“Someone
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”
Discuss
It was held in Beckford (1) that the victim of an attack does not
necessarily have to wait for the first blow to be struck. The appellant was a
Police Officer who shot a fleeing man in self-defence without having received
an attack from the man. In the light of the facts of the case, it was
reasonable to expect an imminent attack from the man.
There has been
much controversy surrounding the issue of resisting force and self-defence when
being or about to be attacked. It would surely be unreasonable to seriously
injure or kill someone as a response to a threat of a minor assault. However at
the time of a major assault, it is deemed acceptable in certain circumstances
to retaliate to an equal or lesser degree of severity. So when does it become acceptable to use
force against an assailant? How much force can be used and what criteria should
be met before force is used?
It has been
widely accepted that giving a pre-emptive strike, or any strike after an attack
has begun must meet certain criteria to be justified. The courts will take into
account issues such as whether there was a possibility to retreat, whether the
threat was imminent, whether a mistake had been made and how much force was
reasonable.
He whom takes
it upon himself to retaliate to an attack, or threat of an attack, without
first examining the possibility to retreat is wrongly taking the law into his
own hands. The most desirable outcome for the law is to avoid confrontation.
This ideal is often not sacrosanct due to the social zeitgeist that encourages
people to physically stick up for themselves physically rather than suffer the
socially demeaning retreat.
This is not
however always a condition of a successful claim for self-defence. In McInnes
(2), the Court of Appeal held that in order for force to be reasonable against
an assailant, the defendants behaviour should have
demonstrated that he did not want to fight, but by not retreating it should not
negate the defence of self defence. It is legally appreciated that in the heat
of the moment, one cannot weigh up a decision whether to fight or retreat as
easily as one would be able to with more time and less adrenaline. In Palmer
(3), Lord Morris stated, “A person defending himself cannot weigh to a
nicety the exact measure of his necessary defensive action.”
It must be
established that the attacker poses an imminent threat. It is not acceptable to
strike someone who you believe will at a time not attack you. It is expected
that one would take threats (communicated or implied) like this to the proper
authority. In Malnik (4), the defendant was arrested for carrying an offensive
weapon on route to recover a friend’s property from a known violent. The
defence claimed the weapon was purely for self defence but were unable to rely
on the defence as the defendant put himself in the dangerous situation by
choosing to go to the known violent’s house. The threat was not imminent.
For a threat to
qualify as imminent though, it does not have to be immediate. It does have to
be of a reasonable time lapse in which no other alternatives could be acted
upon. In Attorney General’s Reference No. 2 of 1983 (5), the defendant
successfully used the defence of self-defence for the ownership of petrol bombs
to protect his shop in an area where there had been extensive rioting.
If someone
strikes out at another in self-defence, there must be good reason. There does
not necessarily need to be a genuine threat of attack, but the person acting in
self-defence must believe that there is. It is not acceptable to strike in
self-defence if it is known the assailant’s threat of attack is not genuine.
This would be an unjustified attack on an innocent assailant using self-defence
as a black cloak. The belief that one is in danger from the assailant need not
be reasonable to the average person but must be proven reasonable to the person
seeking to rely on it.
In Williams
(6), a man was able to rely on self-defence despite assault on an innocent
party. His mistake of assaulting an honest assailant was held acceptable
because his honest misapprehension would have lead to acquittal if his idea of
the facts were at the time correct. There are however limits to what could be
reasonable. If a defendant was intoxicated, with his actions being as a result
from his intoxication, he will not be able to rely on the defence of self
defence (though possibly on the defence of intoxication which is a much
stricter). In O’Connor (7), the defendant committed murder in the drunken
mistake that he was about to be attacked. Because it is unlikely that he would
have come to the same conclusion if sober, he could not rely on self-defence as
his mistake was an unreasonable one to make.
Perhaps the
most controversial area of when to strike back at an attacker is how much force
needs to be used. In the heat of the moment when being attacked, it is hard to
decide whether one is using too much force. The instinct of self-preservation
often leads one to over react-to use more force than the assailant in order to
protect oneself. It is left to the jury to decide what constitutes reasonable
force which can leave erratic judgements as the test is subjective. Jury’s all
too often rule from the heart, letting emotion cloud their judgement, which
leaves unlikeable defendants at a disadvantage.
In Attorney
General for Northern Ireland Reference (1977) (8), a Soldier shot a running man
as he wrongly suspected him to be part of the Provisional I.R.A. It was
accepted that his force used was reasonable due to the threat of future
terrorism. His mistaken identity of the man was also accepted leaving the
soldier able to rely on the defence of self-defence. This case however seems
ill-judged on moral issues. Whilst it should be accepted that the threat from
the Provisional I.R.A was a major one to be dealt with, the threat here was not
imminent. The soldier was unlikely to be in any harm himself and there was no
evidence of the supposed terrorist being part of any illegal activity. Even if
they had, the severity of ending someone’s life because of it seems severe and
irrational. Most terrorist activity by the Provisional I.R.A was in
demonstrations and terrorism against property. Though obviously undesirable,
this is not enough to morally qualify murder as acceptable.
It also has to
be appreciated that not everybody realises that they are using too much force.
Those with mental impairments are treated separately to those without. The mens rea for striking out against
an assailant using too much force may not be there for mentally handicapped
people. They may not realise the strength they are in control of. Similarly
handicapped people may not realise the strength they are using. This can also be the case with people without
disabilities. What is important to discover is if the defendant used what they
deemed was reasonable force. In Scarlett (9), a
public house landlord used force to eject a drunken customer who refused to
leave and was acting violently. He pushed him away but did not realise that the
push would propel the drunk as far as the stairs, which he fell down and
subsequently as a result of the push, died. The defendant was acquitted as he
thought the force he used was reasonable despite it being over excessive.
Unfortunately
the law remains unclear on the issue of mistaken force due to a number of
contrasting cases including Scarlett. Scarlett had changed the position in Williams (6) which had
held that the ‘quality’ of force used should be merely a
objective test, not a subjective test as in Scarlett.
The law was yet again changed in Owino (10) where a
Man was unable to claim his excessive force against his wife’s assault was
subjectively reasonable. The court held that the objective test should be
followed. It is clear that with three changes in the law in the eight years
between these cases, that there is little clarity or consistency present in the
law. Legislation on the issue would surely not go amiss. It should be put in
place promptly.
However the
Criminal law system is flawed in other more major ways. Notably
surrounding the issue of the amount of force required. Offences with
mandatory prison sentences leave those using excessive but subjectively
reasonable force at risk. For example if excessive force is used where some
degree of force is justified and death results, the defendant can be convicted
of murder despite their force being reasonable in their mind. It would make
more sense to allow such instances to result in the lesser offence of
manslaughter. The law is not flexible enough. This could soon change as it has
been recently suggested by the Law Commission and Criminal Law Revision
Committee that murder can in these circumstances can be reduced to
manslaughter. A problem lies with the timing of this change. The same change
had been suggested by the House of Lords Select Committee on Murder and Life
Imprisonment in 1989 and was widely accepted, yet nothing has since been done.
The Law has been too slow to adapt.
The law is also
not flexible enough in the case of physically weaker people. Currently the law
in Oatridge (11) states that the force used must be
commensurate with the level of the perceived attack. This however leaves holes in the law, which
could prejudice some people. For example, lets take a
strong man and a much weaker woman. The man is unarmed as is the woman other
than a large kitchen knife. The only way the woman can protect herself from her
assailants attack is to use the kitchen knife. Her fists would do insufficient
damage. The law needs to adapt to a test of reasonableness. What would a
reasonable person do in the woman’s position! The reasonable response may not
always be the one that is proportionate to the attack or threat of attack.
The law
commission in a recent draft bill has suggested that the requirement for the
threat to be imminent be abolished. Whilst it is true that this would no doubt
aid women who attack their abusive partners through fear of future abuse, it
does seem that it could do more danger than good. It leaves the law open to
abuse. Many people could decide to physically take out personal vendettas
against others and call the attacks self-defence. Changing the law in this way
would make it easier for lies to be accepted in court creating more violence.
It would also suggest to victims of domestic abuse that the law allows them to
take retribution against their partners without facing consequences that they
previously would have. For these reasons, I would disagree with the Law
Commissions proposal.
The law is
currently full of holes in the issue of self-defence. To prove mens rea, the criteria above must
be met. The criteria however are too rigid. The tests all need to be
subjective, not objective and reasonableness needs to be applied. The law
commission has come up with some good proposals but can seriously harm the
criminal law if the requirement for the threat to be imminent is removed.
Government needs to intervene to create statute law surrounding these issues as
the common law is often too erratic in its judgements. Similarly as the law
stands, self-defence overlaps with s3 of the Criminal Law Act 1967, which
allows reasonable force to be used in the prevention of a crime. Separate
boundaries for the law needs to be set out.
The problem
will however still remain as along with society, the criminal zeitgeist is
quickly changing. The Law needs to be more flexible or will become unpractical.
Cases
10. R V Owino (1995) Crim LR 743
11. R V Oatridge (1992) Crim LR 205
Bibliography