2.2.1 English Law
English law has grappled with questions of private defence for many years, but the legal situation is still far from being clear. There are many disputes regarding both the desirable and the existing law. With regard to the existing law, an important characteristic of English law regarding private defence is the existence of another criminal law defence,473namely the use of force for the prevention of a crime (and the performance of an arrest). This defence has serious influence on private defence. Article 3 of the Criminal Law Act 1967 regulates the use of force for the prevention of a crime (and for the performance of an arrest). Although four decades have passed since it was enacted, there is still a dispute among English law scholars, which finds expression in certain court rulings, with regard to an extremely central and basic question: do the traditional rules of English common law that deal with private defence still apply (especially concerning the rule of necessity, the rule of proportionality and the duty to retreat) or do the rules of the above-mentioned article of the law apply to private defence, according to which reasonable force may be used to prevent a crime (and to perform an arrest). In the latter case, a single general principle then applies—the principle of reasonableness (although even according to this principle, it is possible to arrive at a requirement for retreat, but it will at the most constitute one of the factors for the examination of reasonability, and not a decisive factor).474And if this were not enough, there is a separate legal arrangement that exists in English law for the protection of prop- erty—in article 5 of the Criminal Damage Act 1971.475
This situation not only creates legal uncertainty, but also embodies contradic- tions and a lack of logic.476One example of such an anomaly: in the defence of
473 As noted above—see Ch 1.5.5.
474 See, eg, Harlow, n 324 above (relating to no less than three different interpretations of the 1967 law and its influence on private defence); Smith and Hogan, n 284 above, at 254ff (their controversial opinion is that article 3 of the 1967 law even overrides the rules of the common law that deal with pri- vate defence and direct the general principle of reasonability); Card, Cross and Jones, n 180 above, at 624ff. (supporting the simultaneous application—both of the Rules of common law and of the 1967 law); Andrew Ashworth, Principles of Criminal Law, 4th edn (NewYork, 2003) at 139–40 (‘section 3 of the Criminal Law Act 1967 . . . was not intended to supplant the common law rules on self-defence, and the courts have continued to develop the rules’); GS Garneau, ‘The Law Reform Commission of Canada and the Defence of Justification’ (1983–84) 26 Criminal Law Quarterly121 at 125ff (present- ing the different approaches).
475 See, eg, D Cowley, ‘Criminal Damage Act 1971: Lawful Excuse (R. v. Hill, R v. Hall)’ (1989) 53 Journal of Criminal Law176 (dealing with this defence and its relationship to private defence).
476 Thus, for example, Smith and Hogan, in their well-known book, noted the lack of consistency and the anomaly that is produced by the fact that defence of the body is regulated according to the com- mon law, while the defence of property is regulated according to the Criminal Damage Act 1971, and
property it is sufficient—in English law—if the actor believes that his act is reason- able, while for defence of the body objective reasonability is also required. In this sense, defence of one’s body is then more restricted than the defence of property.477 The dispute regarding the system of laws that should be applicable in English law for private defence is connected to various perceptions regarding the rationale for private defence. It was already noted extensively that from a historic point of view private defence in English law developed as an excuse (‘se defendendo’) and not as a justification.478What is the rationale that underlies it today? It is very difficult to determine. The opinion has been expressed that it concerns a balance of interests and choice of the lesser evil.479 However, if private defence is sub- ordinated to article 3 of the 1967 law, which deals with the use of force for the pre- vention of a crime (and the performance of an arrest), the factors of prevention of offences and policing, which are within the justification of private defence, are greatly strengthened. The truth is that in discussions that were carried out in English law on the various issues of private defence insufficient attention was paid to the basic question of the rationale that underlies it.
Another general characteristic of private defence in English law, which also involves other criminal law defences, is the tendency to widen the areas of its appli- cation. The reason for this tendency stems from the very restricted scope of the other compulsion defences.480 Thus, for example, the ‘necessity’ defence is restricted to very severe dangers—death or severe bodily injury.481This situation leads to a strong tendency to extend the application of private defence so that it will provide a response to problems whose suitable solution is to be found within the framework of the other compulsion defences.482
Two additional dominant characteristics of private defence in English law are similar to the previous characteristics that were mentioned, in the sense that they too are derived from the other criminal law defences. The first is the incorporation
arrest and prevention of a crime—according to art 3 of the Criminal Law Act 1967—see Smith and Hogan, n 284 above, at 252ff and 693ff.
477See, eg, the English draft law, Draft Law, Law Commission, Legislating the Criminal Code:
Offences against the Person and General Principles, no 218 (London, 1993) at 67–68; Vol 2 of the Draft Proposal, Law Commission, A Criminal Code for England and Wales, no 177 (London, 1989) at 231 and the explanatory wording to the Draft, Law Commission, Codification of the Criminal Law, no 143 (London, 1985), at 123; Ashworth, n 474 above, at 138 (‘One feature of the draft Penal Code is that it would abolish the special rule for property damage’).
478See Ch 1.3 above.
479See, eg, Ashworth, n 183 above, at 306; and compare to his latest book, Ashworth, n 474 above, at 136–37.
480Throughout the historical development of the compulsion defences there was a strong fear in English law that the compulsion defences might cause anarchy and erosion of the prohibitive norms—
Enker, n 89 above, at 110–11.
481See Elliot, n 285 above, at 618–19; and also n 285 above and accompanying text.
482Thus, for example, the restrictive limitation of the other compulsion defences led Elliot to the strange proposal that—within the framework of private defence—the requirement for an attack should be waived—see Elliot, n 285 above, at 618–19.
of putative private defence within the definition of real private defence. This mis- taken combination, which mixes two different species together, has two possible negative results: one—consideration of putative defence as a justification for all purposes, as the desirable and correct thing to be done, instead of relating to it as an excuse due to a mistake.483The second possible result—which is no less nega- tive—is the consideration of private defence in its entirety as an excuse alone, and this is on the basis of a (not very high) common denominator between real private defence and putative private defence.
The second characteristic is the undesirable unification of the important basic requirements of necessity and proportionality under one comprehensive test: rea- sonability of the defensive force484. My opinion is that each of these requirements is too important to be included together under a general test of reasonability, since remaining satisfied with this test leads to the weakening of these concepts.485 Moreover, English jurisprudence eased the objective test of reasonability by adding subjective characteristics to it. This easing is connected to the previous characteristic that was noted—the combination of putative private defence with the real private defence. The decisive ruling in the Palmer486case, for example, established the following, which is frequently cited:
[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.
As is said in the book by Archbold,487this concerns a conception that is not (to say the least) entirely logical, according to which although the test of reasonability for defensive force is objective, the jurors must, nonetheless, be directed to take the thoughts of the accused into account in their decision. I absolutely agree with this criticism.
483 See, eg, Yeo, n 76 above, at 133 and Dressler, n 32 above, at 92. For broad discussions of this issue see Chs 3.10 and 5.2.2 below.
484 With regard to this conjunction of the requirements of necessity and proportionality within the framework of the requirement of reasonability see, for example Williams (1983), n 1 above, at 503;
Ashworth, n 183 above, at 283 (expressing his opinion that the general test of reasonability causes ambiguity).
485 See Chs 3.6 and 3.8 below.
486 See the holding in the case of Palmer v R [1971] 55 Cr App R 223, 2 WLR 831 at 242ff. For more detailed criticism of this rule, see the text below that commences with the reference to n 1176.
487 See Archbold, JF, Pleading, Evidence and Practice in Criminal Cases, 42nd edn by S Mitchell, PJ Richardson and JH Buzzard (London, 1985) and 5th Cumulative Supplement (London, 1987) at 1614. See also Ashworth, n 474 above, at 148:
To the extent that in these cases the law moves away from objective standards toward indul- gence of the emotions of innocent citizens, the rationale of justification becomes diluted by elements of excuse.
Another fault may derive from the cumulative operation of the two above- mentioned rules: the first—the combination of putative private defence with real private defence, and the second—the binding together of the tests of necessity and proportionality, and the sufficiency of the requirement of reasonability.488The combination of these two above-mentioned rules may489leads to (the unaccept- able and undesirable) result of being satisfied with the very existence of (a genuine) mistake—without a requirement of reasonability—even when a mistake with regard to the requirement of proportionality is involved, although such a mistake is a mistake of law.490The consideration of defensive force, without distinguishing between necessity and proportionality, does not comply with the accepted approach regarding mistakes in modern criminal law—an approach that distin- guishes between a mistake of fact and a mistake of law. (Regarding the latter—
even when it is recognised, it must still comply with the requirement of objective reasonability).
Another dominant feature of the English law that relates to the matter under discussion is the existence of the jury system. As is well known, a jury is required to decide on factual questions that arise during the trial. The jurors are laymen, and this fact has an indirect influence on the substantive law itself. How? It appears that serious apprehension that rules of law would become too complicated—mak- ing it difficult for the jurors to understand them—led, for example, to the refusal of the English courts to recognise the doctrine of diminished responsibility in cases of defensive action which deviates from the conditions of private defence (and especially defensive action using excessive force).491Consequently, consideration should be given to the fact that the comprehension ability of the jurors is taken into account when establishing the rules of private defence in English law.492
Finally, English law in regard to self-defence by lethal force is expected to be influenced by Article 2(a) of the European Convention on Human Rights. The Convention declares as follows:
1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
488This problematic combination is the reason for the placement of this criticism in the present chapter.
489This fear has strengthened, in the light of the holding in the case of R v Scarlett[1993] 4 All ER 629. See also S Parish, ‘Self Defence: The Wrong Direction?’ (1997) Crim LR 201. But see the holdings in the cases of Nimrod Owino(1996) 2 Cr App R 128 (CA); and of Armstrong-Braun(1999) Crim LR 416. See also the consideration of these holdings in Card, Cross and Jones, n 180 above, at 627ff; and in AP Simester and GR Sullivan, Criminal Law: Theory and Doctrine, 2nd edn (Oxford and Portland, OR, 2003) 624.
490For the reasoning behind this determination, see Ch 5.2.5 below.
491I shall explain this doctrine in depth below—see Ch 5.3.
492It is interesting to note the dissimilar situation regarding this matter in American law—see below the text accompanying n 514.
2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:
a. in defence of any person from unlawful violence;
b. in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
c. in action lawfully taken for the purpose of quelling a riot or insurrection.’
In addition to the requirement that the force should be no more than absolutely necessary, the Strasbourg court decided that the (deadly) force must be strictly proportionate.493Ashworth concluded his discussion of ‘Justifiable Conduct’ as follows:
The British appellate courts have not yet faced the problem of ensuring that the domes- tic law on justifiable force is compatible with Convention rights and parliament seems unlikely to legislate in the short term. It has been suggested here that the style of analysis should change, ensuring that the right to life (or, in non-fatal cases, the right to security of the person) should be treated as the starting point.494
But we must keep in mind that the Convention deals only with the right to life, and consequently only with deadly defensive force, and, as I shall try to convince the reader in the following chapters, regarding lethal force the requirements of
‘absolutely necessary’ and ‘strictly proportionate’ are already well established.495