By Leigh Simms, 21-Sep-2011 18:26:00
The Law & Self-Defence
We have the right to defend ourselves in England under “common law”. Common law is decisions made by Judges that become the law. Where there is a name written in brackets (e.g. (Surname 2010) ), that is the name and year of the case that established the law I am writing about.
The common law states that; a person is allowed to use reasonable force to defend himself from an attack (Beckford 1988), to defend another person from attack (Rose 1984), and to defend his property.
As well as the common law defence, section 3 of the Criminal Law Act 9 (CJIA)1967 adds:
(1)A person may use such force as is reasonable in the circumstances in the prevention, or in effecting or assisting the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.(2) Subsection (1) above shall replace the rules of the common law on the question when force used for a purpose mentioned in the subsection is justified by that purpose.
This means that a person is able to use force to prevent any crime, whether it be violent or non violent, as well as crimes against property and the person.
Is force necessary?
In the case of Palmer 1971, the judge noted that at the moment of an unexpected attack, a person cannot logically way up the exact amount of force to use in order to defend him or herself. If we do what we think is necessary at the time, then that is enough to prove that force was necessary. This is now stated in subsection 7 of section 76 CJIA 2008
Is the force reasonable?
In order to prove we have acted in self-defence, we must act using reasonable force. Reasonable force can be defined as force that is proportionate to the threat, that is judged from an unbiased point of view. This is stated in subsection 3 of section 76 of the Criminal Justice and Immigration Act (CJIA) 2008.
Is the force proportionate?
The degree of force used is judged objectively by the courts. This means that the court will take into account the fact that we might not be able to judge the exact threat in front of us. The courts will look at what we perceived the threat to be and look if the force we used was not too much for the threat we thought we were under. Examples of using more force than necessary include, continuously hitting an aggressor when they are down or deciding to “punish” somebody who attempts to pickpocket you.
Do we have a right to a pre-emptive strike?
In the case of Beckford 1988, Lord Griffiths said “a man about to be attacked does not have to wait for his assailant to strike the first blow or fire the first shot; circumstances may justify a pre-emptive strike”. As long as we believe we are under immediate danger (Devlin v Armstrong 1971) a pre-emptive strike is justifiable.
If you make a mistake on the facts of the situation, then you will be judged on whether the force you used was reasonable for the facts you believed. It does not matter why you made the mistake how reasonable the mistake you made is (DPP v Morgan 1976). This is now contained in subsection 4 of section76 CJIA 2008. This also extends to resisting arrest, if you did not believe you were being arrested. However it is not possible to claim self-defence if you know you are about to be be arrested and decide to resist because you have not committed an offence. If you hold a mistaken belief because of becoming voluntarily intoxicated, then you will not be able to rely on this defence. Subsection 5 of section 76 CJIA 2008 covers this point.
Do we have to retreat where possible?
An interesting note is that we do not have to retreat, you do not have to show an unwillingness to fight in order to use the defence of self-defence (Bird 1985), however it will be a factor to be taken
into consideration by the courts.
Effects of Self-Defence
As Self-Defence is a complete defence, this means that if it succeeds it will clear you of the charges made, and if it fails, you will be guilty as charged. Self-Defence is a legal defence, therefore under English law it is up to you to prove you acted in Self-Defence.
In Conclusion, as long as you believe you are in immediate and unlawful danger, you have the right to defend yourself (including using a pre-emptive attack), as long as the force you use is proportionate to the circumstances, that you believe yourself to be in at that time.
Here is a link to the Governments website which includes Section 76 of the Criminal Justice and Immigration Act 2008 for anyone who wishes to view the law first hand - http://www.legislation.gov.uk/ukpga/2008/4/section/76
Leigh Simms 2011 ©
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