Robert Henderson

If there is such a thing as a natural right it is surely the right to self-defence, for any
organism will defend itself when attacked. To deny a man the right to defend
himself when attacked would be literally inhuman and , of course, in England we
have that right in law. We may defend ourselves even to the extent of killing
another if it is to save ourselves or another who is threatened. The problem is
that our law has become so hemmed about by conditions and restrictions, that most
people are both confused about what is permitted in practice and fearful of the
consequences of using force in their defence. This is scarcely surprising when cases
where burglars have been killed, such as that of Tony Martin, have resulted in the
victim of burglary going to prison (http://www.guardian.co.uk/uk/2001/oct/30/tonymartin.ukcrime2),
while lesser cases which have resulted in non-fatal struggles all too
frequently seem to result in the person who was attacked being punished.

At the same time as this confusion over the law exists, the British state is growing ever more paranoid about the private citizen owning and carrying weapons. Guns are so
severely restricted that few people will go to the trouble of applying for a licence for anything other than a shotgun and there is a law against carrying a knife of any sort, even a pocket knife, with a blade of more than 3″ in a public place without good cause, for example, for the purposes of work.

The third piece in the jigsaw of our uncertainty is the increasing failure of the police to
provide protection to the private citizen, especially in country districts. This was the prime cause of Tony Martin’s action in illegally arming himself with a pump action shotgun to defend himself in his remote farmhouse. (Martin knew from past experience that he regularly was subject to intruders which the police  could not or would not do anything to prevent.)

The failure of the police to adequately protect people breaches the implicit contract between the state and the individual in relation to personal safety: the individual
gives up his right to absolutely control his personal security on the understanding that they state will provide both physical security and meaningful redress for injuries which the individual may suffer from others. Small wonder that people take things into their own hands on occasion. The police failure to protect also makes the need for weapons more necessary to the individual for self-defence.

The right to self-defence in English law

The law on reasonable force as it is presently interpreted goes something like this: if you  are attacked with a knife you may defend yourself with a knife: if you are attacked with bare fists you may defend yourself likewise. Do more in either instance and you will be in danger of being charged with an offence against the person, anything from common assault to murder. Pedantic proportionality is all. If you carry on assaulting your assailant after he is disabled, you will most likely face charges. If you have the opportunity to run away but do not, that may count against you in any assessment of whether you should be prosecuted. All this is demonstrably absurd. It assumes that people under attack can reasonably be expected to make judgements in the heat of the moment which in reality require calm consideration.

What is reasonable force?

Consider a few of the variables in assessing what is “reasonable force”. Women, the disabled, children and older men cannot reasonably be expected to defend themselves from a simple physical assault from a fit, strong assailant. Other things being equal, a small man cannot be expected to fight a large man; an older man a younger man, a fit man an unfit man. But, of course, other things are often not equal. Many men who are physically capable of fighting are absolutely hopeless at it. I have known a man of six and a half feet allow himself to be beaten by a man a foot smaller. Fighting is a matter of heart above all else. But it is also a matter of practice. Most men throwing a punch at someone’s face would be more likely to harm their fists than their opponent because they have
never been taught to punch correctly. (For those without any experience of fighting, I would recommend the knee in the groin or a good-old fashioned headbutt.) More importantly, those who are not used to fighting (and middleclass men generally fall into this category) are not psychologically prepared for a fight. This will mean one of two things: the person either capitulates utterly or goes into a berserk rage and keeps on damaging their opponent until the rage passes.

To these disparities of size, sex, age and mental and physical competence, we may add others. Someone who is assaulted does not know whether an assailant is going to restrict themselves to simple assault without a weapon. They may be armed for all the victim knows. Nor need this be obvious. To take a well-publicised case, that of Kenneth Noye who was convicted of murder in a road-rage incident  http://www.independent.co.uk/news/uk/this-britain/noye-admits-stabbing-on-the-m25-but-insists-that-he-killed-in-selfdefence-724180.html.

Noye carried a knife when he got out his car to confront his victim, but he only produced and used the knife when he began to get the worse of things as the two fought. (Noye
is also a good example of the effect of age on the ability to fight. He was 48 at the time of the murder. His victim was in his twenties. Noye was a career criminal with a reputation as hard man. Yet until he produced a knife, he got the worst of a fight he might reasonably have expected to win. Age had caught up with him). It is also true that even if an assailant does not have a weapon, the victim cannot know how far the assailant is likely to go. Will he restrict himself to punching? Or is the assailant the sort to put the boot in when
someone is on the floor? No one can know, Perhaps even the assailant does not know.

The obviously armed assailant presents a particular problem in judging what constitutes
proportionality of response. If someone comes at you with a knife, is it in order to use a gun? If the assailant has a club, may one use a knife? The law as it stands gives no clear guidance. It is all “every case has to be judged on its merits”.

Then there is the question of what happens should you disable your opponent. Suppose that a small man fells a much larger man with a lucky blow of, shall we say, a candlestick.
The smaller man is then left with the problem of what to do next. If he allows the more powerful man to recover, the smaller man will in all probability end up being badly hurt. The smaller man might be able to avoid that fate simply by running away (this is what the law would want you to do), yet he may be unable to reasonably do this even if he wishes to. That would be the case if the temporarily disabled man was a burglar and the smaller man’s wife and children were in the house where the fight took place. Let us further assume that there is no phone and the house is isolated as was the case with Tony Martin. In such circumstances, it could be argued with some force that it was reasonable to
deliberately disable the burglar by a further assault while he was unconscious to prevent the chance of violence from the burglar when he recovered consciousness.

Behind all these circumstantial problems stand the very human emotions of panic and rage. When one is attacked, the only desire is to ensure one’s safety. Adrenaline flows
and to say that any human being is in control of themselves in such circumstances is patent nonsense. The law does in practice take into account panic, but again it is all very hit-and-miss. Rage on the other hand is no excuse for what is judged a disproportionate assault.

The law as it presently stands effectively ignores human nature. It says that someone who is attacked must exercise truly marvellous self-control. In defending himself, the victim must not lose his temper and carry on attacking the attacker after the attacker has been disabled. This is utterly unrealistic. Someone in a blind rage or panic is manifestly not in control of their actions. There are good evolutionary reasons for that. When someone is responding to an attack, an uncontrolled response is the best way of responding to protect oneself. The evolutionary bottom line is: dead attacker equals safety.

What is a reasonable law of self-defence?

What then is a reasonable law of self-defence? The great bugbear at present is proportionality of response. In drafting a new law, I would start from the premise that an attacker forfeits his right to the protection of the law, that he literally takes his life into his hands. If the attacker is seriously wounded or even killed, that should be seen simply as a reasonable consequence of the attack. The test of “reasonable force” would become defunct. All that would have to investigated after an assault was whether there was evidence which suggested that the claimed attacker was in fact not the attacker. Provided such evidence did not exist, the person assaulted would have no case to answer. I would also remove from an attacker who suffers injury any opportunity to take civil action against his victim.

The great danger with such a law is that murder could take place under the guise of
self-defence. I would make two responses to that. Firstly, murder is very rare in Britain. It has been rare historically. The Canadian criminologist, Leyton Elliott who made a study of murder in Britain (Men of Blood) concluded that homicide in England was astonishingly rare and had been, relatively speaking, since the middle ages. In other words, there good sociological reasons to believe that few murders would take place under such an amended law. Approximately 800 homicides  take place in England and Wales each year (http://www.telegraph.co.uk/news/uknews/law-and-order/4273125/Murder-and-manslaughter-rate-increasing.html).

My second point is that a claim of self-defence would still have to conform to the facts of the death. It would be no use, for example, claiming that a fight had taken place at on the morning of May 3 if the forensic evidence clearly showed that the body had been dead before that time.

I would introduce one further criterion to determine whether self-defence was proved, namely was the threat offered by the assailant credible. For example, most people have encountered the mad old lady who suddenly for no apparent reason sets about people in the street with a newspaper or some other equally inoffensive instrument. Clearly such a person would not present a credible threat to anyone other than another old lady or a young child. It would be ridiculous for a fit, younger adult to be able to claim self-defence against such an assailant. If on the other hand that same old lady entered someone’s house uninvited in the middle of the night and was struck down and killed by the householder in the dark under the apprehension that she was a burglar, that would be self-defence.

A law on the lines I have suggested would not be perfect. There would still be problems about establishing who was the assailant and who the victim. But that problem already exists under the present law. What such a law would definitely do is prevent the  prosecution of householders such as Tony Martin who surprise those within their homes.

My proposal would also accommodate perhaps the most contentious part of self-defence, namely pre-emptive action. An assault which results in physical action against someone is clear cut. But the law does not say that to commit assault physical violence has to be used. A person may believe themselves to be in imminent danger of being assaulted – someone may be making threatening statements or carrying a weapon or coming rapidly towards someone else. In such circumstances, the law gives the person who fears he or she is about to be assaulted the right to defend themselves before they are assaulted. However, a person who engaged in such behaviour as things presently stand would have the greatest difficulty in sustaining such a claim if reliable witnesses were not present at the time. And if such witnesses were present, a prosecution might well result on the grounds that the presence of witnesses made an assault unlikely or one that could have been resisted. It is
a ticklish problem to say the least. But one could use one of the main criteria for determining whether a physical assault had taken place to decide whether an assault was like to take place, namely the credibility of the witnesses.

In short, all my law would require someone to do would be to show that they had been assaulted by an assailant in circumstances where a credible threat existed. If that was proved, no prosecution would take place. There might be some rough justice in that, but less than there is at the moment. Moreover, what rough justice there was would most probably be at the expense of the wrongdoer rather than the law-abiding citizen.