jakee 1,563
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mr2mk1g 10
Quote1) Are you allowed to defend yourself (and property)?
2) If so, under what constraints?
1) Yes.
2) The only constraint is that the force used must be reasonable under all of the circumstances as you believed them to be.
Key things to note are that:
a) it's a jury who gets to decide what is and is not reasonable (ie 12 people just like you)
b) they take into account all of the circumstances
c) those circumstances are as you believed them to be - (eg if you honestly thought he was armed then the jury has to consider the reasonableness of an act against an armed assailant even though in reality you made a mistake and he wasn't actually armed).
d) there is no reasonableness test for your beliefs - (ie so long as the belief was honestly held it doesn't matter how outlandish that belief was (though if it's really outlandish the jury might think you're lying)).
e) there's no duty to retreat
f) there's no duty to warn before striking
g) first strike is perfectly acceptable
h) you can use whatever weapon you like so long as the force afforded by that weapon is reasonable under the circumstances believed by you.
There is a further constraint on the use of lethal force in that it may not be used in defence of property alone. If you or another are threatened then killing is fine, but it's been held that lethal force cannot be justified simply to protect your widescreen TV; ie no matter how much of a scumbag they are a TV simply isn't worth killing for.
So basically the answers to Micro’s posts back on p2 are "yes" "yes" and "yes".
The case I usually give as an example of just how far you can go is that of Attorney-General's Reference (No. 2 of 1983) where it was held that the use of petrol bombs in self defence was entirely reasonable under the circumstances in which the defendant found himself.
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1) Are you allowed to defend yourself (and property)?
2) If so, under what constraints?
1) Yes.
2) The only constraint is that the force used must be reasonable under all of the circumstances as you believed them to be.
Key things to note are that:
a) it's a jury who gets to decide what is and is not reasonable (ie 12 people just like you)
b) they take into account all of the circumstances
c) those circumstances are as you believed them to be - (eg if you honestly thought he was armed then the jury has to consider the reasonableness of an act against an armed assailant even though in reality you made a mistake and he wasn't actually armed).
d) there is no reasonableness test for your beliefs - (ie so long as the belief was honestly held it doesn't matter how outlandish that belief was (though if it's really outlandish the jury might think you're lying)).
e) there's no duty to retreat
f) there's no duty to warn before striking
g) first strike is perfectly acceptable
h) you can use whatever weapon you like so long as the force afforded by that weapon is reasonable under the circumstances believed by you.
There is a further constraint on the use of lethal force in that it may not be used in defence of property alone. If you or another are threatened then killing is fine, but it's been held that lethal force cannot be justified simply to protect your widescreen TV; ie no matter how much of a scumbag they are a TV simply isn't worth killing for.
So basically the answers to Micro’s posts back on p2 are "yes" "yes" and "yes".
The case I usually give as an example of just how far you can go is that of Attorney-General's Reference (No. 2 of 1983) where it was held that the use of petrol bombs in self defence was entirely reasonable under the circumstances in which the defendant found himself.
Thanks for the reply. Clearly you put some effort here, and I appreciate it. Very informative, and well communicated.
So, if force is used in a conflict, does it always get put in front of a jury? Or, is it at the prosecutor's discretion?
The word property as I used it was meant as "home and belongings". Once someone is inside your home here, the gloves come off, and many places in America allow use of deadly force simply for that reason - they broke into my house. No one expects someone here to ask the guy why he's in the house.
Thanks again! Cheers!
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I'm still stuck on the point that your benelli holds only 8 rounds (although a great gun). I personally love my springfield armory XD. It holds 16 rounds and has become an extension of my hand. Man I love guns.
mr2mk1g 10
Don’t worry, not really a lot of work – It’s my job so I can trot this stuff off as fast as I can type.
By “force is used in a conflict” do you mean during a fight/punch-up or are you referring to instances where there is a question about whether or not the force used was reasonable?
Either way the conduct of a file is always up to the prosecutor (CPS) – if they feel a prosecution is not in the public interest then they will not pursue the matter. No matter what people hear in the press this actually happens a lot where self defence is in issue – there’s no public interest in seeing home owners, for example, prosecuted for taking down burglars. It only goes to the courts where there’s a real question about the conduct of the home owner (or of course where someone at the CPS fucks up).
Similarly where there’s been a punch-up, if one party is clearly the guy defending himself from the other he’s probably simply used as a witness and wont be prosecuted for anything. If it’s not clear to the CPS then maybe they’ll both get done for affray (or whatever, as circumstances dictate) and a jury will have to figure it all out.
As far as defence of your home – there’s no presumption in English law that someone in your home may be killed just for being there. There is however a presumption in peoples minds (ie the jury’s) that if someone is in your home you probably felt at risk from them. Ergo if someone is in your home then it is highly likely the jury is going to be extremely sympathetic to the notion that you felt threatened and thus had cause to use more serious forms of violence against the intruder. You still have to act reasonably under the circumstances – but the circumstance that you are stood in your own home is a heavy weight to lay on your side of the scales of justice.
By “force is used in a conflict” do you mean during a fight/punch-up or are you referring to instances where there is a question about whether or not the force used was reasonable?
Either way the conduct of a file is always up to the prosecutor (CPS) – if they feel a prosecution is not in the public interest then they will not pursue the matter. No matter what people hear in the press this actually happens a lot where self defence is in issue – there’s no public interest in seeing home owners, for example, prosecuted for taking down burglars. It only goes to the courts where there’s a real question about the conduct of the home owner (or of course where someone at the CPS fucks up).
Similarly where there’s been a punch-up, if one party is clearly the guy defending himself from the other he’s probably simply used as a witness and wont be prosecuted for anything. If it’s not clear to the CPS then maybe they’ll both get done for affray (or whatever, as circumstances dictate) and a jury will have to figure it all out.
As far as defence of your home – there’s no presumption in English law that someone in your home may be killed just for being there. There is however a presumption in peoples minds (ie the jury’s) that if someone is in your home you probably felt at risk from them. Ergo if someone is in your home then it is highly likely the jury is going to be extremely sympathetic to the notion that you felt threatened and thus had cause to use more serious forms of violence against the intruder. You still have to act reasonably under the circumstances – but the circumstance that you are stood in your own home is a heavy weight to lay on your side of the scales of justice.
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By “force is used in a conflict” do you mean during a fight/punch-up or are you referring to instances where there is a question about whether or not the force used was reasonable?
I think the rest of your email answered my question. If there is an altercation of any kind, it's logged and given over for prosecutor's consideration.
I have known of instances here where altercations aren't even logged, especially if the cops know the people involved.
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As far as defence of your home – there’s no presumption in English law that someone in your home may be killed just for being there. There is however a presumption in peoples minds (ie the jury’s) that if someone is in your home you probably felt at risk from them. Ergo if someone is in your home then it is highly likely the jury is going to be extremely sympathetic to the notion that you felt threatened and thus had cause to use more serious forms of violence against the intruder. You still have to act reasonably under the circumstances – but the circumstance that you are stood in your own home is a heavy weight to lay on your side of the scales of justice.
So, we've found a difference between America and the UK there. In most places in America, you can kill the person for having broken into your home. In some places, you can even kill them for coming into your yard (...I'm not saying I agree with that).
Where I live, you can't kill a home intruder unless you feel you're life is in danger and have no reasonable regress from the situation. IMO, this just encourages those who break into homes.
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mr2mk1g 10
QuoteWhere I live, you can't kill a home intruder unless you feel you're life is in danger and have no reasonable regress from the situation. IMO, this just encourages those who break into homes.
See I got a fair bit of stick from some a year ago for saying that the relatively recent change in Florida law removing the duty to retreat from its statute books brought Florida laws on self defence more in line with those found in the UK. There’s no duty to retreat, warn or strike second here and never has been.
I think there’s definitely a balance to be struck – perhaps some States might think about whether shooting someone just because they happen to be on your lawn is really a reasonable stance to support and others might think about what an onerous duty it really is to require their citizenry to attempt to retreat before they are allowed to defend themselves.
I think English law really does sit firmly in between those two positions. No duty to retreat or anything - but killing someone has got to be reasonable. What more (or less) can you ask than for people to act reasonably? If they don't then by definition their actions were unreasonable – of course people should be censured for doing something society considers to be unreasonable.
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There’s no duty to retreat, warn or strike second here and never has been.
I have learned something today. Thank you
I wonder how many UK citizens are aware of this?
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I think there’s definitely a balance to be struck – perhaps some States might think about whether shooting someone just because they happen to be on your lawn is really a reasonable stance to support and others might think about what an onerous duty it really is to require their citizenry to attempt to retreat before they are allowed to defend themselves.
Agreed.
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of course people should be censured for doing something society considers to be unreasonable.
Which puts us back in front of a jury, and raises the question from early in this note: I wonder how many UK citizens are aware of - There’s no duty to retreat, warn or strike second here and never has been?
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mr2mk1g 10
QuoteI wonder how many UK citizens are aware of this?
You’ve actually hit the nail on the head here. There was a politically motivated move last year by the Tory party during the run up to the general election trying to get the law on self defence changed. They said the current law didn’t protect home owners sufficiently and needed to be changed more in their favour. I personally was outraged because the new wording they proposed would have produced EXACTLY the same situation at law as we currently had. Ie the change was simply superficial and would have given the impression that they were doing something productive when in fact nothing would change at all.
It was a vote winner pure and simple and wasn’t actually going to change anything. This was all over the news for about 2-3 days and the whole country was behind the change.
That is, it was until the present law was explained to people in some TV specials and news articles. Suddenly no one wanted the law changed because they realised exactly what the current rules were and were entirely happy with them.
The conclusion of all the pundits and lawmakers was that people were simply ignorant of the current law and some public education was promised (not that I’ve seen anything yet).
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You’ve actually hit the nail on the head here. There was a politically motivated move last year by the Tory party during the run up to the general election trying to get the law on self defence changed. They said the current law didn’t protect home owners sufficiently and needed to be changed more in their favour. I personally was outraged because the new wording they proposed would have produced EXACTLY the same situation at law as we currently had. Ie the change was simply superficial and would have given the impression that they were doing something productive when in fact nothing would change at all.
Very interesting. My in-laws live outside of Huddersfield. I'm sure many people there aren't aware of how those laws are written.
Hope the cops are aware.
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