Proposals for Reforming the Law of Self-Defence
| DOI | 10.1350/jcla.2008.72.5.525 |
| Published date | 01 October 2008 |
| Author | Amir Pichhadze |
| Date | 01 October 2008 |
| Subject Matter | Article |
Proposals for Reforming the Law
of Self-defence
Amir Pichhadze*
Abstract The English law of self-defence has attracted significant atten-
tion following the controversial decision of the Court of Appeal in R v
Martin. At the heart of the controversy is the determination of the reason-
ableness of a defendant’s apprehension of the necessity to use a particular
amount of force in self-defence. When comparing the defendant’s appre-
hension and actions to those of a reasonable person in the same circum-
stances, what characteristics of the defendant must be attributable to the
reasonable person in order for the test to be appropriate? This article
argues that while the Court of Appeal’s reluctance to allow a psycho-
logically individualised standard of reasonableness may have been correct,
the court should have reformulated the purely objective standard into a
contextual objective standard. It is suggested that unless such reform is
undertaken, the English law of self-defence will remain unduly con-
strained. Reform proposals by the Law Commission have made it clear
that such reform is not on the horizon. As an alternative, the Law
Commission proposed a reformulated defence of provocation. While this
alternative is commendable, it does not remove the need to reform the
objective standard of reasonableness in the law of self-defence.
Keywords Criminal law; Self-defence; Objective standard of rea-
sonableness; Provocation
In Rv Canns (Jason),1the Court of Appeal applied its earlier controversial
decision in Rv Martin.2Martin, the defendant in Rv Martin, claimed that
he shot and killed an intruder in self-defence. To establish self-defence
Martin’s apprehension of the necessity to use lethal force had to be
reasonable. Reasonableness is determined by an objective test: whether
a hypothetical ordinary ‘reasonable person’ (more commonly referred
to as the ‘reasonable man’) would have also apprehended the necessity
to use force in self-defence under the same circumstances, and if so,
whether he would have used the same amount of force. Martin failed to
raise self-defence because he was found to have used excessive force.
On appeal, counsel for Martin argued that it was reasonable for a
person suffering from Martin’s mental condition to have apprehended a
greater threat than what an ordinary person, not affected by the same
mental condition, would have apprehended.3The Court of Appeal had
* LLB (LSE), LLM (LSE); e-mail amir@alumni.lse.ac.uk. I would like to thank
Professor Jill Peay, at the LSE, for her comments on this article. I would also like
to thank my parents, Jacob and Zina, for their support and encouragement. Any
errors or omission are my own.
1Rv Canns (Jason) [2005] EWCA Crim 226.
2Rv Martin [2003] QB 1.
3 After Martin’s trial, new evidence was introduced based on the findings of the
psychiatrist Dr Joseph. In Dr Joseph’s opinion, at the time of the killing Martin
suffered from a disease of the mind, and under such a condition he ‘would have
perceived a much greater danger to his physical safety than the average person’
([2003] QB 1 at 15).
409The Journal of Criminal Law (2008) 72 JCL 409–440
doi:1350/jcla.2008.72.5.525
to decide whether the standard of reasonableness ought to remain
purely objective, or whether it should instead assess reasonableness
based on the subjective perspective of the defendant. Had it chosen the
latter option, it would have had to allow the fact-finder to attribute to
the ‘reasonable man’ the mental characteristics of the defendant in
order to see the situation from the perspective of the defendant. Stated
differently, it would have had to psychologically individualise the ‘rea-
sonable man’. Such a departure from the purely objective standard of
reasonableness was not alien to English law. Shortly prior to Rv Martin,
the House of Lords, in Rv Smith (Morgan),4modified the objective
standard in the law of provocation. Despite the precedent set by the
House of Lords, the Court of Appeal provided policy reasons for distin-
guishing between provocation and self-defence, and held that the jury
ought to apply to the ‘reasonable man’ only the defendant’s physical
characteristics.5
This article provides a critical assessment of the Court of Appeal’s
decision in Rv Martin. On the one hand, it presents arguments in
support of the court’s refusal to allow a psychologically individualised
standard of reasonableness. On the other hand, it is argued that the
Court of Appeal ought to have reformed the objective standard in two
ways. First, the fact-finder should be allowed to take into consideration
whether differences in physical size and strength between the defendant
(‘D’) and her aggressor (‘X’) have affected D’s apprehension of danger.
Secondly, the purely objective standard should be modified into a ‘con-
textual objective standard’, in order for the fact-finder to consider how
contextual factors may have influenced D’s apprehension of danger.
Unless such reform is undertaken, the English law of self-defence will
remain unduly constrained.
1. Overview of the English law of self-defence
The classic pronouncement of the English common law of self-defence is
that of the Privy Council in Palmer v R.6If D is attacked or honestly
believes she (or another person sharing some proximity to D,7or even
D’s property8) is threatened by an imminent attack, even if this belief is
unreasonable,9D is justified in taking as much immediate defensive
action against X as is reasonably necessary to avert the actual or im-
minent danger. For the amount of force to be deemed reasonable it must
4Rv Smith (Morgan) [2001] 1 AC 146.
5Rv Martin [2003] QB 1 at 6–7.
6Palmer v R[1971] AC 814. The case was approved and followed by the Court of
Appeal in Rv McInnes [1971] 1 WLR 1600.
7 In R v Duffy [1967] 1 QB 63 at 64, the court went even further by holding that
‘apart from any special relations between the person attacked and the rescuer,
there was a general liberty even as between strangers to prevent a felony’.
8 The court in R v Hussey (1924) 18 Cr App Rep 160 held that the defence may also
be used in the protection of property. In this case, the accused had fired a gun
through a hole made in the door of his landlady who was attempting (wrongly) to
evict him from his home. The landlady was injured. Lord Hewart CJ said that the
accused was in the same position as a man who was defending his home and that
such actions could be lawful.
9Solomon Beckford v The Queen [1988] AC 130.
The Journal of Criminal Law
410
be proportionate to the necessity arising in the particular situation.10
This is a question of fact to be determined by the jury by applying an
objective standard. Note that the use of excessive force would prevent D
from successfully raising self-defence, even though D was in fact re-
sponding to an unlawful attack. As Lord Hoffmann explains, ‘acting
unreasonably in self-defence destroys the defendant's justification for
deliberately injuring his attacker. Unless the defendant has acted in
accordance with the standards of self-restraint to be expected of an
ordinary citizen, his act remains criminal although in fact done in self-
defence’.11 Furthermore, once the danger is over the use of force is no
longer justified.12 While the English common law does not impose a
duty to retreat, in Rv Bird (Debbie)13 the court held that evidence
demonstrating that D did not want to fight would suggest that she acted
reasonably and in good faith in self-defence.
In addition, or as an alternative, to raising the common law of self-
defence, a defendant is also justified, under s. 3(1) of the Criminal Law
Act 1967, to ‘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’.
While this statutory defence could be used in most self-defence scen-
arios where the triggering conduct was unlawful, there might be cases in
which a defendant responded to harm that was not unlawful (e.g. an
attack by a mentally ill person, or by a child under 10 years of age), in
which case a defendant would rely on the common law defence.14
(a) Why have a rule of ‘imminence’?
Because ‘self-defence’ results in acquittal, in order to prevent a danger-
ous loophole by which murderers can escape liability, it is of paramount
importance for the law to limit the justification to circumstances of
absolute necessity. The rule of imminence assumes that it is possible to
identify necessity based on the timing of the act.15 In Palmer v R,16 Lord
Morris explained that force is justified only when there is an immediate
peril that can only be avoided by an instant reaction. Where the peril is
10 In R v Owino [1996] 2 Cr App Rep 128 the court established that a person may
only use such force as is (objectively) reasonable in the circumstances as he
(subjectively) believes them to be. However, the court in Palmer v Rrecognised
that ‘a person defending himself cannot weigh to a nicety the exact measure of his
defensive action. If the jury thought that in a moment of unexpected anguish the
person attacked had only done what he honestly and instinctively thought
necessary, that would be the most potent evidence that only reasonable defensive
action had been taken’ (Palmer v R[1971] AC 814 at 832).
11 Rv Smith (Morgan) [2001] 1 AC 146 at 195. See also R v Clegg [1995] 1 All ER 334.
12 Lord Morris explained that ‘if the moment is one of crises 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’:
Palmer v R [1971] AC 814 at 831.
13 Rv Bird (Debbie) [1985] 1 WLR 816.
14 A. Ashworth, Principles of Criminal Law, 4th edn (Oxford University Press : Oxford,
2003).
15 G. Fletcher, Rethinking Criminal Law (Little, Brown: Boston, Toronto, 1978) 795.
16 Palmer v R[1971] AC 814 at 814.
Proposals for Reforming the Law of Self-defence
411
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