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Self-defence is perhaps the best-known defence to violent crimes, but many people do not know what the law means in practice. Self-defence allows you to use force to protect yourself or another person, or to defend your property or to prevent crime. That said, it only extends to reasonable actions taken in good faith. This means that violence carried out in revenge for previous violence; or a use of force that was obviously excessive in the circumstances will not qualify. Whilst self-defence can apply to a wide range of offences, it is most commonly used in respect of offences against the person, and homicide.
The law on self-defence is established through a combination of common law (the law developed through court decisions) and statute. The law on self-defence allows a person to use reasonable force to defend themselves or another, to protect property, to prevent crime or to apprehend a criminal offender. You cannot use self-defence in response to a civil infringement such as trespassing, or a noisy neighbour, it is only a defence if the act against you was criminal in nature.
The common law gives guidance that violence used in self-defence must be exercised in accordance with the ‘rule of law’, and the ‘preservation of the Queen’s Peace.’ This essentially means that it can be used in the context of upholding a peaceful and law-abiding society. The relevant statutory laws are:
These questions relate to the subjective mindset of the offender. However there is also an objective element to the test. Section 76(4) of the Criminal and Justice Act 2008 explains that if the defendant claims to have had a honest but mistaken belief for example in respect of the level of danger posed towards him or her, the court will first assess whether his or her belief was genuine and honest, and then subsequently assess the reasonableness of his or her mistaken belief. The more unreasonable the mistaken belief is, the less likely it is that the court will accept that it was honestly held.
The CPS will not prosecute every case of violence used in self-defence because in some cases it might be accepted at an early stage by the police or prosecutor that the use of force was lawful. When making this consideration, the prosecutor will balance the public interest of promoting responsible citizen action towards the maintenance of law and order versus seeking to discourage vigilantism and the gratuitous use of violence. Where the defence of self-defence is raised, in order to disprove it, the prosecution must prove beyond reasonable doubt that the violence was not carried out in self-defence.
In general, carrying weapons in the UK is illegal. You are permitted to carry a knife with a non locking blade of less than three inches, but using it or threatening to use it as a weapon would still be illegal. It is also legal to carry a rape alarm; these can be purchased from some police stations and supermarkets. Carrying pepper spray is not allowed as it is considered to be an offensive weapon. A petition was lodged at Parliament for pepper spray to be made legal, however the government responded that noxious gases are dangerous and it has no plans to legalise carrying them on the streets. There are other sprays on the market that claim to be legal as they are not noxious, but the lawfulness of these products is currently unclear. Police advice suggests that any product designed to cause personal injury is likely to be illegal.
In some circumstances, it could be lawful to stab someone in self-defence. Say an intruder enters your home, you are standing in the kitchen and you grab a knife that you use to defend yourself or your family member. This may be legal if the force used is considered to be reasonable in the circumstances as you honestly believed them to be. This could be the case even if you killed the intruder. If you had an honest but mistaken belief that the intruder was armed – for example if they reached inside their jacket and you thought that they were pulling out a weapon – then the force that you used in stabbing them could be taken to be reasonable. However, if for example you stabbed the intruder as they were attempting to flee your home, the court may be less likely to accept that you acted in self-defence.
Stabbing someone in response to a much less severe assault against you is unlikely to be lawful self-defence. If you are in a pub and someone punches you, stabbing them in turn would probably be considered to be grossly excessive. In those circumstances, you may still be liable for a criminal offence.
You are entitled to use force in order to protect yourself, your family, and your property against an immediate threat. You do not have to wait to be attacked first in order to use force to defend yourself, your family, or your property.
However, you must be acting reasonably and in good faith. CPS guidance suggests that if the householder is confronted by an intruder in their home, wherever possible they should call the police. The guidance recognises that it can be difficult in the heat of the moment to know what level of force is appropriate. You are not expected to make ‘fine judgments’ in this regard, and ‘so long as you only do what you honestly and instinctively believe is necessary in the heat of the moment, that would be the strongest evidence of you acting lawfully and in self defence.’ This applies even where you use something ‘to hand’ as a weapon. In some cases, force that has resulted in the intruder’s death has been found to be lawful self-defence. The force must be proportionate to the threat. This means that, for example, if the intruder is armed, a higher level of force will be permissible in self-defence.
If you use disproportionate force to protect yourself or another person, the law will give you the benefit of the doubt. However, disproportionate force to protect property could still be unlawful. Where the court finds that the force that you used was ‘grossly disproportionate’ or was enacted in revenge, this may go beyond what is considered acceptable self-defence.
The CPS provides an example of kicking and punching an intruder whom you have already knocked unconscious. Additionally, premeditated force, e.g. if you knew that a person was planning to break in and you set a trap for them rather than calling the police, is likely to be considered excessive force. Where you chase the offender out of your property, it will only be considered proportionate to use the level of force required to recover your property and make a citizen’s arrest.
The case of Richard Osborn-Brooks shows the approach taken by the police to self-defence in the context of home intrusion. The 78-year-old pensioner from South East London had received death threats from members of the travelling community. He was woken just after midnight, hearing intruders in his home. He stabbed the two intruders with a screwdriver. They fled the scene but one later died of stab wound injuries. Osborn-Brooks was initially arrested on suspicion of murder, but he was later released without charge once the police had completed their investigation. Vincent, the burglar who was killed, had a long criminal history of defrauding pensioners.
We all hold the safety and sanctity of our homes and families dear to us. If you have been unlucky enough to experience a break-in and have used force to defend yourself, your family, or your property, you are probably anxious to ensure that the police understand the full story. At Stuart Miller Solicitors, we understand the importance of putting a defence on record at the earliest possible opportunity. Play your cards right and the case against you could be dropped before court. Contact us for a no obligation consultation today.