Self-defence in English law
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Self-defence is a legal doctrine which says that a person may use reasonable force in the defence of themself or another. This defence arises both from common law and the Criminal Law Act 1967. Self-defence is a justification rather than an excuse, that is, the defence says that the person's actions were not a crime at all.[a]
Common law (self defence)Edit
Self-defence in English law is a complete defence to all non-sexual offences involving the unlawful use of force (i.e. anything from battery to murder). In other words, it results in a complete acquittal of the defendant. Generally speaking, the rationale is that the defendant is not guilty of the offence because the force used was not unlawful.
Because the defence results in a complete acquittal, the courts have interpreted the defence in a restrictive way so as to avoid acquitting too easily. For example, the courts will not usually acquit the defendant just because he thought the force used was reasonable – whether or not the force used was reasonable will be objectively assessed by the jury and not simply according to what the defendant thought at the time.
|“||A defendant is entitled to use reasonable force to protect himself, others for whom he is responsible and his property. … It must be reasonable.||”|
|— Beckford v The Queen  AC 130|
Lord Morris in Palmer v R stated the following about someone confronted by an intruder or defending himself against attack:
|“||If there has been an attack so that defence is reasonably necessary, it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his defensive action. If the jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought necessary that would be the most potent evidence that only reasonable defensive action had been taken…||”|
|— Palmer v R  AC 814|
Opinions differ as to what constitutes "reasonable force" but, in all cases, the defendant does not have the right to determine this because they would always maintain that they had acted reasonably and thus would never be guilty. The jury, as ordinary members of the community, must decide the amount of force reasonable in the circumstances of the case. It is relevant that the defendant was under pressure from imminent attack and may not have had time to make entirely rational decisions, so the test must balance the objective standard of a reasonable person by attributing some of the subjective knowledge of the defendant, including what he had believed about the circumstances, even if they were mistaken. However, even allowing for mistakes made in a crisis, the amount of force must be proportionate and reasonable given the value of the interests being protected and the harm likely to be caused by use of force. The classic test comes from the Australian case of Palmer v The Queen, on appeal to the Privy Council in 1971:
|“||The defence of self-defence is one which can be and will be readily understood by any jury. It is a straightforward conception. It involves no abstruse legal thought. … Only common sense is needed for its understanding. It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do, but may only do, what is reasonably necessary. But everything will depend upon the particular facts and circumstances. … It may in some cases be only sensible and clearly possible to take some simple avoiding action. Some attacks may be serious and dangerous. Others may not be. If there is some relatively minor attack it would not be common sense to permit some action of retaliation which was wholly out of proportion to the necessities of the situation. If an attack is serious so that it puts someone in immediate peril then immediate defensive action may be necessary. If the moment is one of crisis for someone in imminent danger he may have [to] avert the danger by some instant reaction. If the attack is all over and no sort of peril remains then the employment of force may be by way of revenge or punishment or by way of paying off an old score or may be pure aggression. There may no longer be any link with a necessity of defence… 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.||”|
|— Palmer v The Queen  A.C. 814, 832|
In R v Lindsay, the defendant, who picked up a sword in self-defence when attacked in his home by three masked intruders armed with loaded handguns, killed one of them by slashing him repeatedly. The prosecution case was that, although he had initially acted in self-defence, he had then lost his self-control and demonstrated a clear intent to kill the armed intruder. The Court of Appeal confirmed an eight-year term of imprisonment. It would not be expected that an ordinary householder who "went too far" when defending against armed intruders would receive such a long sentence.
The Legal Aid, Sentencing and Punishment of Offenders Act 2012 inserted a new section 76(6A) into the Criminal Justice and Immigration Act 2008 to clarify that there is no duty to retreat, although an opportunity to retreat may still be taken into account. In April 2013, the Crime and Courts Act 2013 further amended section 76. This amended the law to allow homeowners to use disproportionate force, up to but not including grossly disproportionate. This was further clarified by the High Court in January 2016.  Section 76 also clarified that the use of reasonable force may still be acceptable even if it was based on an honestly held belief, even if it was mistaken.
The modern law on belief is stated in R v Owino:
|“||A person may use such force as is [objectively] reasonable in the circumstances as he [subjectively] believes them to be.||”|
|— R v Owino (1996) 2 Cr. App. R. 128 at 134|
To gain an acquittal, the defendant must fulfil a number of conditions. The defendant must believe, rightly or wrongly, that the attack is imminent. Lord Griffith said in Beckford v R:
|“||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.||”|
|— R v Beckford (1988) 1 AC 130|
The time factor is important. If there is an opportunity to retreat or to obtain protection from the police, the defendant should do so, thereby demonstrating an intention to avoid being involved in the use of violence. However, the defendant is not obliged to leave a particular location even if forewarned of the arrival of an assailant (see duty to retreat). Furthermore, a defendant does not lose the right to claim self-defence merely because they instigated the confrontation that created the alleged need for self-defence. A person who kills in the course of a quarrel or even crime they started might still act in self-defence if the 'victim' retaliates or counterattacks. In Rashford, the defendant sought out the victim, intending to attack him in revenge for an earlier dispute, but the victim and his friends responded out of proportion to the defendant's aggression. At this point, the defendant had to switch from aggression to defence. The Court of Appeal held that the defendant will only lose the defence by being the aggressor throughout. The question is whether the defendant feared that he was in immediate danger from which he had no other means of escape, and if the violence he used was no more than appeared necessary to preserve his own life or protect himself from serious injury, he would be entitled to rely on self-defence. On the facts, the jury's decision to convict was not unsafe.
R v Williams (Gladstone) (1984) also states reasonable force may still be used lawfully if mistaken. This case covered the use of force for self-defence when used mistakenly but under a genuine and honestly held belief.
Drink and drugsEdit
The issue of belief is more complicated when the defendant has consumed alcohol or drugs. In R v Letenock, the defendant claimed mistakenly to believe that the victim was about to attack him. The judge directed the jury that his drunkenness was irrelevant unless he was so drunk as to be incapable of knowing what he was doing. The Court of Criminal Appeal quashed his conviction for murder and substituted a verdict of manslaughter. Lord Reading CJ said at 224:
|“||The only element of doubt in the case is whether there was anything which might have caused the applicant, in his drunken condition, to believe that he was going to be struck.||”|
|— R v Letenock (1917) 12 Cr. App. R. 221|
This suggests that the question is whether there was any intelligible basis for the defendant’s belief. Hatton held that a defendant who raised the issue of self-defence was not entitled to rely on a mistaken belief induced by voluntary intoxication, regardless of whether the defence was raised against a charge of murder or one of manslaughter. This applied the ratio decidendi in R v O' Grady for murder and R v Majewski for manslaughter. It follows that, if the defendant is voluntarily drunk and kills in what he mistakenly imagines to be self-defence because he imagines (as in Hatton) that the deceased was attacking him with a sword, he has no defence to a charge of murder; but if he claims to be so intoxicated that he is experiencing hallucinations and imagines that he is fighting giant snakes (as in Lipman) then he can be guilty only of manslaughter.
The House of Commons Library compiled a list of people who have acted in self-defence as part of its briefing on the Criminal Law (Amendment) (Householder Protection) Bill 2005.
Section 3 of the Criminal Law Act 1967 provides that:
(1) 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.
(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 abolished common law rules on what was "reasonable," such as the duty to retreat. The definition of what constitutes a 'crime' was clarified under R v Jones (Margaret), R v Milling et al: HL 29 MAR 2006 which stated it covered any domestic criminal offence under English/Welsh law
Thus, reasonable force can be used in the prevention of any crime or in making an arrest to:
- allow the defendant to defend himself from any form of attack so long as the attack is criminal.
- prevent an attack on another person, e.g. in R v Rose, a young son shot dead his father to protect his mother from a serious assault, believing that this was the only practical way of defending her given his small physical size.
- defend his property against criminal attack in the widest sense, i.e. it can be physical possessions like a watch or credit cards demanded by a mugger (where there would also be physical danger to the owner) or, at the other extreme, possession of land.
The common law decision under R v Griffiths (1988) affirms the common law use of force as "an honestly held belief that you or another, are in imminent danger, then you may use such force as is reasonable and necessary to avert that danger".
Section 76 of the Criminal Justice and Immigration Act 2008 codifies English case law on self-defence. It made no changes to the law. However, the section was amended on 25 April 2013 by section 43 of the Crime and Courts Act 2013 to allow people to use greater force in defence of their homes against burglars. In those circumstances, force need no longer be reasonable as long as it is not "grossly disproportionate."
- Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
- Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:
- (a) in defence of any person from unlawful violence;
- (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
- (c) in action lawfully taken for the purpose of quelling a riot or insurrection.
Arrest and private citizensEdit
A private citizen does have a power to any person arrest (Citizen's arrest) under s24A PACE1984 and the common law breach of the peace power to arrest and, where it is lawfully exercised, may use reasonable force and other reasonable means to effect it. In R v Renouf, the Court of Appeal ruled that s3(1) was available against a charge of reckless driving where the defendant had used his car to chase some people who had assaulted him and had manoeuvred his car to prevent their escape. Lawton LJ said:
|“||This case has to be considered in the light of the evidence, which was said to have amounted to reckless driving. This evidence had two facets: one was what the prosecution alleged to be the acts of recklessness; and the other was that these same acts amounted to the use of reasonable force for the purpose of assisting in the lawful arrest of offenders.||”|
|— R v Renouf (1986) 2 AER 449|
The law is quite different in the UK from the USA. In the USA you can arrest for misdemeanours you witness whereas in the UK the equivalent ‘summary’ offences are not arrestable, in the USA in some states force must be minimal where in the UK it can be reasonable, in the USA there is an offence of disturbing the peace which is less than breaching the peace in the UK, and in the USA assault means attempted, rather than apprehended, attack as it does in the UK.
Police like the monopoly on force and ask PCSOs, Active Citizens and Neighboorhood Watch patrols to avoid confrontation. Moving on from the revenge justice of Anglo Saxon blood feuds, hue and cry and tithings (where villagers were responsible to compensate for crimes they failed to arrest for), from the 13th to 19th century outside London the only arrest was usually a citizens arrest. Even before that, there were sheriffs with citizens roped in under posse comitatas, who evolved into constables, marshals, night watchmen and bounty hunters. Constables and night watchmen were volunteers on rotation. It was only after householders all started paying deputies to do the work for them that paid or professional guards emerged in the 17th century with Charleys – low paid watchmen with lanterns and bells, which expanded in the 18th century and eventually became funded by tax to relieve citizens of all having to volunteer. In the 18th century Thief Takers acted as bounty hunters but were riddled with corruption. Even the Bow Street Runners started on a pay per catch basis in the 18th century. Notoriously, crime increased when the first police, Peelers, took over from night watchmen in the 19th century in an attempt by the middle class to control drunks and beggars.
Police are a relatively recent invention which for centuries was politically unacceptable due to fears of tax and state intrusion taking over from citizen patrols. It has led to the phasing out of the very patrols that gave birth to them as overburdened police with ever expanding responsibilities and ever reducing budgets are forced to rush from one call to another as a response force rather than prevention force. Only 5% of police time is on foot patrol and 12% for neighbourhood police.
Arrest = detention = Police & Criminal Evidence Act 1984 s24AEdit
The test for a valid arrest is:
- reasonable suspicion of, or an actual, indictable offence being committed OR reasonable suspicion of being, or actually being, an indictable offender, AND
- if not obvious, inform that arrested and why as soon as reasonably practicable, AND
- not reasonably practicable for police to arrest, AND
- reasonable belief that arrest necessary to prevent escape, injury or damage.
If you get it wrong you could be looking at as least as much as £2K damages + £2K fine + costs although probably less if not malicious. It would also mean that an assault on you in resisting arrest is lawful. Detention without arrest is unlawful. As you don’t want to have to prove the fact of and reason for arrest was obvious it is best to always state it. Arrest can be verbal and vernacular can suffice. It is false imprisonment if you inflict unlawful reckless restriction of free movement. It is unlawful arrest if you threaten force and falsely imprison. Damages for false imprisonment is about £500 for the first hour, including £200 for the first five minutes due to shock of arrest.
Consider whether the victim wants an arrest, whether you can arrest without others getting injured, whether others will get injured if you don’t arrest, can it wait for police to arrive, can the suspect be traced by police later instead, if mentally ill can they wait for street triage? Ideally you will attempt moving along the continuum of persuade-advise-warn before finding you have to arrest, eg you might be able to threaten to call police instead to move them along. Arrest may justify more force than self-defence.
After restraining the suspect, call an ambulance if the suspect is losing consciousness, seriously injured or appears mentally ill. Health issues to watch for are positional asphyxia, exited delirium and sickle cell; it is dangerous to leave suspects on their front or to stay piled on top of them, they should be on their side. You cannot arrest a child under 10 as they cannot commit a crime, but you can use reasonable force to prevent injury or damage until the police arrive.
Police power of arrest differs in that they can arrest any offence or even to prevent any offence, but only if necessary, such as to investigate, prevent escape, ensure safety or obtain ID. All PCSOs are normally licenced to do is detain for half an hour if they don’t believe they have been given a genuine ID and address, apart from that all they have is citizens arrest; even the specific offences of defying an PCSO are not arrestable by them or citizens. Some forces, eg Essex did not give them power to detain for 30 mins.
It does not invalidate an arrest to mistakenly also arrest for other believed but non-existent offences.
A lot of anti social behaviour, like unarmed threats, assaults, drunkenness, prostitution, joyriding and allowing dangerous dogs, are not arrestable, although the right of defence of person and property remains while the threat remains; you can only detain if restraint is the only way to prevent the crime.
Examples are Assault & battery / Drunk & disorderly / Threatening behaviour / Intimidation / Dangerous dog / Soliciting / TWOCing / Taking cycle / Vagrancy.
Unless there is a breach of the peace you can’t arrest beggars, prostitutes, yobs, drunks or even joyriders unless they damage the conveyance in the process.
Serious offences, such as violence with injury, sexual offences, theft, vandalism, race threats, weapons and drug dealing, are arrestable and of course carry right of defence to person and property anyway. Although shoplifting under £200 is summary only it is the exception which is arrestable. As a rule of thumb it is the risk of harm which tends to make offences arrestable with weapons, injury, invasion of personal integrity, damage or loss. Racial hatred is excluded despite being indictable. As an illustration, as at 2016 whereas 68% of all prosecuted offences were summonsed, 86% of indictable offences were arrested compared to only 27% of summary offences.
Examples are Bodily harm / Sexual assault / Assault resisting arrest / False imprisonment / kidnapping / hostage / Outraging public decency / Public nuisance / Pimping / Criminal damage / Arson / Threat to destroy / Theft / Burglary / Going equipped / Counterfeit currency / Bilking / Aggravated threatening behaviour / Affray / Violent disorder / Riot / Threat with weapon / Blade or point / Offensive weapon / Supply drugs / Causing road danger / Public nuisance / Bomb hoax / Out of control dog injury.
Self defence = crime prevention = Palmer v R 1971 AC 814 & Criminal Law Act 1967 s3Edit
The ‘self defence’ and ‘prevention of crime’ tests are identical, the only difference is that the two rights come from different sources but the standard of force is the same: meaning in practice you can forget common law self defence and just can rely on s3 prevention of crime (except for under-10s).
They don’t cover civil matters so, for example, a shopkeeper can’t use it to eject trespassers. The defence is slightly different in civil law as you would have to prove reasonable belief in circumstances, as opposed to a genuine (potentially unreasonable) one.
CLA covers persons, property, crime prevention and arrest. Defence of another excludes anyone you don’t have a nexus with so is arguably not a right to defend strangers, instead that comes under prevention of crime. Defence of property must be to ward off an unlawful crime or act. Prevention of crime excludes anyone you know isn’t committing a crime, eg you know they are insane.
Common law has added a necessity test, so force must be necessary and reasonable. Necessity is relevant to reasonableness, but just because some force is necessary doesn’t prove the actual force used was reasonable. Necessity and reasonableness is judged on the basis of your honest belief of the circumstances (including the danger). The reasonableness of your belief is relevant to whether you held it honestly, but not whether it was a mistake. The jury would then decide whether, if they were in the situation you subjectively believed yourself to be, the force was objectively reasonable. You are not expected to weigh force to a nicety, and instinctive reaction is good evidence of reasonableness. An allowance is made for the emotional strain and stresses of being attacked.
This is harder to get wrong as the test is whether:
- subjectively you honestly believed there was an imminent crime AND
- objectively you used reasonable force in the circumstances as you believed them to be.
So there might only be a summary offence or no offence; you don’t have to tell them anything; you don’t have to wait for the police. But like arrest, it does have to be to prevent crime or escape. You don’t have to retreat (although that is a factor in assessing reasonableness), or wait for the first blow, but must not take revenge. Revenge is evidence of unreasonableness and seeking confrontation removes the defence. No force might be reasonable if a threat would have sufficed. A witness to violent crime with a continuing threat of violence may well be justified in using extreme force to remove a threat of further violence (CPS guidance). Physical characteristics can be relevant to reasonableness, eg in a fist fight a man twice the size should take it easy or resist provocation. Injuries are relevant to reasonableness and public interest once unreasonableness has been found. CPS say that leeway should be given to those who have to confront in their job such as bouncers. It would be different if the court thought volunteers went out looking for confrontations. The CPS are told not to prosecute if the accused acted reasonably in preventing crime or apprehending offenders, but a factor is whether self defence was more vigilantism and violence than preserving law and order. They are supposed to allow leeway for excessive force that is not far from reasonable.
The CPS first have to check they can probably rebut self-defence beyond reasonable doubt, and even if they can then they have to check if prosecution is in the public interest. To prove assault despite a claim of self-defence CPS must prove beyond reasonable doubt that it was not defence of person or property or crime prevention or lawful arrest, or that force was excessive. Serious injury or use of weapons or ambush usually requires prosecution due to public interest if the force is unreasonable whereas minor injuries can suggest the public interest does not require prosecution. In case the CPS are dubious of your claim that force was reasonable, only using your bare hands, protecting the suspect from injury and only intervening in unexpected incidents rather than laying in wait are ways to try to prevent prosecution. CPS should be slow to prosecute where the public interest is affected by the complainant having been committing crime at the time; factors then include the damage or injury caused by the complainant and whether overzealous force was used to honestly uphold the law without revenge or vigilantism. CPS guidance is that violence is to be discouraged but responsible public spirited crime prevention is to be encouraged and they are to carefully balance the two.
Prevention of breach of peace = Common law = Regina v Howell  QB 416Edit
You can use reasonable force to stop a likely breach of the peace, ie likely injury or damage to a witness’s property (but not mere abuse or disturbance unless it makes you fear such injury or damage). This potentially gets around the problem that assault and threatening behaviour are summary offences. Breach of the peace is not a crime but is arrestable and can lead to binding over. Uniquely the power of arrest comes from a duty to prevent breach of the peace. (There is a wider duty to preserve the public peace on request by the police, failure without lawful excuse is indictable if able bodied). The courts accept that this is an ‘imperfect’ obligation so is no longer enforced. The risk of breach of the peace breaking out must be more than a real possibility but you are not expected to wait until crisis management is the only option. The police have more power as they can give a warning to cease disturbance then arrest for obstruction before breach of the peace is imminent. An example of a valid citizens arrest to prevent breach of the peace was where an off duty constable bundled a man off a bus who barged ahead of the queue at the bus stop which he feared would provoke an affray.
Law enforcement by police officersEdit
The use of force to prevent crime including crimes against property should be considered justifiable because of the utility to society, i.e. a police officer using reasonable force to restrain or arrest a criminal or suspect maximizes net utility. But, where the officers make mistakes, the law can be unpredictable. In R v Dadson, a police officer shot and wounded an escaping thief. At the time, any degree of force could be used to arrest a fleeing felon but, when he fired the gun, he did not know who the thief was. He was convicted of intentionally causing grievous bodily harm because the thief was shot and the gun was fired by a man not caring whether the shot was lawful or not. That the thief was later proved to be a felon did not prevent a concurrence between actus reus and mens rea at the instant the shot was fired, i.e. no retrospective justification is allowed. It is noted that the death of Jean Charles de Menezes at the Stockwell tube station, south London, on July 22, 2005 resulted from the use of a then secret shoot-to-kill policy called Operation Kratos. English law has no general defence of superior orders and the conduct of every police officer has to be judged on the facts as they believed them to be.
In R v Pagett, to resist lawful arrest, the defendant held a pregnant girl in front of him as a shield and shot at armed policemen who returned fire as permitted under their rules of engagement, killing the girl. It is a proportionate response to shooting, to shoot back. In balancing the harms, the greater harm to be avoided is a violent suspect firing and killing a police officer or any other bystander. On the issue of whether the defendant caused the victim's death, the Court of Appeal held that the reasonable actions of a third party acting in self-defence and defence of others could not be regarded as a novus actus interveniens because self-defence was a foreseeable consequence of his action and had not broken the chain of causation.
In Beckford v R the defendant police officer was told that a suspect was armed and dangerous. When that man ran out of a house towards him, the defendant shot him because he feared for his own life. The prosecution case was that the victim had been unarmed and thus presented no threat to the defendant. Lord Griffiths approved a model direction to juries, laid down by Lord Lane in R. v Williams:
|“||Whether the plea is self-defence or defence of another, if the defendant may have been labouring under a mistake as to facts, he must be judged according to his mistaken belief of the facts: that is so whether the mistake was, on an objective view, a reasonable mistake or not.||”|
|— R. v Williams|
The defendant, therefore, had a defence of self-defence because the killing was not unlawful if, in the circumstances, as he perceived them to be, he had used reasonable force to defend himself.
Law enforcement by soldiersEdit
Since the "war on terrorism" began in 2001, the UK has seen a substantial increase in the use of armed police officers. The issue of the extent to which soldiers may be allowed to shoot a suspect in defence of themselves and others has therefore become more relevant to English law, although it has always been highly relevant given the role of the military in the policing of Northern Ireland. In AG for Northern Ireland's Reference, a soldier on patrol in Northern Ireland shot and killed an unarmed man, who ran away when challenged. The trial judge held that the prosecution had failed to prove that the soldier intended to kill or cause serious bodily harm, and that the homicide was justifiable under section 3 of the Criminal Law Act (Northern Ireland) 1967 (identical wording to the English section). The Lords decided that the judge's ruling was purely one of fact, and therefore declined to answer the legal question of justification. But Lord Diplock commented:
|“||There is little authority in English law concerning the rights and duties of a member of the armed forces of the Crown when acting in aid of the civil power; and what little authority there is relates almost entirely to the duties of soldiers when troops are called upon to assist in controlling a riotous assembly. Where used for such temporary purposes it may not be inaccurate to describe the rights and duties of a soldier as being no more than those of an ordinary citizen in uniform. But such a description is in my view misleading in the circumstances in which the army is currently employed in aid of the civil power in Northern Ireland. In theory it may be the duty of every citizen when an arrestable offence is about to be committed in his presence to take whatever reasonable measures are available to him to prevent the commission of the crime; but the duty is one of imperfect obligation and it does not place him under any obligation to do anything by which he would expose himself to risk of personal injury, nor is he under any duty to search for criminals or seek out crime. In contrast to this a soldier who is employed in aid of the civil power in Northern Ireland is under a duty, enforceable under military law, to search for criminals if so ordered by his superior officer and to risk his own life should this be necessary in preventing terrorist acts. For the performance of this duty he is armed with a firearm, a self-loading rifle, from which a bullet, if it hits the human body, is almost certain to cause serious injury if not death.||”|
|— AG for Northern Ireland's Reference (No 1 of 1975) (1977) AC 105|
In R v Clegg Lord Lloyd of Berwick said at 497:
|“||In the case of a soldier in Northern Ireland, in the circumstances in which Private Clegg found himself, there is no scope for graduated force. The only choice lay between firing a high-velocity rifle which, if aimed accurately, was almost certain to kill or injure, and doing nothing at all.||”|
|— R v Clegg (1995) 1 AC 482|
One interpretation would be that, when a government deploys highly armed soldiers, equipped and trained to kill, in a civilian area, the law must give the armed forces greater licence to kill than would be granted to any other person including, presumably, a less lethally equipped police officer. In the event, Private Clegg was convicted of murder. He had been on patrol to catch joyriders, and fired three shots at the windscreen of a speeding car as it approached the checkpoint. He fired a fourth shot, killing a passenger, after the car had passed him and was speeding away. The first three shots were fired in self-defence, or in defence of fellow soldiers, but the fourth shot was not a response to imminent danger. The judge dismissed the evidence of bruising to a fellow soldier's leg as a fabrication to suggest injury to that soldier from the car. The Lords observed that army Rules of Engagement given to every soldier on a "yellow card" entitled "[i]nstructions for opening fire in Northern Ireland" could, on a literal reading, justify firing on a car where a person had been injured by it, irrespective of the seriousness of the injury. But, in any event, the Lords said that the card had no legal force because English law does not have a general defence of superior orders. Lord Lloyd of Berwick cited with approval the Australian High Court in A v Hayden (No 2) followed by the Privy Council in Yip Chiu-Cheung v The Queen where the "good" motive of the undercover drug enforcement officer was irrelevant (the accused conspired to take drugs from Hong Kong to Australia - as the officer intended the agreement to be carried out to break a drugs ring, a conspiracy between the two was proved. In A v Hayden, Murphy J. stated:
|“||In Australia it is no defence to the commission of a criminal act or omission that it was done in obedience to the orders of a superior or the government. Military and civilians have a duty to obey lawful orders, and a duty to disobey unlawful orders.||”|
|— A v Hayden (No 2) (1984) 156 CLR 532|
Defence of propertyEdit
The Law Commission's report on Partial Defences to Murder rejects the notion of creating a mitigatory defence to cover the use of excessive force in self-defence, but accepts that the "all or nothing" effect can produce unsatisfactory results in murder cases. For example, a battered woman or abused child using excessive force because they are physically at a disadvantage and not under imminent attack, would be denied a defence. Further, an occupant not sure if violence to defend their property against invasion is reasonable, may feel forced to do nothing. It was always possible the same set of facts could be interpreted as either self-defence or provocation where there was a loss of control resulting in death. Thus, the Commission recommends a redefinition of provocation to cover situations where a person acts lethally out of fear. This reflects the present view of psychiatrists that most people act in violent situations with a combination of fear and anger in their minds, and to separate the two emotions is not legally constructive.
- For the rationale of self-defence see: Boaz Sangero, Self-Defence in Criminal Law 11 - 106 (Hart Publishing, 2006)
- Criminal Law Act 1967
- Beckford v The Queen  AC 130
- R v Palmer PC 1971
- R v Lindsay (2005) AER (D) 349
- Criminal Justice and Immigration Act 2008
- R v Owino (1996) 2 Cr. App. R. 128 at 134
- R v Beckford (1988) 1 AC 130
- R v Rashford  EWCA Crim 3377
- R v Letenock (1917) 12 Cr. App. R. 221
- R v Hatton (2005) AER (D) 308 Archived 2013-04-21 at Archive.is
- R v O' Grady (1987) 1 QB 995
- R v Majewski (1987) AC 443
- R v Lipman (1969) 3 AER 410
- Broadbridge, Sally (31 January 2005). "Research Paper 05/10 Criminal Law (Amendment) (Householder Protection) Bill" (PDF). Parliament of the United Kingdom. pp. 12–18.
- R v Rose (1884) 15 Cox 540
- Fenton, Siobhan (16 Jan 2016). "Homeowners can beat up burglars using 'disproportionate force', rules High Court". The Independent. London. Archived from the original on 16 Jan 2016. Retrieved 23 July 2018.
- R v Renouf (1986) 2 AER 449
- R v Self 95 Cr App R 42
- Collins v Wilcock  1 WLR 1172
- Spicer v Holt (1977) AC 987
- Thompson & Hsu v Met  EWCA Civ 3083
- Mohidin v Met  EWHC 2740 (QB)
- Kelbie  Crim LR 802 CA
- Walters v W H Smith (1914) 1 KB 595
- Palmer v R 1971 AC 814
- Criminal Law Act 1967 s3
- Clegg  1 AC 482; Beckford v Queen  AC 130
- Ashley v CC Sussex (Sherwood intervening)  1 AC 962; R (Duggan) v HM Assistant Deputy Coroner  EWCA Civ 142
- Devlin v Armstrong  NI 13
- DPP v Bayer  1 WLR 2856
- R v Clegg 1995 1 AC 482 HL
- Criminal Justice & Immigration Act 2008 s76
- Shaw v Queen  1 WLA 1519; Harvey  EWCA Crim 469
- Criminal Justice & Immigration Act 2008 s76(7)
- Shannon (1980) 71 Cr App R 192
- R v Bird 81 Cr App R 110
- Criminal Justice & Immigration Act 2008 s76(6); McInnes  3 All ER 295
- R v Deana 2 Cr App R 75
- R v Rashford 2005 EWCA Crim 337
- R v Balogun 2000 1 Archbold News 3
- Beckford v Queen  AC 130
- R Martin (Anthony)  1 Cr App R 27
- Laporte v CC Gloucestershire  UKHL 55
- R v Brown (1841) C & Mar 314
- R v Dadson (1850) 2 Den 35; 169 ER 407
- R v Pagett (1983) 76 Cr. App. R. 279
- AG for Northern Ireland's Reference (No 1 of 1975) (1977) AC 105
- A v Hayden (No 2) (1984) 156 CLR 532
- Yip Chiu-Cheung v The Queen (1995) 1 AC 111
- "Partial Defences to Murder" (PDF). Law Commission. 6 August 2004. pp. 78–86. Archived from the original on April 26, 2013. Retrieved August 4, 2016.