The world of use-of-force justification is a murky one. Most people don’t give it a great deal of thought. Even those people who seek out and dedicate many hundreds of hours to self-defence training often do not consider an understanding of the law as a vital component in their self-defence education. This problem even extends to police officers, who will of course know the letter of the law, but seldom give deeper thought to how that law is applied in judging use of force situations.
Most professionals and most self-defence students focus entirely on the physical aspects of violence, and the deepest anyone dives into the legal aspect is to learn that any force used in self defence must be reasonable. But what does reasonable mean, in a legal sense? The word, and the definition, are so subjective that merely knowing that you must use reasonable force is as good as knowing nothing at all.
A recent ruling by the UK Court of Appeal has raised the stakes for any British citizen, and in particular those that wear a uniform. In October of 2020, this court found in favour of the Independent office for Police Conduct (IOPC), as they endeavoured to prosecute an officer for a lethal use of force. The ruling sets a legal precedent that will forever affect how self-defence is argued and interpreted in the British Legal System. We will discuss this ruling and its implications in this article.
First, let’s remind ourselves of some legal definitions.
The Crown Prosecution Service lays out the foundation for self-defence in law with the following:
“The basic principles of self-defence are set out in (Palmer v R [1971] AC814) and approved in (R v McInnes, 55 Cr App R 551):
“It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do, but only do, what is reasonably necessary.”
This precedent is the backbone of self-defence in England and Wales. Summarised simply, it states that:
- Both law and sense agree that someone may defend themselves if attacked.
- Both law and sense agree that in this defence, that person should only use such force or actions as are necessary to affect the defence.
So far, so simple. But the problems inherent to these statements need to be addressed.
- How is someone who is threatened with a life and death situation, and all the stress and fear that that entails, supposed to judge what is reasonable?
The law agreed with this sentiment, and in the 1971 case, Lord Morris added the following:
“If there has been an attack so that self-defence is reasonably necessary, it will be recognised 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 a 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.”
These statements are legal precedents. They have the power of law in this country. They were laid down in 1971, however, aspects of their meaning are still being explored and built upon in the application of the law, and the October 2020 ruling is the latest reach of that exploration.
Looking back to the 1971 case, we can make the following statements:
- It is good sense and good law that a person should be able to defend themselves from violent assault, using force if necessary.
- Any force used must be reasonable and necessary.
- In the heat of a violent incident, a person cannot be expected to judge exactly what reasonable force means. In this case, they must simply do what they believe is necessary in the circumstances as they believed them to be.
This precedent introduced yet another subjective measure. The measure of belief. In simpler terms, these precedents state that a person may use force – even pre-emptive force – if they believe it necessary in the circumstances as they believe them to be.
In other words, if you think a person is about to hit you, you may hit them first. Hitting them when they were about to hit you is proportionate and reasonable.
You don’t have to be right, either. The precedent states that you simply must have believed you were about to be attacked. The attacker’s true intention is irrelevant. If their actions caused you to believe you were in danger, so be it. A judge will instruct a jury to consider whether you actions were reasonable in the circumstances as you believed them to be.
And so it has been for many years, until the recent Court of Appeal ruling.
Now we must add the following:
You may use such force as you believed was reasonably necessary in the circumstances as you Reasonably Believed them to be.
In August 2016, PC Benjamin Monk tasered Dalian Atkinson for 33 seconds, and then kicked him in the head during a violent confrontation. After 18 hours of deliberation, a jury unanimously found Monk guilty of manslaughter.
The verdict hinged on several questions:
- Was the force used by Monk reasonable in the circumstances as Monk believed them to be?
- Was Monk’s belief about the circumstances reasonable?
For the first time in legal precedent, the question of whether a person’s belief is reasonable has been tried. In the case of Benjamin Monk, the jury found that:
- If Monk’s belief had been reasonable and correct, the force used was reasonable. However:
- Monk’s belief was, in itself, not reasonable. Given the circumstances it was not reasonable for Monk to believe that the danger to life was so grave that his serious use of force was necessary.
In other words, the court accepted that Monk was telling the truth and believed his actions to have been necessary. What they did not accept was that a reasonable person would hold such a belief if faced with the same situation.
The test for REASONABLE, in the courts of England and Wales, is simple. Would the majority of people, of reasonable firmness (ordinary people with no mental health conditions), have thought or done the same in the same circumstances. In the case of Monk, the court found that no, the majority of people would not have shared his belief about the necessity for potentially lethal force.
This sets a new precedent, and should be noted by all students and instructors of self-defence. In practice, what it means is that the subjectivity inherent to all self-defence law has just increased to include the belief you hold about a situation. In Rules of Engagement, we talk about the Rule of Balance between the Legal Imperative and the Tactical Imperative. This new precedent means that all people, professionals most of all, must now consider moving further towards the Legal Imperative, at the expense of the Tactical Imperative. Or, to put it more simply, we must now put ourselves at greater risk tactically to reduce this greater risk in a legal sense.
It’s about margins for error. In in the self-defence world, the margins just got smaller.
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