An Idiot’s Guide to Self-Defence

The law of self-defence is clear and based on common experience. In 1971 the Privy Council in the leading case of Palmer v R [1971] AC 814 held that

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.

Section 3 of the Criminal Law Act 1967 provides that

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 76 of the Criminal Justice & Immigration Act 2008 adopted the common law principles from Palmer and other leading decisions, without changing the substance of the defence.  Section 148 of the Legal Aid Sentencing & Punishment of Offenders Act 2012  amended Section 76, to give further ‘clarification’.

The law permits the citizen to use reasonable force for the following purposes:

  • Self-defence
  • Defence of another person
  • Protection of property
  • Making a lawful arrest
  • Preventing crime

The citizen includes the police officer, to whom the law grants no additional licence to use violence.

What is reasonable is measured by the belief of the person using force. There may be no time for anything other than an instinctive reaction. The law does not require a fine calculation of just what amount of force is needed, but it does require that the use of force should be necessary in the circumstances, as the person concerned saw them. There is no duty to run away instead of using force.  “If … 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).

There are limits. An obviously disproportionate response would not be reasonable – such a shooting an unarmed burglar in the back, and killing him, as he ran away. This is what occurred in the notorious case of Martin [2002] 1 Cr App R 27. The use of violence has to be controlled or else the law will yield to lawless vigilantism.

The Crown Prosecution Service has published Guidance on how to deal with cases of self-defence. Where a person has used force against some one committing a crime, the CPS advises

Common examples are burglary or theft from motor vehicles. In such cases, prosecutors should ensure that all the surrounding circumstances are taken into consideration in determining whether a prosecution is in the public interest.

  • Prosecutors should have particular regard to:nature of the offence being committed by the victim;
  • degree of excessiveness of the force used by the accused;
  • extent of the injuries, and the loss or damage, sustained by either or both parties to the incident;
  • whether the accused was making an honest albeit over zealous attempt to uphold the law rather than taking the law into his/her own hands for the purposes of revenge or retribution.

People who think that the law needs changing to free householders to take gross and disproportionately violent action against burglars should read the CPS Guidance. They should also apply some commonsense and ask whether it’s more likely that a burglar will take a weapon if he thinks he’s going to be attacked. Do we want more dead burglars and more dead householders?

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About Francis FitzGibbon QC

I am a QC and member of Doughty Street Chambers, London (www.doughtystreet.co.uk). I practise criminal law. Please do not look for legal advice in this blog as you won't find any. The views expressed here are my own.
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5 Responses to An Idiot’s Guide to Self-Defence

  1. alrich says:

    Quite right. But the government is perfectly happy to pass redundant laws on self-defence, wasting parliamentary time just to garner headlines. Hence Britain’s “stand your ground law” slipped into the Legal Aid &c Act. It added nothing to the law on “no duty to retreat” as it already existed: http://alrich.wordpress.com/2012/04/16/after-trayvon-martin-britains-stand-your-ground-law-self-defence/

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  4. Tony Lloyd says:

    The problem is that it is simply not clear.

    An intruder does have the right not to be subject to force motivated solely by a desire to seek retribution. You can’t tie a burglar up and proceed to beat him slowly to death. Someone in their home (I’ll call them “homeowner” whether or not they own the property)also, clearly, has a right to use minimal force to protect themselves and their property. The homeowner has no duty to allow his property to be stolen or himself or his family to be assaulted.

    In between there is, though, a huge grey area of acts that are not motivated by revenge but are not minimal and cause a conflict between the rights of the intruder and the rights of the homeowner.
    Say I am behind an intruder rifling through a draw and find myself with a rolling pin in my hand. Assuming he hasn’t noticed me behind him do I challenge him or just cave his head in? If I challenge him he may put his hands up, indicate that he wishes me no harm and leave quietly. On the other hand, if I alert him then I risk an attack that could not have been launched where he unconscious and on his way to intensive care. The intruder has the right not to have his head caved in when he would meekly walk away if challenged; I have the right not to put my safety at risk.

    There are, in effect, three classes of actions that the homeowner can take. There are a) actions that clearly violate the intruder’s rights; b) actions that are a grey area; c) actions clearly within the homeowner’s rights.

    Law, though, needs to be dichotomous. It has to combine “b” with one of the other two categories and, at present, it appears to combine “b” with “a”: only if the homeowner can show he was within his rights is he ok.

    The law could, though, combine “b” with “c”, unless the homeowner has clearly violated the rights of the intruder then he is ok.

    The lack of clarity in “b” situations means that we may well get decisions about these situations wrong. The conflict of rights in “b” situations means that we will, unavoidably, violate someone’s rights. Adopting the current stance means that we will err, when we err, on the side of the intruder and violate, when we violate rights, the rights of the homeowner. This does not appear to me to be either “good law” or “good sense”.

    • I’m not sure how helpful it is to speak of the burglar’s rights.
      Under the present law of self-defence the householder is entitled to use ‘reasonable force’, as defined in he statute and the cases, to protect his property and to prevent crime. Whether to use force, and how much to use, must be intensely fact-specific. In your instance, if you honestly believed it was necessary to use force to protect your property and prevent the burglar from completing his crime, you would presumably be entitled to incapacitate him – temporarily. If you knocked him out, with that in mind, and he fell and hit his head and died, would you be criminally liable? Probably not – because you have not committed an unlawful act. But if you deliberately beat him to death, you would surely have gone well beyond legitimate defence of your property or crime prevention. As I say in the blog, the same applies to citizens and the police. I don’t want to live in a world where the police are entitled to shoot criminals on sight, nor one where householders may deliberately bludgeon burglars to death. I don’t see where your grey area lies – what do you think the present does not do that it should be doing?

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