assailant. In my book Defend Yourself, I have provided some guidance on the subject that will answer most student's basic questions. However, the subject is extremely complex and this article aims to provide a fuller, more technical and updated insight into the subject.

I have endeavoured to state the law as it stood on 9 September 2002.

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 force to:

1. defend himself from attack
2. prevent an attack on another person
3. defend his property

In addition to the common law defence, section 3 (1) of the Criminal Law Act 1967 (the statutory defence) provides that:

"A 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 Blake¹. 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 hammer and chisel (i.e. force) to cut the letters into the concrete instead of using a marker pen? To the extent that this case 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 welcome.

Why is it important to distinguish between the common law and statutory defences?

There is considerable overlap between the common law and statutory defences. It was held in Cousins² that both defences are available to an accused on the same facts.

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 statutory defence.

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 section 3 (1) of the Criminal Law Act 1967 will apply.

A good example of the statutory defence can be seen from Renouf³ 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 jury.

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)⁴ 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 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 Chisam⁵ 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 Rose⁶ 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 Duffy⁷ 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 Hussey⁸ 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 lawful.

Does a trained person need to warn an attacker before taking steps to defend himself?

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 the position.

For example, in the case of Julien⁹ 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 McInnes¹⁰ 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 law.

The present position is stated in Bird¹¹ 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 withdrawing.

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.

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 Palmer¹² Lord Morris said:

"If 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 Wastie¹³ Lane J was satisfied that a considerable amount of force was reasonable and justified in circumstances where a violent and abusive driver was obstructing the highway.

These cases acknowledge the fact that whilst a jury 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 Oatridge¹⁴ 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 the attack".

Of course, it follows that a threat of force may be held to be reasonable where actual force would not be: Cousins¹⁵

How is the "reasonableness" test assessed - objectively or subjectively?

In Owino¹⁶ 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 Scarlett¹⁷ where the Court of Appeal held the test to be unequivocally subjective. The judgement 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".

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 considered subjectively.

In Oatridge¹⁸ 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)¹⁹ 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.

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 illustrate this position clearly.

In O'Grady²⁰ 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 Bowering²¹ 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 be spontaneous.

The law permits a person to prepare to repel an attack. In the-
 Attorney-General's Reference (No 2 of 1983)²² 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 Beckford²³.

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 Browne²⁴ Lowry LCJ stated:

"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 Malnick²⁵ 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 consequences of using excessive force.

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 recent case of Clegg²⁶ 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.

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.²⁷ 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 actio²⁸ 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 negligence²⁹.