Self-defence is a defence permitting reasonable force to be used to defend one's self or another.Criminal Law Act 1967 This defence arises from both common law and the Criminal Law Act 1967. Self-defence is a justification defence rather than excuse.
Principles
Common law (self defence)
The common law defence of self-defence applies where the defendant uses necessary, reasonable and proportionate force to defend themselves or another from imminent attack. It is a complete defence to all non-sexual offences involving the unlawful use of force (anything from battery to murder). 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.
Lord Morris in Palmer v RR v Palmer PC 1971 stated the following about someone confronted by an intruder or defending himself against attack:
Reasonable force Force is reasonable if a person would think it is necessary to use force and would have used the same level of force as the defendant. This test is fundamentally objective: the defendant may not decide for himself what is reasonable based on his own values. However, the hypothetical reasonable person is imbued with the defendant's factual beliefs about the circumstances.'R v Shaw' 1 Cr App 10 This is the case even if the defendant's beliefs about the circumstances are mistaken.Criminal Justice and Immigration Act 2008
Whether the force was reasonable is a question of fact for the jury. The jury may take into account all relevant circumstances of the case, including the level of threat (as the defendant believed it to be), the pressure of being under attack, the likely harm and the interests the defendant was protecting.Shaw v Queen 1 WLA 1519; Harvey EWCA Crim 469 However, the jury may not rely on facts unknown to the defendant.R v Dadson (1850) 2 Den 35 For example, if the defendant was unaware that the victim had a knife, the jury must ignore the fact that the victim was armed.
The classic test comes from the case of Palmer v The Queen, on appeal to the Privy Council in 1971:
The Legal Aid, Sentencing and Punishment of Offenders Act 2012 inserted a new section 76(6A) into the Criminal Justice and Immigration Act 2008. This provision clarifies that there is no duty to retreat, although an opportunity to retreat may still be taken into account when assessing whether the force was reasonable.
In R v Lindsay,R v Lindsay (2005) AER (D) 349 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.
In April 2013, the Crime and Courts Act 2013 further amended section 76. This amended the law to clarify that homeowners may still rely on self-defence in some cases where the force used is unreasonable, so long as it is not grossly disproportionate. This was further clarified by the High Court in January 2016.
Belief in imminent attack The modern law on belief is stated in R v Owino:
If the defendant genuinely believes that an attack is imminent or underway, it does not matter that they were mistaken.
Preemptive self-defence is permissible in some cases. Lord Griffith said in Beckford v R:
A defendant does not necessarily lose the right to claim self-defence merely because they instigated the confrontation. In some cases, a person who kills in the course of a quarrel or crime they started might still act in self-defence if the victim disproportionately escalates the violence. In Rashford,R v Rashford EWCA Crim 3377 the defendant sought out the victim, intending to attack him as revenge for an earlier dispute. 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.
Intoxication The rule that the defendant can rely on any honest belief is altered where the defendant has consumed alcohol or drugs. In R v Letenock,R v Letenock (1917) 12 Cr. App. R. 221 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:
This suggests that the question is whether there was any intelligible basis for the defendant’s belief. HattonR v Hatton (2005) AER (D) 308 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' GradyR v O' Grady (1987) 1 QB 995 for murder and R v MajewskiR v Majewski (1987) AC 443 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)R v Lipman (1969) 3 AER 410 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.
Statutory law Section 3 of the Criminal Law Act 1967 provides that:
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 the law of England and Wales.R v. Jones (2006)
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,R v Rose (1884) 15 Cox 540 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.
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 may still be reasonable even if disproportionate as long as it is not "grossly disproportionate."
The Human Rights Act 1998 incorporates into English law article 2 of the European Convention on Human Rights, which defines the right to life as follows:
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.
Action by private citizens
Arrest Private citizens have a power to arrest any person for an indictable offence (Citizen's arrest) under s24A PACE1984 and the common law breach of the peace power to arrest. Where this power is lawfully exercised, the citizen may use reasonable force and other reasonable means to effect it. In R v Renouf,R v Renouf (1986) 2 AER 449 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:
Prevention of crime The right to use reasonable force to prevent crime comes from statute (S3 Criminal Law Act 1967). The definition of reasonable force is the same as the self-defence test. The definition of what constitutes a "crime" was clarified in R v Jones (Margaret) QB 259 as any domestic crime in England or Wales. Unlike self-defence, this defence also applies to the prevention of crimes which do not involve an attack on a person, such as defence of property.DPP v Bayer 1 WLR 2856
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 retreatR v Bird 81 Cr App R 110 (although that is a factor in assessing reasonablenessCriminal Justice & Immigration Act 2008 s76(6); McInnes 3 All ER 295), or wait for the first blow,R v Deana 2 Cr App R 75 but must not take revenge. Revenge is evidence of unreasonablenessR v Rashford 2005 EWCA Crim 337 and seeking confrontation removes the defence.R v Balogun 2000 1 Archbold News 3 No force might be reasonable if a threat would have sufficed.Beckford v Queen AC 130 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,R Martin (Anthony) 1 Cr App R 27 e.g. 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.