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In May's newsletter we looked at what Common Law meant and we compared it with what a Statute Act of Parliament is. We also touched on 'individual autonomy' - the right of the individual to act independently - to self-govern themselves and their behaviour. This means that each individual will, as opposed to 'weighing up the niceties of law', is entitled to use their own personal judgement, based on their own personal skill level and knowledge available to them, when presented with a situation requiring their immediate attention. However, how far are we actually allowed to go when using physical force, and to what extreme or excess does our legal right extend?
The Common Law, and indeed the Criminal Law, is committed to ensuring that everyone's right to life is safeguarded and doesn't allow for the infliction of extreme force or harm to repel or defend against some minor infringement. The law only allows the person attacked the right to use such force as is 'Proportionate' to the harm or mischief intended and not the right to use whatever force was necessary to protect their right to safety, as that could result in a person attacked being justified in seriously wounding or killing their aggressor which would be grossly disproportionate to the harm intended by the assailant or criminal.
As such, what we have to consider is the right of the assailant. This is further enshrined by Article 2 of the Human Rights Act 1998, part 1 or which states:
"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 the penalty is provided by law."
In essence therefore, the right to life is a basic human and civil right of all citizens that cannot be detracted from or discriminated against in any way.
What does this mean to me?
What this means is that all agencies must promote and take pro-active steps to preserve the right to life where a risk to life is known. An example of this may be lone workers who are expected to visit potentially violent service users. If there is a foreseeable risk to potential loss of life then the employer must take positive steps to eliminate or reduce the risk. This is consistent with the first part of Article 2.
In addition, any systems of restraint imposed upon another by any agency must take whatever steps necessary to eliminate or reduce the risk of death within it's system of restraint.
Ok, but what if I'm faced with a life threatening situation without time to leave or get the police to attend?
In the second part of Article 2 it states that if we were to kill another, or cause death, even with intent, that would not be in contravention of the right to life, provided it was "absolutely necessary" to do so. Article 2(2) of the Human Rights Act 1998 specifically states:
"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."
This would seem to infer that an innocent person's rights are absolute when protecting oneself or defending one's property. This is something the common law has accepted for some time, and elements of it still remain as part of our basic set of Common Law Rights.
The common idea is that the aggressor forfeits their normal rights when they embark on an assault on a law-abiding person, and that it is the aggressors misconduct in starting the conflict which justifies the law in giving preference to the liberty and rights of the victim over theirs.
Now this is not as objectionable as it would first seem. If faced with an aggressor armed with a knife we can begin to see how this would apply in context. But it should be noted that this in itself does not allow the person being attacked to stand fast and use whatever force is necessary. In short we can't use a sledgehammer to crack a nut as this would assign no value to the rights of the aggressor and would possibly lead to a society free to be motivated by revenge and retribution as opposed to lawful justification.
This principle is particularly worth considering if the aggressor is a vulnerable service-user who may not have the full faculty of mental ability afforded to them, and as such their attack isn't motivated by malice of forethought, but possibly as a by-product of their confused mental state compounded with frustration and personal distress?
So haw far can we go?
Article 2 of the Human Rights Act 1998 declares that all people have the right to life and then lists three justifications for the use of force that may cause death. However, the wording in Part 2 of Article 2 namely "absolutely necessary" creates a stricter and more compelling test than that normally applied by "reasonable force".
Article 2 suggests that the law in terms of what is 'reasonable' is too loose, and has adopted the wording "absolutely necessary" and "strictly proportionate" to ensure that any use of force that may lead to the risk of death is "strictly controlled" by authorising agencies.
The adoption of "strictly proportionate" shows respect for the rights of the attacker in cases of self-defence. What is important is that it should rule out the infliction or risk of considerable physical harm merely to apprehend a fleeing thief, to stop minor property loss or damage etc. As a 19th Century Royal Commission remarked: " a law whose only requirement was necessity would justify every weak lad whose hair was about to be pulled by a stronger one, in shooting the bully if he could not otherwise prevent the assault."
What does this mean to me?
In short it means that you have the right to life and you can take life to preserve your life if unlawful force is being used against you that is a threat to your and it has become absolutely necessary to do so - in essence, there is no other lesser option available to you at that moment in time to prevent the loss of your life (or that of another).
What about vulnerable people?
Staff too are vulnerable! Therefore, if there is a risk of death to staff or to a vulnerable person in their care, then the employer needs to ensure that the systems in place, be they systems of physical restraint or self-defence or other risk reduction systems, reduce as far as possible the risk to loss of life as a primary consideration.
For example, this means in work environments ensuring that there are adequate staff on duty and that the staff are both competent and able at dong what ever tasks they are expected to as part of their employed role.
Summary
In summary, the right to life is an absolute right that all citizens of the UK are entitled to enjoy. That means that employers must look for foreseeable risks that may cause a loss of life and take whatever positive and pro-active steps necessary to eliminate or reduce the loss of life. This applies to staff as it does to those staff look after.
With regard to the issue of physical restraint all employers and commissioning agencies for training and training providers must employ techniques and strategies that eliminate or reduce the risk to loss of life. That means that if a technique can be used that will promote the positive obligation to life it absolutely must be used. This is part of the requirement that all employers, care homes, agencies that commission training and training providers must do if they are to 'strictly control' the minimisation of the loss of life in their area of work.
Next Instructors Qualifying Course
Our Restraint Instructors Qualifying Course has been legally audited by a Barrister at Law who was also awarded the CBE. In addition we have one of the most prominent Human Rights Lawyers on dvd that we use as part of our instructional material, and we have possibly produced the only specific book in Europe on Reasonable Force.
The course has also been subject to a full Health and Safety review and is underpinned and supported by thorough risk assessments methodology, making it possibly one of the most legally accurate courses in existence.
Therefore, not only do you gain Instructor Accreditation and Certification, you also gain a BTEC Level 3 Advanced Award Certificate in Physical Restraint Practice. In addition to that, you are also entitled to apply for a National Governing Body Level 2 Coaching Award and £5 million of instructor indemnity insurance specific to Physical Restraint should you wish to do so.
We currently have places available on the 15th-19th September 2008 course, but please let us know as soon as possible if you would like a place as these generally tend to go quickly due to a huge demand for the qualifications we offer and the high standard of training we deliver.
We can invoice you or your employer for the full amount; or you can spread the cost of your payments with instalments by standing order; or pay by credit card online.
Click here to find out more.
Other Related Articles:
What is Common Law? - more info
Minimum Force - Myth or Reality? - more info
Does the use of a Restrictive Technique, that may cause Discomfort and / or Pain, amount to Torture? - more info |
