Robert Henderson

The Current State of Things

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, 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 inches in a public place without good cause, e.g. 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 adequately to protect people breaches the implicit contract between the state and the individual in relation to personal safety: the individual gives up his right absolutely to control his personal security on the understanding that the 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 head butt.) More importantly , those who are not used to fighting (and middle-class 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. Take a  well-publicised case, that of Kenneth Noye who was convicted of murder in a road-rage incident. 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 deliberately to 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 be investigated after an assault was whether there was evidence that 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: approximately 800 murders take place in England and Wales each year. The majority are ’domestics’, that is,  the murder of a sexual partner. Murder for purely criminal reasons, for example,  robbery, is rare.

Murder has also been rare historically. The Canadian criminologist Elliott Leyton published a study of murder in England a few years ago entitled Men of Blood. He found that throughout history murder in England had been abnormally low, so low as to be inexplicable except in terms of the social norms of the society. In other words, there are good sociological reasons to believe that few murders would take place under such an amended law.

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 the 3rd,  if the forensic evidence dearly 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 that 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 that 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 likely 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.

The Right to Own and Carry Weapons

The right to self-defence is intimately connected with the right to own and carry weapons. If a man or woman cannot keep a weapon, in many circumstances he or she will be effectively defenceless. The problem in Britain is that the possession of any weapon by the private individual is being made increasingly difficult, ostensibly on the grounds of public safety, but in reality from of a desire by those with political power to control the general population. This elite behaviour is merely conforming to the historical norm.

The desire to restrict the possession of weapons has always come from those who wished not only to monopolise power but to do so on their own terms. When the crossbow was invented, the medieval nobility attempted to ban it because it reduced the effectiveness of the armoured and mounted knight. Failing in that, they attempted to restrict, with some success, its ownership to people they could control. The Samurai in Japan enforced ruthlessly their rule that only Samurai should carry swords. When the demobbed conscripts of British Army returned to Britain after the First World War, the British government passed the first serious laws regulating gun ownership not because they feared that the British would begin to murder one another in great numbers but because they feared Red revolution.

As things stand in Britain, legal gun ownership has become so onerous, that many long-time licence holders have given up. The effort in obtaining a licence and in maintaining it is considerable, because of both the Draconian storage conditions required by the police and their eagerness to engineer the revocation and denial of licences. Even if you legally own a gun, woe betide you if you are spotted openly carrying it in a public place. Assuming you are not gunned down by over-excited policemen, you will not merely have your licence revoked but probably end up in court as well.

As for other weapons, if the police want to pick you up for possessing an offensive weapon there is a fair chance they can do so even if you do not mean to carry one. Forget about knives or coshes, which are complete no, nos, you are conceivably committing an offence if you have an aerosol of hairspray about your person or a hammer, for the 1953 Prevention of Crime Act creates a general offence of possessing an offensive weapon in a public place,  an offensive weapon being anything from a gun to a piece of wood or stone or a kitchen knife which is made, adapted or intended to cause physical injury to a person.

Is There an Historical Basis for Private Weapon Ownership in England?

This is an impossible question to answer categorically. It is undeniably true that weapons were held widely by private individuals. Feudal military obligation was in fact built on the private provision not merely of men but of arms and equipment. In late medieval times, statutes were enacted to encourage longbow practice. The Spanish Armada that attempted to invade England in 1588 was repulsed by a mixed English fleet of private and Royal ships.

Yet although weapons were commonly held by private individuals for many centuries, the right of the individual to hold weapons, especially guns, was far from being absolute or accepted by authority. The Bill of Rights passed after William of Orange came to the throne in 1689 stated:

“By causing several good subjects, being Protestants, to be disarmed, at the same time when papists were both armed and employed, contrary to law.” (Clause 6 of the Bill of Rights 1690.)

“That the subjects which are Protestants, may have arms for their defence suitable to their conditions , and as allowed by law.” (Clause 7 of the Bill of Rights 1690.)

There are four points to note. First, Catholics were not thought to have the right to have arms. Second, the clear implication is that Protestants were to be armed to defend themselves against Catholics. Third, the very fact that such a clause was included means that the right to weapons was not so much part of English life that it was taken for granted. Fourth, it uses the phrase “suitable to their conditions”. This must mean that the right to weapons was limited and not limited merely in the sense that a private individual might not have a cannon but might have a musket.

It is also illuminating that when the US Bill of Rights was created a century later it ran:

A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.” (American Constitution Second Amendment.)

The American Bill of Rights was based firmly on English tradition, the founding fathers of the USA considering themselves to be preserving English liberty when it had fallen into corruption in England. Yet they did not say that a man has the right to bear and keep arms full stop. They say he has it because of the need to maintain a militia.

Nonetheless, the 1690 Bill of Rights does grant right to bear arms of some sort. Leaving aside the question of what arms are permitted, does the Bill of Rights have any force today? The problem for those who would say it has is that the Bill of Rights is simply an Act of Parliament. It has no special constitutional status, any more than does any other British law with constitutional implications. As such, it is difficult to see how it cannot have been amended by the subsequent passing of laws restricting the ownership of weapons. It is true that none of those laws specifically nullifies the Bill of Rights, but it is a long established practice in English law that the passing of a new law which contradicts a previous law is treated a automatically nullifying the earlier law. Whether this practice is entirely sound in law is perhaps debatable, but I cannot imagine the Lords overturning the de facto principle retrospectively simply because of the immense implications of doing so if the illegitimacy of the practice was allowed (all past laws not explicitly repealed by later Act would have to be considered ‘live’ where the) clashed with later Acts. The result would be legal chaos. The best that could be reasonably expected from Government is an Act making an future legislation require the specific repeal of Acts or clauses where a fresh Act contradicts the original Act.

It is true that the judgement in the recent so called ‘Metric Martyrs’ (2001/2) case appeared to create two levels of law and sanctioned the idea that later ‘ordinary’ Acts do not implicitly repeal through simple contradiction, the earlier, superior constitutional’ Acts. However, I believe that the judgement was a literal absurdity. As stated previously, in Britain there is no such thing as a constitutional Act in the sense that it has any superior status to any other Act. What we have are Act that deal with constitutional matters. Consequently, I cannot see that judgement has any basis in law or customary British practice.

It is also argued by some people that a Common Law right to bear and own weapons exists because in the past men were permitted to own and bear arms and a Common Law right developed accordingly. Whether this is true or not is irrelevant. A Common Law right can be removed by statute and indeed the vast majority of our law today is Statute law. Our present gun laws are all statute based.

The position with regard to history is dearly confused and contradictory. Resting a claim for a right to bear arms on it is pointless because those who resist such a thing will simply point out the lack of certain evidence and the evidence that contradicts the idea. Much better to rest the argument on the twin reasons of self-defence and the means to resist an intolerant and oppressive state should one arise.

What the Position Should be in a Free Society

In my perfect world, a man would be able to purchase a gun and ammunition in England as easily as he might buy a pound of potatoes. Similarly, a man should be able to carry any other weapon or implement he chooses. He should have the right to keep and carry weapons not merely for self-defence, but because otherwise arms are left in the hands of governments and criminals and denied to the ordinarily law-abiding citizen. Not only should a man be able to own a gun (or any other weapon) he should be able to do so without accounting for it to the police.

What, you say, anyone able to own a gun and no licences to boot? Would not that result in Britain being turned into the Wild West? The answer is no. Consider this, at present there are plenty of guns in private hands in Britain, whether held illegally or legally, yet gun crime remains pretty rare: less than 100 gun murders in 2001.

Even if all guns were made illegal, there would still be a large and by all accounts increasing number of illegally held guns in private hands. Now comes the clincher. The vast majority of gun crime is committed with illegally held guns. In other words the present wearisome system of licensing and the penal conditions of security under which guns must be stored on private premises have next to no effect on solving gun crime.

If guns were allowed to everyone without restriction, the situation would be essentially the same as it is today. Gun crime would be committed with weapons that were unregistered. But would not more guns mean more gun crime? ‘That presumes there would be a massive increase in gun ownership. This is far from being certain. Before serious legal restrictions on gun ownership in Britain were enacted, gun ownership was not the norm. Nor does the ownership of a gun mean the owner will habitually carry it any more than the near universal ownership of lethal knives has meant that most people carry such knives. It is also worth reflecting on the fact that even criminals in Britain rarely use guns, despite their widespread availability in our larger cities. If criminals do not routinely use them to kill and wound , why should we believe the law-abiding citizen will?

Generally, it does not matter if people are not policed because Man, being a social animal, will not normally act in a fatally harmful way to others. Moreover, in a very law abiding society such as ours, there is less chance of seriously socially disruptive behaviour than in most, perhaps all, other societies.

As mentioned previously, the English have a remarkably low murder rate generally (about 800 a year in a population of 60 million) and always have done. The paucity of English murder is not the result of a careful control of weapons through the ages, especially guns, for as mentioned above for much of our history weapons were available. The only rational explanation for it is that there is something in the English character and society, that has made extreme personal violence rare. If any people can be trusted to own weapons the English can.

That guns do not equal mass homicide can also be seen from the example of Canada where seven million guns are owned legally in a population of 30 million. They have a higher rate of gun killing than England, but it is still very low. Switzerland with its citizen army with all males of military age having a gun at home is another example of widespread ownership with a low gun crime rate.

 What weapons should people be allowed?

Should private individuals be allowed to have anything from a revolver to nuclear bombs (as Michael Moore suggested in Bowling for Columbine)? Well, there is a compromise that is self-policing. The individual should have any weapon that the state is willing to use against the individual.

If you want a lethal weapon you can always get one quite legitimately because there are so many things which will do. The Government bans commando style knives? No problem, you just go to your local hardware store and buy a decent 6 inch blade cook’s knife. Or why not make yourself an old-fashioned cheese cutter out of cheese wire with a couple of pieces of wood to act as grips and Bob’s your uncle once you have the wire wound around someone’s neck. The state trying to outlaw lethal weapons is like the state trying to outlaw pornography in the age of the internet.

Published in THE INDIVIDUAL FEBRUARY 2003