In England & Wales, the defence of self-defence provides for the right of people to act in a manner that would be otherwise unlawful in order to preserve the physical integrity of themselves or others or to prevent any crime. In this essay I will be concentrating on two aspects of the law of self-defence in England and Wales, firstly the use of force in self-defence and the prevention of crime, and secondly why the law has been criticised in relation to people who confront intruders in their homes.
Both characteristics have had a lot of criticism over the past few years with more and more people arguing that they should be able to defend themselves and their property from intruders without being charged for a reasonable attempt to safeguard their own. Doubts about the system of self defence have been discussed by a host of critics, namely by Mr Noel Sweeney in 2000 where he raised criticism of an inherent fault of English jurisprudence stating that "self-defence" is an all-or-nothing defence in that if it succeeds the result is an acquittal and if it fails there is no other verdict but murder.
A major case establishing this is R v Clegg1 where D, a soldier, had fired at a stolen car being driven towards him at a checkpoint and killed a passenger. The House of Lords confirmed his conviction for murder because the trial judge had found as a question of fact that the amount of force used was unreasonable and excessive. The most up to date Law relating to self-defence can be found in Section 3 of the Criminal Law Act 1967; This section provides a defence to a person who is using force to prevent a crime. Section 3 states;
'1) A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or in 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. '2 This section would therefore apply as a defence where the defendant uses necessary and reasonable force to protect oneself and others, defence of one's property, preventing crime and assisting lawful arrest.
This is controlled partly by common law and partly by section 3(1) of the Criminal Law Act 1967. However, in some cases the defendant may be able to rely on both defences, for example, if the defendant is attacked by someone and reacts aggressively or with violence, the defendant may be able to depend on either defence and claim that his use of force was an attempt to prevent further attacks being inflicted on him and would therefore fall under s. 3. At common law he could argue that the defendant was acting in order to defend himself.
One or both of these defences are in hand to someone who is protecting themselves from an attack to someone who is protecting someone else from harm or where someone who is protecting her own property from an intruder to someone who is protecting someone else's property from a burglar. Despite the similarities two significant differences still remain within the two defences:3 Firstly, where the defendant is a child or is insane, therefore not acting unlawfully, s. 3 does not apply, but even so common law self-defence does apply.
Secondly the common law defence only applies if the defendant is acting in order to protect himself or herself and does not apply where he or she is acting in order to prevent an attack on another, but s. 3 does. Even so the key element in both defences of self defence remains the 'reasonableness of force used' which even today is somewhat perplexed and difficult to distinguish, for example it could be considered reasonable where a young lady stabbed a heavily built man who attacked her but on the other hand if the tables were turned it would be different situation.
Therefore to establish whether the force applied was reasonable or excessive, the jury must consider all the circumstances of the case including the situation as the defendant believed to be in. In assessing the reasonableness of the force used, the crown prosecution service has stated that the prosecutor should ask two questions:4 1. was the use of force justified in the circumstances, i. e. was there a need for any force at all? and 2. was the force used excessive in the circumstances? The courts have indicated that both questions are to be answered on the basis of the facts as the accused honestly believed them to be (R v Williams)5
To that extent it can be a subjective test. There is, however, an objective part to the rule. The jury must then go on to ask themselves whether, on the basis of the facts as the accused believed them to be, a rational person would regard the force used as reasonable or excessive. This was affirmed in R v Martin6, where it was held that in deciding whether a defendant had used reasonable force in self-defence it was not appropriate to take into account the fact that the defendant was suffering from a psychiatric condition at the appropriate time, except in exceptional circumstances, which would make such evidence especially
probative. In assessing whether the force used was reasonable it is important to consider the words of Lord Morris in Palmer v R7 "If there has been an attack so that self-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 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 main point the jury must keep in mind is that the force used should be considered reasonable by a sound minded person, not whether the defendant thought the force to be reasonable. 8 The fact that an act was considered necessary does not mean that such action was reasonable. The Law applied to people who confront intruders in the home is still rather indefinite and disputed by many critics and the public in general.
In 2003 during the Christmas period, thousands of Radio 4's Today listeners called for legislation authorising them to protect their homes by any means necessary, the proposal was immediately denounced as a "ludicrous, brutal, unworkable, blood-stained piece of legislation". 9 The old rule at common law however was that a home owner may kill a burglar or trespasser and get away with it using the defence of self defence as illustrated in 1905 case of R v Annie Davis10.
Lord Hewart's statement in R v Hussey11 was another milestone in the development of the Law relating to home owners confronting intruders in the their homes when he approved the statement 'in defence of mans house, the owner or his family may kill a trespasser who would forcibly dispossess him of it, in the same manner as he might, by, kill in self-defence a man who attacks him personally. ' It is therefore clear that the law gave the individual the same rights when protecting his home as it did to someone protecting themselves or another person.
Although, even today the law does the same,, the current rule of self-defence is 'reasonable force' as demonstrated in R v Palmer12, meaning the defendant does not have the lawful right to kill an intruder without reason, even so it would be sensible to say that a defence is readily available for a fist to fist fight rather than the somewhat barbaric definition of 'kill within reason' or 'unless it was reasonable but even so the defendant may still rely on the defence of self-defence arguing that it was a mistake.
For, example if an intruder is armed with a deadly weapon, such as a gun and is then accidentally shot. Once again, establishing whether or not the defendants reaction was reasonable is bewildering, namely following the case of Martin13 but the issue of whether or not the defendant is right to strike first is clear as defined in A-G Reference (No. 2 of 1983)14. Furthermore the case of R v Bird15 has affirmed that there is no duty to retreat, but the final decision of 'reasonable force' is left down to the jury and could go in either direction.