Private defence


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Private defence

  1. 1. SummaryIn general, private defence is an excuse for any crime against the person or property. Itprobably applies to the defence even of a stranger, and may be used not only againstculpable but against innocent aggressors.In general, defence is allowed only when it is immediately necessary against threatenedviolence. A person who acts under a mistaken belief in the need for defence is protected,except that the courts hold that the mistake must be reasonable. The best that can be saidof this qualification is that it is construed leniently, at least in favour of the forces of order.On principle, it should be enough that the force used was in fact necessary for defence,even though the actor did not know this; but the law is not clear. There is no duty to retreat,as such, but even a defender must wherever possible make plain his desire to withdrawfrom the combat. The right of private defence is not lost by reason of the defender’s havingrefused to comply with unlawful commands.The force used in defence must be not only necessary for the purpose of avoiding theattack but also reasonable, i.e. proportionate to the harm threatened; the rule is best statedin the negative form that the force must not be such that a reasonable man would haveregarded it as being out of all proportion to the danger. The question of proportionality is forthe jury. A person may lawfully threaten more force than he would be allowed to use.The carrying of firearms and other offensive weapons is generally forbidden, but (1) a thingis not an “offensive weapon” if it is not offensive per se and is carried only to frighten; (2) aperson does not “have it with him” if he merely snatches it up in the emergency of defence,and (3) there is the defence of “reasonable excuse” where the defendant acted reasonablyunder an “imminent particular threat affecting the particular circumstances in which theweapon was carried.”An arrester need not give back, and the right of self-defence may entitle him in the lastresort to kill a resisting criminal when he could not lawfully kill a fleeing criminal.The right of defence avails against the police if they act illegally, but the defender cannottake benefit from a mistake as to the law of arrest or self-defence. It was held in Fennell thata person who rescues another from police detention does so at his peril of the detentionbeing lawful, and cannot set up a mistake of fact.
  2. 2. The occupier of premises may use necessary and reasonable force to defend them againsta trespasser, or one reasonably thought to be a trespasser; and it seems that even alicensee (such as a lodger) can eject trespassing strangers. It is a statutory offence to setspring guns or man-traps, except in a dwelling-house between sunset and sunrise. It hasnot been decided whether the exception operates to confer an exemption from the ordinarylaw of offences against the person. Such defences as spikes and dogs are lawful ifreasonable. Guard dogs must, by statute, be kept under full control, except in privatehouses or on agricultural land.The traditional rule is that even death may be inflicted in defence of the possession of adwelling; and in Hussey this was applied even where the aggressor was acting, and wasknown to be acting, under a claim of right.A displaced occupier who uses violence to re-enter upon premises commits an offenceunder the Criminal Law Act 1977, apart from the displaced residential (or intendingresidential) occupier, who is given exemption. The latter may, therefore, use necessary andreasonable force to re-enter.Necessary and reasonable force may also be used to prevent unlawful damage to chattels,or to prevent their dispossession. According to Blades v. Higgs, it may be used evenagainst a person who is known to claim the right to retain the goods, if the claim is invalid.Another form of lawful self-help is in respect of abatement of nuisance.23.2 The Necessity for DefenceThe defence of private defence resembles that of preventing crime in the twin requirementsthat the act must be immediately necessary (there must be no milder way of achieving theend) and proportional to the harm feared. Both questions, the factual and the evaluative, arefrequently left to the jury as a single, unanalysed, question of reasonableness. This savesthe trouble of sorting them out, but may lead to regrettable confusion.Necessity.A behaves aggressively towards B; B squares up to him and A makes to retreat,showing clearly that he has thought better of attacking. A blow given him by Bcannot be justified, because the necessity for defence has passed.Proportionality.
  3. 3. A is about to slap B’s face; B is a weakling who can avoid the slap only by using agun. B is not justified in shooting, but must submit to being slapped.On the necessity question, is a pre-emptive strike allowed?It is sometimes thought that defence is allowed only against immediately threatenedviolence. Clearly, force may not be used to meet a threat of violence in the future, whenthere is still time for the person threatened to seek police protection. If he acts prematurelythe judge may perhaps withdraw the defence from the jury, on the ground that there was noevidence of necessity when the defendant acted. But, as was said before in connection withthe prevention of crime, there: is a distinction between the immediacy of the necessity foracting and the immediacy of the threatened violence. The use of force may be immediatelynecessary to prevent an attack in the future. If, for example, there is a present hostiledemonstration indicating that violence is about to be used, the defender finger on thetrigger. Moreover, force may lawfully be threatened in advance of the immediate necessityfor using it. For these reasons it is best to regard the question of the immediacy of the threatas something that enters into the calculation of necessity, rather than as an independentruleThe requirement of reasonableness is unhappy. Enough has been said in criticism of it, andthe CLRC has recommended that it should be expunged from the law. In practice, as wehave seen, the requirement may be construed indulgently to the defendant, for, as HolmesJ memorably said in the United States Supreme Court, “detached reflection cannot bedemanded in the presence of an uplifted knife.” As we shall see in the next section, therequirement is now stated in such mitigated terms as to cast doubt on whether it still formspart of the law.Can one act in self-defence by accident, so to speak? That is to say, without knowing that the other is himselfabout to attack you?The question is unlikely to present itself in that form, but it may arise somewhat differently.Suppose that D acts, as he believes, in self-defence. He is prosecuted for the injury heinflicts, and it is argued for the prosecution that although he may have believed in thenecessity for self-defence he had no reasonable grounds for the belief. However, theevidence shows that in fact he was under such a necessity, for reasons that he did notknow at the time. This is the same problem as was mentioned in relation to arrest, and thesame answer should be given. If there is in fact a case for acting in self-defence, theinvestigation into the legality of the act should be foreclosed. The defendant’s action islawful irrespective of what the defendant believed or of the grounds of his belief. The law
  4. 4. would be oppressive if it said: It is true that you took this action because you felt it in yourbones that you were in peril, and it is true that you were right, but you cannot now assignreasonable grounds for your belief, so you were only right by a fluke and will be convicted.If a person is set upon, is he obliged to try to run away, if he can, instead of acting in self-defence?The law now is that he is not under a duty to retreat as such, but he must take anyopportunity of disengaging himself. The Court of Appeal formulated the rule in the followingterms.“It is not, as we understand it, the law that a person threatened must take to his heels and run inthe dramatic way suggested by counsel for the appellant; but what is necessary is that heshould demonstrate by his actions that he does not want to fight. He must demonstrate that heis prepared to temporise and disengage and perhaps to make some physical withdrawal; andthat that is necessary as a feature of the justification of self-defence is true, in our opinion,whether the charge is a homicide charge or something less serious.”23.3. THE PROPORTIONALITY RULEIn the example of the proportionality rule given at the beginning of 23.2 the use of the gunmay be “necessary” to avoid the apprehended evil of being slapped, but it isdisproportionate to that evil, and therefore unlawful. “For every assault it is not reasonable aman should be banged with a cudgel” (Holt CJ). The proportionality rule is based on theview that there are some insults and hurts that one must suffer rather than use extremeforce, if the choice is between suffering the hurt and using the extreme force. The ruleinvolves a community standard of reasonableness and is left to the consideration of the jury.It can bear hardly on the defender, but much depends on the way in which judges and juriesadminister it; and that, again, may depend on whether they happen to empathise with thefrightened defender or with his injured (or dead) assailant. If the defendant’s reaction wasdisproportionate, the attack he feared or was resisting will go only in mitigation.The previous examples of the proportionality rule are too trivial to be helpful. The real-lifeproblem arises where a person is fiercely attacked by a bully whom he can resist only bythe use of a lethal weapon. It is now so common for brutal men to kick their opponent aboutthe head after he has been felled to the ground that anyone who is attacked mayreasonably dread this possibility.In order to give proper width to the right of self-defence an Australian court stated the lawnegatively: “Would a reasonable person in the defendant’s situation have regarded what he
  5. 5. did as out of all proportion to the danger to be guarded against?” A somewhat differentapproach to the problem was adopted by the Court of Appeal in Shannon, basing itself onthe following dictum of Lord Morris:“A person defending himself cannot weigh to a nicety the exact measure of his necessarydefensive action. If a jury thought that in a moment of unexpected anguish a person attackedhad only done what he honestly and instinctively thought was necessary that would be mostpotent evidence that only reasonable defensive action had been taken.”Approving this statement, the Court of Appeal quashed a conviction because the trial judgehad not conveyed the point to the jury and had not directed them broadly in Lord Morris’swords. The real issue, the court thought, was: “Was this stabbing within the conception ofnecessary self-defence judged by the standards of common sense, bearing in mind theposition of the defendant at the moment of stabbing, or was it a case of angry retaliation orpure aggression on his part?” In future, an instruction to the jury in these terms will evidentlybe necessary in many cases of self-defence.The facts of Shannon were that the deceased, a heavily built man who had convictions forviolence, had been making threats against Shannon for having (as he believed) “grassed”him. Shannon, who had no history of violence or aggression, must have been living in fearof an attack for some time. When the attack came he fought back, the fight (thoughevidently largely one-sided) being described by a bystander as “pretty frightening.”Shannon’s evidence was that he was being held very tightly by the neck and was beingdragged down and “kneed;” he feared that if he fell while in the grip of his attacker he wouldhave “got beat up by his feet.” He lashed out with a scissors and inflicted a fatal blow. Onthe issue of self-defence the judge left the case to the jury with the bald question: Did thedefendant use more force than was necessary in the circumstances?” On this the jury,surprisingly, returned a conviction of manslaughter. The conviction was quashed, as alreadysaid, for inadequate direction to the jury; but the Court of Appeal expressed no othercriticism of the verdict. We are left with the impression that if in a similar case the judgereads out Lord Morris’s dictum to the jury, who nevertheless convict, the conviction willstand.On the dictum, it is not easy to see how “what the defendant thought” could be evidence ofwhat it was reasonable for him to do. The usual opinion is that the question what isreasonable, in the multifarious applications of that word, is for the unaided vote of the jury,and is not a matter for “evidence” in the ordinary way. It looks very much as though thedictum is a way of escaping from the test of reasonableness without acknowledging the fact.
  6. 6. This conclusion is strengthened by the above-quoted remark of the Court of Appeal, which(epitomising a lengthy statement of Lord Morris) distinguishes sharply between “necessaryself-defence” on the one hand and “angry retaliation or pure aggression” on the other. Thedichotomy allows no place in between for unnecessary but putative self-defence. Allputative self-defence, it seems, falls into the category of “necessary self-defence.” In thispart of the judgment, the idea that the defendant’s belief is merely evidence ofreasonableness has suddenly vanished; indeed, the very word “reasonable” is dropped. Itseems, therefore, that the decision makes a radical change in the law. At least where thedefender fears death or serious injury, there is no proportionality rule any longer; and agood thing too—in view of the jury’s verdict in Shannon. German law, it seems, gets onwithout a proportionality rule, and so could we, where the facts are similar to thosein Shannon. The reasoning in the decision is fudged, but that is the price one pays for abeneficial change in the law.Suppose Shannon had used his scissors upon a mugger; would the view of the court have been the same?If the thief were trying to drag his bag from him, and the victim of the robbery stabbed thethief merely in order to avoid losing his property, the authorities give no indication of thelegal position. All that one can clearly do by way of defence against robbery is to give therobber blows and threaten him with a weapon.6 For some reason that is not clear, thecourts occasionally seem to regard the scandal of the killing of a robber (or of a person whois feared to be a robber) as of greater moment than the safety of the robber’s victim inrespect of his person and property. Possibly, if the matter were fully argued, the court wouldapply the same rule as inShannon, but one does not know. The jury’s verdict in Shannon isa standing warning to all defenders of the legal danger of killing an adversary, even in self-defence.To what extent can one carry weapons by way of defence? Could I carry a hefty spanner to use if I am attacked onthe street at night?Not legally. It is, you will remember, an either way offence under the Prevention of CrimesAct 1953 section 1 for a person to have “with him” an offensive weapon in a public placewithout reasonable excuse.Offensive weapons are (1) those that are offensive per se,9 and (2) those that are capableof an innocent use (your spanner) but are carried for the purpose of causing injury to theperson. It does not matter that the injury contemplated will be defensive.But you said that reasonable excuse is a defence. Why isn’t self-defence a reasonable excuse?
  7. 7. We are not allowed to make a habit of carrying a weapon for defence because everyweapon could be used for that purpose, and the excuse could be used by thugs as well asby honest men. The defence of reasonable excuse is available, but is given a restrictedinterpretation; it might justify a man in carrying a weapon after being attacked within the lastday or two, or perhaps for a little longer; but even the fact that he has been mugged doesnot give him an indefinite licence to carry a weapon. There must be “an imminent particularthreat affecting the particular circumstances in which the weapon was carried.” Thequestion of reasonable excuse is one for the jury or magistrates, but the magistrates, atleast, will be expected to guide themselves by the above principle stated by the highercourts.By the way, if you carried the spanner without any intention to strike anyone with it, but onlyto frighten off an attack, it would not be an “offensive weapon,” not being offensive per seand not being carried for the purpose of causing injury.” And if you did not intend to strikeanyone with the spanner when you carried it, but used it on the spur of the moment whenattacked, it would still not be an “offensive weapon” and you would still not be guilty ofhaving it with you for an offensive purpose.Again, you would not commit an offence under the Act of 1953 if you used a spanner thatyou snatched from an assailant in order to strike him, or one that you happened to seewhen you were being attacked, for the same reason as before—would not be an “offensiveweapon” and you would not “have it with you.” These two escape-routes from the Act(depending on an understanding of what is an offensive weapon and when the user had it“with him”) are quite distinct from the question of what is a reasonable excuse. Are guns inthe same position?Most guns are offensive weapons within the Prevention of Crimes Act, and, in addition, theprivate possession of firearms is strictly controlled under the Firearms Act 1968 and otherActs. Even if you have a licence from the police to possess a firearm, carrying the weaponis an offence under section 19 of the Act, except that the courts will allow the statutorydefence of “reasonable excuse,” which is construed in the same way as in the Prevention ofCrimes Act. The fact that you were acting under this general permission does not allow youto shoot. When you can do so depends on the law of private defence. If I were carrying agun or spanner illegally I might be punished for it, but all the same I would use the weapon ifI were being murderously attacked.
  8. 8. On principle you would be within your rights in doing so. The fact that your possession ofthe weapon is punishable under statute is no more relevant to a charge of assault ormanslaughter than would be the fact that you have stolen it.Such is the logic of the matter, but there is no indication that the courts accept it.In Shannon a question was made at the trial whether or not the defendant was carrying thescissors when he was attacked, and the trial judge did not warn the jury that the questionwas irrelevant; nor did the Court of Appeal suggest that the judge should have done so.When the defendant has armed himself against attack, and particularly when he has armedhimself illegally, this is quite likely to be a circumstance of prejudice against him; he will notbe looked upon so benignly as the defendant who possessed himself of a weapon in thestress of the moment.The older authorities try to clarify the law of private defence by declaring that extreme force(otherwise called “deadly force,” that is, force involving the intentional or reckless infliction ofdeath or serious injury) may be used to avoid extreme harm, but not otherwise. “Extremeharm” included death or serious injury but might also include other serious harms like rape.The modem authorities, however, leave the rule of “reasonable relationship” at large, atleast in the case of defence of the person.This abandonment of the relative precision of the old law seems unfortunate, for reasonsalready sufficiently stated in connection with section 3 of the Criminal Law Act. If theproportionality rule survives the decision in Shannon, would it not at least be desirable, forthe sake of protecting defendants from the vagaries not only of juries but (one must add) ofjudges, and from gusts of public opinion, that certain fixed rules should be laid downbeforehand as to the occasions on which extreme force can be used for self-preservation?The list need not be exhaustive, for the rule could be that extreme but necessary force canbe used in specified cases (a), (b), etc., “and in all other cases where such force would notbe regarded by any reasonable person as disproportionate to the threat.” Such a rule wouldhave protected Shannon from an unjust conviction better than the rule stated by the Courtof Appeal.Share on email