The Use of Force: Reason for Optimism

 by John Beaumont

When it comes to classifying the different situations in which the criminal law recognizes the right to use force, English law tends to divide them into two: private defence and public defence. In relation to the former, which relates to defence of the person, whether one’s own or that of another, the position is still regulated by the common law. In relation to the latter, which relates to the use of force to arrest or to prevent crime, the current law is statutory, being contained in section 3 of the Criminal Law Act 1967. There is inevitably much overlap between the two, simply because if a person (A) attacks another (B), then generally any force used in self-defence is also being used to prevent a crime. Similarly, if B is responding to an attack by A upon C, then any force used in defence of the other person is also being used to prevent a crime being committed by A upon C. But, it is important to note that the two defences are not exactly the same. Self-defence, or defence of another, the common law defences, can be used where the attacker is not technically committing a crime, for example because the attacker is insane in law at the time, or perhaps an exceptionally pugnacious nine-year-old, and therefore under the age of criminal responsibility. In situations like these the defence of using force in prevention of a crime under section 3 of the Criminal Law Act would not be available, because no crime is being committed. Incidentally, when people argue, as some do, that in all of these situations the test to be applied nowadays is the statutory defence (i.e., section 3) that is incorrect, as the Court of Appeal has stated on a number of occasions. However, it is also true that section 3 must have had some indirect effect on the common law, because it would be ridiculous to have a different test in the case of private defence from that in public defence where the situation regarding each arises out of exactly the same set of facts.

So what is the legal test applicable to these two defences? Well, the general principles are exactly the same in both cases and they are easy to state. They can be summed up in this way: a person may use such force as is reasonable in the circumstances as the defendant believed them to be, whether reasonably or not. Now, if we look carefully at this test, we shall see that it is not as harsh as is sometimes claimed. And we shall also see that when we dig a little deeper, we shall find other aspects of these defences that are set up in the defendant’s favour. But, first of all let’s look at the test as phrased above. The thing to notice is that, leaving aside for the moment the need for “reasonable force”, what is absolutely the case is that the defendant is to be judged on the facts as he believed them to be. So, if the defendant believed he was being attacked with a deadly weapon and he used only such force as was reasonable to repel such an attack, he has a defence to any charge of an offence arising out of his use of that force. It is irrelevant that he was mistaken. He is judged on his own beliefs. What is more, those beliefs do not have to be based on reasonable grounds. It is what lawyers refer to as a “subjective” test. In other words, the defence is available provided the defendant’s belief was an honest one, irrespective of whether it was reasonable or unreasonable (though, of course, from an evidential point of view, it is preferable that the belief be reasonable, because the more reasonable it is, the more likely the jury is to credit the defendant with having the belief in the first place).

Now, the legal position just outlined is not the result of some maverick decision in an isolated case. The authority for the proposition that the defendant is to be judged on the facts as he believed them to be is the Court of Appeal decision in R v Gladstone Williams (1984). Here the defendant was charged with an assault occasioning actual bodily harm to a man. The defendant’s defence was that he was preventing the man from committing an assault on a youth. But, on the facts, the man may in fact have been lawfully arresting the youth for mugging an old lady. The trial judge directed the jury that if the man was acting lawfully, the defendant had a defence only if he believed on reasonable grounds that the man was acting unlawfully. The Court of Appeal held that this was a misdirection and that the defendant had a defence if he honestly held that belief, reasonably or not. This case has been applied in three later decisions of the same court and by the Privy Council in Beckford v R (1988). It is settled law.

Now, you may say, “Well, yes, that’s alright, but at the end of the day when it comes to the question of the actual force used, that has to be reasonable and that’s an objective test.” Yes, that’s true, but we’ve seen that the reasonableness of the force has to be judged in the light of the defendant’s view of the facts, and that’s a distinct advantage to him from what the position would be if only a reasonable mistaken belief would do. Of course, it is true that not all cases involve a mistaken view of the facts anyway, but in all cases involving public and private defence the reasonableness test, as we shall see, is not quite as strict as it may seem at first sight. Why is this? Well, the courts have recognized that a person under attack may be under great stress and need to act very quickly.  We live in a society where thugs follow up their attack and an initial blow with the fist may be followed by several kicks around the head inflicted upon a victim lying vulnerable on the ground. It is because of this that statements like the following, that of Lord Morris in the Privy Council case of Palmer v The Queen (1969), have been heard more and more in recent years:

“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 necessary defensive action. If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonable defensive action had been taken. A jury will be told that the defence of self-defence, where the evidence makes its raising possible, will only fail if the prosecution show beyond doubt that what the accused did was not by way of self-defence.”

This approach is a real help to the defence. It recognizes the true reality of a person doing his or her best in difficult circumstances when there is little time to think and what might be seen as reasonable later on in the cool of the courtroom may not seem so in the heat of a situation fraught with danger. As one famous American judge, Mr. Justice Cardozo, once put it, “detached reflection cannot be demanded in the presence of an uplifted knife” (U.S. v Brown (1921)). In this context it is also helpful to look at the facts of a later case, R v Shannon (1980) in which the principles set out in Palmer were applied. In Shannon the attacker, a heavily built man who had convictions for violence, had been making threats against the defendant for having (as he believed) “grassed” him. The defendant, who had no history of violence or aggression must have been living in fear of an attack for some time. When the attack came he fought back, the fight (though evidently largely one-sided) being described by a bystander as “pretty frightening.” The defendant’s evidence was that he was being held very tightly by the neck and was being dragged down and “kneed”; he feared that if he fell while in the grip of his attacker he would have “got beat up by his feet.” He lashed out with a pair of scissors and inflicted a fatal blow. The Court of Appeal accepted that the direction in Palmer would have been appropriate here.

Similarly, in R v Whyte (1987) Lord Lane C.J. held that “where the issue is one of self-defence, it is necessary and desirable that the jury should be reminded that the defendant’s state of mind, that is his view of the danger threatening him at the time of the incident, is material. The test of reasonableness is not…a purely objective test.”

So what the courts seem to be saying here is that although the test is in essence an objective one, it should be applied with some degree of leniency to take account of the particular difficulties that the defendant may have been suffering from.

Of course, the cases just mentioned relate to self-defence, but similar considerations apply to force used to prevent crime or to effect an arrest. As Geoffrey Lane J put it in Reed v Wastie (1972), “in the circumstances one did not use jewellers’ scales to measure reasonable force.”

There are two other situations in which the law has to some extent been relaxed in favour of the defendant. First of all, there used to be in certain situations a duty to retreat before using force, or at least fatal force. The present more liberal position is explained very well in the leading textbook, Smith and Hogan, Criminal Law (11^th edition, 2005) in a passage that was approved by the Court of Appeal in the now leading case, R v Bird (1985):

“This [the question of retreat] is now simply a factor to be taken into account in deciding whether it was necessary to use force, and whether the force was reasonable. If the only reasonable course is to retreat, then it would appear that to stand and fight must be to use unreasonable force. There is, however, no rule of law that a person attacked is bound to run away if he can.

            A demonstration by [the defendant] at the time that he did not want to fight is, no doubt, the best evidence that he was acting reasonably and in good faith in self-defence; but it is no more than that. A person may in some circumstances so act without temporizing, disengaging or withdrawing; and he should have a good defence.”

The second situation where there is a relatively relaxed approach by the law relates to the use of a “pre-emptive strike.” The position is that a defendant does not have to wait for the attacker to strike the first blow before he defends himself. Consider the decision in Devlin v Armstrong (1971), one of not a few cases arising out of the troubles in Northern Ireland. After serious disturbances had taken place in Londonderry the defendant exhorted a crowd of people who were stoning the police to build a barricade and keep the police out and fight them with petrol bombs. The defendant claimed that she had acted in this way because she honestly believed that the police were about to behave unlawfully in assaulting people and damaging property in the area. The Court of Appeal accepted that “a plea of self-defence may afford a defence where the defendant used force not merely to counter an actual attack, but to ward off or prevent an attack which he honestly anticipated. In that case, however, the anticipated attack must be imminent.” Later authorities, such as the Privy Council decision in Beckford v The Queen (1988), also acknowledged that circumstances may justify a pre-emptive strike in defence. Lord Griffiths expressed the law in this way:

“A man about to be attacked does not have to wait for his assailant to strike the first blow or fire the first shot; circumstances may justify a pre-emptive strike.”

What is more, the notion of a pre-emptive strike also encompasses a pre-emptive threat. In D.P.P. v Bailey (1995) Lord Slynn said:

Self-defence as a concept embraces not only aggressive action such as a pre-emptive strike or aggressive reaction but applies equally to a wholly defensive posture.”

This means that it will be permissible for the defendant to issue threats of force, even death, if that might prevent an attack upon himself or prevent a crime from taking place.

We see, then, that the substantive law relating to the use of force is not as stacked against the defence as is sometimes reported.  In this context it is interesting to note what happened after the appeal of Tony Martin, the most high profile of recent cases, was heard. There the Court of Appeal endorsed the principles set out above. In addition, the Government, the Crown Prosecution Service, and the Association of Chief Police Officers jointly published guidance on the subject of the use of force in order to make the law clear to the public. This leaflet was entitled Householders and the Use of Force Against Intruders (only one aspect of this whole area of course). It stated:

“So long as you only do what you honestly and instinctively believe is necessary in the heat of the moment, that would be the strongest evidence of you acting lawfully and in self-defence. This is still the case if you use something to hand as a weapon.”

This statement is obviously based on the dicta of Lord Morris in Palmer v The Queen, considered above, and is a further endorsement of the approach taken in that case.

The word “evidence” has been used on a number of occasions in this article and the use of this word leads onto an additional point that the defence should keep in mind. Of course, it must be remembered that in order for one of the defences under consideration here to be left to the jury there must be evidence before the court on which a jury might think it was reasonably possible that the defendant was acting according to that defence. however, even here one must remember that the actual burden of proof is not on the defendant, merely the burden of introducing some evidence of the defence. It is for the prosecution to disprove the defence and to do that beyond reasonable doubt.  Defence advocates should always be aware that even if the jury believes it is more probable than not that the defendant was guilty they must not convict unless they are satisfied beyond reasonable doubt. The defendant must be given the benefit of any reasonable doubt.

Finally, of course, in some of the situations referred to above the defendant is at an advantage simply because of the vagueness of the law. The term “reasonable force” is not the most specific term used in the law. Perhaps in any future reform the law should be set out in specific terms stating exactly how much force can be used in particular situations. However, the position is not perhaps quite as simple as that.  Richard Card puts it like this in his textbook, Criminal Law (16^th edition, 2004):

“The test of reasonable force might be thought to be so vague that a citizen acting in public or private defence has inadequate guidance on how far he may go. The vagueness of the test is, however, its strength. It provides the flexibility to provide an appropriate response, however unexpected the situation, which a more detailed test specifying those situations in which one might use force would not.”

Sometimes the justice done may be said to be “rough”, but it is justice for all that. And, as we have seen, it is very often pitched in favour of the defendant, contrary to much public perception.

*John Beaumont was Head of the Department of Law and an Associate Dean of the Faculty of Business at Leeds Metropolitan University. He now runs a legal consultancy and teaches and writes on a freelance basis.

John will be running courses for NFPS Ltd in the near future so keep an eye open for dates and events.