Self Defence & Reasonable Force

The law generally allows a person to use such force as is reasonable in the circumstances for the purposes of self-defence. Similar rules apply to defence of someone else or defending property from an unlawful act.

However, there is no easy definition of what force is reasonable: it is a matter to be decided in each individual case.  That is because self-defence is governed by the common law - the accumulated wisdom of the courts as expressed in decided cases.

Yesterday, MPs called for the law to be codified by Parliament, so that people would know where they stood. But that might not take matters much further.  There is already a statute setting out how much force can be used to prevent crime or to arrest offenders. But the Criminal Justice Act 1967 says no more than that a person "may use such force as is reasonable in the circumstances". In reality, it would be impossible to list all the circumstances in which the courts would regard force as reasonable.

A comparison of recent cases in which burglars were shot demonstrates that each case must be judged on its own facts.

As was reported yesterday, Kenneth Faulkner, 73, a retired quantity surveyor from Derbyshire, was not prosecuted for firing a shotgun at John Rae, 22, a burglar who had previously stolen shotguns from his gun cabinet. Mr Faulkner wrongly, though understandably, believed that Rae was armed and fired, leaving Rae with shotgun wounds to his leg.

The CPS decision not to prosecute, approved by the judge who sentenced Rae to prison on Monday, appears to have been based on the assessment that the degree of force used by Mr Faulkner was reasonable in the circumstances, and could therefore be regarded as self-defence.

By contrast, the Norfolk farmer Tony Martin was initially convicted of murder after he shot a burglar in 1999.

His use of lethal force was regarded as excessive in the circumstances. Martin had his conviction reduced to manslaughter on grounds not related to self-defence.

The difficulty of deciding on which side of the line the law will fall is compounded by the fact that the common law has changed over the years. In 1924, a court said that "in defence of a man's house, the owner or his family may kill a trespasser who would forcibly dispossess him of it". That would not be regarded as good law today.

On the other hand, the courts are sympathetic to those who use more force than is necessary. Deciding an appeal from Jamaica in 1971, one of the law lords said that the courts did not expect a person defending himself to weigh the exact measure of his defensive action.

Lord Morris of Borth-y-Gest continued: "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."

The degree of force used will not be regarded as reasonable unless the accused person believed that level of force was necessary. However, necessity by itself is not sufficient: the force must also be reasonable.

And a person who mistakenly believes he is being attacked may still be able to rely on self-defence, provided he used no more force than was reasonable in the circumstances as he believed them to have been.
 

CPS: Self Defence and Reasonable Force
http://www.cps.gov.uk/legal/section13/chapter_t.html