Self-defence in English law
Encyclopedia
Self-defence is part of private defence, the doctrine in English law that one can act to prevent injury to oneself or others or to prevent crime more generally – one has the same right to act to protect others as to protect oneself. This defence arises both from common law and the Criminal Law Act 1967
. Self defence in English law is using reasonable force against an unjust threat. Self-defence is a justification
rather than an excuse
(Robinson's classification of defences)- that is the defence is asserting that the actions were not a crime at all.
. Hence, self-defense is distinguishable from provocation
, which only applies to mitigate what would otherwise have been murder to manslaughter (i.e., provocation is not a complete defense).
Because of the completeness of the defense, self-defense is interpreted in a relatively conservative way to avoid creating too generous a standard of justification
. The more forgiving a defense, the greater the incentive for a cynical defendant to exploit it when planning the use of violence
or in explaining matters after the event. Thus, although the jury in self-defense cases are entitled to take into account the physical characteristics of the defendant, that evidence has little probative value in deciding whether excessive force was actually used. The general common law
principle is stated in Beckford v R (1988) 1 AC 130:
, as ordinary members of the community
, must decide the amount of force reasonable in the circumstances of each case. It is relevant that the defendant was under pressure from imminent attack and may not have had time to make entirely rational decisions, so the test must balance the objective standard of a reasonable person
by attributing some of the subjective knowledge of the defendant, including what they believed about the circumstances, even if mistaken. However, even allowing for mistakes made in a crisis, the amount of force must be proportionate and reasonable given the value of the interests being protected and the harm likely to be caused by use of force. The classic test comes from the Jamaican case of Palmer v The Queen, on appeal to the Privy Council
in 1971:
In R v Lindsay (2005) AER (D) 349, the defendant who picked up a sword in self-defense when attacked in his home by three masked intruders armed with loaded handguns, killed one of them by slashing him repeatedly with that sword. The prosecution case was that, although he had initially acted in self defense, he had then lost his self-control and demonstrated a clear intent to kill the armed intruder. In fact, the defendant was himself a low-level cannabis dealer who kept the sword available to defend himself against other drug dealers. The Court of Appeal confirmed an eight-year term of imprisonment. In a non-criminal context, it would not be expected that ordinary householders who "go too far" when defending themselves against armed intruders would receive such a long sentence.
To gain an acquittal, the defendant must fulfil a number of conditions. The defendant must believe, rightly or wrongly, that the attack is imminent. Lord Griffith said in Beckford v R:
The time factor is important. If there is an opportunity to retreat or to obtain protection from the police, the defendant should do so, thereby demonstrating an intention to avoid being involved in the use of violence. However, the defendant is not obliged to leave a particular location even if forewarned of the arrival of an assailant (see duty to retreat
). Furthermore, a defendant does not lose the right to claim self-defense merely because they instigated the confrontation that created the alleged need for self defense. A person who kills in the course of a quarrel they started might still act in self-defense if the 'victim' retaliates or counterattacks. In Rashford (2005) AER 192, the defendant sought out the victim, intending to attack him in revenge for an earlier dispute, but 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 defense. The Court of Appeal held that the defendant will only lose the defense 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-defense. On the facts, the jury's decision to convict was not unsafe.
. In 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. If so, the defendant is entitled Hatton (2005) AER (D) 308 http://www.lawreports.co.uk/WLRD/2005/CACRIM/oct0.2.htm held that a defendant who raised the issue of self-defense was not entitled to rely on a mistaken belief induced by voluntary intoxication, regardless of whether the defense was raised against a charge of murder or one of manslaughter. This applied the ratio decidendi
in R v O' Grady (1987) 1 QB 995 for murder and R 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-defense because he imagines (as in Hatton) that the deceased was attacking him with a sword, he has no defense 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 (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-defense as part of its briefing on the Criminal Law (Amendment) (Householder Protection) Bill 2005. The list is on pages 12–18 of this document.
provides that:
Section 3(2) states:
This abolished common law rules on what was "reasonable," such as the duty to retreat
.
Thus, reasonable force can be used in the prevention of any crime or in making an arrest to:
The Human Rights Act 1998
incorporates into English law Article 2 Convention for the Protection of Human Rights and Fundamental Freedoms
, which defines the right to life as follows:
Section 76 of the Criminal Justice and Immigration Act 2008
codifies English case law on self-defense. However it makes no changes to the law.
to society
, i.e. where a police officer uses reasonable force to restrain or arrest a criminal or suspect, this bring the greatest good to the largest number of people. But, where the officers make mistakes, the law can be unpredictable. In R v Dadson (1850) 2 Den 35; 169 ER 407, a police officer shot and wounded an escaping thief. At the time, any degree of force could be used to arrest a fleeing felon but, when he fired the gun, he did not know who the thief was. He was convicted of intentionally causing grievous bodily harm
because the thief was shot and the gun was fired by a man not caring whether the shot was lawful or not. That the thief was later proved to be a felon did not prevent a concurrence
between actus reus
and mens rea
at the instant the shot was fired, i.e. no retrospective justification is allowed. It is noted that the death of Jean Charles de Menezes
at the Stockwell tube station, south London, on July 22, 2005 resulted from the use of a then secret shoot-to-kill policy called Operation Kratos
. English law has no general defence of superior orders and the conduct of every police officer has to be judged on the facts as they believed them to be. (For comparative purposes, see *Keebine-Sibanda, Malebo J. & Sibanda, Omphemetse S. "Use of Deadly Force by the South African Police Services Re-visited" http://www.crisa.org.za/section_49.pdf).
In R v Pagett (1983) 76 Cr. App. R. 279, to resist lawful arrest, the defendant held a pregnant girl in front of him as a shield and shot at armed policemen who returned fire as permitted under their rules of engagement, killing the girl. It is a proportionate response to shooting, to shoot back. In balancing the harms, the greater harm to be avoided is a violent suspect firing and killing a police officer or any other bystander. On the issue of whether the defendant caused
the victim's death, the Court of Appeal held that the reasonable actions of a third party acting in self-defence and defence of others could not be regarded as a novus actus interveniens because self-defence was a foreseeable consequence of his action and had not broken the chain of causation.
In Beckford v R the defendant police officer was told that a suspect was armed and dangerous. When that man ran out of a house towards him, the defendant shot him because he feared for his own life. The prosecution case was that the victim had been unarmed and thus presented no threat to the defendant. Lord Griffiths approved a model direction to juries, laid down by Lord Lane in "R. v Williams:
The defendant therefore, had a defence of self-defence because the killing was not unlawful if, in the circumstances as he perceived them to be, he had used reasonable force to defend himself.
. In AG for Northern Ireland's Reference (No 1 of 1975) (1977) AC 105, a soldier on patrol in Northern Ireland shot and killed an unarmed man, who ran away when challenged. The trial judge held that the prosecution had failed to prove that the soldier intended to kill or cause serious bodily harm, and that the homicide was justifiable under section 3 of the Criminal Law Act (Northern Ireland) 1967 (identical wording to the English section). The Lords decided that the Judge's ruling was purely one of fact, and therefore declined to answer the legal question of justification. But Lord Diplock commented:
In R v Clegg
(1995) 1 AC 482 Lord Lloyd of Berwick said at 497:
One interpretation would be that when a government
deploys highly armed soldiers, equipped and trained to kill, in a civilian area, the law must give the armed forces greater licence to kill than would be granted to any other person including, presumably, a less lethally equipped police officer. In the event, Private Clegg was convicted of murder. He had been on patrol to catch joyriders
, and fired three shots at the windscreen of a speeding car as it approached the checkpoint. He fired a fourth shot, killing a passenger, after the car had passed him and was speeding away. The first three shots were fired in self-defence, or in defence of fellow soldiers, but the fourth shot was not a response to imminent danger. The judge dismissed the evidence of bruising to a fellow soldier's leg as a fabrication to suggest injury to that soldier from the car. The Lords observed that army Rules of Engagement
given to every soldier on a "yellow card" entitled "[i]nstructions for opening fire in Northern Ireland" could, on a literal reading, justify firing on a car where a person had been injured by it, irrespective of the seriousness of the injury. But, in any event, the Lords said that the card had no legal force because English law does not have a general defence of superior orders. Lord Lloyd of Berwick cited with approval the Australian High Court in A v Hayden (No 2) (1984) 156 CLR 532 followed by the Privy Council in Yip Chiu-Cheung v The Queen (1995) 1 AC 111 where the "good" motive of the undercover drug enforcement officer was irrelevant (the accused conspired to take drugs from Hong Kong to Australia - as the officer intended the agreement to be carried out to break a drugs ring, a conspiracy between the two was proved. In A v Hayden, Murphy J. stated:
or abused child using excessive force because they are physically at a disadvantage and not under imminent attack, would be denied a defence. Further, an occupant not sure if violence to defend their property against invasion is reasonable, may feel forced to do nothing. It was always possible the same set of facts could be interpreted as either self-defence or provocation
where there was a loss of control resulting in death. Thus, the Commission recommends a redefinition of provocation to cover situations where a person acts lethally out of fear. This reflects the present view of psychiatrists that most people act in violent situations with a combination of fear and anger in their minds, and to separate the two emotions is not legally constructive.
Criminal Law Act 1967
The Criminal Law Act 1967 is an Act of the Parliament of the United Kingdom. However, with some minor exceptions, it generally applies to only England and Wales. It made some major changes to English criminal law...
. Self defence in English law is using reasonable force against an unjust threat. Self-defence is a justification
Justification
Justification may refer to:*Theory of justification, a part of epistemology that attempts to understand the justification of propositions and beliefs*Justification , defence in a prosecution for a criminal offense...
rather than an excuse
Excuse
In jurisprudence, an excuse or justification is a defense to criminal charges that is distinct from an exculpation. In this context, "to excuse" means to grant or obtain an exemption for a group of persons sharing a common characteristic from a potential liability. "To justify" as in justifiable...
(Robinson's classification of defences)- that is the defence is asserting that the actions were not a crime at all.
Common law
Self-defense in English law is a complete defense of justification in cases involving all levels of assaultAssault
In law, assault is a crime causing a victim to fear violence. The term is often confused with battery, which involves physical contact. The specific meaning of assault varies between countries, but can refer to an act that causes another to apprehend immediate and personal violence, or in the more...
. Hence, self-defense is distinguishable from provocation
Provocation in English law
In English law, provocation was a mitigatory defence alleging a total loss of control as a response to another's provocative conduct sufficient to convert what would otherwise have been murder into manslaughter. It does not apply to any other offence. It was abolished on 4 October 2010 by of the...
, which only applies to mitigate what would otherwise have been murder to manslaughter (i.e., provocation is not a complete defense).
Because of the completeness of the defense, self-defense is interpreted in a relatively conservative way to avoid creating too generous a standard of justification
Excuse
In jurisprudence, an excuse or justification is a defense to criminal charges that is distinct from an exculpation. In this context, "to excuse" means to grant or obtain an exemption for a group of persons sharing a common characteristic from a potential liability. "To justify" as in justifiable...
. The more forgiving a defense, the greater the incentive for a cynical defendant to exploit it when planning the use of violence
Violence
Violence is the use of physical force to apply a state to others contrary to their wishes. violence, while often a stand-alone issue, is often the culmination of other kinds of conflict, e.g...
or in explaining matters after the event. Thus, although the jury in self-defense cases are entitled to take into account the physical characteristics of the defendant, that evidence has little probative value in deciding whether excessive force was actually used. The general common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
principle is stated in Beckford v R (1988) 1 AC 130:
- "A defendant is entitled to use reasonable force to protect himself, others for whom he is responsible and his property. It must be reasonable."
Reasonable force
Opinions differ on what constitutes a reasonable amount of force, but in all cases, the defendant does not have the right to determine what constitutes "reasonable force" because the defendant would always maintain they acted reasonably and thus would never be guilty. The juryJury
A jury is a sworn body of people convened to render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the guilt, or lack thereof, in a crime. In Anglophone jurisdictions, the verdict may be guilty,...
, as ordinary members of the community
Community
The term community has two distinct meanings:*a group of interacting people, possibly living in close proximity, and often refers to a group that shares some common values, and is attributed with social cohesion within a shared geographical location, generally in social units larger than a household...
, must decide the amount of force reasonable in the circumstances of each case. It is relevant that the defendant was under pressure from imminent attack and may not have had time to make entirely rational decisions, so the test must balance the objective standard of a reasonable person
Reasonable person
The reasonable person is a legal fiction of the common law that represents an objective standard against which any individual's conduct can be measured...
by attributing some of the subjective knowledge of the defendant, including what they believed about the circumstances, even if mistaken. However, even allowing for mistakes made in a crisis, the amount of force must be proportionate and reasonable given the value of the interests being protected and the harm likely to be caused by use of force. The classic test comes from the Jamaican case of Palmer v The Queen, on appeal to the Privy Council
Privy council
A privy council is a body that advises the head of state of a nation, typically, but not always, in the context of a monarchic government. The word "privy" means "private" or "secret"; thus, a privy council was originally a committee of the monarch's closest advisors to give confidential advice on...
in 1971:
- "The defense of self-defense is one which can be and will be readily understood by any jury. It is a straightforward conception. It involves no abstruse legal thought. ...Only common sense is needed for its understanding. It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do, but may only do, what is reasonably necessary. But everything will depend upon the particular facts and circumstances. ...It may in some cases be only sensible and clearly possible to take some simple avoiding action. Some attacks may be serious and dangerous. Others may not be. If there is some relatively minor attack it would not be common sense to permit some action of retaliation which was wholly out of proportion to the necessities of the situation. If an attack is serious so that it puts someone in immediate peril then immediate defensive action may be necessary. If the moment is one of crisis for someone in imminent danger he may have [to] avert the danger by some instant reaction. If the attack is all over and no sort of peril remains then the employment of force may be by way of revenge or punishment or by way of paying off an old score or may be pure aggression. There may no longer be any link with a necessity of defense... 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."
In R v Lindsay (2005) AER (D) 349, the defendant who picked up a sword in self-defense when attacked in his home by three masked intruders armed with loaded handguns, killed one of them by slashing him repeatedly with that sword. The prosecution case was that, although he had initially acted in self defense, he had then lost his self-control and demonstrated a clear intent to kill the armed intruder. In fact, the defendant was himself a low-level cannabis dealer who kept the sword available to defend himself against other drug dealers. The Court of Appeal confirmed an eight-year term of imprisonment. In a non-criminal context, it would not be expected that ordinary householders who "go too far" when defending themselves against armed intruders would receive such a long sentence.
Beliefs
The modern law on belief is stated in R v Owino (1996) 2 Cr. App. R. 128 at 134:- A person may use such force as is [objectively] reasonable in the circumstances as he [subjectively] believes them to be.
To gain an acquittal, the defendant must fulfil a number of conditions. The defendant must believe, rightly or wrongly, that the attack is imminent. Lord Griffith said in Beckford v R:
- "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."
The time factor is important. If there is an opportunity to retreat or to obtain protection from the police, the defendant should do so, thereby demonstrating an intention to avoid being involved in the use of violence. However, the defendant is not obliged to leave a particular location even if forewarned of the arrival of an assailant (see duty to retreat
Duty to retreat
In the criminal law, the duty to retreat is a specific component which sometimes appears in the defense of self-defense, and which must be addressed if the defendant is to prove that his or her conduct was justified. In those jurisdictions where the requirement exists, the burden of proof is on the...
). Furthermore, a defendant does not lose the right to claim self-defense merely because they instigated the confrontation that created the alleged need for self defense. A person who kills in the course of a quarrel they started might still act in self-defense if the 'victim' retaliates or counterattacks. In Rashford (2005) AER 192, the defendant sought out the victim, intending to attack him in revenge for an earlier dispute, but 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 defense. The Court of Appeal held that the defendant will only lose the defense 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-defense. On the facts, the jury's decision to convict was not unsafe.
Drink and drugs
The issue of belief is more complicated when the defendant has consumed alcohol or drugsRecreational drug use
Recreational drug use is the use of a drug, usually psychoactive, with the intention of creating or enhancing recreational experience. Such use is controversial, however, often being considered to be also drug abuse, and it is often illegal...
. In 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:
- "The only element of doubt in the case is whether there was anything which might have caused the applicant, in his drunken condition, to believe that he was going to be struck."
This suggests that the question is whether there was any intelligible basis for the defendant’s belief. If so, the defendant is entitled Hatton (2005) AER (D) 308 http://www.lawreports.co.uk/WLRD/2005/CACRIM/oct0.2.htm held that a defendant who raised the issue of self-defense was not entitled to rely on a mistaken belief induced by voluntary intoxication, regardless of whether the defense was raised against a charge of murder or one of manslaughter. This applied the ratio decidendi
Ratio decidendi
Ratio decidendi is a Latin phrase meaning "the reason" or "the rationale for the decision." The ratio decidendi is "[t]he point in a case which determines the judgment" or "the principle which the case establishes."...
in R v O' Grady (1987) 1 QB 995 for murder and R 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-defense because he imagines (as in Hatton) that the deceased was attacking him with a sword, he has no defense 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 (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-defense as part of its briefing on the Criminal Law (Amendment) (Householder Protection) Bill 2005. The list is on pages 12–18 of this document.
Statutory provision
Section 3(1) of the Criminal Law Act 1967Criminal Law Act 1967
The Criminal Law Act 1967 is an Act of the Parliament of the United Kingdom. However, with some minor exceptions, it generally applies to only England and Wales. It made some major changes to English criminal law...
provides that:
- "A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large."
Section 3(2) states:
- "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."
This abolished common law rules on what was "reasonable," such as the duty to retreat
Duty to retreat
In the criminal law, the duty to retreat is a specific component which sometimes appears in the defense of self-defense, and which must be addressed if the defendant is to prove that his or her conduct was justified. In those jurisdictions where the requirement exists, the burden of proof is on the...
.
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 (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 muggerRobberyRobbery is the crime of taking or attempting to take something of value by force or threat of force or by putting the victim in fear. At common law, robbery is defined as taking the property of another, with the intent to permanently deprive the person of that property, by means of force or fear....
(where there would also be physical danger to the owner) or, at the other extreme, possession of land.
The Human Rights Act 1998
Human Rights Act 1998
The Human Rights Act 1998 is an Act of Parliament of the United Kingdom which received Royal Assent on 9 November 1998, and mostly came into force on 2 October 2000. Its aim is to "give further effect" in UK law to the rights contained in the European Convention on Human Rights...
incorporates into English law Article 2 Convention for the Protection of Human Rights and Fundamental Freedoms
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...
, which defines the right to life as follows:
- "1. 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.
- 2. 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 defense 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."
Section 76 of the Criminal Justice and Immigration Act 2008
Criminal Justice and Immigration Act 2008
The Criminal Justice and Immigration Act 2008 is an Act of the Parliament of the United Kingdom which makes significant changes in many areas of the criminal justice system in England and Wales and, to a lesser extent, in Scotland and Northern Ireland...
codifies English case law on self-defense. However it makes no changes to the law.
Arrest and private citizens
A private citizen does have a power to arrest and, where it is lawfully exercised, may use reasonable force and other reasonable means to effect it. In 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:- "This case has to be considered in the light of the evidence which was said to have amounted to reckless driving. This evidence had two facets: one was what the prosecution alleged to be the acts of recklessness; and the other was that these same acts amounted to the use of reasonable force for the purpose of assisting in the lawful arrest of offenders."
Law enforcement by police officers
The use of force to prevent crime including crimes against property should be considered justifiable because of the utilityUtilitarianism
Utilitarianism is an ethical theory holding that the proper course of action is the one that maximizes the overall "happiness", by whatever means necessary. It is thus a form of consequentialism, meaning that the moral worth of an action is determined only by its resulting outcome, and that one can...
to society
Society
A society, or a human society, is a group of people related to each other through persistent relations, or a large social grouping sharing the same geographical or virtual territory, subject to the same political authority and dominant cultural expectations...
, i.e. where a police officer uses reasonable force to restrain or arrest a criminal or suspect, this bring the greatest good to the largest number of people. But, where the officers make mistakes, the law can be unpredictable. In R v Dadson (1850) 2 Den 35; 169 ER 407, a police officer shot and wounded an escaping thief. At the time, any degree of force could be used to arrest a fleeing felon but, when he fired the gun, he did not know who the thief was. He was convicted of intentionally causing grievous bodily harm
Grievous bodily harm
Grievous bodily harm is a term of art used in English criminal law which has become synonymous with the offences that are created by sections 18 and 20 of the Offences against the Person Act 1861....
because the thief was shot and the gun was fired by a man not caring whether the shot was lawful or not. That the thief was later proved to be a felon did not prevent a concurrence
Concurrence
In Western jurisprudence, concurrence is the apparent need to prove the simultaneous occurrence of both actus reus and mens rea , to constitute a crime; except in crimes of strict liability...
between actus reus
Actus reus
Actus reus, sometimes called the external element or the objective element of a crime, is the Latin term for the "guilty act" which, when proved beyond a reasonable doubt in combination with the mens rea, "guilty mind", produces criminal liability in the common law-based criminal law jurisdictions...
and mens rea
Mens rea
Mens rea is Latin for "guilty mind". In criminal law, it is viewed as one of the necessary elements of a crime. The standard common law test of criminal liability is usually expressed in the Latin phrase, actus non facit reum nisi mens sit rea, which means "the act does not make a person guilty...
at the instant the shot was fired, i.e. no retrospective justification is allowed. It is noted that the death of Jean Charles de Menezes
Jean Charles de Menezes
Jean Charles de Menezes was a Brazilian man shot in the head seven times at Stockwell tube station on the London Underground by the London Metropolitan police, after he was misidentified as one of the fugitives involved in the previous day's failed bombing attempts...
at the Stockwell tube station, south London, on July 22, 2005 resulted from the use of a then secret shoot-to-kill policy called Operation Kratos
Operation Kratos
Operation Kratos referred to tactics developed by London's Metropolitan Police Service for dealing with suspected suicide bombers, most notably firing shots to the head without warning....
. English law has no general defence of superior orders and the conduct of every police officer has to be judged on the facts as they believed them to be. (For comparative purposes, see *Keebine-Sibanda, Malebo J. & Sibanda, Omphemetse S. "Use of Deadly Force by the South African Police Services Re-visited" http://www.crisa.org.za/section_49.pdf).
In R v Pagett (1983) 76 Cr. App. R. 279, to resist lawful arrest, the defendant held a pregnant girl in front of him as a shield and shot at armed policemen who returned fire as permitted under their rules of engagement, killing the girl. It is a proportionate response to shooting, to shoot back. In balancing the harms, the greater harm to be avoided is a violent suspect firing and killing a police officer or any other bystander. On the issue of whether the defendant caused
Causation (law)
Causation is the "causal relationship between conduct and result". That is to say that causation provides a means of connecting conduct with a resulting effect, typically an injury. In criminal law, it is defined as the actus reus from which the specific injury or other effect arose and is...
the victim's death, the Court of Appeal held that the reasonable actions of a third party acting in self-defence and defence of others could not be regarded as a novus actus interveniens because self-defence was a foreseeable consequence of his action and had not broken the chain of causation.
In Beckford v R the defendant police officer was told that a suspect was armed and dangerous. When that man ran out of a house towards him, the defendant shot him because he feared for his own life. The prosecution case was that the victim had been unarmed and thus presented no threat to the defendant. Lord Griffiths approved a model direction to juries, laid down by Lord Lane in "R. v Williams:
- "Whether the plea is self-defence or defence of another, if the defendant may have been labouring under a mistake as to facts, he must be judged according to his mistaken belief of the facts: that is so whether the mistake was, on an objective view, a reasonable mistake or not."
The defendant therefore, had a defence of self-defence because the killing was not unlawful if, in the circumstances as he perceived them to be, he had used reasonable force to defend himself.
Law enforcement by soldiers
Since the "war on terrorism" began in 2001, the UK has seen a substantial increase in the use of armed police officers. The issue of the extent to which soldiers may be allowed to shoot a suspect in defence of themselves and others has therefore become more relevant to English law, although it has always been highly relevant given the role of the military in the policing of Northern IrelandNorthern Ireland
Northern Ireland is one of the four countries of the United Kingdom. Situated in the north-east of the island of Ireland, it shares a border with the Republic of Ireland to the south and west...
. In AG for Northern Ireland's Reference (No 1 of 1975) (1977) AC 105, a soldier on patrol in Northern Ireland shot and killed an unarmed man, who ran away when challenged. The trial judge held that the prosecution had failed to prove that the soldier intended to kill or cause serious bodily harm, and that the homicide was justifiable under section 3 of the Criminal Law Act (Northern Ireland) 1967 (identical wording to the English section). The Lords decided that the Judge's ruling was purely one of fact, and therefore declined to answer the legal question of justification. But Lord Diplock commented:
- "There is little authority in English law concerning the rights and duties of a member of the armed forces of the Crown when acting in aid of the civil power; and what little authority there is relates almost entirely to the duties of soldiers when troops are called upon to assist in controlling a riotous assembly. Where used for such temporary purposes it may not be inaccurate to describe the rights and duties of a soldier as being no more than those of an ordinary citizen in uniform. But such a description is in my view misleading in the circumstances in which the army is currently employed in aid of the civil power in Northern Ireland. In theory it may be the duty of every citizen when an arrestable offence is about to be committed in his presence to take whatever reasonable measures are available to him to prevent the commission of the crime; but the duty is one of imperfect obligation and it does not place him under any obligation to do anything by which he would expose himself to risk of personal injury, nor is he under any duty to search for criminals or seek out crime. In contrast to this a soldier who is employed in aid of the civil power in Northern Ireland is under a duty, enforceable under military law, to search for criminals if so ordered by his superior officer and to risk his own life should this be necessary in preventing terrorist acts. For the performance of this duty he is armed with a firearm, a self-loading rifle, from which a bullet, if it hits the human body, is almost certain to cause serious injury if not death."
In R v Clegg
Lee Clegg
Sergeant Lee Clegg is a British Army soldier who was convicted of murder for his involvement in the shooting dead of two teenage joyriders in West Belfast, Northern Ireland. His conviction was later overturned.-Shooting:...
(1995) 1 AC 482 Lord Lloyd of Berwick said at 497:
- "In the case of a soldier in Northern Ireland, in the circumstances in which Private Clegg found himself, there is no scope for graduated force. The only choice lay between firing a high-velocity rifle which, if aimed accurately, was almost certain to kill or injure, and doing nothing at all."
One interpretation would be that when a government
Government
Government refers to the legislators, administrators, and arbitrators in the administrative bureaucracy who control a state at a given time, and to the system of government by which they are organized...
deploys highly armed soldiers, equipped and trained to kill, in a civilian area, the law must give the armed forces greater licence to kill than would be granted to any other person including, presumably, a less lethally equipped police officer. In the event, Private Clegg was convicted of murder. He had been on patrol to catch joyriders
Joyride (crime)
To joyride is to drive around in a stolen car, boat, or other vehicle with no particular goal, a ride taken solely for pleasure.In English law, joyriding is not considered to be theft, because the intention to "permanently deprive" the owner of the vehicle cannot be proven...
, and fired three shots at the windscreen of a speeding car as it approached the checkpoint. He fired a fourth shot, killing a passenger, after the car had passed him and was speeding away. The first three shots were fired in self-defence, or in defence of fellow soldiers, but the fourth shot was not a response to imminent danger. The judge dismissed the evidence of bruising to a fellow soldier's leg as a fabrication to suggest injury to that soldier from the car. The Lords observed that army Rules of Engagement
Rules of engagement
Rules of Engagement refers to those responses that are permitted in the employment of military personnel during operations or in the course of their duties. These rules of engagement are determined by the legal framework within which these duties are being carried out...
given to every soldier on a "yellow card" entitled "[i]nstructions for opening fire in Northern Ireland" could, on a literal reading, justify firing on a car where a person had been injured by it, irrespective of the seriousness of the injury. But, in any event, the Lords said that the card had no legal force because English law does not have a general defence of superior orders. Lord Lloyd of Berwick cited with approval the Australian High Court in A v Hayden (No 2) (1984) 156 CLR 532 followed by the Privy Council in Yip Chiu-Cheung v The Queen (1995) 1 AC 111 where the "good" motive of the undercover drug enforcement officer was irrelevant (the accused conspired to take drugs from Hong Kong to Australia - as the officer intended the agreement to be carried out to break a drugs ring, a conspiracy between the two was proved. In A v Hayden, Murphy J. stated:
- "In Australia it is no defence to the commission of a criminal act or omission that it was done in obedience to the orders of a superior or the government. Military and civilians have a duty to obey lawful orders, and a duty to disobey unlawful orders."
Reform
The Law Commission Report on Partial Defences to Murder (2004) Part 4 (pp78/86) rejects the notion of creating a mitigatory defence to cover the use of excessive force in self-defence, but accepts that the "all or nothing" effect can produce unsatisfactory results in murder cases. For example, a battered womanBattered woman defence
The battered woman defense is a defense used in court that the person accused of an assault / murder was suffering from battered person syndrome at the material time. Because the defense is most commonly used by women, it is usually characterised in court as battered woman syndrome or battered wife...
or abused child using excessive force because they are physically at a disadvantage and not under imminent attack, would be denied a defence. Further, an occupant not sure if violence to defend their property against invasion is reasonable, may feel forced to do nothing. It was always possible the same set of facts could be interpreted as either self-defence or provocation
Provocation (legal)
In criminal law, provocation is a possible defense by excuse or exculpation alleging a sudden or temporary loss of control as a response to another's provocative conduct sufficient to justify an acquittal, a mitigated sentence or a conviction for a lesser charge...
where there was a loss of control resulting in death. Thus, the Commission recommends a redefinition of provocation to cover situations where a person acts lethally out of fear. This reflects the present view of psychiatrists that most people act in violent situations with a combination of fear and anger in their minds, and to separate the two emotions is not legally constructive.