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Skyrad and Scoop, you make my point with the information you have provided. Obviously firearms are necessary to control those who arm themselves and use that advantage to prey on others. But the real point is that the FREEDOM to live life, including the freedom of self defense, should rest with the PEOPLE and not the GOVERNMENT. John's referred article points out that leaving resolve of every single criminal situation to "the authorities" will result in many more victims, who are as much at the mercy of well meaning but completely ignorant politicians as they are the damned criminals who take their lives, property, etc. Along with the right to self defense comes the extreme responsibility to use any weapon as a last resort ( something that has been a major focus of all my weapons training) , not like the silly movies that depict the same outrageous exaggerations about "proper" use of force as they do about skydiving, operating airplanes and cars, elevators, and 50 other subjects where reality is the furthest thing from the producer's mind...
Just burning a hole in the sky.....
Just burning a hole in the sky.....
Skyrad 0
People in England and Scotland (The laws are slightly different) do have the right to self defence. Its a nonsense to say they haven't. Those rights are legal rights.
When an author is too meticulous about his style, you may presume that his mind is frivolous and his content flimsy.
Lucius Annaeus Seneca
Lucius Annaeus Seneca
Skyrad 0
http://www.dropzone.com/cgi-bin/forum/gforum.cgi?post=928160#928160
If you have any questions on our legal rights in the UK to defend ourselfs mr2mk1g is the man to ask.
We've done this one to death a number of times.
If you have any questions on our legal rights in the UK to defend ourselfs mr2mk1g is the man to ask.
We've done this one to death a number of times.
When an author is too meticulous about his style, you may presume that his mind is frivolous and his content flimsy.
Lucius Annaeus Seneca
Lucius Annaeus Seneca
Scoop 0
Let me elaborate as an education for those foreign souls that think they know more about British law and rights than us.
This is sourced from the Crown Prosecution Service, can't get more official in terms of legalitities in the UK. These guys make the charging decisions regarding every incident.
A person may use such force as is reasonable in the circumstances for the purposes of:
self-defence; or
defence of another; or
defence of property; or
prevention of crime; or
lawful arrest.
In assessing the reasonableness of the force used, prosecutors should ask two questions:
was the use of force justified in the circumstances, i.e. was there a need for any force at all? and
was the force used excessive in the circumstances?
The courts have indicated that both questions are to answered on the basis of the facts as the accused honestly believed them to be (R v Williams (G) 78 Cr. App R 276), (R. v Oatbridge, 94 Cr App R 367) and (Archbold 19-49).
To that extent it is a subjective test. There is, however, an objective element to the test. The jury must then go on to ask themselves whether, on the basis of the facts as the accused believed them to be, a reasonable person would regard the force used as reasonable or excessive.
It is important to bear in mind when assessing whether the force used was reasonable the words of Lord Morris in (Palmer v R ,1971 A.C. 814);
" If there has been an attack so that self defence is reasonably necessary, it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his defensive action. If the jury thought that that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought necessary, that would be the most potent evidence that only reasonable defensive action had been taken...".
The fact that an act was considered necessary does not mean that the resulting action was reasonable. (R v Clegg 1995 1 A.C. 482 HL) and (Archbold 19-41).
However, where it is alleged that a person acted to defend himself/herself from violence, the extent to which the action taken was necessary will, of course, be integral to the reasonableness of the force used.
In (R v Martin (Anthony) [2002] 1 Cr. App. R. 27), the Court of Appeal held that whilst a court is entitled to take account of the physical characteristics of the defendant in deciding what force was reasonable, it was not appropriate, absent exceptional circumstances which would make the evidence especially probative, to take account of whether the defendant was suffering from some psychiatric condition.
In (R v O'Grady 85 Cr App R 315), it was held by the Court of Appeal that a defendant was not entitled to rely, so far as self-defence is concerned, upon a mistake of fact which had been induced by voluntary intoxication.
Top of page
Use of force against Those Committing Crime
Prosecutors should exercise particular care when assessing the reasonableness of the force used in those cases in which the alleged victim was, or believed by the accused to have been, at the material time, engaged in committing a crime. A witness to violent crime with a continuing threat of violence may well be justified in using extreme force to remove a threat of further violence.
In assessing whether it was necessary to use force, prosecutors should bear in mind the period of time in which the person had to decide whether to act against another who he/she thought to be committing an offence.
The circumstances of each case will need to be considered very carefully.
(See Public Interest - Use of force against Those committing Crime, below in this chapter)
Top of page
Final Consequences
The final consequences of a course may not be relevant to the issue as to whether the force used was reasonable. Although, the conduct of the suspect resulted in severe injuries to another or even death, this conduct may well have been reasonable in the circumstances. On the other hand, the infliction of very superficial or minor injuries may have been a product of simple good fortune rather than intention.
Once force was deemed to be unreasonable, the final consequences would be relevant to the public interest considerations.
Top of page
Police Powers
Police officers are empowered by Section 117, Police and Criminal Evidence Act to use reasonable force, if necessary, when exercising powers conferred by that Act (Archbold 15-26).
Top of page
Private Rather than Public Duty
Prosecutors must exercise special care when reviewing cases involving those, other than police officers, who may have a duty to preserve order and prevent crime. This includes private security guards (including club doormen), public house landlords and public transport employees. The existence of duties that require people, during the course of their employment, to engage in confrontational situations from time to time needs to be considered, along with the usual principles of 'reasonable force.'
Top of page
Civilian Powers of Arrest
Care must be taken, when assessing the evidence in a case involving the purported exercising of civilian powers of arrest. Such powers of arrest are dependent upon certain preconditions.
The principle civilian powers of arrest fall under two headings:
the power vested in both police officers and ordinary citizens to arrest in relation to a breach of the peace (see R v Howell 73 Cr. App R. 31).
the power conferred by section 24 of PACE (Archbold 15-161 to 15 - 162):
to arrest anyone who is in the act of committing an arrestable offence or anyone whom the arrestor has reasonable grounds for suspecting to be committing an arrestable offence (S. 24(4)); and
where an arrestable offence has been committed, anyone who is guilty of having committed the offence or anyone the arrestor has reasonable grounds for suspecting to be guilty of having committed it (S. 24(5)).
It follows therefore that if violence occurs when someone purports to arrest, relying on section 24(5), a person he suspects has committed an offence who has, in fact, not done so;
any force used to affect the arrest may be an assault and unlawful; and
any force used to resist the arrest may be lawful (see R v Self 95 Cr. App R. 42).
However in (R v Lee, TLR 24 October 2000), it was held that when a defendant was charged with assault with intent to resist arrest, it was irrelevant whether the defendant honestly believed that the arrest was lawful.
You should bear in mind that members of the public (as well as police officers) may take action, including reasonable force, to prevent a breach of the peace, which would not necessarily involve exercising the formal powers of arrest.
Top of page
Burden of Proof
The burden of proof remains with the prosecution when the issue of self-defence is raised. The prosecution must adduce sufficient evidence to satisfy a jury beyond reasonable doubt that the defendant was either:
not acting to defence himself/herself or another; or
not acting to defend property; or
not acting to prevent a crime or to apprehend an offender; or
if he was so acting, the force used was excessive.
(Archbold 19-43 to 19- 45)
Prosecutors should take special care to recognize, and ensure a sufficiency of evidence in, those cases where self-defence is likely to be an issue.
Top of page
Public Interest
Self-defence, being an absolute defence, is a matter of evidence and is not in itself a public interest consideration.
In many cases in which self-defence is raised, there will be no special public interest factors beyond those that fall to be considered in every case. However, in some cases, there will be public interest factors which arise only in cases involving self-defence or the prevention of crime. These may include:
The degree of excessive force. If the degree of force used is not very far beyond the threshold of what is reasonable, a prosecution may not be needed in the public interest.
The final consequences of the action taken. Where the degree of force used in self-defence or in the prevention of crime is assessed as being excessive, and results in death or serious injury, it will be only in very rare circumstances indeed that a prosecution will not be needed in the public interest. Minor or superficial injuries may be a factor weighing against prosecution.
The way in which the force was applied. This may be an important public interest factor, as well as being relevant to the reasonableness of the force used. If a dangerous weapon, such as firearm, was used by the accused this may tip the balance in favour of prosecution.
Premeditated violence. The extent to which the accused found himself unexpectedly confronted by a violent situation, as opposed to having planned and armed himself in the expectation of a violent situation.
Top of page
Use of Force Against Those Committing Crime
The public interest factors set out immediately above will be especially relevant where, as a matter of undisputed fact, the victim was, at the material time, involved in the commission of a separate offence. Common examples are burglary or theft from motor vehicles. In such cases, prosecutors should ensure that all the surrounding circumstances are taken into consideration in determining whether a prosecution is in the public interest.
Prosecutors should have particular regard to:
the nature of the offence being committed by the victim;
the degree of excessiveness of the force used by the accused;
the extent of the injuries, and the loss or damage, sustained by either or both parties to the incident;
whether the accused was making an honest albeit over zealous attempt to uphold the law rather than taking the law into his own hands for the purposes of revenge or retribution.
Top of page
Apprehension of Offenders
As to the apprehension of offenders there are two important but sometimes contrasting public interest points. On the one hand, the rule of law and the Queen's Peace must be maintained and violence discouraged. On the other hand, the involvement of citizens in the prevention and investigation of crime is to be encouraged where it is responsible and public spirited. The law provides a defence for those who act in extenuating circumstances. However, judicial comment has suggested that the courts should take a firm stand against illegitimate summary justice and vigilantism.
Prosecutors will need to balance these potentially conflicting public interest considerations very carefully.
Top of page
Procedure
Once a case has been identified by the police as one involving difficult issues of self-defence, the police should be encouraged to seek pre-charge advice from the CPS.
If such a case is brought to a prosecutor for advice, then the decision whether to prosecute or not must be approved by the relevant Unit Head.
Within the CPS, if it is felt that the case involves difficult issues of self-defence, the prevention of crime or the apprehension of offenders, and is likely to attract media attention, a report must be sent through line management to the CCP (Sector Director in London).
Where the case may be media sensitive, the area press officer should be informed. The area press officer should consider informing HQ press office.
Top of page
Useful References
Offences against the Person, incorporating the charging standard, elsewhere in this guidance
Homicide, elsewhere in this guidance
Householders and the Use of Force Against Intruders
Code for Crown Prosecutors elsewhere in this guidance
Palmer v R, [1971] A.C 814
Archbold 19-41
Section 3 Criminal Law Act 1967
Archbold 19-39
R v Williams (G) 78 Cr. App R 276
R. v Oatbridge, 94 Cr App R 367
Archbold 19-49
R v Clegg 1995 1 A.C. 482 HL
Archbold 19-41
R v Martin (Anthony) [2002] 1 Cr. App. R. 27
R v O'Grady 85 Cr App R 315
Archbold 15-26
R v Howell 73 Cr. App R. 31
Section 24 Police and Criminal Evidence Act 1984
Archbold 15-161 to 15-162
R v Lee, TLR 24 October 2000
Archbold 19-43 to 19-45
This is sourced from the Crown Prosecution Service, can't get more official in terms of legalitities in the UK. These guys make the charging decisions regarding every incident.
A person may use such force as is reasonable in the circumstances for the purposes of:
self-defence; or
defence of another; or
defence of property; or
prevention of crime; or
lawful arrest.
In assessing the reasonableness of the force used, prosecutors should ask two questions:
was the use of force justified in the circumstances, i.e. was there a need for any force at all? and
was the force used excessive in the circumstances?
The courts have indicated that both questions are to answered on the basis of the facts as the accused honestly believed them to be (R v Williams (G) 78 Cr. App R 276), (R. v Oatbridge, 94 Cr App R 367) and (Archbold 19-49).
To that extent it is a subjective test. There is, however, an objective element to the test. The jury must then go on to ask themselves whether, on the basis of the facts as the accused believed them to be, a reasonable person would regard the force used as reasonable or excessive.
It is important to bear in mind when assessing whether the force used was reasonable the words of Lord Morris in (Palmer v R ,1971 A.C. 814);
" If there has been an attack so that self defence is reasonably necessary, it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his defensive action. If the jury thought that that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought necessary, that would be the most potent evidence that only reasonable defensive action had been taken...".
The fact that an act was considered necessary does not mean that the resulting action was reasonable. (R v Clegg 1995 1 A.C. 482 HL) and (Archbold 19-41).
However, where it is alleged that a person acted to defend himself/herself from violence, the extent to which the action taken was necessary will, of course, be integral to the reasonableness of the force used.
In (R v Martin (Anthony) [2002] 1 Cr. App. R. 27), the Court of Appeal held that whilst a court is entitled to take account of the physical characteristics of the defendant in deciding what force was reasonable, it was not appropriate, absent exceptional circumstances which would make the evidence especially probative, to take account of whether the defendant was suffering from some psychiatric condition.
In (R v O'Grady 85 Cr App R 315), it was held by the Court of Appeal that a defendant was not entitled to rely, so far as self-defence is concerned, upon a mistake of fact which had been induced by voluntary intoxication.
Top of page
Use of force against Those Committing Crime
Prosecutors should exercise particular care when assessing the reasonableness of the force used in those cases in which the alleged victim was, or believed by the accused to have been, at the material time, engaged in committing a crime. A witness to violent crime with a continuing threat of violence may well be justified in using extreme force to remove a threat of further violence.
In assessing whether it was necessary to use force, prosecutors should bear in mind the period of time in which the person had to decide whether to act against another who he/she thought to be committing an offence.
The circumstances of each case will need to be considered very carefully.
(See Public Interest - Use of force against Those committing Crime, below in this chapter)
Top of page
Final Consequences
The final consequences of a course may not be relevant to the issue as to whether the force used was reasonable. Although, the conduct of the suspect resulted in severe injuries to another or even death, this conduct may well have been reasonable in the circumstances. On the other hand, the infliction of very superficial or minor injuries may have been a product of simple good fortune rather than intention.
Once force was deemed to be unreasonable, the final consequences would be relevant to the public interest considerations.
Top of page
Police Powers
Police officers are empowered by Section 117, Police and Criminal Evidence Act to use reasonable force, if necessary, when exercising powers conferred by that Act (Archbold 15-26).
Top of page
Private Rather than Public Duty
Prosecutors must exercise special care when reviewing cases involving those, other than police officers, who may have a duty to preserve order and prevent crime. This includes private security guards (including club doormen), public house landlords and public transport employees. The existence of duties that require people, during the course of their employment, to engage in confrontational situations from time to time needs to be considered, along with the usual principles of 'reasonable force.'
Top of page
Civilian Powers of Arrest
Care must be taken, when assessing the evidence in a case involving the purported exercising of civilian powers of arrest. Such powers of arrest are dependent upon certain preconditions.
The principle civilian powers of arrest fall under two headings:
the power vested in both police officers and ordinary citizens to arrest in relation to a breach of the peace (see R v Howell 73 Cr. App R. 31).
the power conferred by section 24 of PACE (Archbold 15-161 to 15 - 162):
to arrest anyone who is in the act of committing an arrestable offence or anyone whom the arrestor has reasonable grounds for suspecting to be committing an arrestable offence (S. 24(4)); and
where an arrestable offence has been committed, anyone who is guilty of having committed the offence or anyone the arrestor has reasonable grounds for suspecting to be guilty of having committed it (S. 24(5)).
It follows therefore that if violence occurs when someone purports to arrest, relying on section 24(5), a person he suspects has committed an offence who has, in fact, not done so;
any force used to affect the arrest may be an assault and unlawful; and
any force used to resist the arrest may be lawful (see R v Self 95 Cr. App R. 42).
However in (R v Lee, TLR 24 October 2000), it was held that when a defendant was charged with assault with intent to resist arrest, it was irrelevant whether the defendant honestly believed that the arrest was lawful.
You should bear in mind that members of the public (as well as police officers) may take action, including reasonable force, to prevent a breach of the peace, which would not necessarily involve exercising the formal powers of arrest.
Top of page
Burden of Proof
The burden of proof remains with the prosecution when the issue of self-defence is raised. The prosecution must adduce sufficient evidence to satisfy a jury beyond reasonable doubt that the defendant was either:
not acting to defence himself/herself or another; or
not acting to defend property; or
not acting to prevent a crime or to apprehend an offender; or
if he was so acting, the force used was excessive.
(Archbold 19-43 to 19- 45)
Prosecutors should take special care to recognize, and ensure a sufficiency of evidence in, those cases where self-defence is likely to be an issue.
Top of page
Public Interest
Self-defence, being an absolute defence, is a matter of evidence and is not in itself a public interest consideration.
In many cases in which self-defence is raised, there will be no special public interest factors beyond those that fall to be considered in every case. However, in some cases, there will be public interest factors which arise only in cases involving self-defence or the prevention of crime. These may include:
The degree of excessive force. If the degree of force used is not very far beyond the threshold of what is reasonable, a prosecution may not be needed in the public interest.
The final consequences of the action taken. Where the degree of force used in self-defence or in the prevention of crime is assessed as being excessive, and results in death or serious injury, it will be only in very rare circumstances indeed that a prosecution will not be needed in the public interest. Minor or superficial injuries may be a factor weighing against prosecution.
The way in which the force was applied. This may be an important public interest factor, as well as being relevant to the reasonableness of the force used. If a dangerous weapon, such as firearm, was used by the accused this may tip the balance in favour of prosecution.
Premeditated violence. The extent to which the accused found himself unexpectedly confronted by a violent situation, as opposed to having planned and armed himself in the expectation of a violent situation.
Top of page
Use of Force Against Those Committing Crime
The public interest factors set out immediately above will be especially relevant where, as a matter of undisputed fact, the victim was, at the material time, involved in the commission of a separate offence. Common examples are burglary or theft from motor vehicles. In such cases, prosecutors should ensure that all the surrounding circumstances are taken into consideration in determining whether a prosecution is in the public interest.
Prosecutors should have particular regard to:
the nature of the offence being committed by the victim;
the degree of excessiveness of the force used by the accused;
the extent of the injuries, and the loss or damage, sustained by either or both parties to the incident;
whether the accused was making an honest albeit over zealous attempt to uphold the law rather than taking the law into his own hands for the purposes of revenge or retribution.
Top of page
Apprehension of Offenders
As to the apprehension of offenders there are two important but sometimes contrasting public interest points. On the one hand, the rule of law and the Queen's Peace must be maintained and violence discouraged. On the other hand, the involvement of citizens in the prevention and investigation of crime is to be encouraged where it is responsible and public spirited. The law provides a defence for those who act in extenuating circumstances. However, judicial comment has suggested that the courts should take a firm stand against illegitimate summary justice and vigilantism.
Prosecutors will need to balance these potentially conflicting public interest considerations very carefully.
Top of page
Procedure
Once a case has been identified by the police as one involving difficult issues of self-defence, the police should be encouraged to seek pre-charge advice from the CPS.
If such a case is brought to a prosecutor for advice, then the decision whether to prosecute or not must be approved by the relevant Unit Head.
Within the CPS, if it is felt that the case involves difficult issues of self-defence, the prevention of crime or the apprehension of offenders, and is likely to attract media attention, a report must be sent through line management to the CCP (Sector Director in London).
Where the case may be media sensitive, the area press officer should be informed. The area press officer should consider informing HQ press office.
Top of page
Useful References
Offences against the Person, incorporating the charging standard, elsewhere in this guidance
Homicide, elsewhere in this guidance
Householders and the Use of Force Against Intruders
Code for Crown Prosecutors elsewhere in this guidance
Palmer v R, [1971] A.C 814
Archbold 19-41
Section 3 Criminal Law Act 1967
Archbold 19-39
R v Williams (G) 78 Cr. App R 276
R. v Oatbridge, 94 Cr App R 367
Archbold 19-49
R v Clegg 1995 1 A.C. 482 HL
Archbold 19-41
R v Martin (Anthony) [2002] 1 Cr. App. R. 27
R v O'Grady 85 Cr App R 315
Archbold 15-26
R v Howell 73 Cr. App R. 31
Section 24 Police and Criminal Evidence Act 1984
Archbold 15-161 to 15-162
R v Lee, TLR 24 October 2000
Archbold 19-43 to 19-45
mnealtx 0
Thanks for the info, Scoop.
Mike
I love you, Shannon and Jim.
POPS 9708 , SCR 14706
I love you, Shannon and Jim.
POPS 9708 , SCR 14706
Scoop 0
No probs, you can see it really is quite vague and open. Basically you can do whatever you need to do to defend yourself as long as it is (cue keywords) REASONABLE & NECCESARY.
I'm sure otheres seen the JAPAN nmeonic. I know its difficult at the time thinking on your feet but consider if your actions are...
Justified
Authorised
Proportionate
Auditable
Neccesary
As previously stated impact factors may also affect your level of force...
Size of offender,
size of yourself,
number of offenders,
number of defendants,
mental state,
how tired you are,
how scared you felt,
weapons used or seen,
time involved,
feeling are in a position of disadvantage,
use of drugs or alcohol,
NVCs (body language).
Its really not black and white and ultimately if the CPS did consider a prosecution against you for excessive use of force it would be down to a jury to decide and historically, juries are more in favour of the honest hardworking man than the drunk attacker/burglar/car thief.
This might surprise people but I am actually in favour of responsible, regulated gun ownership amongst general population for self defence IF everyone receives suitable training and security/health checks however as a citizen and as a police officer I have never been in a situation where I have felt the need for a firearm BUT if that situation did arise I believe I should have the ability to defend myself. So I'm for controlled ownership as a privelage for those who are willing to be responsible and undertake neccesary training and evaluations but not for any dickhead to have one because its their 'GODDAMN RIGHT!'
I'm sure otheres seen the JAPAN nmeonic. I know its difficult at the time thinking on your feet but consider if your actions are...
Justified
Authorised
Proportionate
Auditable
Neccesary
As previously stated impact factors may also affect your level of force...
Size of offender,
size of yourself,
number of offenders,
number of defendants,
mental state,
how tired you are,
how scared you felt,
weapons used or seen,
time involved,
feeling are in a position of disadvantage,
use of drugs or alcohol,
NVCs (body language).
Its really not black and white and ultimately if the CPS did consider a prosecution against you for excessive use of force it would be down to a jury to decide and historically, juries are more in favour of the honest hardworking man than the drunk attacker/burglar/car thief.
This might surprise people but I am actually in favour of responsible, regulated gun ownership amongst general population for self defence IF everyone receives suitable training and security/health checks however as a citizen and as a police officer I have never been in a situation where I have felt the need for a firearm BUT if that situation did arise I believe I should have the ability to defend myself. So I'm for controlled ownership as a privelage for those who are willing to be responsible and undertake neccesary training and evaluations but not for any dickhead to have one because its their 'GODDAMN RIGHT!'
Quote
No probs, you can see it really is quite vague and open. Basically you can do whatever you need to do to defend yourself as long as it is (cue keywords) REASONABLE & NECCESARY.
I was involved in one of these debates with mr2mk1g. The conclusion was that most of the British population does not know the law in these matters. Thus, if you defend yourself and it's bought before a jury, there's a real risk there for the defender.
We are all engines of karma
Many people NEED to see flaws in their reasoning. However, instead they ignore what the need to see and see what they want to see that fits their preconcieved view of how things work.
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