Learn Self Defence Law UK
Quirky Point of Law - does the threat have to be illegal?
Private defence can still be invoked when a crime has not technically been committed. All that matters is that the threat was unjustified.
Thus, if one were to be attacked by a child under the age of legal responsibility (ten) or sleepwalker (lacking mens rea) he could still legally use reasonable force in response.
Also termed 'lawful defence' or 'private defence,' self defence is the use of reasonable force in the circumstances of being or believing to be unjustifiably threatened.
Despite its apparent self-explanation, the former terms are more accurate than 'self-defence' as the defence applies to those using reasonable force in defence of another.
Moreover, under S.3 Criminal Law Act 1967, reasonable force may be used in either preventing a crime from occurring or in 'effecting or assisting in lawful arrest of offenders, or suspected offenders or of persons unlawfully at large.'
Questions Around Private Defence
- Can one raise self-defence for an action undertaken in mistaken circumstances?
- Must there always be 'force,' and if so, what is it?
- What amounts to 'reasonable' force?
- Can one raise private defence if he was the initial aggressor?
- Can one raise private defence if he acted under a mistake when he was voluntarily intoxicated?
1. Can one raise self-defence for an action undertaken in mistaken circumstances?
Absolutely. The Criminal Justice & Immigration Act 2008 provides clear explanation in S.76(3) that the circumstances around the crime are to be assessed by regarding what the defendant thought the situation had been, not what would have appeared to a reasonable person. S.76(4) then provides the clarification that even if what the defendant believed was mistaken, so long as it is established that it was genuinely believed, it does not matter whether a reasonable person would not have made that same mistake.
Authority case law: R v Gladstone Williams.
The defendant saw another man wrestling a youth to the ground and punched him in defence of that youth. In fact, the youth had committed a mugging and was being wrestled to prevent his escape - a perfectly legal action (prevention of crime). The defendant, not knowing this, was judged according to his mistaken belief even though it was not a reasonable one to have held. It was unreasonableness because he had taken no steps to ascertain whether the man he saw was in fact committing a crime, but this did not matter.
2. Must there always be 'force' when raising private defence, and if so, what is it?
Many cases would suggest so. The following case made it clear that the defence of 'lawful defence' could only be evoked if there had been a use of force.
Authority Case: R v Renouf
The defendant drove after offenders after they had committed actual bodily harm by throwing items at him from their car window. The defendant managed to catch up to the offenders in their car and ram them onto a road verge (grassy area).
Lawton L.J. said the following regarding use of force:
"The only other point which calls for consideration is whether what the appellant said he did amounted to the use of “force.” That word is one of ordinary usage in English and does not require judicial interpretation. In that usage a jury might consider that the appellant had forced the Volvo off the road on to the grass verge."
The Court of Appeal accepted, then, that the ramming of the car might amount to the use of 'force' since this would seem to fall under the ordinary definition of the term - the definition that must be used when considering whether an action amounted to 'force'.
Authority Case: Blake v DPP
A vicar graffiti'd on a wall and then attempted to raise private defence on the basis that he was trying to prevent the crime that was the Iraq war - he was unsuccessful. Among other reasons, it was held that there was no force used in the vicar's crime.
3. What amounts to 'reasonable' force in private defences?
The 'reasonableness' of the force is to be assessed by the jury. To allow consideration for the defendant would allow anyone to simply claim that they believed the force used was reasonable, even if by most standards it was clearly not. For example, there would be nothing to stop a person claiming that due to his beliefs the breaking of a man's nose is reasonable in response to him calling him a particularly poignant name.
Section 76(6) provides that force is not reasonable if it is disproportionate (assessed by the jury) in the circumstances that the defendant believed them to be.
Section 76(7)(a) allows sympathy for the fact that in acting for a legitimate a defendant may not be able to fully assess what is proportionate or 'weigh to a nicety the exact measure of any necessary action.' 76(7)(b) stresses that if evidence is given to support the idea that the defendant acted in a way which he instinctively thought was correct in the perceived circumstances, it would be strong support that he did what was reasonable.
Authority Case: R v Martin
A man fires at and kills two burglars found in his home. His counsel argued that because of a mental disorder he was more impacted by the threat of the burglars' intrusion and so was more likely to believe his actions were proportionate to the circumstances as he perceived them.
Lord Woolf CJ concluded:
"...It cannot be left to a defendant to decide what force it is reasonable to use because this would mean that even if a defendant used disproportionate force but believed he was acting reasonably he would not be guilty of any offence....
It was for the jury, as the representative of the public, to decide the amount of force which it would be reasonable and the amount of force which it would be unreasonable to use in the circumstances in which they found that Mr.Martin believed himself to be in."
4. Can one raise private defence if he was the initial aggressor?
Yes. However, it must be shown that the action of the responding aggressor was disproportionate to the initial aggression, so much so that the defendant believed his life was in danger or at risk of serious bodily harm.
If the initial aggression is such that the responding violence was not disproportionate e.g. punching someone in the face and then being hit harder back, it would not be the initial aggressor that could claim self-defence but more rightly the person struck in the first place.
Authority Case: R v Keane
The defendant took a lift from a man and provoked a fight with one of the passengers, calling her a 'chav'.
Lord Justice Hughes:
"...[S]elf defence may arise in the case of an original aggressor but only where the violence offered by the victim was so out of proportion to what the original aggressor did that in effect the roles were reversed."
5. The Effect of Intoxication on Private Defence
Interestingly, if the defendant is voluntarily intoxicated and then acts on a mistaken belief he cannot rely on self defence - S.76(5).
Authority Case: R v 'O Grady.
A drunken man mistakenly murdered his friend after falling taking the false view that he was under serious attack from him. The Court of Appeal held that a drunken false belief could not be considered as grounds for self-defence, Lord Lane CJ stating that 'reason recoils' from suggesting otherwise.