"Refrain from reckless and thoughtless actions. Be as calm and judicious as a mountain."
English Law and Self Defence Part 2 is now online! Read it here!
The law in regards to self defence in the UK is painfully complex but the idea is simple and if you abide by General Choi Hong Hi’s advice you can't go too far wrong.
None the less, put the kettle on, this may be a lengthy post!
Before we get started I want to address a pet peeve of mine, you do NOT have to tell your attacker that you've had training before you engage in self defence. Imagine explaining to your attacker that you've been to 3 boxing classes and a self defence seminar before assuming your stance. Informing them of your training takes away the biggest advantage you have in such a situation; the element of surprise! Your attacker is not expecting to be attacked themselves, why throw away the best weapon at your disposal?
The problem with self defence is that everybody knows what it means; everybody has their own definition of what will be self defence. The problem here is that the courts would never be able to sentence somebody if they used their own definition. They would always say they acted reasonably and justifiably.
So, the legal system has decided, quite strictly, what self defence is and what it isn't.
The Criminal Law Act 1967 –
Section 3: “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”
However this definition of self defence presents its own problems, primarily the subjective understanding of what is reasonable in the circumstances. Also, there is some overlap between preventing crime, assisting in the arrest of offenders and true self defence. For self defence to be successful it must be both reasonable and necessary.
To add something else to the mix is common law, this is the law taken from past cases rather than written acts. These past cases can be invaluable in determining if something is self defence.
The principle of common law self defence:
“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."
Where there is overlap between common law and statute law self-defence the statute law is preferred. It may seem like the criminal law act will always be used over the common law but this isn't the case in matters where there was no crime committed such as in trespassing.
I will be dedicating part 2 of this post to analysing previous cases and whether they will be considered self defence and why.
You can use reasonable force for self defence, defence of another, defence of property, preventing crime and conducting an arrest. But what is reasonable? The guidance for reasonable force that it must be reasonable to the circumstance which the person believes it is. What this part means is that even if there actually was no danger, or lesser danger than you believed, you can still use self defence to justify your actions. Provided you genuinely believed the situation warranted your actions. It is also important to know, that if you are mistaken, the mistake is a reasonable one.
The circumstance is subjective, whereas the reasonable force is objective, this means the jury will decide whether an act is reasonable based on case law and common sense. A jury would unlikely think shooting somebody who called you names as reasonable even if you thought it was. But coming to the aid of an old woman under attack would be reasonable even if it turns out the women was attacking the other person!
The jury should take into account the pressure the victim would be under and also understanding that time for rational decision making would be limited!
As well as being reasonable, an act of self defence must also be considered necessary. If there was an attack on a person who subsequently followed the attackers and assaulted them back, they wouldn't be able to use self defence as the danger was over; revenge or vigilantism takes its place. Similarly, if a burglar was leaving the crime scene you wouldn't be able to attack them under self defence. You may be able to perform a citizen’s arrest though, this is covered later on.
Alcohol and Drugs:
Alcohol and drugs make acting in self defence much harder but not impossible. In case law it was decided that unless the defendant was so drunk that they didn't know what they were doing they can still use self defence as a justification for their actions. On the other hand, if you mistakenly believe to be under attack as a result of your drunkenness self-defence would probably be unavailable to you. The same applies to drugs or any other voluntary intoxication.
Duty to Retreat and Preemptive Strikes:
There is no duty to retreat in the UK, so you do not have to back away in order to use self defence as a justification but it would definitely help your defence if you backed away as much as possible and took any escape available to you. Not taking an escape may appear to a jury that any act of self-defence is retaliation, revenge or consent to engage in a fight.
Similarly there is no law stating that you must wait to be attacked physically before defending yourself. It is perfectly within the law to use the first strike and still be within the realms of self defence.
Instant Arming and Weapons:
As soon as weapons are thrown in to the mix, again, it becomes much harder to argue self-defence. After all, why would you have a weapon in the first place? Another thing, the law doesn't recognise anything as a self defensive weapon no matter what the advert tells you! Any weapon is offensive by design, as it has a purpose of causing harm.
You could use everyday objects in a defence situation if you had reason to possess it at the time. You wouldn't be able to use self defence with a weapon unless you can prove why you had the weapon on you and that an attack was imminent.
Even in your own home, if you were to pull a knife from under your pillow, you wouldn't be able to use self defence as there isn't any reason for a knife to be under your pillow. If you were to use your bedside lamp then self defence would be much easier to rely upon as it is fairly clear you didn't purchase the lamp for the purpose of attacking an intruder. Using a gun in the U.K. would make it almost impossible for self defence to be successful unless in very specific circumstances.
Defence of Property and Others:
Defence of property is similar to self defence in the powers available, you can use reasonable force to prevent crime or perform a citizen’s arrest. However you must not use no more force than necessary; in trespassing cases for example, you could ask the person to leave or call the police rather than attack them as this would be more force than necessary.
On the other hand is the notion that householders are allowed to use disproportionate force against intruders proved that the force isn't grossly disproportionate, what is considered disproportionate or grossly disproportionate is decided on a case by case basis.
Defence of others, in English law, you have the exact same justification of self defence if you act to defend somebody else. It is perfectly acceptable to stop an attack you witness and use reasonable force to do so.
Provoking an Attack:
A reason self defence wouldn't be a valid defence would be in the case of the defendant provoking the attack or creating the situation. For example, if somebody was to goad somebody into attacking them, they wouldn't be able to ‘defend’ themselves and use self defence as a justification. Similarly if you were to arrange a meeting with someone whom you expected would turn violent or entered a fight voluntarily. On the other hand, self defence can be a valid justification if the response from the other person was out of proportion.
Known as “any person arrest”, any person in the U.K. can perform an arrest after an indictable (serious crime that would be judged by a jury) crime has been committed or is being committed. You can use reasonable force in order to do so. On the most part you can't arrest before the offence has been committed. You can also only perform an any person arrest in order to prevent injury, prevent damage to property or to prevent the offender leaving the scene before a police officer arrives. To be able to perform a citizen’s arrest, it must be impractical for a police officer to conduct the arrest and be obvious that the person had committed the crime. Remember the consequences of conducting an unlawful arrest could range from assault to kidnapping and false imprisonment etc.
An Absolute Defence:
Acting in self defence allows somebody to act in a manner which would be otherwise illegal. It is known as a justification rather than an excuse as the positives of the actions outweigh the negatives. Further to this is self-defence being an absolute defence. This means that a valid claim of self defence will end a case in favour of the victim. Once proven an absolute defence is not subject to a lesser sentence. So, for instance, acting in self defence ending in the death of the attacker will either end in a murder charge or nothing. There is no reducing the charge to manslaughter for example. The all or nothing approach is disputed whether it is the best solution.
A Partial Defence:
Unlike the absolute defence, a partial defence is one which accepts some responsibility and reduces the charge due to some factors. The “loss of control” defence is a partial defence and can only be used for murder cases and if successful will reduce the sentence to manslaughter. The 3 factors which must be met are; the defendants self control was lost, there was a trigger, such as fear of serious violence and the response was reasonable considering the circumstance, age and gender of the defendant.
Okay let's start with the bad part, self defence and what is reasonable isn't down to you. It is legally defined and decided by the jury and because of this; it doesn't matter what you thought, the only thing that matters is what actually happened and what the jury believe to be reasonable.
On the other hand, in genuine cases of self defence the law offers a large spectrum of defences for those who use force to protect themselves, others or property, or even to arrest offenders. It is also stated by the crown prosecution service that it is their intention that those who act in self defence should not even have to testify in court. The public shouldn't fear prison for acting to defend themselves.
What this means for martial artists:
As I said at the beginning of this post is that you do not have to declare your experience in combat before acting in self-defence; that would be ridiculous. But it does have some implications; the jury’s perception of what is reasonable may be altered for example but the biggest implication is what is taught by some self defence and martial art schools.
Remember that you should use the least force possible in order to defend yourself. Many instructors will urge you to stab, gauge eyes and stomp all over your attacker, in some cases this will be proportionate but won’t be in many others. It is even more important that you know the difference between having a fight, self defence and justified force.
Remember, self defence must be both necessary and reasonable in the circumstance.