In R v Scarlett (1994) the defendant was a publican who was trying to evict a customer who was drunk. The defendant asked the customer to leave and he refused to do so and the defendant believed that the man was about to strike him so he pinned the man’s arms to his back and forcefully took him outside and left him by the wall of the lobby. The man fell backwards, down a flight of 5 steps, hit his head and died as a result. The defendant was tried and convicted for manslaughter. The defendant appealed.
The appeal was allowed and the conviction was quashed. There was no evidence to indicate that the defendant had used excessive force.
“They ought not to convict him unless they are satisfied that the degree of force used was plainly more than was called for by the circumstances as he believed them to be and, provided he believed the circumstances called for the degree of force used, he was not to be convicted even if his belief was unreasonable.”
The test to decide whether reasonable force was used does have an objective element to it, in that, the force that is used must be no more than necessary or as per article 2 of the European Convention of Human Rights (what is deemed necessary or otherwise is objective).
In R v Owino (1995) the defendant a senior registrar in microbiology (this is important to establish that the defendant was not suffering from some form of diminished capacity), was charged on 5 counts of occasioning actual bodily harm:-
Fracturing his wife’s wrist
Giving her a black eye
Hitting her on the head causing possible damage to her eardrum
Throwing her out of the flat and injuring her right thumb
Lifting her up and putting her out of the house.
The defense of self-defense was raised with regards to counts 3 and 4.
It was held that while the defendant is allowed to use as much force as he reasonably believed was required (subjective), even though that force may seem or appear to be excessive to others but what constitutes force that he reasonably believed was required is for a jury to decide (objective) and it depends very much on the facts and the evidence that is available.
In Attorney-General’s Reference (No 2 of 1983), for example, the defendant a shop owner made up to ten petrol bombs after his shop was damaged and looted during the Toxteth riots in case he became a victim of another attack.
He was subsequently charged under section 4 (1) of the Explosive Substances Act 1883 which reads as follows:-
“Any person who makes or knowingly has in his possession or under his control any explosive substance, under such circumstances as to give rise to a reasonable suspicion that he is not making it or does not have it in his possession or under his control for a lawful object, shall, unless he can show that he made it or had it in his possession or under his control for a lawful object, be guilty of an offence.”
He raised the defense of self defense and was acquitted by a jury. The attorney general referred the matter to the Court of Appeal on a point of law as to whether the defense of self-defense could be raised when the act of the defendant was in anticipation of an attack.
It was held that the defense could be raised with regards to possession (possession here means having under one’s control items used to defend oneself for example petrol bombs, pepper spray, stun guns etc) as long as possession of the items are given up once the danger of the attack is no longer imminent.
Copyright © 2018 by Dyarne Ward