Self Defence & the Law & Human Rights
The following information is provided by the cps.gov.uk website
Self-Defence and the Prevention of Crime
- Principle
- Guidance
- Reasonable Force
- Section 76 of the Criminal Justice and Immigration Act 2008
- Pre emptive strikes
- Use of Force against Those Committing Crime
- Retreating
- Revenge
Principle
This section offers guidance of general application to all offences susceptible to the defences of:
- Self defence;
- Defence of another;
- Prevention of crime; and
- Lawful arrest and apprehension of offenders.
Self defence and the prevention of crime originates from a number of different sources. Defence of the person is governed by the common law. Defence of property however, is governed by the Criminal Damage Act 1971. Arrest and the prevention of crime are governed by the Criminal Law Act 1967.
This guidance is particularly relevant to offences against the person and homicide, and prosecutors should refer to Offences against the Person, incorporating the charging standard, elsewhere in the legal guidance and Homicide, elsewhere in the legal guidance.
In the context of cases involving the use of violence, the guiding principle is the preservation of the Rule of Law and the Queen’s Peace.
However, it is important to ensure that all those acting reasonably and in good faith to defend themselves, their family and their property or in the prevention of crime or the apprehension of offenders are not prosecuted for such action. The CPS have published a joint leaflet with ACPO for members of the public making clear that if householders have acted honestly and instinctively and in the heat of the moment, that this will be the strongest evidence for them having acted lawfully and in self-defence. Prosecutors should refer to joint the CPS-ACPO leaflet – Householders and the Use of Force against Intruders.
When reviewing cases involving assertions of self-defence or action in the prevention of crime/preservation of property, prosecutors should be aware of the balance to be struck:
- The public interest in promoting a responsible contribution on the part of citizens in preserving law and order; and
- In discouraging vigilantism and the use of violence generally.
There is often a degree of sensitivity to be observed in such cases; this is particularly important when the alleged victim of an offence was himself/herself engaged in criminal activity at the relevant time. For instance, a burglar who claims to have been assaulted by the occupier of the premises concerned.
When considering cases where an argument of self-defence is raised, or is likely to be raised, you should apply the tests set out in the Code for Crown Prosecutors, refer to the Code for Crown Prosecutors elsewhere in the legal guidance.
The guidance in this section should be followed in determining whether the Code tests have been met.
When considering the sufficiency of the evidence in such cases, a prosecutor must be satisfied there is enough reliable and admissible evidence to rebut the suggestion of self-defence. The prosecution must rebut self-defence to the criminal standard of proof, see Burden of Proof below.
If there is sufficient evidence to prove the offence, and to rebut self defence, the public interest in prosecuting must then be carefully considered.
Guidance
The Law and Evidential Sufficiency
Self-defence is available as a defence to crimes committed by use of force.
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 only do, what is reasonably necessary. The common law approach as expressed in Palmer v R is also relevant to the application of section 3 Criminal Law Act 1967 section 3 (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. Section 3 applies to the prevention of crime and effecting, or assisting in, the lawful arrest of offenders and suspected offenders. There is an obvious overlap between self-defence and section 3. However, section 3 only applies to crime and not to civil matters. So, for instance, it cannot afford a defence in repelling trespassers by force, unless the trespassers are involved in some form of criminal conduct.
Reasonable Force
A person may use such force as is reasonable in the circumstances for the purposes of:
- Self-defence; or
- Defence of another; or
- Defence of property; or
- Prevention of crime; or
- Lawful arrest.
In assessing the reasonableness of the force used, prosecutors should ask two questions:
- Was the use of force necessary in the circumstances, i.e. Was there a need for any force at all? and
- Was the force used reasonable in the circumstances?
To that extent it is a subjective test. There is, however, an objective element to the test. The jury must then go on to ask themselves whether, on the basis of the facts as the accused believed them to be, a reasonable person would regard the force used as reasonable or excessive.
“If there has been an attack so that self defence is reasonably necessary, it will be recognized that a person defending himself cannot weigh to a nicety the exact measure of his defensive action. If the jury thought that 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 …”The fact that an act was considered necessary does not mean that the resulting action was reasonable: (R v Clegg 1995 1 AC 482 HL). Where it is alleged that a person acted to defend himself/herself from violence, the extent to which the action taken was necessary will, of course, be integral to the reasonableness of the force used.”
Section 76 of the Criminal Justice and Immigration Act 2008
The law on self defence arises both under the common law defence of self-defence and the defences provided by section 3(1) of the Criminal Law Act 1967 (use of force in the prevention of crime or making arrest). It has recently been clarified by section 76 of the Criminal Justice and Immigration Act 2008.
Section 76 of the Criminal Justice and Immigration Act 2008 provides clarification of the operation of the existing common law and statutory defences. Section 76, section 76(9) in particular, neither abolishes the common law and statutory defences nor does it change the current test that allows the use of reasonable force.
Section 76(3) confirms the question whether the degree of force used by the defendant was reasonable in the circumstances is to be decided by reference to the circumstances as the defendant believed them to be.
Section 76(4) provides that where the defendant claims to have a particular belief as regards the existence of any circumstances, the reasonableness or otherwise of that belief is relevant to the question whether the defendant genuinely held it. However, if it is established that the defendant did genuinely hold the belief he may rely on that belief to establish the force used was reasonable whether or not it was a mistaken belief and if it was mistaken, whether or not the mistake was a reasonable one to have made, i.e. the crucial test at this stage is whether the belief was an honest one, not whether it was a reasonable one. However, the more unreasonable the belief, the less likely it is that the court will accept it was honestly held.
Subsection (5A) allows householders to use disproportionate force when defending themselves against intruders into the home. The provision came into force on 25 April 2013 and applies to cases where the alleged force was used after that date. The provision does not apply retrospectively. It provides that where the case is one involving a householder (please see the section below for further details) the degree of force used by the householder is not to be regarded as having been reasonable in the circumstances as the householder believed them to be if it was grossly disproportionate. A householder will therefore be able to use force which is disproportionate but not grossly disproportionate.
The provision does not give householders free rein to use disproportionate force in every case they are confronted by an intruder. The provision must be read in conjunction with the other elements of section 76 of the 2008 Act. The level of force used must still be reasonable in the circumstances as the householder believed them to be (section 76(3)).
In deciding whether the force might be regarded as ‘disproportionate’ or ‘grossly disproportionate’ the court will need to consider the individual facts of each case, including the personal circumstances of the householder and the threat (real or perceived) posed by the offender.
Section 76(7) sets out two considerations that should be taken into account when deciding whether the force used was reasonable. Both are adopted from existing case law. They are:
- That a person acting for a legitimate purpose may not be able to weigh to a nicety the exact measure of any necessary action;
- That evidence of a person’s having only done what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken by that person for that purpose.
This section adopts almost precisely the words of Lord Morris in (Palmer v R [1971] AC 814) which emphasis the difficulties often facing 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 recognized 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…”
P.A.CE Police And Criminal Evidence Act 1984
Pre Emptive Strikes
There is no rule in law to say that a person must wait to be struck first before they may defend themselves,
Use of Force against Those Committing Crime
Prosecutors should exercise particular care when assessing the reasonableness of the force used in those cases in which the alleged victim was, or believed by the accused to have been, at the material time, engaged in committing a crime. 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.
In assessing whether it was necessary to use force, prosecutors should bear in mind the period of time in which the person had to decide whether to act against another who he/she thought to be committing an offense.
The circumstances of each case will need to be considered very carefully.
In R v Martin (Anthony) [2002] 1 Cr. App. R. 27, the Court of Appeal held that whilst a court is entitled to take account of the physical characteristics of the defendant in deciding what force was reasonable, it was not appropriate, absent exceptional circumstances which would make the evidence especially probative, to take account of whether the defendant was suffering from some psychiatric condition.
Retreating
Failure to retreat when attacked and when it is possible and safe to do so, is not conclusive evidence that a person was not acting in self defence. It is simply a factor to be taken into account rather than as giving rise to a duty to retreat when deciding whether the degree of force was reasonable in the circumstances (section 76 (6) Criminal Justice and Immigration Act 2008). It is not necessary that the defendant demonstrates by walking away that he does not want to engage in physical violence:
Revenge
The mere fact that a defendant went somewhere to exact revenge from the victim did not of itself rule out the possibility that in any violence that ensued, self defence was necessarily unavailable as a defence. However, where the defendant initially sought the confrontation
A man who is attacked or believes that he is about to be attacked may use such force as is both necessary and reasonable in order to defend himself. If that is what he does then he acts lawfully. It follows that a man who starts the violence, the aggressor, cannot rely upon self-defence to render his actions lawful. Of course during a fight a man will not only strike blows, but will defend himself by warding off blows from his opponent, but if he started the fight, if he volunteered for it, such actions are not lawful, they are unlawful acts of violence.
Human right act article 1 and article 3 1987
Article 1 protects your right to life
This means that nobody – including the government – can try to end your life. It also means the government should take appropriate measures to safeguard life by making laws to protect you and, in some circumstances, by taking steps to protect you if your life is at risk. Public authorities should also consider your right to life when making decisions that might put you in danger or that affect your life expectancy.
If a member of your family dies in circumstances that involve the state, you may have the right to an investigation. The state is also required to investigate suspicious deaths and deaths in custody.
The courts have held that the right to life does not include a right to die.
Article 3: Prohibition of torture
No one shall be subjected to torture or to inhuman or degrading treatment or punishment
Article 3 protects you from:
- Torture (mental or physical)
- Inhuman or degrading treatment or punishment, and
- Deportation or extradition (being sent to another country to face criminal charges) if there is a real risk you will face torture or inhuman or degrading treatment or punishment in the country concerned.
As you would expect, public authorities must not inflict this sort of treatment on you. They must also protect you if someone else is treating you in this way. If they know this right is being breached, they must intervene to stop it. The state must also investigate credible allegations of such treatment.
What is torture?
Torture occurs when someone deliberately causes very serious and cruel suffering (physical or mental) to another person. This might be to punish someone, or to intimidate or obtain information from them.
What is inhuman treatment?
Inhuman treatment or punishment is treatment which causes intense physical or mental suffering. It includes:
- Serious physical assault
- Psychological interrogation
- Cruel or barbaric detention conditions or restraints
- Serious physical or psychological abuse in a health or care setting, and
- Threatening to torture someone, if the threat is real and immediate.
What is degrading treatment?
Degrading treatment means treatment that is extremely humiliating and undignified. Whether treatment reaches a level that can be defined as degrading depends on a number of factors. These include the duration of the treatment, its physical or mental effects and the sex, age, vulnerability and health of the victim. This concept is based on the principle of dignity – the innate value of all human beings.
Are there any restrictions to this right?
Your right not to be tortured or treated in an inhuman or degrading way is absolute. This means it must never be limited or restricted in any way. For example, a public authority can never use lack of resources as a defence against an accusation that it has treated someone in an inhuman or degrading way.