1. SELF DEFENCE

3. What is self-defence ‘Force causing personal injury, damage to property, or even death may be justified or excused because the force was reasonably used in the defence of certain public or private interests... The general principle is that the law allows such force to be used as is reasonable in the circumstances as the accused believed them to be’ (Omerod p.329). Defence of property may be justified under Criminal Damage Act 1971. Arrest and prevention of crime under s.3 Criminal Law Act 1967 ‘A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in... lawful arrest...’

4. Theoretical positions Forfeiture theory proposes that by posing a threat to someone the aggressor has forfeited his right NOT to have violence used against him. Autonomy arguments instead of concentrating on the aggressor and his loss of rights, place emphasis on the defender’s right to defend himself ‘... it is part of your right to autonomy that you can defend yourself from unjust attack.’ What then is an UNJUST attack? Forced choice - the aggressor alone is responsible for forcing the defender into a position in which he must make a choice between lives. When the government is no longer able to protect its citizens i.e. official help is not on hand, the citizen is entitled to resort to self-help, but it must be necessary.

5. Self defence comes down to balancing the interests of aggressor and defender. The defender is protecting herself, someone else or property, but does there need to be special nexus between the defender and the interest which is being protected? Answer, no.

6. The Subway Vigilante Goetz (1986) 68 NY (2d) 96 a previous robbery victim was surrounded on a metro train in New York by 4 black youths, one of whom demanded $5. Goetz drew a revolver and shot the four men who he thought were about to rob him, two were shot in the back. Three were carrying screw drivers (cacciavite) but this fact was not known to Goetz. One of the men was permanently disabled by the bullet. Although first seen as a hero he was charged with attempted murder, assault, reckless endangerment of other passengers etc. Should he be able to rely on a defence?

7. Tony Martin case R v Martin [2001] EWCA Crim 2245 - The D was a farmer living in an isolated farmhouse who armed himself with a shotgun. He shot two burglars without warning, one in the back who later died from his wounds, the other was shot in the legs. Martin was convicted of murder.The prosecution had contended that he laid in wait and intended to shoot them. The house had been broke into on several previous occasions. Lord Woolf CJ ‘In judging whether the D had only used reasonable force, the jury has to take into account all the circumstances, including the situation as the D honestly believes it to be at the time,... It does not matter if the D was mistaken in his belief as long as his belief was genuine’.

8. Self-defence is regarded as justificatory defence. This, however, can only be the case where the D is actually acting in self- defence. A subjective standard of reasonableness is employed in relation to the need for defensive action. If the D genuinely believes that defensive action is necessary then there will be no liability (provided the response is proportionate). This means that if Goetz was of a nervous disposition and believed he was about to be attacked when being asked the time. His conduct would be judged according to his mistaken belief. In the case of Martin the decision to take some action in response to the perceived threat would be legally justified.

9. Factors to take into account ‘Under the common law the force must have been necessary and it must have been reasonable’ (Ashworth). (1) Was any defensive action necessary? This may depend on related factors such as the immediacy of the threatened violence. (2) Proportionality of the defensive response will relate to whether the use of force has been reasonable. Other issues arise from the Goetz situation. For example, is there a duty to retreat?

10. No partial defence There is no half-way application of this defence to mitigate guilt. If the jury do not accept it on a charge of murder, they will find the accused guilty of murder not manslaughter. Clegg [1995] A soldier on patrol in Northern Ireland shot and killed the driver of a stolen car which drove through a road block after the car had passed. The danger was deemed to have also passed so the defence did not apply.

11. Necessity of defensive action The defender must be believe in the need to take defensive action. What if he misinterprets the facts and responds when it was not necessary to do so. Gladstone Williams [1984] ‘...if the D may have been labouring under such a mistake as to the facts, he must be judged according to his mistaken views of the facts; thirdly, that is so whether the mistake was, on an objective view, a reasonable mistake or not.’ Beckford [1988] also established here that D does not need to wait for assailant to strike, a pre-emptive strike might be justified The use of force is highly problematic, especially if the aggressor is killed because of Article 2 ECHR which states that everyone’s right to life shall be protected by law.

12. Preparing for an attack Devlin v Armstrong [1971] during the ‘troubles’ in Northern Ireland the D urged members of the Republican community to build barricades and throw petrol bombs at the police. She was convicted of riotous behaviour and incitement to riotous behaviour. On appeal it was acknowledged that force may be used to ward off or prevent an attack which was imminent. In this case the danger was judged insufficiently imminent or specific and the conviction was upheld.

13. Contrast: AG’s Ref (No.2 of 1983) [1984] There were severe riots in the Toxteth area of Liverpool during which many properties were burnt to the ground. D was a shopkeeper who fearing another attack prepared petrol bombs which he said were for his own protection. He was charged under s.4 Explosive Substances Act 1883. Lord Lane: ‘The threatened danger must be reasonably and genuinely anticipated, must appear reasonably imminent, and must be of a nature which could not reasonably be met by more pacific (peaceful) means...’ The court rejected the idea that acts of self-defence will only apply when done spontaneously. Apart from calling the police a person under threat may arm himself for protection. It was noted that once the threat has passed the lawful object will no longer exist.

14. In A-G’s Reference [1984] the defence was available provided the D can satisfy the jury Lord Lane ‘... that his object was to protect himself, his family or his property against imminent apprehended attack and to do so by means he believed were no more than reasonably necessary to meet the force used by the attackers’. Comment: in the Devlin case the court has found against a rabble rouser who is threatening the forces of law and order, while in A-G’s reference the decision asserts the right of shopkeepers and property owners to defend their private interests.

15. No Duty to Retreat Bird [1985] confirms that there is no duty to retreat as long as D is not ‘attacking, retaliating or revenging himself’ and no duty to avoid a location because of the possibility of attack.

16. Proportionate use of force Scarlett [1994] A pub landlord ejected a drunken man from his pub who then fell down some steps, hit his head and died. The direction had been in terms of reasonable and necessary force. In S it was stated that the jury should not convict: 'unless they were satisfied that the degree of force used was plainly more than was called for in the circumstances as D believed them to be - and, provided that he believed the circumstances called for the degree of force used, he was not to be convicted, even if his belief was unreasonable'. This was an erroneous statement of the legal position.

17. In Owino [1996] the purely subjective approach was qualified. The jury must decide whether the D honestly believed that there circumstances were such as required him to use force from attack (even if he was mistaken in his belief). ‘... BUT the jury must then decide whether the force used was reasonable in the circumstances as he believed them to be...’ Collins J. The degree of force used in resisting the attack must be reasonable. It was confirmed in Martin [2002] that disproportionate use of force will defeat the defence.

18. HRA and ECHR Does the right to life under Art.2 invalidate the subjective approach in Beckford/Gladstone Williams? Life can be taken only when absolutely necessary but under English law a person might be acquitted even if the attack turns out to be completely unnecessary Life can only be taken in response to unlawful violence not in defence of property See McCann (1996) EHRR

19. Conclusion Self-defence applies widely and if it is accepted it is a complete defence. It is based on the subjective assessment of the need to use force. Strong case for reducing the charge to a form of second degree murder where death is caused by the excessive use of force as in Clegg.

20. Question for discussion Oliver is the owner of an isolated rural property 5 miles from the nearest police station which includes an orchard producing organic apples for market. A group of youths have been habitually climbing over the fence, stealing apples and causing damage to his trees. On the last occasion one of the youths shot, Sylvester, Oliver’s pet cat with an air gun. Oliver sets up a network of live electrical wires around the fence and between the trees. The next time the youths enter his land, Desmond, the leader of the youths is electrocuted when he treads on one of the wires and he dies later in hospital. If Oliver was charged with murder or manslaughter would he be able to plead self-defence? Refer to decided cases in formulating an answer.