SELF DEFENCE AND THE LAW
By Chris Wright (Solicitor Advocate)
“It is both good law and good sense that a man who is attacked may defend himself. It is both good law and common sense that he may do, but may only do, what is reasonably necessary. But everything will depend upon the particular facts and circumstances”
At common law a person is entitled to use such force as is reasonably necessary to protect himself or another or property. The leading case is still that of R v Palmer (1971) which some 33 years ago made the following points:
- A man who is attacked may defend himself and do what is reasonably necessary in order to do so.
- Each case will depend on its own facts.
- Response to attack must be in proportion to the necessities of the situation.
- Use of force in order to obtain revenge will not amount to self defence.
- At the time when force is used there must still be a necessity of defence. Retaliation has no place in the English law of self defence.
At the moment of attack and peril, “a moment of unexpected anguish” A person cannot “weigh to a nicety” the exact measure of his defensive action.(In other words the defence should be in proportion to the attack but the law recognises that it may not be possible to get it “just right” in the heat of the moment)
A later case in 1983 had to consider the situation where a defendant acted in self defence upon the basis of an honest but mistaken belief about the circumstances that he found himself in. The case established that the reasonableness of a person’s defensive action should be judged with reference to the facts as he/she honestly, although perhaps mistakenly, believed them to be. This will not apply, however, if the defendant makes the mistake because he is drunk!
It was once the case that a person had to show that he or she had retreated as far as possible from the violence threatened. This is no longer the case. Retreat is just one of the factors to be considered in relation to the overall reasonableness of someone’s conduct. If there is a peaceable way out of a situation the law expects a person to take it.
These days with so many public places, clubs, pubs etc being under CCTV surveillance this evidence tends to be extremely important in determining the facts of an incident. Such film evidence will often be without soundtrack and therefore any physical gestures or body language which show that someone has tried to avoid a conflict before having to resort to self defence may be very important. For example showing open hands in a gesture of “Stop I don’t want any trouble” is a universally recognised gesture clearly understood on camera.
A “pre-emptive strike” may sometimes be justified if an attack is imminent and unavoidable.”There is no rule of law that a man must wait until he is struck before striking in self-defence.If another strikes at him he is entitled to get his blow in first if it is reasonably necessary to do so in self-defence.” Evidentially the issue of who struck the first blow still carries a lot of weight. (Even where the first blow is dodged or parried, of course). A pre-emptive strike against a threat from a weapon is very likely to be reasonable.
A threat from a gun or knife implies a possible lethal attack and an unarmed victim can take any necessary measures to defend himself. It will be a matter of judgement whether it is prudent to do so if, for example, only loss of property is at stake.
As a Judge said in the case of R v Knock in 1877 “a man defending himself does not want to fight, and defends himself solely to avoid fighting”..
If a potential conflict can be ended by walking away or closing the front door against an angry neighbour, then that course should be taken. Likewise in disputes between motorists a driver may be expected to lock his door or drive away rather than engage in violence. The issue of who had been the bad driver in a “road rage” incident carries little weight in comparison to injuries inflicted.
USE OF A WEAPON
The law recognises that there may be situations in which it is reasonable to use a weapon to defend oneself. This particularly applies where the person acting in self-defence is at some physical disadvantage or where there are two or more people against one.
However the premeditated use of a knife or other weapon will in general be unreasonable and the law in this country nearly always prohibits the carrying of a weapon even for purely defensive reasons.
There are two forms of weapon recognised by law. The first is an offensive weapon “per se”. That is to say something which is designed specifically as a weapon. This would, of course, apply to a gun, cosh, ”knuckle duster” many forms of knives etc. (Guns and knives are covered by separate legislation as well and very heavy penalties are imposed). The second form of weapon is something which is used or adapted as a weapon and this will cover almost any item found in the home, workplace or elsewhere which is not designed as a weapon but which can be used as such.
There is an important distinction between something which is utilised in the heat of the moment in genuine and necessary self defence and a pre-prepared weapon which is specifically carried with that intention in mind.
An unarmed person who is attacked by someone with a weapon will usually be justified in using that same weapon against the attacking party. However, this will be subject to the use of the weapon against the attacker being absolutely necessary in self defence and the extent to which the weapon is used should be no more than is necessary to protect from the attack.
In the case of Cross v Kirkby (2000) a farmer, Mr Kirkby, had been attacked by Mr Cross who had taken a baseball bat from his vehicle and had struck Kirkby on the hand and arm. The farmer had attempted to walk away but Cross confronted him again. The farmer succeeded in wresting the bat from his grasp and struck him a hard blow across the head. The case resulted in a civil action because Mr Kirkby received a fractured skull. The fact that the farmer had tried to avoid the fight all together was clearly a relevant issue as was the fact that he was only using the same weapon which would otherwise have been used against him.
CASES WITH SPECIFIC REFERENCES TO MARTIAL ARTS
A person with martial art training is in exactly the same position at law as anyone else but if an incident results in a case it is likely that the court will expect a trained individual to act with a considerable degree of responsibility in respect of what he is capable of doing. In a sense such an individual may be deemed to be more likely to be able to weigh to a nicety his defensive action.
It must be remembered, for example, that a “take down” practised on a wooden floor or mats against a trained partner in complete safety can have a devastating result against an untrained opponent landing heavily on a pavement or kerb in a real life self-defence situation.
As soon as the threat has been removed no further use of force is justified in law by way of retaliation or punishment however great the provocation may have been. There will no longer be any link with the necessity of defence.
There are relatively few reported cases in England relating to the use of martial art skills in self-defence. Hopefully this may be a reflection upon the fact that most people with such training are careful and responsible.
However there were two cases dealing with the misuse of martial art skills. These were reported in 1997 one in Liverpool and the other in Cardiff and both dealt with cases where the defendants had clearly gone “over the top” and had misused their skill in martial arts to inflict serious and unwarranted injuries on a person. In the Liverpool case this had resulted in a fatality where the Crown Court Judge noted that the defendant had used his martial art skills to retaliate viciously and that this, combined with a tendency to lose his temper made the defendant a dangerous man.
(The law referred to is that which applies in England, Wales and Northern Ireland and is believed to be correct as at the 1st of March 2004.The principles are likely to be similar in Canada, Australia, New Zealand and most of Western Europe but differences may apply. Where the male gender is used it applies equally to the female).
[Thanks go to Ms. Zoe van den Bosch, Barrister at Law for assistance in legal research]