𝗖𝗢𝗡𝗙𝗨𝗦𝗜𝗢𝗡 𝗦𝗨𝗥𝗥𝗢𝗨𝗡𝗗𝗜𝗡𝗚 𝗧𝗛𝗘 𝗖𝗢𝗡𝗖𝗘𝗣𝗧 𝗢𝗙 𝗦𝗘𝗟𝗙 𝗗𝗘𝗙𝗘𝗡𝗖𝗘 𝗜𝗡 𝗔 𝗖𝗢𝗨𝗥𝗧 𝗢𝗙 𝗟𝗔𝗪

My apologies but, this article is a bit longer than I usually write but looking at what is being put out there on social media, I thought I would make things a bit clearer in terms of this subject as its really not as clear cut as you may think.

I have been involved in some cases and sat in many cases in a court of law where i have witnessed so many people fall prey to the lack of knowledge in this complex subject.

So, sit back and enjoy the read.

As Self Defence Instructors, we must not only know the law relating to self-defence in our own country but must also teach court room survival. A lot people who end up in a court of law end up being prosecuted not just for what they did in terms of self defence but for what they say both in their statements and in court. Remember if you are found not guilty in a court of Law, you could still be found guilty in a Civil Court.

There is often confusion surrounding the concept of self-defence in a court of law. The general assumption is that a defendant would be acquitted of a crime simply because they protected themselves or someone else. Unfortunately, in reality, what may be thought to be a self-explanatory defence is in fact, a very difficult area of law. I am speaking of UK law so i would suggest looking up your laws if you are uncertain.

𝗧𝗵𝗲 𝗟𝗮𝘄: 𝗪𝗵𝗮𝘁 𝗗𝗼𝗲𝘀 𝗦𝗲𝗹𝗳-𝗗𝗲𝗳𝗲𝗻𝗰𝗲 𝗘𝗻𝘁𝗮𝗶𝗹?

The CPS (Crown Prosecution Service) states that a person may use such force as is reasonable in the circumstances for the purposes of self-defence, defence of another, defence of property, prevention of crime or lawful arrest.

The general principle is that the law allows such force to be used as is reasonable in the circumstances. This is rather a two-step defence, combining subjective and objective elements, for which the following questions must be considered:

1. What did the defendant genuinely believe was happening when they acted in self-defence?

2. Was the force used to defend themselves or another reasonable in the circumstances as the defendant perceived them to be?

𝗚𝗲𝗻𝘂𝗶𝗻𝗲 𝗕𝗲𝗹𝗶𝗲𝗳

It must be established exactly what the defendant believed to be happening that required them to use self-defence.

Provided the defendant genuinely believed’ that the circumstances were such as to require self-defence, it does not matter whether this belief was correct or mistaken. Furthermore, it does not matter if the defendants mistaken belief of the circumstances was completely unreasonable.

The jury or magistrates do, however, provide a level of scrutiny: while the defendants mistaken belief may be relied upon regardless of how reasonable it was, the court must still believe that the defendant did in fact hold this belief.

𝗘𝘀𝘁𝗮𝗯𝗹𝗶𝘀𝗵𝗶𝗻𝗴 𝘄𝗵𝗮𝘁 𝘁𝗵𝗲 𝗱𝗲𝗳𝗲𝗻𝗱𝗮𝗻𝘁 𝗯𝗲𝗹𝗶𝗲𝘃𝗲𝗱 𝘁𝗼 𝗯𝗲 𝗵𝗮𝗽𝗽𝗲𝗻𝗶𝗻𝗴

Multiple rulings can be made regarding how the courts can decipher what the defendant believed at the time of attack. The argument can be made that if the defendant does in fact perceive a greater threat than actually exists, if the defendant suffers with Mental illness then the defence of diminished responsibility will be available in instances where the victim is killed, or in very rare and extreme cases, a potential defence of insanity. Whether this is satisfactory, however, is debatable: self-defence results in a full acquittal, whereas diminished responsibility merely reduces the conviction from murder to manslaughter, and insanity may result in the institutionalisation of the defendant.

𝗥𝗲𝗮𝘀𝗼𝗻𝗮𝗯𝗹𝗲 𝗙𝗼𝗿𝗰𝗲

The prosecution must demonstrate that the force used by the defendant was not reasonable in the circumstances as the defendant supposed them to be. Section 76(6) of the CJIA 2008 states: The degree of force used by the defendant is not to be regarded as having been reasonable in the circumstances as the defendant believed them to be if it was disproportionate in those circumstances.

Section 76(7) of the CJIA 2008 states a court may take the following into account (as well as other unlisted factors) when considering whether the force used by the defendant was reasonable: that a person acting for a legitimate purpose may not be able to weigh to a nicety the exact measure of any necessary action; and that evidence of a person’s having only done what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken by that person for that purpose.

The first factor, under Section 76 (7a) of the CJIA 2008, almost identically mirrors the statement made by Lord Morris in Palmer v R [1971] 1 All ER 1077. This principle ensures that the courts will not punish the defendant for applying slightly more force than was necessary in the circumstances, provided they did what the honestly and instinctively thought was necessary. However, if the defendant goes too far beyond what is reasonable and reacts disproportionately in the circumstances as they perceived them to be, the defence will fail and the defendant may be convicted. Arguably, this is particularly harsh in circumstances where the defendant misreads the requirement for the use of force, as the failure of the requirements of self-defence would likely result in a conviction.

𝗣𝗿𝗲-𝗘𝗺𝗽𝘁𝗶𝘃𝗲 𝗦𝘁𝗿𝗶𝗸𝗲𝘀

The law provides that you may protect yourself from an impending attack with the use of a pre-emptive strike if it is reasonably necessary. For instance: A man about to be attacked does not have to wait for his assailant to strike the first blow, circumstances may justify a pre-emptive strike. However, the ‘anticipated attack must be imminent’; you cannot lawfully strike out at someone that they feel may simply attack them in the distant future.

𝗣𝗿𝗼𝘃𝗼𝗸𝗲𝗱 𝗔𝘁𝘁𝗮𝗰𝗸𝘀

Perhaps controversially, the law also provides that you may rely on self-defence where they started off as the aggressor but then must protect themselves from the retaliation of the victim. For example, person (A) kicks person (B) in the leg. While this initial kick will have been an unlawful assault, person (A) may lawfully defend themselves if person (B) then pulls a knife on person (A) in retaliation. Self-defence is not applicable, however, where person (A) deliberately aggravated person (B) in order to be allowed to then lawfully attack person (B) further in defence.

Difficulties lie, as ever, in deciphering between those cases in which person 1 did not expect to have to defend himself from attacks (or from attacks at the level brought by person B), and those in which person (A) had deliberately provoked the anger of person (B) in order to permit further attacks from person (A). As such, the availability of this defence is very dependent on all the circumstances in each case.

𝗔 𝗗𝘂𝘁𝘆 𝘁𝗼 𝗥𝗲𝘁𝗿𝗲𝗮𝘁?

Previously, the law required that you demonstrate: by your actions that you do not want to fight. You must demonstrate that you are prepared to temporise and disengage, and perhaps to make some physical withdrawal.

However, the Legal Aid Sentencing and Punishment of offenders Act 2012 inserted Section 76 (6a) into the CJIA 2008, which states: In deciding the question (whether the degree of force is reasonable), a possibility that you could have retreated is to be considered (so far as relevant) as a factor to be taken into account, rather than as giving rise to a duty to retreat.

In other words, there is no longer a duty for you to try to retreat before defending yourself – quite rightly, too, as to require an escape attempt could easily result in you suffering greater harm than if you were to protect yourself instantaneously.

However, while a failure to retreat will not remove your ability to claim you acted in self-defence, it could still go towards painting your actions as more ‘aggressive’ than ‘protective’; as such, courts have been given the opportunity to dive further into specific circumstances of each case, rather than following strict blanket rules.

𝗛𝗼𝘂𝘀𝗲𝗵𝗼𝗹𝗱𝗲𝗿 𝗖𝗮𝘀𝗲𝘀

Additional thought must be given to cases in which Defendants are protecting themselves or another in their own home; it is not concerned with the defence of property. Regarding these so-called ‘householder cases’ (defined in Section 76 (8a) of the CIJA 2008, Section 76 (5a) of the CIJA 2008– inserted by Section 43 of the Crime and Courts Act 2013 – states:

In a householder case, the degree of force used by the defendant is not regarded as having been reasonable in the circumstances as the defendant believed them to be if it was grossly disproportionate in those circumstances.

The purpose behind the introduction of this section was made clear in a statement by ex-Minister for Policing and Criminal Justice, Damian Green MP: The provision is not (a vigilante’s charter), but a recognition that people confronted by a burglar and acting in fear of their safety in the heat of the moment cannot be expected to weigh up exactly how much force is required. In such extreme circumstances, we think that they should have greater legal protection. Ormerod and Laird are sceptical, however, of whether this addition actually makes a difference, nothing that the law already allows flexibility surrounding the amount of force used in the heat of the moment. Indeed, while an act of self-defence will be unreasonable in householder cases where it was ‘grossly disproportionate’ – compared to just ‘disproportionate’ in ordinary cases – it is easy to imagine that what may constitute ‘disproportionate’ to one jury could be ‘grossly disproportionate’ to another.

𝗖𝗼𝗻𝗰𝗹𝘂𝘀𝗶𝗼𝗻

As demonstrated above, the law of self-defence is not quite as simple as you might think. The defence is hardly a simple statement that when attacked you can do anything and everything to defend yourself and be exonerated by the courts.

The CPS guidelines state that, when reviewing cases involving assertions of self-defence, prosecutors must be aware of the balance to be struck between:

the public interest in promoting a responsible contribution on the part of citizens in preserving law and order; and

discouraging vigilantism and the use of violence generally.

This, ultimately, embodies the philosophy behind permitting the availability of this defence – citizens must be able to defend themselves from attackers, but cannot be afforded such immunity that they are then able to abuse this system so as to allow them to become the attackers.

So as you can see, it can be an absolute mine field when it comes to the court room survival.

Thanks for reading and I hope you found some useful knowledge

We offer distance learning courses on so many courses relating to Self Defence, Violence Prevention, Self Protection and Combatives as well as Psychological Trauma.

If you are interested in taking these courses or indeed introducing them into your training then please get intouch.

D.J.N

Fendo UK