Self-defense

Self defense and defense of others (in the United States called alter ego defense or defense of a third person) convert what would otherwise have been tortious or criminal acts into excused (sometimes termed justified) acts when committed for the purpose of protecting oneself or another person. This necessarily includes the use of violence and, sometimes, deadly force.

Theory

The early theories make no distinction between defense of the person and defense of property. Whether consciously or not, this builds on the Roman Law principle of dominium where any attack on the members of the family or the property it owned was a personal attack on the pater familias — the male head of the household, sole owner of all property belonging to the household, and endowed by law with dominion over all his descendants through the male line no matter their age[1]. In Leviathan (1651), Hobbes proposed the foundation political theory that distinguishes between a state of nature where there is no authority and a modern state. Hobbes argues that although some men may be stronger or more intelligent than others in their natural state, none are so strong as to be beyond a fear of violent death which justifies self-defense as man's highest necessity. In the Two Treatises of Government, John Locke asserts the reason why an owner would give up his or her autonomy:

...the enjoyment of the property he has in this state is very unsafe, very unsecure. This makes him willing to quit a condition, which, however free, is full of fears and continual dangers: and it is not without reason, that he seeks out, and is willing to join in society with others, who are already united, or have a mind to unite, for the mutual preservation of their lives, liberties and estates, which I call by the general name, property.

In earlier times before the development of national policing, an attack on the family home was effectively either an assault on the people inside or an indirect assault on their welfare by depriving them of shelter and/or the means of production. This linkage between a personal attack and property weakened as societies developed but the threat of violence remains a key factor. As an aspect of sovereignty, in his 1918 speech Politik als Beruf (Politics as a Vocation), Max Weber defined a state as an authority having the legitimate monopoly of the means of organised violence within defined territorial boundaries (see Weber's Thesis). Recognizing that the modern framework of nations has emerged from the use of force, Weber asserted that the exercise of power through the institutions of government remained indispensable for effective government at any level which necessarily implies that self-help is limited if not excluded.

For modern theorists, the question of self-defense is one of moral authority within the nation to set the limits to obedience to the state and its laws given the pervasive dangers in a world full of weapons. In modern societies, states are increasingly delegating or privatizing their coercive powers to corporate providers of security services either to supplement or replace components within the power hierarchy. The fact that states no longer claim a monopoly to police within their borders, enhances the argument that individuals may exercise a right or privilege to use violence in their own defense. Indeed, modern libertarianism characterizes the majority of laws as intrusive to personal autonomy and, in particular, argues that the right of self-defense from coercion (including violence) is a fundamental human right, and in all cases, with no exceptions, justifies all uses of violence stemming from this right, regardless whether in defense of the person or property. In this context, note that Article 12 Universal Declaration of Human Rights states:

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

The inclusion of defense of one's family and home recognizes the universal benefit claimed to stem from the family's peaceable possession of private property. This general approach implicitly attacks Hohfeld's focus on the corelative relationship between right and duty as an aspect of human interactiveness as opposed to rights deemed implicitly more important because they attach to a person by virtue of his or her ownership of property. Further, it follows that, in this moral balancing exercise, laws must simultaneously criminalize aggression resulting in loss or injury, but decriminalize qualitatively identical violence causing loss or injury because it is used in self-defense. As a resolution of this apparent paradox and in defiance of Hohfeld, Robert Nozick asserted that there are no positive civil rights, only rights to property and the right of autonomy. In this theory, the "acquisition principle" states that people are entitled to defend and retain all holdings acquired in a just way and the "rectification principle" requires that any violation of the first principle be repaired by returning holdings to their rightful owners as a "one time" redistribution. Hence, in default of self-defense in the first instance, any damage to property must be made good either in kind or by value. Similarly, theorists such as George Fletcher and Robert Schopp have adopted European concepts of autonomy in their liberal theories to justify the right-holder using all necessary force to defend his or her autonomy and rights. This right inverts the felicitation principle of utilitarianism with the responsive violence being the greatest good to the individual, but accurately mirrors Jeremy Bentham who saw property as the driving force to enable individuals to enhance their utilities through stable investment and trade. In liberal theory, therefore, to maximise the utility, there is no need to retreat nor use only proportionate force. The attacker is said to sacrifice legal protection when initiating the attack. In this respect, the criminal law is not the tool of a welfare state which offers a safety net for all when they are injured. Nevertheless, some limits must be recognized as where a minor initial attack simply becomes a pretext for an excessively violent response. The civil law systems have a theory of “abuse of right” to explain denial of justification in such extreme cases.

Legal status of self defense

In most jurisdictions, when the defense succeeds, it operates as a complete justification when the degree of violence used is comparable or proportionate to the threat faced, so deadly force should only be used in situations of "extreme" danger. The defense would fail if a defendant deliberately killed a petty thief who did not appear to be a physical threat. Sometimes there is a duty to retreat which makes the defense problematic when applied to abusive relationships (see battered woman syndrome and abuse defense), and in burglary situations given the so-called castle exception (see: Edward Coke) which argues that one cannot be expected to retreat from one's own home, namely, “a man’s house is his castle, et domus sua cuique est tutissimum refugium" i.e. Latin for "and each man’s home his safest refuge”).

In some countries, the concept of "pre-emptive" self defense is limited by a requirement that the threat be imminent. Thus, lawful "pre-emptive" self defense is simply the act of landing the first-blow in a situation that has reached a point of no hope for de-escalation or escape. Many self-defense instructors and experts believe that if the situation is so clear-cut as to feel certain violence is unavoidable, the defender has a much better chance of surviving by landing the first blow and gaining the immediate upper hand to quickly stop the risk to their person.

Defense of others

The rules are the same when force is used to protect another from danger. Generally, the defendant must have a reasonable belief that the third party is in a position where he or she would have the right of self defense. For example, a person who unknowingly chances upon two actors practising a fight would be able to defend his restraint of the one that appeared to be the aggressor. Most courts have ruled that such a defense cannot be used to protect friends or family members who have engaged in an illegal fight. Likewise, one cannot use this to aid a criminal.

Self-defense in the United Kingdom

In English criminal law, the defence of self-defence provides for the right of people to act in a manner that would be otherwise unlawful in order to preserve the physical integrity of themselves or others or to prevent any crime. For the theoretical introduction, see the theory of self-defence.

Discussion

Common law

Self-defence in English law is a complete defence to all levels of assault and cannot be used to mitigate liability, say, from murder to manslaughter where a soldier or police officer acting in the course of his duty uses a greater degree of force than necessary for self-defence (compare the situation in some of the Australian states in Self-defence). Hence, self-defence is distinguishable from provocation which only applies to mitigate what would otherwise have been murder to manslaughter, i.e. it is not a complete defence. Self-defence is therefore interpreted in a relatively conservative way to avoid creating too generous a standard of justification. The more forgiving a defence, 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-defence 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:

A defendant is entitled to use reasonable force to protect himself, others for whom he is responsible and his property.

Reasonable force

Opinions can differ on what is a reasonable amount of force, but one thing is certain. The defendant does not have the right to decide how much force it is reasonable to use because the defendant would always believe he or she was acting reasonably and would never be guilty of any offence. It is for the jury, as ordinary members of the community, to decide the amount of force which it would be reasonable to use in the circumstances of each case. It is relevant that the defendant was under pressure from an imminent attack and might 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 his or her beliefs as to the surrounding circumstances, even if mistaken. However, even allowing for any 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:

The defence of self-defence 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 defence... 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-defence 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 defence, 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.

But, in the general case, 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). Further, a defendant will not lose self-defence merely because he or she instigated the confrontation during which the need for self defence allegedly arose. A person who kills in the course of a quarrel which he himself started, by provoking it or by entering into it willingly, might still act in self-defence if his or her 'victim' then 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 in a way that was out of proportion to the defendant's aggression. At this point, the defendant had to switch from aggression to defence. The Court of Appeal held that the defendant will only lose the defence if he or she was 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 which he then 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-defence. 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 drugs. 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 to be judged on the facts as he believed them to be, regardless whether his belief was reasonable. However, R v Hattan (2005) AER (D) 308 [2] held that a defendant who raised the issue of self-defence was not entitled to rely on a mistaken belief induced by voluntary intoxication, regardless of whether the defence 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-defence because he imagines (as in Hatton) that the deceased was attacking him with a sword, he has no defence 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-defence 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

The common law stands alongside s3(1) of the Criminal Law Act 1967 which 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.

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 mugger (where there would also be physical danger to the owner) or, at the other extreme, possession of land.

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:

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 defence 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.

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 utility 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" [3]).

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. This view, however, has been criticised as being unfair to th defendant. Some academics suggest that the question should be whether there was police negligence rather than the defendants fault. The police should have reconsidered their mode of self defence, as it is not impossible to just seek for cover.

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 proposed a model direction to juries: "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 U.K. has seen a substantial increase in the use of armed police officers (and, sometimes, specialist counter-terrorism units including military personnel: see Metropolitan Police [4]). 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 Ireland. 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 s3 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 (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 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:

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.

Defence of property

For the full page, see defence of property

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 the case of murder. For example, a battered woman or abused child using excessive force because he or she is physically at a disadvantage and not under imminent attack, would be denied a defence. Further, an occupier not being sure whether the proposed use of violence to defend his property against immediate invasion is reasonable, may feel forced to do nothing. It was always possible that 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 psychiatrsts 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.

References
ISBN links support NWE through referral fees

Carpenter, Of the Enemy Within, The Castle Doctrine, and Self-Defense, (2003) Vol. 86, No. 4 Marquette Law Review, 653.
Sir Edward Coke, The First Part of the Institutes of the Laws of England, or, A Commentary on Littleton (London, 1628, ed. F. Hargrave and C. Butler, 19th ed., London, 1832)
Dressler, Joshua, New Thoughts About the Concept of Justification in the Criminal Law: A Critique of Fletcher's Thinking and Rethinking, (1984) 32 UCLA L. Rev. 61.
Fletcher, George P. (1990) Crime of Self-Defense: Bernhard Goetz and the Law on Trial, Chicago: University of Chicago Press, ISBN 0226253341.
Fletcher, George P. (2000) Rethinking Criminal Law, Oxford: Oxford University Press, ISBN 0195136950.
Getman & Marshall, The Continuing Assault on the Right to Strike, (2001) Vol. 79 Texas Law Review, 703.
Green, Castles and Carjackers: Proportionality and the Use of Deadly Force in Defense of Dwellings and Property, (1999) University of Illinois Law Review, 1.
McCoy, The Homosexual-Advance Defense and Hate Crimes Statutes:Their Interaction and Conflict, (2001) Vol. 22 Cardozo Law Review, 629.
Maguigan, Battered Women and Self-Defense: Myths and Misconceptions in Current Reform Proposals, (1991) Vol. 140 University of Pennsylvania Law Review, 79.
Nourse, Self-Defense and Subjectivity, (2001) Vol. 68 University of Chicago Law Review, 1235.
Schopp, Robert F. (1998) Justification Defenses and Just Convictions, Cambridge: Cambridge University Press, ISBN 0521622115.
Segev, Fairness, Responsibility and Self-Defense, (2005) Vol. 45, No. 2 Santa Clara Law Review, 383.

The Law Commission Partial Defences to Murder is available at [5]

External Links

UseofForce.us — an independent, in-depth breakdown of US self-defense legalities

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