"Reasonable Force"
part two.

In April 2000, I did a short article with my colleague John Hurst entitled "Reasonable Force" An experiment which has failed…

The purpose of this article was to show that according to our research, reasonable force did not apply to self defence as had been falsely claimed, notwithstanding the passing of Section 3(1) of the 1967 Criminal Law Act and the repeal of Section 7 of the Offences Against the Persons Act 1861.

Certainly the Tony Martin judgment given Criminal Court of Appeal at around the same time as our article was done did not support what we had claimed the law to be.

In giving judgment in that case in October 2001, the Lord Chief Justice of England & Wales had this to say on that subject:


There was no dispute that Mr Martin had shot the two men. Mr Martin's defence to the principal offences with which he was charged was that he was acting in self-defence. When this defence is raised, the prosecution has the burden of satisfying the jury so that they are sure that the defendant was not acting in self-defence. A defendant is entitled to use reasonable force to protect himself, others for whom he is responsible and his property. (See Beckford v R [1988] 1 AC 130)."

Since that judgment there has been an interesting development with the passing of Criminal Justice and Immigration Act 2008.

The section of that Act relating to the use of force was prompted by Jack Straw at the Labour Party conference and the following extract was taken from Hansard debates on 3 March 2008 during the Lords debate on the proposed Bill:

The noble Lord said: Amendment No. 137ZA is concerned with self-defence. In another place, a number of Conservative Members of Parliament, particularly the Members of Parliament for Vale of York, for Newark and for North West Cambridgeshire, have introduced proposals for a change in the law on self-defence. These have been prompted by a number of people who have suffered real distress as a result of lengthy investigations by the police into their reactions to burglaries and other incidents in their home, which in most cases ultimately ended in a failure to prosecute.

In a speech at the Labour Party conference, the right honourable Jack Straw suggested that the time had come to look again at the law on self-defence with a view to changing it in the interests of the householder. My honourable friend Mr Nick Herbert, the shadow Secretary of State for Justice in another place, has made it quite clear that it is important that the law sends out,

"a clear and unambiguous signal to the owners of homes … that the law will be on their side." [Official Report, Commons, 9/1/08; col. 351.]

What has the result been of the Governments reconsideration of the law? If one looks at the Bill, one is compelled to reach the conclusion that the Government have simply restated the law as it has always been. That is confirmed in a letter written on 29 January to the noble Lord, Lord Thomas of Gresford, by the noble Lord, Lord Hunt. The noble Lord wrote:

"You suggested that the Governments proposals appeared to be changing the test applied to the degree of force that a person is allowed to use in self defence … I am happy to confirm that this is not the case. As the law stands, a defendants actions are to be judged according to the circumstances as he viewed them … The Bill reflects this position. Clause 128(3) makes it clear that a person using force is to be judged on the basis of the circumstances as he believed them to be … Clause 128(8) makes it clear that if a person is labouring under a mistaken view of the circumstances (even if that is unreasonable), he is still to be judged by reference to the circumstances as he believed them to be."

The noble Lord, Lord Hunt, observes that,

"this reflects the current common law position."

The relevant text from the Criminal Justice & Immigration Act 2008 is as follows. (Note the misleading heading by number 76. This is a red herring.):

Self-defence etc.

76 Reasonable force for purposes of self-defence etc.

(1) This section applies where in proceedings for an offence
(a) an issue arises as to whether a person charged with the offence (D) is entitled to rely on a defence within subsection (2), and
(b) the question arises whether the degree of force used by D against a person (V) was reasonable in the circumstances.
(2) The defences are
(a) the common law defence of self-defence; and
(b) the defences provided by section 3(1) of the Criminal Law Act 1967 (c. 58) or section 3(1) of the Criminal Law Act (Northern Ireland) 1967 (c. 18 (N.I.)) (use of force in prevention of crime or making arrest).
(3) The question whether the degree of force used by D was reasonable in the circumstances is to be decided by reference to the circumstances as D believed them to be, and subsections (4) to (8) also apply in connection with deciding that question.
(4) If D claims to have held a particular belief as regards the existence of any circumstances
(a) the reasonableness or otherwise of that belief is relevant to the question whether D genuinely held it; but
(b) if it is determined that D did genuinely hold it, D is entitled to rely on it for the purposes of subsection (3), whether or not
(i) it was mistaken, or
(ii) (if it was mistaken) the mistake was a reasonable one to have made.
(5) But subsection (4)(b) does not enable D to rely on any mistaken belief attributable to intoxication that was voluntarily induced.
(6) The degree of force used by D is not to be regarded as having been reasonable in the circumstances as D believed them to be if it was disproportionate in those circumstances.
(7) In deciding the question mentioned in subsection (3) the following considerations are to be taken into account (so far as relevant in the circumstances of the case)
(a) 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
(b) that evidence of a persons 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.
(8) Subsection (7) is not to be read as preventing other matters from being taken into account where they are relevant to deciding the question mentioned in subsection (3).
(9) This section is intended to clarify the operation of the existing defences mentioned in subsection (2).
(10) In this section
(a) legitimate purpose means
(i) the purpose of self-defence under the common law, or
(ii) the prevention of crime or effecting or assisting in the lawful arrest of persons mentioned in the provisions referred to in subsection (2)(b);
(b) references to self-defence include acting in defence of another person; and
(c) references to the degree of force used are to the type and amount of force used.

As you can see, the common law defence of self defence is still there, just as we said it was and had not been repealed, only to rise from the dead like the mythical phoenix in another statute. (The amount of force which can be used in self defence is necessary, not reasonable, force.)

Now lets look at the Attorney General's Reference of 1983 to see what he has to say on the subject of self defence at common law.

"If 'self-defence' was available at common law to justify or excuse an act preparatory to violence (such as having an offensive weapon in a public place or possessing something with intent to destroy or damage property), there would have been no need for the 'reasonable excuse' in section 1(1) of the Prevention of Crime Act 1953 or 'lawful excuse' in section 3 of the Criminal Damage Act 1971 coupled with the deeming provision in section 5 of that Act and section 3 of the Criminal Law Act 1967 would not have been restricted to the use of force."

As self defence was, and still is, available at common law the Attorney General's statement confirms that you have a right to carry weapons in anticipation of being attacked because you have lawful authority to carry in a public place, the other plea available as a defence to a charge brought under the 1953 Act. That lawful authority is the Bill of Rights.

Mike Burke <mikeburke80@yahoo.co.uk>
October 2008