What is 'reasonable' force?
MPs have recently called for a the law relating to 'reasonable
force' in the defence of self-defence to be codified. David
Swarbrick tells Mary Luckham why care should be taken not to define
reasonableness too closely...
 MPs have
recently called for the law in relation to what is ‘reasonable
force’ for the purposes of the defence of self-defence to be
codified. This appears to have sprung from the decision, last month,
of the Crown Prosecution Service (CPS) not to prosecute a man for
firing a shotgun at a burglar believing (albeit erroneously) that
the burglar was armed.
Following the conviction of Tony Martin for murder in 1999 when he
shot and killed a burglar BLD 3110013501, there were similar calls
by the media and MPs for a reappraisal of the rules on self-defence.
Tony Martin’s conviction for murder was subsequently quashed and one
of manslaughter substituted but not on grounds of self-defence.
The law allows us to use reasonable force to defend ourselves and
David Swarbrick a consultant at Wrigley Claydon points out that:
“Self-defence only ever arises if one person hits out at another”
either to defend himself or his property. There is a similar defence
provided by Section 3 Criminal Law Act 1967 where reasonable force
can be used in the prevention of crime.
His view on the defence is that: “If I choose to hit out, I must be
prepared to justify what I do. I may start as a victim, but if I
choose to make somebody else a victim, I must have a very good
reason. An assault on another person is an offence. Self defence is
a defence to an assault charge. A fundamentally criminal act is
carried out to prevent another, worse criminal act.”
“Self-defence must never be about teaching a lesson to the
assailant. It is about self-preservation," he says.
Hence the need for the force used in self-defence to be ‘reasonable’
and, as he points out: “Reasonable force is not defined closely. It
is what is ‘reasonable in the circumstances.’ Those circumstances
include the possibility of avoiding the danger, the nature of the
threat, the available means of response, and the very great
difficulty of having to react quickly in a very charged situation
with very imperfect knowledge. Many other factors will properly come
into the equation from time to time. To define reasonableness too
closely risks excluding factors which ought to be allowed for.”
He adds: “It is often forgotten that it is for the prosecution to
disprove the defence. This is a major factor balancing the situation
in favour of a defendant and it is a jury or magistrates who decide
whether force used was ‘reasonable’. The test is whether the act was
objectively reasonable in the context of the subjective beliefs of
the defendant. The threat must have been immediate, the response
must have been reasonable/proportionate and those examining the
matter in a courtroom six months later must acknowledge the lack of
opportunity for someone under attack to weigh all those things too
nicely”.
He is concerned at some of the views which have been expressed in
relation to changing the law suggest that someone breaking the law –
such as a burglar – is not to be given the protection of the law:
“It suggests that a burglar deserves whatever he gets! It must be
noted that a burglar ‘getting his just deserts’ is a natural
response but an incorrect one where the home-owner is no longer
acting primarily to defend himself.”
He remarks: “One often listens to radio phone-ins where people
bemoan their inability to blow the head off any passer-by who looks
askance. There is a real danger in responding with anything less
than a clear ‘no way’ to such people.”
“Tony Martin had armed himself with unlicensed guns, set traps, shot
a fleeing intruder and he himself claimed to be unhinged (‘balance
of mind disturbed’). He was very properly convicted of manslaughter.
I would worry about any re-arranged law which did not convict him.”
The real issue, he thinks is that “people do not understand the
law”.
Although he agrees that using a test of ‘reasonableness’ in relation
to defensive force implies uncertainty, he observes that: “Certainty
can only be purchased at the expense of being arbitrary. The more
dimensions, the greater the chance that an arbitrary line will
produce unjust results.”
In conclusion he says: “I would be content with a statutory
definition of the defence. One very short definition which preserved
the current law would be an improvement. There would at least then
be a clear starting point. The danger is that the opportunity would
be taken to relocate the goalposts.”
09/11/04
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Legislative annotations in other services:-
Criminal Law Act 1967, s 3.
Case annotations in other services:-
R v Martin [2001] All ER (D) 435 (Oct).
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