Court of Appeal
| DOI | 10.1177/002201838404800402 |
| Published date | 01 November 1984 |
| Date | 01 November 1984 |
| Subject Matter | Case Notes |
COURT
OF
APPEAL
LAWFUL
OBJECT
IN MAKING
PETROL
BOMBS
Attorney-General's Reference
(No.2
of
1983)
The making of a petrol bomb would not
appear
to be an activity for
which a person would normally be able to show a lawful object. Yet
the respondent in the instant case ([1984) 2 W.L.R. 465) had
satisfied the jury that he had such lawful object by putting forward a
plea of self-defence at his trial for an offence contrary to section
4(1) of the Explosive Substances Act 1883. This section prohibits
the making of an explosive substance in such circumstances as to
give rise to a reasonable suspicion that it had not been made for a
lawful object but further provides that no offence is committed if a
lawful object can be shown for making it. The charge against the
respondent arose
out
of incidents which occurred during aperiodof
serious rioting and which involved the use of petrol bombs and
stones by large numbers of white and coloured youths. Asubstantial
body of police were attempting to control the rioting and looting
which took place over two nights.
The
respondent's lock-up shop,
which was situated in the
area
of turmoil, suffered damage to the
extent of
£600
and property worth
£400
was stolen from it during
this period. Fearing further attack on his premises, the respondent
remained throughout 48 hours at his shop keeping watch and taking
steps to protect the property by having windows boarded up and
fire-resistant paint applied. In his frightened state he took further
action which formed the basis of the charge against him. This action
was, among
other
things, to make 10 petrol bombs out of petrol,
bottles and sellotape. These petrol bombs he then placed at the
ready in his premises with the stated intention of using them as a last
resort; not to injure anybody but to protect the premises by
throwing the devices from an upstairs window on to the pavement in
order
to
deter
any rioters approaching the shop. In fact, the petrol
bombs were never used and it was only some months after these
events that a police investigation led to the respondent making
frank admissions and being charged. At the trial, the judge ruled
336
Court
of
Appeal
that it must be open to a defendant charged with this offence to
plead that his lawful object was self-defence (a phrase which for
present purposes is taken to include defence of property). The issue
was then left for the jury with guidance from the judge as to the
requirement that only such reaction as is reasonable in all the
circumstances is permissible for a successful plea of self-defence.
The
jury acquitted the respondent and the Attorney-General
subsequently referred to the Court of Appeal the question of
whether the defence of self-defence is available to a person charged
with an offence under section 4 of the 1883 Act. On behalf of the
Attorney-General it was contended that while self-defence might
properly be allowed as a defence to actual violence (against person
or property), it should not be available, in the absence of a specific
statutory provision, to justify actions done in anticipation of such
violence. Self-defence, it was argued, is based on spontaneous
reaction to apprehended immediate attack and should not be
allowed in circumstances of preliminary and premeditated acts in
anticipation of future violence.
The Court of Appeal saw no warrant for the proposition
advanced on behalf of the Attorney-General that acts of self-
defence are available only if spontaneous but instead agreed with
the approach adopted in the case of R. v. Fegan [1972]
NJ.
80. In
that case, a Roman Catholic man married to a Protestant woman
equipped himself with a gun and ammunition for the protection of
himself, his family and his property after being subjected to threats
and violence. In relation to the charge against him of possession of
an explosive substance contrary to section 4 of the 1883 Act, it was
stated in the Northern Ireland Court of Criminal Appeal that
"possession
...
for the purpose of protecting the possessor
...
may
be possession for a lawful object". This was held to be so despite the
fact that possession of the gun might in itself be unlawful under
some
other
statutory provision (for example if there were no
certificate authorising its possession). It was further held in that case
that
"the
threatened danger must be reasonably and genuinely
anticipated, must appear reasonably imminent, and must be of a
nature which could not reasonably be met by more pacific means".
Applying that approach to the present case, the Court of Appeal
took the view that although the method aperson might adopt to
achieve an object is in itself unlawful, for example making or storing
337
Journal
of
Criminal Law
fire bombs at unlicensed premises is an offence
under
the Explo-
sives
Act
1875, this does
not
render
unlawful his
object
in making
them.
The
Court
of Appeal in consequence answered the question
referred to it by stating
that
the defence
of
lawful
object
is available
to a
defendant
charged with an offence
under
section 4 of the
Act
of
1883 if he can satisfy the jury on the balance
of
probabilities
that
his
object was to protect himself
or
his family
or
his
property
against
imminent
apprehended
attack
and
to do so by means which he
believed were no more than reasonably necessary to meet the force
used by the attackers.
R. J. Cooper
DIMINISHED
RESPONSIBILITY
R. v. Gittens
Diminished responsibility as a partial defence to
murder
rendering
the
defendant
liable to be convicted of manslaughter is restricted by
section 2( 1) of the Homicide
Act
1957 to a person suffering from an
abnormality of mind as substantially impairs his mental responsi-
bility. Moreover, the abnormality must be attributable to
one
of the
stated factors in the section, namely acondition
of
arrested
or
retarded development
of
mind
or
any
inherent
causes,
or
induced
by disease
or
injury.
If
the
abnormality arises from some
other
factor (for example the consumption of drink
or
drugs)
then
the
plea of diminished responsibility will
not
be applicable. In R. v.
Gittens [1984] 3W.L.R.
32,
the
question before
the
Court
of
Appeal was what should be a
proper
direction to a
jury
where the
abnormality might have been
brought
about
by a
number
of
factors,
some
of
which would fall within section 2( 1)
and
some which would
not.
The
case involved a
defendant
who had
been
convicted of the
murder
of
his wife
and
step-daughter
(and
also
of
rape of the
step-daughter).
There
was a history of unhappiness in the defen-
dant's
marriage, he
had
suffered depression, for which he was
medically
treated
as an in-patient, and had
attempted
suicide. On
one
of his visits
home
from hospital he
had
too
much to drink whilst
338
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