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You are here: BAILII >> Databases >> The Law Commission >> Partial Defences to Murder (Consultation Paper) [2003] EWLC 173(9) (15 October 2003)
URL: http://www.bailii.org/ew/other/EWLC/2003/173(9).html
Cite as: [2003] EWLC 173(9)
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PART IX
EXCESSIVE USE OF FORCE IN SELF-DEFENCE
The development of the current law
Self-defence
9.1 Self-defence, at common law, provides a complete defence to any charge of fatal or non-fatal violence. A person (D) whose conduct and state of mind falls within the parameters of the defence does not act unlawfully and so is not guilty of any offence. Conversely, a person whose conduct and/or state of mind does not fall within the defence acts unlawfully and therefore stands to be convicted.9.2 The basis of the present common law of self-defence is that D has a complete defence to a charge of assault (of whatever seriousness, including murder) if two requirements are met. The first is that D performs the external element of such an offence in defence of himself or herself, or another, from what he perceives as an actual or imminent unlawful assault. The second is that the steps that he takes are reasonable in the circumstances as D believes them to be. Thus, D is to be judged on the facts as he or she believes them to be.[1] The question of whether the force used was reasonable in those circumstances is, however, an objective one to be answered by the jury. The tests were succinctly described in Orwino[2] as "a person may use such force as is (objectively) reasonable in the circumstances as he (subjectively) believes them to be."
9.3 If the force used is more than is objectively reasonable in the circumstances as D believed them to be, then D will not be able to successfully use the defence of self-defence. This is so even if D believed that the force deployed was reasonable. Thus D may be convicted for what can be characterised as a mistake in his judgment of what the law permits. In this sense, the defence is "all or nothing". If successful the verdict will be an acquittal but if not it must be a conviction. This obvious result is unproblematic where the offence charged is non-fatal violence; the court has discretion in its powers of sentencing to reflect the facts of the case. The position is different where the offence charged is murder due to the existence of the mandatory life sentence. Whilst the alternative offence of manslaughter is available where the "partial defences" of provocation and diminished responsibility succeed, the law does not presently allow for a partial defence where excessive force in self-defence has been used. It is the possibility of developing such a partial defence that we examine in this chapter.
Excessive force in self-defence
9.4 That self-defence operates in the same "all or nothing" manner for murder, as it does for other offences, has indisputably been the position since the decision of the Privy Council in Palmer.[3] In that case the issue for the court was whether, on a charge of murder, there was a rule of law which required the jury to be directed that D should be found guilty of manslaughter if they concluded that D may have acted in self-defence but were sure that he used more than reasonable force. The Privy Council concluded that there was no such rule.[4] The speech of Lord Morris of Borth-y-Gest set out what has come to be regarded as the classic exposition of the law of self-defence; a person who is attacked may defend him or herself but may only do what is reasonably necessary, which is a matter for the jury to decide.[5]9.5 This decision of the Privy Council was reached after a detailed consideration of English authority. It included consideration of a number of nineteenth century cases which were cited as support for the contention that there was such a rule.[6] In addition, detailed consideration was given to the judgment of the High Court of Australia in Howe[7] which was cited by the appellant in support of the proposition that there was a partial defence of excessive use of force in self-defence. Thus, the decision in Palmer was based on a full consideration of domestic and comparative authority.
9.6 The apparent harshness of the conclusion that, in cases of murder, self-defence is an "all or nothing" defence and that there is no partial defence was, however, mitigated by two important elements in the exposition of the defence in that case. The first is expressed in the passage set out below. This passage has invariably provided the basis of guidance given by trial judges to the jury on the approach to take where the circumstances, or the inability of defendant to explain himself, deny the jury a fully reasoned account for what happened.
If there had been an attack so that defence is reasonably necessary it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action. If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be the most potent evidence that only reasonable defensive action had been taken.[8]
The second demonstrates how, notwithstanding the "all or nothing" nature of the defence, facts which fall short of substantiating self-defence may, nonetheless, form the basis for a conviction for manslaughter:
The defence of self-defence either succeeds so as to result in an acquittal or it is disproved in which case as a defence it is rejected. In a homicide case the circumstances may be such that it will become an issue as to whether there was provocation so that the verdict might be one of manslaughter. Any other possible issues will remain. If in any case the view were possible that the intent necessary to constitute the crime of murder was lacking then that matter would be left to the jury.[9]
This decision was followed in McInnes[10] where the Court of Appeal expressed itself in the following terms:
9.7 In practice, the first passage from Palmer constitutes, from D's perspective, a generous direction to the jury by inviting them to take a liberal approach to the interpretation of the objective test. A jury which conscientiously applied such an approach would be slow to convict D where they were of the view that the acts in question were undertaken in self-defence and may have been an instinctive response to the perceived level of risk. It would only be possible for such a jury to convict if it was sure that the level of violence used instinctively was utterly disproportionate to the level of risk perceived by D.[I]f a plea of self-defence fails for the reason stated, it affords the accused no protection at all. But it is important to stress that the facts on which the plea of self-defence is unsuccessfully sought to be based may nevertheless serve the defendant in good stead. They may, for example, go to show that he may have acted under provocation or that although acting unlawfully, he may have lacked the intent to kill or cause serious bodily harm, and in that way render the proper verdict one of manslaughter.[11]
9.8 These two passages in Palmer may be thought to undermine the suggestion that the present "all or nothing" law of self-defence is too restrictive. They also diminish the power of the argument, which is sometimes advanced, that in the absence of the recognition of any partial defence of excessive force in self-defence, there is an inconsistency between self-defence and provocation. That argument runs as follows: If D acts in self-defence but uses excessive force he or she will be convicted of murder. Conversely, D may use the same amount of force and successfully rely on provocation as a partial defence. One author has opined:
It is hard to see why the law affords greater protection to those who kill in response to insults than to those who do so while protecting their homes.[12]
This argument does not consider the position in Palmer where if the jury concludes that D acted honestly and instinctively the overwhelming probability is that they will acquit. The likelihood of conviction only increases if D so overreacts that the jury concludes he or she was acting unreasonably or (which is more likely) if the jury rejects D's claim to have been acting in self-defence. In either case, a partial defence of provocation or diminished responsibility is potentially available.
9.9 The combination of these two ameliorating passages means that the absence of a partial defence of excessive force in self-defence is, in practice, less of a problem than it might initially appear to be.
The decision in Clegg[13]
9.10 The question of a partial defence of excessive use of force in self-defence was again raised in the case of Clegg. The defendant was a British soldier who, whilst on patrol in Northern Ireland, opened fire on the occupants of a stolen car which had failed to stop at a checkpoint. He was charged with the murder of the rear-seat passenger who was hit by a bullet fired from the appellant's rifle. His evidence was that he thought that the life of a colleague on the other side of the road was in danger and he fired three shots at the windscreen and a fourth shot at the side of the car as it was passing. The trial Judge found as a fact that the fourth shot had been fired after the car had passed. Thus, unlike the other three shots, it could not have been fired in self-defence. Accordingly he was convicted of murder. The certified question for the House of Lords was:
Where a soldier or police officer in the course of his duty kills a person by firing a shot with the intention of killing or seriously wounding a person and the firing is in self-defence or in defence of another person, or in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large, but constitutes force which is excessive and unreasonable in the circumstances, is he guilty of manslaughter and not murder?[14]
It was held, applying the principle established in Palmer, that a plea of self-defence could not reduce a culpable homicide from murder to manslaughter where a plea of self-defence to a charge of murder had failed because the force used was excessive and unreasonable. It followed that a soldier or police officer who, in the course of his duty, killed a person by firing a shot which constituted the use of excessive and unreasonable force in self-defence was guilty of murder, not manslaughter. One of the reasons for rejecting such a change in the law was that their Lordships were of the view that the reduction of what would otherwise be murder to manslaughter in a particular class of case was essentially a matter for decision by the legislature.[15]
Criticism of the decision in Clegg
9.11 Clegg provoked a considerable amount of academic and public comment.[16] In the words of one commentator:
Given that the Lords decided in any event to consider the issue of excessive self-defence, there was no convincing reason for their self-denying ordinance. [17]
It has also been observed that the perceived obstacle to reform of Parliament's having failed to make parallel provision in the Criminal Law Act 1967[18]
overlooks the fact that, notwithstanding the title of the Act, the law stated in section 3 is primarily civil law. … It says nothing at all about defences to crime.[19]
Further, it is said that the moral culpability of a man who kills when he had an honest but unreasonable belief that the force used was proportional, falls below that associated with murder. The argument appears to be that though he has the mens rea for murder, in that he has the intention to kill or cause really serious bodily harm, he does not bear the same degree of moral culpability because he believes that he is acting in such a way that, if he were correct, would make his conduct lawful.[20]
The decision in Martin (Anthony)
9.12 The limitations of self-defence again received considerable public attention in the case of Martin (Anthony).[21] Two burglars (F and B) entered the home of the appellant (M) by breaking a window on the ground floor. M was asleep on the third floor and was disturbed by the noise. At some point he armed himself with a pump-action shotgun. He asserted that he went downstairs towards where he had seen a light. Without giving any warning, he discharged the gun not less than three times. F was shot in both legs and B was shot in the legs and fatally shot in the back. B's body was left on the premises and found by a neighbour the following day. The prosecution case was that M, having been disturbed by the approach of burglars, had lain in wait for them and shot them at short range with the intention of killing or seriously injuring them. M's case was that, because of his past experience, he believed his house to be vulnerable to burglary and that the events of the night in question put him in genuine fear for his safety, so that the discharge of the gun was in lawful self-defence. M was convicted of murder. On appeal, he submitted, amongst other things, that fresh medical evidence showed him to be suffering from a paranoid personality disorder which could be classified as a mental abnormality within section 2 of the Homicide Act 1957. Further, he was suffering from depression at the time of the incident which exacerbated his paranoid condition. It was also submitted that this condition was relevant to his defence of self-defence and to whether he had used excessive force. The availability of a partial defence of excessive use of force in self-defence was not raised in the appeal.[22]9.13 The appeal was allowed on the ground that the fresh evidence as to the appellant's mental state at the time of the killing was relevant and admissible on the issue of diminished responsibility. On that new evidence, the conviction for murder was quashed and a conviction for manslaughter on the grounds of diminished responsibility was substituted.
9.14 In so far as self-defence is concerned, the medical evidence before the court of appeal contained the following finding:
[T]aking into account Mr Martin's mental characteristics at the time of the killing, Mr Martin would have perceived a much greater danger to his physical safety than the average person. Dr Joseph considered that Mr Martin honestly thought that he was in an extremely perilous situation and that he needed to take immediate defensive action to counter the attack he was under.[23]
The Court records, insofar as is relevant, that:
9.15 Defence counsel cited Smith (Morgan)[25] in support of his contention that the medical evidence as to the defendant's mental characteristics should be admissible on the objective issue - whether the force was reasonable. The defence thus sought to import a concept from provocation into self-defence. The court refused, as a matter of principle, to permit this reasoning.[26][Defence Counsel] relied upon his medical evidence for different purposes: (a) to establish that the breaking into his house would be perceived by Mr Martin as being a greater threat to his safety [than] it would in the case of a normal person. If the jury accepted the expert evidence as to this, it would have made the jury more willing to accept Mr Martin's evidence. It could also have influenced the jury's decision as to whether Mr Martin was acting reasonably in firing the gun as he did…[24]
9.16 In an obiter dictum, however, the Court of Appeal declined to close the door completely on the potential relevance, in exceptional circumstances, of a defendant's personal characteristics to the question of whether the force used was excessive:
We would accept that the jury is entitled to take into account in relation to self-defence the physical characteristics of the defendant. However we would not agree that it is appropriate, except in exceptional circumstances which would make the evidence especially probative, in deciding whether excessive force has been used to take into account whether the defendant is suffering from some psychiatric condition.[27]
It is not clear in what type of case this passage might be of relevance given the case's clear ratio precluding the application of the Smith (Morgan) approach to self-defence.
Previous recommendations for the introduction of a partial defence of excessive use of force in self-defence
9.17 In 1980 the Criminal Law Revision Committee recommended the introduction into English law of a new partial defence to murder:
We are of the opinion that where a defendant kills in a situation in which it is reasonable for some force to be used in self-defence but he uses excessive force, he should be liable to be convicted of manslaughter and not murder if, at the time of the act, he honestly believed that the force he used was reasonable in the circumstances. Furthermore, where a person has killed using excessive force in the prevention of crime in a situation in which it was reasonable for some force to be used and at the time of the act he honestly believed that the force he used was reasonable in the circumstances, we consider that he should not be convicted of murder but should be liable to be convicted of manslaughter. [28]
A House of Lords Select Committee has also recommended that the law should be changed in order to encompass the above suggestion.[29] In 1989 the Law Commission followed suit and recommended in its Draft Criminal Law Code that the use of excessive force in self-defence should constitute a partial defence to murder. It provides:
9.18 As we have noted above, notwithstanding these authoritative recommendations for change in the law, the law as expressed in Palmer remains unaltered. In Clegg[31] the House of Lords declined to develop the law along the lines recommended without waiting for the legislature.[32] This approach to reform of the common law was consistent with the approach their Lordships have taken on other aspects of the law of murder. There had already been a similar self-denying ordinance in connection with the question of whether duress by threat could be a defence to a charge of murder. The decision in Lynch v DPP for Northern Ireland,[33] which appeared to raise that possibility, was overruled by the House of Lords in Howe.[34] In the case of developing the common law of self-defence there was a further reason to defer to the will of the legislature. Parliament had recently enacted section 3 of the Criminal Law Act 1967 which makes lawful the use of reasonable force in the prevention of crime or in effecting or assisting in the lawful arrest of offenders or suspected offenders. Lord Lloyd, in rejecting the suggestion that the common law of self-defence might be extended where the force used, though not in fact reasonable, was perceived by D to be so, pointed out that "Parliament [in enacting section 3] did not … see fit to create a qualified defence where the defendant uses excessive force in preventing crime."[35]A person who, but for this section, would be guilty of murder is not guilty of murder if, at the time of his act, he believes the use of the force which causes death to be necessary and reasonable to effect a purpose referred to in section 44 (use of force in public and private defence), but the force exceeds that which is necessary and reasonable in the circumstances which exist or (where there is a difference) in those which he believes to exist.[30]
Criticisms of the limitations of the law of self-defence in relation abused women who kill
9.19 The combination of subjective and objective tests required by the law of self-defence has been the source of complaints from commentators on the subject of battered women who kill. McColgan claims:
The relative scarcity of female killers has resulted in a paradigmatically male ideal model and this, together with the incompatibility of aggressive force with stereotypical femininity, means that the apparently gender-neutral concept of reasonableness is actually weighted against the female defendant.[36]
She develops her argument by stating that the proportionality requirement has emerged through cases concerning male defendants and that the necessity for parity between the level of attack and the level of defence is only justifiable in cases where the adversaries are of comparable strength. She claims that it operates unfairly where the assailant is male and the defender female, "[p]articularly where she knows from experience that an unarmed resistance by her to an unarmed attack by him may result in an escalation of that attack."[37] A parallel point relating to killing and gender is made by Susan Edwards who, citing research conducted on killings between 1987-1999, discloses significant differences between men and women who kill. She states that men who kill their female partners tend to do so by the use of bodily force whilst women who kill their male partners used knives in 83% of cases. Crucially, "legal outcomes show that where guns and knives are used a conviction for murder is more likely."[38] Such matters go directly to the issue of the reasonableness of the force which is deployed by D. If the force deployed by a female defendant is deemed excessive in relation to the harm threatened, then "neither s 3 Criminal Law Act nor the common law will assist her and she is liable to be convicted of murder."[39] McColgan concludes:
In the context of self-defence, then, the male standards of necessity and proportionality … must be recognised and compensated for in the application of the self-defence standard to battered women who kill.
9.20 Professor Celia Wells also concurs in the view that the established traditional construction of self-defence tends to prevent its use by battered women who kill:The decision of the Court of Appeal in Ahluwalia establishes that battered women may be able to adduce expert evidence of the psychiatric effects of continued abuse, but a successful plea of self- defence requires the recognition that a battered woman's perceptions of danger may be affected by her situation, rather than that [the] situation has rendered her psychiatrically abnormal.[40]
It is often suggested that the definition of self-defence precludes its application to women who kill since they typically do so when their assailants are asleep or have their backs to them. Self-defence assumes that the killing was necessary in order to resist immediate and deadly violence from the victim. Yet it can be seen that it is not so much the definition as the construction of this defence which prevents its use by women. Behind it lies an image, a stereotype, of isolated, one-to-one (man to man) violence. Domestic violence is outwith this paradigm.[41]
She argues that "[s]ubstantive reform should … contemplate a re-thinking of self-defence, and a radical shift in some of the ideas that underlie it."[42]
9.21 Her analysis is also consistent with concern over the requirement that there be an adequate trigger ie an attack or a perception of an imminent attack. This is a separate question to that of whether the force used is excessive. We address in Parts X and XII the question of whether we might construct a defence of "self-preservation" which does not depend on there being an actual or imminent attack.9.22 It remains to be seen whether the obiter dictum in Martin (Anthony) referred to above may result in evidence of the fact of and effect of abuse being admitted on the question of whether the force used in self-defence was reasonable.[43] It might be argued that such cases give rise to "exceptional circumstances which would make the evidence especially probative."[44] Professor Wells observes that the law has progressed in Canada by the introduction of evidence of the effect of abuse on issues other than self-defence.[45] It is noteworthy, however, that in Canada, (where there is no partial defence of excessive use of force in self-defence,) feminist commentators are opposed to the inclusion of a specific partial defence of excessive force in self-defence. They consider it likely to lead to compromise verdicts of manslaughter where the defendant should properly have been acquitted on the basis of self-defence.[46] Further they believe that the very notion of self-defence is applied in gendered terms. Thus women who are violent will be seen as transgressing designated gender roles and the violence will thus be more readily thought to surpass the threshold of reasonableness.[47]
9.23 The counter-argument to the position adopted by Canadian feminist critics is that female defendants are still left with the practical problems attendant on self-defence being a complete defence. The introduction of a partial defence, where excessive force has been used, would solve many such difficulties. Professor Wells has observed:
As a win-or-lose option it encourages the use of partial defences of provocation and diminished responsibility when neither properly captures the nature of the dilemma in which battered women find themselves. A compromise move would be the development of a new partial defence to murder. This could be based on physical or psychological aspects, or self–preservation.[48]
The call for a defence based on notions of "self-preservation" has been echoed in other quarters.[49]
9.24 A partial defence of use of excessive force in self-defence might be thought to sit easily with the present defence of self-defence. The questions which arise are: whether there is much room for it to operate given the generous way in which the issue is summed up to juries; and whether it would distort outcomes given that it would create the possibility of a "compromise" verdict.9.25 By contrast, the development of a partial defence of "self-preservation" or, as we would prefer to call it "the pre-emptive use of force in self-defence", which did not require there to be actual force or an imminent threat of force, would raise wholly different issues. This would be so whether or not it co-existed with a partial defence of excessive force in self-defence. As indicated above, we consider the possible creation of such a partial defence in detail in Part X and present an option for consideration in Part XII.
Comparative studies
The Australian common law
9.26 The Australian common law has at various times developed such a partial defence and then abandoned it. In Mckay[50] the law recognised the partial defence of excessive force in self-defence. This was followed in the case of Howe where it was held:
A person who is subjected to a violent and felonious attack and who, in endeavouring, by way of self-defence, to prevent the consummation of that attack by force exercises more force than a reasonable man would consider necessary in the circumstances, but no more than what he honestly believed to be necessary in the circumstances, is guilty of manslaughter and not of murder. [51]
The defence was consistently applied until the Privy Council decision in Palmer.[52] The defence initially survived that decision. In Viro[53] the High Court unanimously held that Privy Council decisions, including past decisions, were no longer binding on the High Court. Howe was, therefore, followed and a partial defence to murder of excessive use of force in self-defence reconfirmed. The decision of the High Court in Zecevic[54] saw a volte-face. The Court re-examined each of the propositions which had been put forward in Viro in the light of difficulties which trial judges were encountering in expressing them in a way that was comprehensible to juries.[55] According to one commentator:
The principal difficulty with [the formulation in Viro] was that it attempted to incorporate the substantive law of excessive self-defence and the law relating to burden of proof. This resulted in the use of double negatives which juries found difficult to follow.[56]
By a majority of five to two, excessive use of force in self-defence ceased to be a partial defence to murder in the common law of Australia. In fact, the various problems cited in Zecevic had already been referred to by the Privy Council in Palmer. It had criticised Howe as presenting too fine a distinction for juries to draw between what a reasonable person placed in the accused's situation would consider to be necessary force and what the accused honestly believed to be necessary force.[57]
9.27 Zecevic has been the subject of much academic criticism. Many academics, whilst recognising that the law, as postulated in Viro, needed simplification, have expressed sympathy with the view of the minority in Zecevic: that a person who uses excessive force to kill an assailant but who genuinely believes the action to be necessary in self-defence, is lacking mens rea for murder.[58] Further, as Professor Yeo points out, the South Australian formulation of excessive defence (outlined below) appears now to be working well in practice.[59] Advocates of the doctrine who are keen to see it introduced into English law cite the principle of the honestly held belief as a safeguard against nicety and complexity. Thus Smith and Hogan write;
It is submitted that the soundness of this [recommendation of the CLRC for the introduction of the partial defence of excessive force] is not impaired by Zecevic or by Clegg. The Law Commission agrees and clause 59 of the Draft Code would implement the recommendation. The principle of Gladstone Williams - which has not yet been followed in Australia – removes some of the complexity from the law and it ought to be capable of being stated in a form readily comprehensible by juries.[60]
South Australia
9.28 South Australia has, by statute, re-introduced the plea of excessive force. The initial provision was enacted in 1991 but was found to be unworkable. According to Professor Yeo this lent support to the view of the majority in Zecevic that it was not possible to formulate a comprehensible version of the defence.[61]9.29 The current formulation came into force in 1997. It takes the form of amendments to section 15 (1) of the Criminal Law Consolidation Act 1935 (SA), which applies to defending a person's life, and to section 15(A) of that Act, which applies to defence of property. The unamended statute gives rise to a complete defence to a charge of murder if two elements are satisfied. The first, subjective, requires only that D perceived a relevant threat. The second, objective, requires the response of D to be proportionate to the circumstances as he or she believed them to be.
9.30 The amendments create an additional partial defence of excessive use of force in self-defence which corresponds, in its reach, to the general defence. Thus the partial defence arises both where the accused has used excessive force to defend her or his life or bodily integrity or liberty[62] and in cases of excessive force in defence of property, or against criminal trespass to land or in the arrest of an offender. In the cases of defence of property as opposed to defence of the person, however, the partial defence is only available if D did not intend to cause death. According to Professor Yeo, the explanation for this restriction must be that no interest in property or land is so valuable that its protection can warrant the intention to cause death.[63]
New South Wales
9.31 New South Wales re-introduced a partial defence by way of an amendment of section 421 of the Crimes Act 1900. This has only been in force since 2002 and has yet to be considered in any case law. The most noteworthy difference between section 421 and the South Australian legislation is that the New South Wales partial defence is unavailable where D has killed in defence of property, criminal trespass to land or when arresting an offender. [64]
India
9.32 Excessive use of force in self-defence has been a partial defence to murder in the Indian Penal code since its inception. It is an exception to section 300 which defines the offence of murder. Exception 2 provides:
Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law, and causes the death of the person against whom he is exercising such right of defence, without premeditation and without any intention of doing more harm than is necessary for the purpose of such defence.[65]
This special form of defence depends on D acting in good faith in circumstances in which, if D were correct, he or she would have the right of private defence. What that right amounts to is to be found elsewhere in the code.
9.33 Every person has a right to defend her or his own person or that of another against any offence against the human body.[66] This right extends to defending one's own property or that of another against theft, robbery mischief, criminal trespass or attempts to commit these offences.[67] There is a general limitation that the accused must not inflict more harm than is necessary for the purpose of defence. This calls for an objective assessment of the necessity of the action taken by D. In addition, there is a specific limitation which calls for the existence of certain threats before a person is permitted to kill his or her assailant. The threats in question vary according to whether the accused was protecting the person or property. Section 100 provides that killing in protection of the person is only justified when it is necessary to repel an attack causing reasonable apprehension of death, grievous hurt, rape, gratification of unnatural lust, abduction or kidnapping.9.34 Killing in respect of protection of property is justified only when it is necessary to repel a robbery, housebreaking by night, mischief by fire committed on a human dwelling, or theft, mischief, or house trespass in circumstances which caused reasonable apprehension that death or grievous hurt would be the consequence if the right of defence were not exercised.
9.35 If the killing is not found to be committed in order to repel such threats the general plea of self-defence fails. It also fails if the killing is found not to be reasonably necessary. In either event the question will arise of whether exception 2, which has the effect of reducing the charge of murder to a finding of culpable homicide, is made out.
9.36 Professor Yeo has criticised what appears to be the practice of the Supreme Court of simply paying lip service to the requirements of exception 2 by assuming that a defendant should have the benefit of the exception without actually considering whether the accused had honestly believed that the killing was necessary in the circumstances.[68]
Ireland
9.37 Whilst the courts in Ireland have recognised a partial defence of excessive force in self-defence, the status of the concept remains uncertain. In Dwyer[69] the certified question was:
Where a person subjected to a violent and felonious attack, endeavours by way of self-defence, to prevent the consummation of that attack by force, but in doing so exercises more force than is necessary but no more than he honestly believes to be necessary in the circumstances, whether such person is guilty of manslaughter and not murder.
The question was answered in the affirmative, thus recognising the plea of excessive self-defence. Reliance was placed on Howe[70] as opposed to Palmer.[71] The scope of the decision is unclear. It is not clear what is meant by "violent and felonious attack" other than that it applies to threats of death or serious personal violence.[72] There is also uncertainty as to whether Dwyer applies when D uses unnecessary, or disproportionate, force or both. It has been claimed that the reference to necessity in the certified question means that proportionality is irrelevant. Dwyer was endorsed in Clarke[73] where it was stated that the defence was available where the force used by D was beyond that which was reasonable in the circumstances but no more than D honestly believed was reasonable. The Court relied on the Privy Council decision in Palmer as establishing the parameters of the defence. There is no other appellate jurisprudence.
9.38 There is also uncertainty whether the provisions of the Non Fatal Offences against the Person Act 1997 (which codified the law as to legitimate defence and abolished any defence available under common law in respect of the use of force) apply to homicide offences so as to undermine the common law partial defence to murder.[74]
Canada
9.39 In Canada there is no statutory provision in the criminal code that provides for a qualified defence of the use of excessive force in self-defence. A qualified common law defence was recognised at one point. It was rejected in Faid for a number of reasons.[75] It was said that there was no room to recognise a common law defence of excessive force because the law was comprehensively set out in the Criminal Code. The court pointed out that, as there was no agreement about the principle underlying the defence, it would complicate the task of trial judges in instructing juries on the law. Finally it was said that it would encourage compromise verdicts of manslaughter.
The options for reform
9.40 In Part XII we examine in detail the options for reform. There is, potentially, a broader and a narrower form of this defence. Within each form of the defence, there are two variants.9.41 The broader form of the partial defence is where the D faces a threat of violence but not one of sufficient immediacy to make it lawful to use force in self-defence. This would be a partial defence of "pre-emptive self-defence" or "self preservation".[76]
9.42 The narrower form would only apply where the D faced a perceived threat of violence of sufficient immediacy to justify the use of some degree of force, but not the degree of force in fact used.
9.43 The variants within each form of the partial defence are whether the defence should:
(1) apply to force used in protection of the person or property or for the prevention of crime; or
(2) be limited to force used for the protection of the person.
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Note 1 Gladstone Williams (1984) 78 Cr App R 276 (CA), where it was held that if a defendant was labouring under a mistake of fact as to the circumstances when he committed an alleged offence, he was to be judged according to his mistaken view of the facts regardless of whether his mistake was reasonable or unreasonable. The reasonableness or otherwise of the defendant’s belief was only material to the question of whether the belief was in fact held by the defendant at all.
See also, Beckford [1988] AC 130 (PC). [Back] Note 2 Owino [1995] Crim LR 743, 743, citing Scarlett [1993] 4 All ER 629. [Back] Note 5 Ibid, at p 831-832. [Back] Note 6 Ibid, at p 824-826. It is worthy of note that a number of these authorities predated the drafting of the Indian Penal code which provides for a partial defence to murder of excessive use of force in self-defence. We consider this below. It may be that the author of the code believed that such a provision reflected the then state of the common law. If so, the Privy Council, after detailed examination, does not appear to have shared that view. [Back] Note 7 (1958) 100 CLR 448. [Back] Note 8 Palmer [1971] AC 814, 832. [Back] Note 10 McInnes [1971] 1 WLR 1600. [Back] Note 11 Ibid, at p 1608, per Edmund Davies LJ. [Back] Note 12 M Watson, “Excessive force in self-defence” (2000) 104 Criminal Lawyer 5 at p 6. [Back] Note 13 [1995] 1 AC 482 (HL). [Back] Note 14 Ibid, at p 492. [Back] Note 15 Ibid, at p 500, per Lord Lloyd of Berwick. [Back] Note 16 See for example, R Jerrard, “The plea of self-defence in murder: soldiers or police officers, no special case” (1995) 68 Police Journal 267 at p 269:
It is a sad day for British Justice when we employ service men in dangerous situations and ask for perfection. One is reminded of the story of the lawyer who, taking a volume down from the shelf said, ‘You know I think the policeman made a mistake in this case.’ His colleague retorted, ‘Maybe but he didn’t have a law library available to him when he made his decision.’ Terrorist gunmen do have a choice when they take arm. [Back] Note 17 M Kaye, “Excessive force in self-defence after R v Clegg” (1997) 61 Journal of Criminal Law 448 at p 451. [Back] Note 18 [1995] 1 AC 482, at p 500. See also para 9.18. [Back] Note 19 M Kaye, “Excessive force in self-defence after R v Clegg” (1997) 61 Journal of Criminal Law 448 at p 451, citing J C Smith, “Comment on Clegg” [1995] Crim LR 418. [Back] Note 20 Ibid, at p 452-3. [Back] Note 21 Martin (Anthony) [2002] 2 WLR 1. [Back] Note 22 Although the issue of excessive force as a partial defence was not argued in Martin (Anthony), the facts of the case have precipitated public calls for more generous laws on self-defence. In the particular context of a householder’s right to defend his home and family, Dr Michael Watson has argued:
It is generally accepted that England’s prisons are full and that most burglars are unlikely to be reformed by incarceration in them. Few people would wish to live in a society in which firearms were routinely purchased for ‘home defence’. But a disarmed society depends on an efficient and effective criminal justice system. If the state cannot fulfil its side of the bargain, its courts should not be too hard on those who (in the heat of the moment) use more force than may later seem reasonable. A strong case can be made for establishing a presumption that force used in self-defence- and defence of the home- is reasonable and lawful.
“Self-defence and the Home” 167 Justice of the Peace 486 at p 488. (28 June 2003) [Back] Note 23 Martin (Anthony) [2003] 1 QB 1, 14-15. [Back] Note 25 Smith (Morgan) [2001] 1 AC 146, in which the issue was the evidence relevant to the objective question of loss of self-control in a case of provocation. [Back] Note 26 Martin (Anthony) [2003] 1 QB 1, 16. [Back] Note 28 Criminal Law Revision Committee, 14th Report, Offences against the Person (1980) Cmnd 7844, para 288. [Back] Note 29 Report of the Select Committee on Murder and Life Imprisonment, House of Lords Session 1988-89, HL Paper 78-1, at para 89. [Back] Note 30 Criminal Law: A Criminal Code for England and Wales (1989) Law Com No 177, clause 59. [Back] Note 31 [1995] 1 AC 482 (HL). [Back] Note 32 Ibid, at p 500. [Back] Note 33 [1975] AC 653, where the House of Lords held by a majority that the law of duress was available as a defence to a person charged with aiding and abetting murder. [Back] Note 35 [1995] 1 AC 482, 500. [Back] Note 36 A McColgan, “In defence of battered women who kill” (1993) 13 Oxford Journal of Legal Studies 508 at p 515. [Back] Note 37 Ibid, at p 520. [Back] Note 38 S Edwards, “Injustice that puts a low price on a woman’s life” The Times, 2 September 2003, Law Supplement, at p 5. [Back] Note 39 A McColgan, “In defence of battered women who kill” (1993) 13 Oxford Journal of Legal Studies 508 at p 520. [Back] Note 40 Ibid, at p 523. [Back] Note 41 C Wells, “Battered Woman Syndrome and defences to homicide: where now?” (1994) 14 Legal Studies 266 at p 272. [Back] Note 42 Ibid, at p 273. [Back] Note 43 See para 9.16. There are no reported cases on the issue of self-defence and battered women syndrome. Instead it has appeared in the context of diminished responsibility and provocation. See the comments of Lord Taylor CJ in Ahluwalia 96 Cr App R 133, 141, who stated that the reasonableness of the defendant’s reactions fell to be considered in the light of the history of her marriage, the misconduct and ill treatment of the appellant by her husband. [Back] Note 45 C Wells, “Battered Woman Syndrome and defences to homicide: where now?” (1994) 14 Legal Studies 266 at p 273. In the Canadian Supreme Court case of Lavallee v R [1990] 1 SCR 852 it was clearly acknowledged that women’s experiences were not reflected by the hypothetical construct of the “reasonable man,” and the admission of expert evidence of battered women syndrome was proposed to counter this. [Back] Note 46 Sheehy, “Women’s Law of Self-defence”, cited by D Ives, Appendix B, n 97. [Back] Note 47 Canadian Association of Elizabeth Fry Societies, Response to the Department of Justice, Recommendation 21, cited by D Ives, Appendix B, n 98. [Back] Note 48 C Wells, “Battered Women Syndrome and defences to homicide: where now?” (1994) 14 Legal Studies 266 at p 275. [Back] Note 49 See H Wistrich (Justice for Women), “Self-preservation defence” April 1997, Legal Action 9. It is not stated whether it is envisaged that such defence would be a partial or a complete defence. The defence would be based on a combination of evidence of a history of abuse, the failure, or lack, of effective intervention and the defendant’s perception of the danger she faced through her evidence. The proposal for the new defence was presented to the Home Affairs Select Committee in 1993. One of the reasons it was rejected was because it was felt that a defence of self- preservation would imply that a killing was the result of a defendant making a rational choice. This would be a major departure from the partial defences of diminished responsibility and provocation which, respectively, focus on the defendant’s impaired responsibility through mental abnormality and her loss of self control. Justice for Women argues that self-defence must either be made more adaptable to take account of the different ways people find to survive life-threatening situations or a new defence of self-preservation must be introduced. [Back] Note 50 [1957] ALR 648. [Back] Note 51 Howe (1958) 100 CLR 448, 471, quoting Smith J in Bufalo (1958) VR 363. [Back] Note 52 Palmer [1971] AC 814. [Back] Note 53 Viro (1978) 141 CLR 88. [Back] Note 54 Zecevic V DPP [1986] VR 797 on appeal from the Victorian Full Court to the High Court of Australia (1987) 71 ALR 641. [Back] Note 55 In particular the last two propositions in Viro (1978) 141 CLR 88, 147:
If the jury is satisfied beyond reasonable doubt that more force [than was reasonably proportionate] was used then its verdict should be either manslaughter or murder, that depending on the answer to the final question for the jury - did the accused believe that the force used was reasonably proportionate to the danger which he believed he faced?
If the jury is satisfied beyond reasonable doubt that the accused did not have such a belief the verdict will be murder. If it is not satisfied beyond reasonable doubt that the accused did not have that belief the verdict will be manslaughter. [Back] Note 56 D Lanham, “Death of a qualified defence?” (1988) 104 LQR 239 at p 240. [Back] Note 57 See Palmer [1971] AC 814, 831, where Morris LJ, having cited McKay, said:
This proposition was quoted with approval by the High Court in Howe’s case, 100 CLR 448. Taylor J, however, pointed out at p 467, that the proposition so formulated was not in any way limited to cases where it appears that the accused entertained an honest belief that the force used, though excessive on any reasonable view, was necessary. [Back] Note 58 D Lanham, “Death of a qualified defence?” (1988) 104 LQR 239. [Back] Note 59 Appendix A, S Yeo, p 64. [Back] Note 60 J C Smith, Smith and Hogan, Criminal Law (10th ed 2002) p 287. [Back] Note 61 Appendix A, S Yeo, p 56. [Back] Note 62 S 15(2)-(3) Criminal Law Consolidation Act 1935 (SA). [Back] Note 63 Appendix A, S Yeo, p 58. [Back] Note 66 S 97(1), cited in S Yeo, Unrestrained killings and the law: A comparative analysis of the laws of provocation and excessive self-defence in India, England and Australia (1998) p 119. [Back] Note 68 S Yeo, Unrestrained killings and the law: A comparative analysis of the laws of provocation and excessive self-defence in India, England and Australia (1998) p 133. [Back] Note 69 The People (Attorney General) v Dwyer [1972] IR 416. [Back] Note 71 (1958) 100 CLR 448. [Back] Note 72 F McAuley, “Excessive Defence in Irish Law”, in S Yeo, Partial Excuses to Murder (1990) pp 196-7. [Back] Note 73 The People (Director of Public Prosecutions) v Clarke [1994] 3 IR 289. [Back] Note 74 Appendix C, Irish Law Reform Commission, p 117. [Back]
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