Self Defence in UK Law

In trespass, any unlawful interference with the bodily integrity of the claimant will not be unlawful if it is justified, and it will be justified if the defendant can establish that the claimant's conduct was such that the defendant reasonably apprehended that he would be imminently attacked and used reasonable force to protect himself.

But, apart from these special instances where the control or constraint is lawful, a broader exception has been created to allow for the exigencies of everyday life. Although such cases are regarded as examples of implied consent, it is more common nowadays to treat them as falling within a general exception embracing all physical contact which is generally acceptable in the ordinary conduct of daily life.

As to the first issue, the test of self-defence as a defence in a civil action is well-established and well-understood. There is no reason in principle why it should be the same test as obtains in a criminal trial, since the ends of justice which the two rules respectively exist to serve are different. There is nothing to suggest that the civil test as currently applied causes dissatisfaction or injustice and no case is made for changing it, even if that were an appropriate judicial exercise.

But every person has the right also to protect himself by using reasonable force to repel an attack or to prevent an imminent attack. The balance struck is serving a quite different purpose from that served by the criminal law when answering the question whether the infliction of physical injury on another in consequence of a mistaken belief by the assailant of a need for self-defence should be categorised as a criminal offence and attract penal sanctions.

The judges have always assumed responsibility for deciding questions of principle relating to criminal liability and guilt and particularly for setting the standards by which the law expects normal men to act. I would leave cases of direct killing by a principal in the first degree to be dealt with as they arise.

The function of a summing-up is not to give the jury a general dissertation upon some aspect of the criminal law, but to tell them what are the issues of fact on which they must make up their minds in order to determine whether the accused is guilty of a particular offence.

Surely it is this: give a clear, positive and unmistakeable general direction as to onus and standard of proof; then immediately follow it with a direction that in the circumstances of the particular case there is a special reason for having in mind how the onus and standard of proof applies, and going on to deal in, for example, the present case with the issue of self-defence and to tell the Jury something on these lines: