Self-Defence

Yesterday I highlighted what I think are inadequacies in the law of self-defence and questioned the value of vigilante action by people caught up in the current disturbances. Today I would like to examine both concepts further, the former roughly in context of the latter.

This has been prompted by reports today of several local communities taking to the streets to protect what they value. Residents of Northcote Road in Clapham formed a human cordon preventing anyone wearing a hoodie entering their streets. Residents of Dalston did much the same. Sikhs in East London came together to protect their temple. To all of them I would say well done for protecting what you hold dear. I hope there are no negative consequences in the future.

There are inherent risks to this type of behaviour. People are leaving themselves open to criminal prosecution. They may do this without realising this or intending to. An example of these unintended consequences would be chasing off would-be looters. Strictly speaking, the offence of assault does not have to involve physical contact, merely perception that harm will be visited on the individual. Therefore, a group of large men chasing a couple of teenage kids could well fall within that definition. It may or may not be likely that such charges would proceed further than the raised eyebrow of a police officer and there is a decent chance self-defence could be argued if they did. Even so, it is a big risk to take.

How did this situation develop? Robert Peel when first founding a police service made it clear that police officers were to be ordinary citizens upholding the law within the law rather than a special group immune from it's effects. This remains true today. Police officers can still only use reasonable force, it just so happens that their job is defending people and property and therefore they are in a position to use it more. Conversely, everybody has the right to perform an arrest. Obviously things are not that simple. Police rightly have the right to undertake activities that would otherwise be considered criminal. Such examples include exemptions from certain traffic laws under specific circumstances, carrying items which would otherwise be prohibited and a wider scope to arrest and detain people. The first two, obviously, are necessary for them to carry out their role effectively. The latter exists as a function of the role of police in society (private citizens may perform an arrest when a crime is being committed, police can arrest individuals in order to prevent a crime or to allow it's effective investigation. As I doubt most individuals have the time, skills and infrastructure to conduct a criminal investigation this seems fair enough).

The question is, how far can ordinary citizens go in the course of their everyday lives and in exceptional circumstances such as the last few days?

At this point I will stress that although I have studied law this is NOT a definitive legal guide. What I am writing is my opinion and perception of the situation as it stands. If you have the misfortune to find yourself in trouble for defending yourself and your property, get a lawyer and do what they say!

As I said previously, human cordons and chasing off "hoodies" would probably fall quite nicely under the banner of self-defence. Even if a large group of non-hoodies did the chasing I would think that this would still seem reasonable although already we are straying into contentious territory. Likewise wrestling someone to the ground and sitting on them until the police arrived if they were attacking someone else or looting would probably be OK. Although a lot of force is being used, by pinning them, you are ensuring your safety and that of others by putting them in a position where they are unable to lash out. What about doing the same to a hoodie approaching a cordon of you and your neighbours? In the absence of other circumstances this would probably be unacceptable as no specific offence has been committed (arguably public order offences have been but let's gloss over that since they can be quite hard to prove and are probably better left as a tool to allow coppers to nick people who are being obnoxious twats rather than be used as reasons for citizens arrest) even if there was little doubt as to their intention. However if they sauntered through the cordon and started squaring up to a shop window, your case for self-defence get's much stronger. The law allows for pre-emptive strikes so long as intention is clear and criminality imminent. Complicated isn't it?

And the above are by no means set in stone. There is still the human element of those involved in the legal process. A vicious prosecutor will attack and might break your self-defence case. Similarly the jury or the magistrate may or may not like you/what you were doing. Of course they are told to be impartial but that's a hard state to achieve. Do you want to run the risk?

Now the thorny issue of using things other than your hands. The police have special dispensation in law to carry batons, CS gas and, on occasion, firearms. Even then, this only exists when on duty. Private citizens do not have this right. Weapons such as guns, knives, swords and pretty much anything designed to cause injury of death to people are expressly illegal. Items which could be dangerous are also banned although one is permitted to have them if they are part of one's trade. Don't let that put you off going round B&Q this Saturday but don't delay putting whatever you buy into the garage/shed. There is a final important caveat and that is one of intent. If you carry an item with the intention of using it to cause injury then, regardless of what it is, it becomes an offensive weapon. Obviously the list of items that can be weaponised is endless but it is the intent that counts. Therefore, if something happens to come to hand in the heat of the moment, it will not be classed as a weapon however the same item would be in different circumstances. A good example of this would be sleeping with items by your bed. A brick is obviously a weapon as there is no other (obvious) reason to have a brick beside your bed. What about a heavy torch used to hit an intruder? On one hand, you could keep it there in case you had a power cut (and many people do) and you just so happened to reach out and grab it in panic. However, if the torch is just to hit people, it's a weapon.

This is all convoluted and confusing and bluntly, leads to innocent people getting criminal records for behaviour that can barely be classed as criminal. If I was being awkward I would suggest that people are being prosecuted for defending their right to a private and family life as defined in the Human Rights Act (see previous post). For this reason, I think the law needs clarifying. I do not think a universal right to bear arms is the way forward. If nothing else, it will complicate issues around crimes involving weapons and potentially make life worse for the law-abiding citizen. Currently, if the police see someone with a gun, knife or other specific weapon it is illegal and they can act accordingly. Changing this would confuse matters to a dangerous degree.

What about improvised weapons? Stories are being released of people defending their property with baseball bats, snooker cues and table legs. Here things get more complicated. I don't support the population as a whole arming themselves. However, the law should view sympathetically those that do in extremis. Put simply, in situations like the last few days, people protecting their community should be allowed to use more than their bare hands and be entitled to the protection of the law rather than the discretion of police officers on scene.

As I said yesterday, a step forward would be to change the word, "reasonable" to the word, "necessary" in relation to force in the context of self defence. I think it would also be helpful to update the concept of self-defence (this is a bit of an academic point but bear with me). Currently it is a defence meaning in essence you still broke the law but you're being let off because you did it for the right reasons. I think this criminalises natural human instinct and is overall unhelpful. Instead make it a basic right thus creating a presumption of innocence for the person using force rather than a presumption of guilt.

The downside of this is that I can see the criminal subspecies that have been perpetrating the recent rioting crying self-defence at every possible opportunity and using it like the human rights act to cover all manner of sins. For this reason I would suggest that the police should be allowed to exercise common sense in their approach to dealing with violent crime (they know who the repeat offenders are) and a common sense based approach by the Courts possibly linked to greater disclosure of past criminal offences at trial.

What does everyone else think?

JR