Thursday, 21 January 2010

Self Defence

So, Munir Hussain has been freed by the Court of Appeal. Can't say that I'm disappointed.

The details of the case throw the current law on self defence back into the limelight. The best discussion I've found on the current state of this law is here.

The key test is that of 'reasonable force' - you can use reasonable force to:

  1. Defend yourself;
  2. Defend your property;
  3. Defend others;
  4. Prevent crime;
  5. Effect or assist a lawful arrest.

The question of what actually constitutes 'reasonable force' is ultimately up to the jury.

There are a few things that I find perverse about this law:
  1. The jury must decide whether the force was reasonable, but must consider it objectively, i.e. with the benefit of hindsight. The accused would have no such benefit. They may be forced to make a split-second decision, which could be a matter of life or death. My personal opinion is that reasonable force should be considered subjectively, based only on the information available to the accused at the time;
  2. No account is taken of the accused's characteristics. For example, if they suffer from a mental condition which means that they perceive threats where there are none, or perceive threats to be greater than what they are, this would involuntarily affect their judgement as to what could be defined as reasonable force, but such a condition would not be taken into account;
  3. The law does not recognise the concept of a defensive weapon. You can't carry or use a weapon of any kind, even if it is only to defend yourself. You can use items available to you at the time as weapons, but only if they are being kept or carried for their normal everyday purpose. My personal opinion is that defensive weapons should be recognised, but limited from firearms;
  4. Although you can submit the defence of self defence in a criminal matter, this is not an adequate defence against negligence in a civil matter. So you cannot act with total disregard to a burglar's safety. This seems ridiculous - you would think that the legal principle of ex turpi causa non oritur actio ('from a dishonourable cause an action does not arise') would apply to civil as well as criminal matters.

Of course, the Hussain case didn't fall under the claim of self defence. He chased the burglar down the street, cornered him in a neighbour's garden and then with his brother's help, beat the hell out of him with a cricket bat. You can't really disagree with the conviction, but the sentence was unfair, and I'm glad the Court of Appeal have recognised that.

I don't think there's anything particularly wrong with the statute law. But the way it's applied leaves a lot to be desired. The test of 'reasonableness' should be subjective, because that's all that's available to the accused at the time. Full account should be taken of the accused's characteristics, especially anything that could involuntarily impair their judgement. The right to keep a defensive weapon at home should be granted, within limits - no bazookas, please. And ex turpi causa non oritur actio should apply to civil as well as criminal matters - it is ridiculous that a burglar can sue one of their victims for negligence.

So, dear legislators, sort it. It's what we (over)pay you for.

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