The Law Commission

 


PART 4

EXCESSIVE FORCE IN SELF-DEFENCE

Introduction

4.1     In Consultation Paper No 173^[1] we presented the arguments for and against the development of a new partial defence of excessive force in self-defence. We asked consultees to consider two distinct options. One (option A) involved the extension of the common law defence of self-defence so as to provide a partial defence in circumstances where some force by the defendant, based on the defendant's subjective belief, was lawful but the amount of force used exceeded that which was reasonable. That option was limited to the defence of the person or another. The second (option C) involved the pre-emptive use of force in self-defence of the person or another in a situation where any use of force is presently unlawful because it would be in response to a threat of violence insufficiently imminent to give rise to the defence of self-defence. We consulted about two other options, B and D, which involved extending A and C respectively to include defence of property.
4.2     Only 12 consultees stated a preference for any form of partial defence of excessive force in self-defence being applicable to the defence of property. Of those, only two favoured option D.
4.3     The creation of a partial defence to murder based on excessive use of force in self-defence has been the subject of previous recommendations by the Criminal Law Revision Committee,^[2] a House of Lords Select Committee^[3] and the Law Commission. Clause 59 of the Law Commission's draft Criminal Code^[4] would provide a partial defence to murder reflecting option B.^[5] It claimed support, as a matter of principle, from the way the law had developed in Australia^[6] but also stated that the draft clause avoided the complexity and difficulty which was thought to have influenced the High Court of Australia when, in DPP v. Zecevic,^[7] it overruled its previous decision in Howe.^[8]
4.4     For the reasons set out below we do not recommend that there should be a separate partial defence of excessive force in circumstances, respectively: where it was lawful for the defendant to use some force but not as much as was, in fact, used; or where there has been pre-emptive use of force where the threat of force was insufficiently imminent potentially to attract the defence of self-defence. In our view, insofar as there is a need for such a partial defence, it is sufficiently catered for within our recommendations for reform of the law of provocation.^[9]

The defence of self-defence

4.5     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.
4.6     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.^[10] 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 Owino as "a person may use such force as is [objectively] reasonable in the circumstances as he [subjectively] believes them to be." ^[11]
4.7     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. 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.
4.8     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.^[12] 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.^[13] 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.^[14]
4.9     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.^[15] In addition, detailed consideration was given to the judgment of the High Court of Australia in Howe^[16] 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.
4.10     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 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.^[17]

The second demonstrates how, notwithstanding the complete nature of the defence, the 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 is possible that the intent necessary to constitute the crime of murder was lacking then that matter would be left to the jury.^[18]

This decision was followed in McInnes^[19] where the Court of Appeal expressed itself in the following terms:

[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 upon which the plea of self-defence is unsuccessfully sought to be based may nevertheless serve the accused 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.^[20]

4.11     Palmer was followed by the House of Lords in Clegg.^[21]
4.12     Some consultees have suggested that although the Palmer direction is theoretically generous to the defendant, it does not always work justly where a weaker party uses a degree of force against a stronger opponent which is greater than would be proportionate as between people of equal strength. We endorse what was said in response to Consultation Paper No 173 by HHJ Goddard QC about such a case:

Such a woman may use a weapon against an unarmed but violent man. I believe that I could properly direct a jury that the use of a weapon in circumstances does not per se rule out self-defence i.e. necessarily make the woman's acts unlawful because the jury have to consider the nature of the threat against the background.

4.13     However, from consultees' responses, it appears that not all judges give directions to juries about the need to carefully consider the disparity of strength and vulnerability between the defendant and the other party in cases where it is relevant on the facts.
4.14     It is axiomatic that directions need to be appropriate to the facts of the case. We suggest, however, that the Judicial Studies Board may wish to consider whether it would be helpful for it to provide for use in appropriate cases a specimen direction for trial judges to consider adopting or adapting. That direction would invite the jury to take account of any disparity between the protagonists which may affect their perception of reasonableness of the fatal force used by the defendant. We put forward for consideration:

It is insufficient to weigh the weapons used on each side; sometimes there is an imbalance in size and strength. You must also consider the relationship between the defendant and [the other party]. A defendant who has experienced previous violence in a relationship may have an elevated view of the danger that they are in. They may honestly sense they are in greater danger than might appear to someone who has not lived through their experiences. All these matters should be taken into account when considering the reasonableness of the force used.^[22]

4.15     This is no more than a skeleton which would need to be adapted or expanded according to the facts. Vera Baird QC MP proposed the following new direction on self-defence. She states that although this direction is designed primarily for a female under attack from a man, paragraph 4 may be equally applicable to a man in the event that the same issues about imbalance of strength arose.

1. Self-defence is not just for two evenly matched people in a street fight, it can also present in a way which requires more careful evaluation of its elements. This is such a case. It is insufficient to weigh what weapons were used on each side. Sometimes there is an imbalance in size.

2. And gender is an important factor. Of course little girls fight as well as little boys and it is not unknown for adult women to fight, but it is rare. It is common sense, but also clear from crime figures, that it is overwhelmingly males rather than females who fight and there is an awareness of the possibility of needing to defend oneself in a man's psyche in a way which is not present for most women. It is part of social conditioning for a man, though it plays a low-level role in their makeup in times of peace and for most of men's lives. If attacked most men would be able to parry and retaliate in a reasonable way. You should make allowances for this absence of social conditioning, about how to deal with a fight, in a woman.

3. In addition, men fear injury less than women. If a fist came at a woman, she would be afraid that her nose would be smashed, lips burst and mis-shaped, a punch to the breast would be a more painful and intimate an injury. Women are more vulnerable physically and more fearful of being permanently damaged and are, for those reasons too, less likely to be composed enough to measure their response, when under attack.

4. They are usually weaker than men and would be less confident that any blow they used in return would be strong enough to discourage further violence, as opposed to annoying their assailant and provoking more. A man would know his own strength and expect to have a rough measure, from that, of how strong his opponent is likely to be.

5. There is still a judgement for you to make but it is not, in case of a woman under attack from a man as easy as it would be to assess proportionality between roughly equivalent protagonists of the same sex.

4.16     We would not suggest a specimen direction of that length, but the important thing is that the judge should identify factors which the jury ought fairly to have in mind in considering the defendant's perception of her or his danger and the reasonableness of her or his conduct.

The case for some form of partial defence to murder which is rooted in a response based on fear

Different sources of concern

4.17     The case for a partial defence to murder based on fear may be said to arise in two types of situation. The first is where the force used is unlawful, because it is excessive, even though the circumstances are such that some use of force would have been lawful in self-defence. The second is where the threat of attack was insufficiently imminent to attract any possible defence of self-defence.
4.18     The arguments in favour of the creation of such a partial defence have concentrated on two categories of defendant.

(1) The householder who responds in fear of physical attack from an intruder and, whom it is said, the present law places in the exquisite dilemma of having to respond "reasonably" or not at all.

(2) The abused child, or adult, who fears further physical abuse at the hands of a serial abuser, who perceives no prospect of escape and who is well aware that there is such a physical mismatch that to respond directly and proportionately to an attack or an imminent attack will be futile and dangerous. Such a person, who uses disproportionate force, or who chooses an advantageous moment to strike, is unassisted by the law of self-defence and may only obtain the benefit of a partial defence by distorting their true case, including, sometimes, their mental state, or by the willingness of the courts to distort the law in order to do justice.

The substance of these concerns

The threatened householder

4.19     As we have indicated in Part 3, there is a strongly held view among many members of the public that the law is wrongly balanced as between householders and intruders. We think that much of that public anxiety is based on a misunderstanding of the present state of the law, contributed to by incomplete understanding of certain notorious cases. We accept, however, that the law should provide explicitly for a partial defence to a charge to murder where a person of ordinary tolerance and self-restraint acts in fear of serious physical violence to himself or another. We acknowledge that such a person, though genuinely acting in fear, might not always act "reasonably" so as to attract the full defence of self-defence. In such a case, we conclude, he or she should not be convicted of murder but should receive a conviction which reflects his or her lesser degree of culpability. The law of self-defence should not be a case of "all or nothing".

The abused person who kills

4.20     Criticism of the law of self-defence by those commentators concerned about abused people who kill tends to be focussed on what are perceived to be two separate limitations of the common law. First, it is said that the objective requirement of reasonableness applied to the amount of force used in response to the attack, or threat of attack, does not operate in a way that is realistic.^[23] The requirement of proportionality as between attack and defence, which informs the decision whether the force deployed by the defendant was reasonable, is criticised as reflecting only cases where adversaries are of comparable strength. It is said that it fails adequately to reflect cases where there is a gross discrepancy in the strength of the protagonists, typically where the assailant is an adult male and the defender a child or a female. In such cases^[24] the discrepancy in physical strength may force the person being abused to defend him or herself with an instrument, such as a knife, the use of which may result in the force being considered excessive.^[25]
4.21     Second, it is said that the common law fails to assist those abused people who kill their abusers when they are asleep or otherwise defenceless. They are precluded from being able to rely on self-defence because, in order to do so, they need to be able to demonstrate that the killing was necessary to resist actual or imminent violence. Accordingly, the view has been expressed that reform should "contemplate a re-thinking of self-defence, and a radical shift in some of the ideas that underlie it."^[26]
4.22     Some consultees^[27] have said that the absence of a partial defence of excessive force in self-defence means that abused people who kill often feel constrained to accept a plea to manslaughter on the basis of provocation or diminished responsibility rather than contest a trial on the basis of self-defence. This is for several reasons. First, the risk of conviction is high when the proportionality requirements of self-defence are juxtaposed with the, apparently inconsistent, requirement of loss of control necessary for provocation. Second, the "all or nothing" nature of the complete defence of self-defence^[28] is too risky an option for a defendant when there is no partial defence available as an alternative.
4.23     We recognise that there may be cases in which a defendant's conduct is unlawful because there is no immediate risk to the defendant (or another), or no sufficiently serious immediate risk to justify the defendant's conduct, and yet the defendant has acted in genuine fear. One obvious example is the abused woman who kills her violent partner though not subject to an actual or imminent threat of serious violence. Provided the defendant was genuinely in fear of such serious violence and a person of ordinary tolerance and self-restraint might have responded in the same or a similar way, the partial defence of provocation we recommend in Part 3 would be available. It would be open for the jury to convict of manslaughter if they thought that the killing was the type of response which a person of ordinary tolerance and self-restraint might make in the circumstances notwithstanding that the force used was unreasonable so as to deny the defendant the complete defence of self-defence.
4.24     The availability of the partial defence recommended in Part 3 based in part on a response to fear would, in our view, make it easier than it is at present for defendants to run self-defence where that was the true nature of their case. Whilst we accept that there is a risk that in some cases juries might "compromise" and return a manslaughter verdict, whereas presently they would acquit on grounds of self-defence, we accept the views of our practitioner consultees who are more concerned that self-defence is simply not being run when it might be.

Conclusion

4.25     We believe that the reformulation of the partial defence of provocation that we recommend in Part 3 is a principled approach. It accommodates the legitimate concerns about specific categories of defendant, namely: the householder who responds to an intruder by the use of lethal violence and the person who has been the subject of abuse and who, in extremis, responds lethally out of fear of serious violence, whether or not actual or imminent.
4.26     Furthermore, by introducing a robust, objective test based on the person of ordinary tolerance and self-restraint as a controlling mechanism, we believe that we have reduced to a minimum the possibility of the reformulation being used to extend the partial defence beyond its proper boundaries. This is, we believe, enhanced by giving the trial judge the power to remove the issue from the jury.

The reasons for not recommending a separate partial defence of excessive use of force in self-defence

4.27     In Part 3 we have identified the concerns, which were expressed to us in the course of the consultation, that it was unwise to combine a fear and anger based defence within the single rubric of "provocation". We explained in that part why we disagree with that view and that, in our view, nothing is lost but much gained in doing so. It would be possible, however, for us to respond to this concern by providing, in addition to our recommended reformulation of provocation, a separate partial defence of excessive use of force in self-defence.
4.28     One way of achieving this would be to have a defence which replicated the features of our reformulation but placed the "fear" based partial defence in a separate section. In our view this would be undesirable. As we have indicated, one of the strengths of having a single partial defence which potentially combines both emotions is that it accurately reflects reality, as perceived by the psychiatric community, and it reflects everyday experience. Having a separate defence would deny us this benefit.
4.29     Our reformulated provocation defence would be available to the defendant who acted through fear of serious violence to himself or another. That is a partially subjective requirement and, as such, it reflects the present state of the law of self-defence. The potential width of application of our recommended provocation partial defence is kept strictly in bounds by the further, objective, requirement that, "a person of ordinary tolerance and self-restraint might have acted in the same way as the defendant". We do not think that this is an undue limit on the availability of such a defence. The defence works through the acknowledgement that even a person of ordinary tolerance and self-restraint might, on occasion, respond in fear by using an unreasonable amount of force. Without such a limitation the defence would be open, for example, to any professional criminal who decided that it was necessary to respond to threats of violence from a rival gang by a private execution.
4.30     In summary, in our view, our proposed reformulation set out in Part 3 will be the simplest and most effective way of ameliorating the deficiencies of the present law.
4.31     We do not, therefore, recommend a specific separate partial defence to murder based on the excessive use of force in self-defence.
Ý
Ü   Þ

Note 1    See Part IX and paras 12.84 – 12.94.    [Back]

Note 2    Fourteenth Report: Offences Against the Person (1980) Cmnd 7844, para 288.    [Back]

Note 3    Report of the Select Committee on Murder and Life Imprisonment, (1988-89) HL 78-I, para 89.    [Back]

Note 4    Law Com No 177.    [Back]

Note 5    Clause 59 provides: 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 force which causes death to be necessary and reasonable to effect a purpose referred to in section 44 (use of force referred to in public or 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. Clause 44(1) provides: A person does not commit an offence by using such force as, in the circumstances which exist or which he believes to exist, is immediately necessary and reasonable – (a) to prevent or terminate crime, or to effect or assist in the lawful arrest of an offender or suspected offender or of a person unlawfully at large; (b) to prevent or terminate a breach of the peace; (c ) to protect himself or another from unlawful force or unlawful personal harm; (d) to prevent or terminate the unlawful detention of himself or another; (e) to protect property (whether belonging to himself or another) from unlawful appropriation, destruction or damage; or (f) to prevent or terminate a trespass to his person or property.     [Back]

Note 6    Law Com No 177, vol 2, para 14.19, citing Howe (1958) 100 CLR 448.    [Back]

Note 7    (1987) 162 CLR 645.    [Back]

Note 8    (1958) 100 CLR 448.    [Back]

Note 9    As we explain in Part 3.    [Back]

Note 10    Williams (Gladstone) [1987] 3 All ER 411 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.     [Back]

Note 11    Owino [1996] 2 Cr App R 128, 134, citing Criminal Law Revision Committee, Fourteenth Report: Offences Against the Person (1980) Cmnd 7844.    [Back]

Note 12    [1971] AC 814.    [Back]

Note 13    Ibid, at p 824.    [Back]

Note 14    Ibid, at pp 831-832.    [Back]

Note 15    Ibid, at pp 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 16    (1958) 100 CLR 448.    [Back]

Note 17    Palmer [1971] AC 814, 832.    [Back]

Note 18    Ibid, at p 832.    [Back]

Note 19    McInnes [1971] 1 WLR 1600.    [Back]

Note 20    Ibid, at p 1608, per Edmund Davies LJ.    [Back]

Note 21    [1995] 1 AC 482. See paras 9.10 – 9.11 of Consultation Paper No 173.    [Back]

Note 22    Adapted from a suggested formulation put forward by Justice for Women.    [Back]

Note 23    A McColgan, “In defence of battered women who kill” (1993) 13 Oxford Journal of Legal Studies 508 at p 515.     [Back]

Note 24    Ibid, at p 520.    [Back]

Note 25    S Edwards, “Injustice that puts a low price on a woman’s life” The Times, 2 September 2003 Law Supplement, at p 5. See also S Edwards, “Abolishing Provocation and Reframing Self-Defence-the Law Commission’s Options for Reform” Crim LR [2004] 181.     [Back]

Note 26    C Wells, “Battered Woman Syndrome and defences to homicide: where now?” (1994) 14 Legal Studies 266 at p 272.    [Back]

Note 27    Justice for Women, Vera Baird QC MP, Jane Miller QC.    [Back]

Note 28    Consultation Paper No 173 para 9.4.    [Back]