The Law on Self Defence

Self Defence seems to inflame tabloid journalists and public opinion and Home Office politicians more than any other aspect of the law (apart perhaps from the Human Rights Act). This is something of a mystery to lawyers, most of whom think the law is clear and fair. There is sometimes poor decision making about when to prosecute, but more often “wrong” cases are the result of inaccurate reporting.

The basic principles of self-defence date back to medieval times, but the modern formulation was set out in in a case called Palmer v R in 1971:

“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 only do, what is reasonably necessary.”

In assessing the reasonableness of the force used the benefit of the doubt goes to the person accused. The test is; on the basis of the facts as the accused honestly believed them to be, was the use of force necessary at all, and if it was the force used reasonable? In deciding that juries are invariably reminded of the formulation of Lord Morris in Palmer;

“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 …”

That formulation has been adopted in the words of s.76 Criminal Justice and Immigration Act 2008, another bit of legislation that even the government accepted only repeated what the law already was. The Home Office always likes to be seen to be “doing something”.

Beyond that a Jury or Magistrates can take into account all the evidence in making a decision. There is no rule in law that a person must wait to be struck first, or that they must retreat. These are factors to be taken into account. The only factor defendants cannot rely upon is if they misunderstood the situation because they were drunk – imagine the injustices that could occur if they could.

Finally, if the there is sufficient evidence for the Defendant to raise Self Defence it is for the Prosecution to prove that it does not apply, “beyond reasonable doubt” (though in civil proceedings it is for the Defendant to prove it on the balance of probabilities). Before charging the CPS also have to consider whether it is in the public interest.

As an antidote to the tabloids consider the case of Mr David Summers, who burgled a flat in Peterborough. The two occupants beat him with a baseball bat, inflicting multiple injuries. They weren’t prosecuted and when he was sentence for burglary the Judge made it clear he had no sympathy for him and wasn’t going to give him any discount from his sentence because of his injuries.

Neil Howlett used to practice in Criminal Law