Much consideration has been awarded to the duty to retreat in Anglo-American law. Since both those who support it and those who negate it recognised excep- tions to their opinions, rather complicated rules developed in regard thereto. The expression that was accepted in the past to describe the duty to retreat was ‘retreat to the wall’. Today this is regarded as having, at most, a metaphorical significance.
But in the case from the year 1328, in which this expression was coined, the actor did retreat until he reached a connecting wall between two houses, which did not permit the continuation of his retreat.810At another point in this book, the dis- tinction was presented that existed in ancient English lawbetween totally justified homicide, such as for the prevention of a crime, and a mere excuse that was granted, inter alia, in a case of self-defence (se defendendo). The significant impli- cations that this distinction had for the duty to retreat811were also set forth in that discussion. With the development of English common law, the differences between ‘justified homicide’ and ‘excusable homicide’ were nullified, except for one difference that remained for the matter under discussion—the duty to retreat:
809 See, eg, Beale, n 40 above, at 578 fn 3; Fletcher (1978), n 1 above, at 858.
810 See Perkins and Boyce, n 85 above, at 1123.
811 See Ch 1.3 above.
a person who was attacked in an attack categorised as a ‘felony’ was entitled to use even deadly defensive force without having a duty to retreat imposed on him. In contrast, if the attack against him was not classified as a ‘felony’, the attacked per- son was obliged to exhaust the option of safe retreat—if it existed—’to the wall’812. In order to understand the way in which current English lawrelates to the duty to retreat, it is necessary to return to an examination of the important interpreta- tive question813regarding the relation between section 3 of the Criminal Law Act 1967, which addresses the use of force to prevent a crime, and the common law rules that deal with private defence. It is still debatable which law should be applied to private defence: the common law rules—including the duty to retreat—or the dictates of the above-mentioned section of the law, according to which it is pos- sible to exert defensive force for the prevention of a crime subject to one general principle—the principle of reasonability.
The central English ruling concerning the issue of retreat was handed down in the case of Julien(1969). The important rule that was established therein is as fol- lows (in the words of the court):
It is not, as we understand it, the law that a person threatened must take to his heels and run in the dramatic way suggested by counsel for the appellant; but what isnecessaryis that he should demonstrate by his actions that he does not want to fight. He must demonstratethat he is prepared to temporise and disengage and perhapsto make some physical withdrawal. (emphases added)814
Ashworth expressed his opinion that the duty to retreat was thus redefined, as a duty to demonstrate a desire to sever the contact and a willingness to withdraw. As Ashworth pointed out, the subsequent ruling in the case of McInnes(1971)815cre- ated doubt, since the court in that case determined that non-retreat only consti- tutes a consideration in the estimation of the necessity and the reasonability of the force, while the ruling in the Juliencase addressed what should and must be done.
In Ashworth’s opinion, the ruling in the Fieldcase (1972)816constitutes a return by the English court to the Julien rule.817 A similar opinion was expressed by Williams. In his view, although there is no duty to retreat per se, the actor must nevertheless exploit every opportunity not to involve himself in the fray, by the use of words or symbolic withdrawal. Williams notes the danger that in the absence of such a rule, both sides will feel a need to use private defence, and this risk increases in multi-participant fights.818
812See Kenny, n 134 above, at 144.
813Which was set forth above—see Ch 2.2.1
814See the ruling, R v Julien [1969] 1 WLR 839, 2 All ER 856 at 858.
815See the ruling, R v McInnes[1971] 1 WLR 1600, 3 All ER 395.
816See the ruling, R v Field [1972] Crim LR 435.
817See Ashworth, n 183 above, at 285ff.
818See Williams (1983), n 1 above, at 504ff.
A different interpretation of exactly the same ruling is suggested by Smith.
According to his view, section 3 of the above-mentioned law prevails and over- comes the technical rules that existed in the common law. Accordingly, the only test is that of reasonability, while the option of retreat that was not exploited only constitutes a factor in the estimation of reasonability.819Smith and Hogan, in their well-known book,820elaborate that there is no longer a rule of law according to which the attacked person must escape, even if he could do so. According to their school of thought, if the actor demonstrates that he is not interested in fighting, this is indeed the best proof that he acted reasonably and with the aim of defend- ing himself, but it bears no further import. In certain circumstances, even if a per- son does not compromise, withdraw, or sever the connection, he may still nevertheless have a good defence. As noted by Smith and Hogan, these thoughts were endorsed by the court in the ruling in the case of Bird(1985).821Today, espe- cially after this ruling, it appears that most commentators prefer the interpretation of Smith and Hogan, according to which the ability to retreat only constitutes a consideration in the estimation of the necessity and reasonability of the force, and there is no longer any per se duty to retreat.822It is common to base this opinion on the following excerpt from the ruling in the case of McInnes823:
We prefer the view expressed by the full court of Australia that a failure to retreat is only an elementin the consideration upon which the reasonableness of an accused’s conduct is to be judged (see Palmer v. The Queen[1971] . . .) or, as it is put in Smith and Hogan Criminal Law, 2nd ed. (1969), p. 231: ‘. . . simply a factor to be taken into account in decid- ing whether it was necessary to use force, and whether the force used was reasonable’.
In American law, the distinction between deadly defensive force and more moderate defensive force is greatly emphasised. While with regard to defensive force that is not deadly there was and is a consensus that there is no duty to retreat, with regard to deadly defensive force there is an ongoing historical dispute between the supporters of the duty to retreat—when a path exists for safe retreat—
and those who oppose it (the supporters of ‘The True Man Doctrine’). In the past, opposition to the duty to retreat was concentrated in the western and southern states of the United States, stressing the harm to a person’s honour that could
819 See Smith, n 91 above, at 123ff.
820 See Smith and Hogan, n 284 above, at 257. See also the remark by JC Smith, ‘Commentary:R. v.
McInnes’ (1971) Crim LR 652, in the margins of the McInnesruling (R v McInnes[1971] 1 WLR 1600, 3 All ER 395).
821 See the ruling, R v Bird[1985] 1 WLR 816, 2 All ER 513 at 516. See also the reactions to this rul- ing—RJ Cooper, ‘Court of Appeal: Self-Defence: Need to Demonstrate Unwillingness to Fight (R. v.
Bird)’ (1985) 49 Journal of Criminal Law 327; and JC Smith, ‘Commentary: R. v. Bird (Debbie)’ (1985) Crim LR 389.
822 See the Encyclopedia Halsbury, n 730 above, vol 11(1), at 350; Archbold, n 487 above, at 1614, 1664; Howard, n 756 above, at 90; Harlow, n 324 above, at 534ff.
823 See R v McInnes[1971] 1 WLR 1600, 3 All ER 395, at 1607.
occur upon retreat. It is interesting that the courts that adopted the rule of ‘No Retreat’ were often under the incorrect impression that this rule constitutes a devi- ation from the English common law.824Thus it is possible to find two contradic- tory lines of reasoning in American law in support of the same approach, that there is no duty to retreat. According to the first line of reasoning, this approach follows the English law. According to the second line of reasoning, this approach constitutes a deviation from the English rule because of the special conditions of the state (in the United States).825In fact these conflicting lines of reasoning stem from the dispute, which were set forth earlier in Section 3.9.2, between Beale and Foster with regard to the correct depiction of the legal situation in English com- mon law, and it seems that if the American courts strove to be different from their counterparts in England, they did not achieve this aim . . .
Between these two main approaches there is a mid-way approach, whose most frequently quoted expression was delivered by Justice Holmes, in the Brown ruling (1921):
Rationally the failure to retreat is a circumstance to be considered with all the others in order to determine whether the defendant went farther than he was justified in doing;
not a categorical proof of guilt.826
This approach is very close to the approach that is prevalent in English law fol- lowing section 3 of the Criminal Law Act 1967, which was discussed above.
Traditionally, the rule of retreat was known in American law as a minority rule, since most of the legislators in the various states and most of the courts adopted the stance that negates retreat.827A clear expression of this approach was delivered in the judgment in the Fowler case (1912),828 where apparently the important expression was coined, which is frequently quoted by those who negate the duty to retreat, and which relates to the nature of the wall to which the retreat should be made:
Under the common law, no man could defend himself until he had retreated, and until his back was to the wall; but this is not the law in free America. Here the wall is to every man’s back. It isthe wall of his rights; and when he is at a place where he has a right to be, and he is unlawfully assailed, he may stand and defend himself. (emphasis added) Against this background, it is interesting to view the approach that was taken by the drafters of the Model Penal Code, who established a certain duty to retreat,829
824See Perkins, n 40 above, at 154.
825See Beale, n 40 above, at 576ff.
826See Brown v US256 US 335, 41 S Ct 501 (1921) at 343.
827See, eg, Kadish, n 34 above, at 887.
828See Fowler v State 8 Okla Crim 130, 126 P 831 (1912).
829With the awareness that most of the American rules do not support retreat—see s 3.04(2)(b)(III) of the MPC and the explanatory wording of the Tentative Draft No 8 (Philadelphia, 1958) at 24.
which will be considered further on. As a consequence of the MPC, the minority opinion that supports retreat gained significant weight.830