Criminal and civil self-defence

Some comments on the difference between self-defence in criminal and civil law are worth noting here. They occur in a civil action in battery: Ashley v Chief Constable of Sussex Police [2008] UKHL 25 (23 April 2008).

The relevant issue was whether in civil law it is necessary that a belief in the need to use any force in self-defence has to be a reasonable belief. Broadly, in criminal law reasonableness on this point is not necessary, it being sufficient that the belief was honestly held. In criminal law (again, generally) reasonableness does have a role in self-defence, by limiting the amount of force permitted to reasonable force. The move to subjectivity on the element of belief came, as Lord Neuberger notes at para 88, as a result of the work of the Criminal Law Revision Committee, and, while having some persuasive value outside criminal law, is not necessarily applicable.

Lord Bingham observer, para 3, that the ends of justice differ in criminal trials and civil actions. This was elaborated by Lord Scott at 17 – 18:

“… One of the main functions of the criminal law is to identify, and provide punitive sanctions for, behaviour that is categorised as criminal because it is damaging to the good order of society. It is fundamental to criminal law and procedure that everyone charged with criminal behaviour should be presumed innocent until proven guilty and that, as a general rule, no one should be punished for a crime that he or she did not intend to commit or be punished for the consequences of an honest mistake. There are of course exceptions to these principles but they explain, in my opinion, why a person who honestly believes that he is in danger of an imminent deadly attack and responds violently in order to protect himself from that attack should be able to plead self-defence as an answer to a criminal charge of assault, or indeed murder, whether or not he had been mistaken in his belief and whether or not his mistake had been, objectively speaking, a reasonable one for him to have made. As has often been observed, however, the greater the unreasonableness of the belief the more unlikely it may be that the belief was honestly held.

“[18] The function of the civil law of tort is different. Its main function is to identify and protect the rights that every person is entitled to assert against, and require to be respected by, others. The rights of one person, however, often run counter to the rights of others and the civil law, in particular the law of tort, must then strike a balance between the conflicting rights. Thus, for instance, the right of freedom of expression may conflict with the right of others not to be defamed. The rules and principles of the tort of defamation must strike the balance. The right not to be physically harmed by the actions of another may conflict with the rights of other people to engage in activities involving the possibility of accidentally causing harm. The balance between these conflicting rights must be struck by the rules and principles of the tort of negligence. As to assault and battery and self-defence, every person has the right in principle not to be subjected to physical harm by the intentional actions of another person. But every person has the right also to protect himself by using reasonable force to repel an attack or to prevent an imminent attack. The rules and principles defining what does constitute legitimate self-defence must strike the balance between these conflicting rights. The balance struck is serving a quite different purpose from that served by the criminal law when answering the question whether the infliction of physical injury on another in consequence of a mistaken belief by the assailant of a need for self-defence should be categorised as a criminal offence and attract penal sanctions. To hold, in a civil case, that a mistaken and unreasonably held belief by A that he was about to be attacked by B justified a pre-emptive attack in believed self-defence by A on B would, in my opinion, constitute a wholly unacceptable striking of the balance. It is one thing to say that if A’s mistaken belief was honestly held he should not be punished by the criminal law. It would be quite another to say that A’s unreasonably held mistaken belief would be sufficient to justify the law in setting aside B’s right not to be subjected to physical violence by A. I would have no hesitation whatever in holding that for civil law purposes an excuse of self-defence based on non existent facts that are honestly but unreasonably believed to exist must fail….”

There was no disagreement about this. Lord Carswell added, at 76:

“…The criminal law has moved in recent years in the direction of emphasising individual responsibility. In pursuance of this trend it has been held in different areas of the criminal law that it is the subjective personal knowledge or intention of the accused person which has to be established: see, e.g., R v Morgan [1976] AC 182, R v Kimber [1983] 1 WLR 1118. So in the case of self-defence it has been held that that if a defendant is labouring under an honest mistake, even if it is regarded as unreasonable, the defence is open to him: R v Williams (Gladstone) [1987] 3 All ER 411. The function of the civil law is quite distinct. It is to provide a framework for compensation for wrongs which holds the balance fairly between the conflicting rights and interests of different people. I agree that that aim is best met by holding that for the defence of self-defence to succeed in civil law the defendant must establish that he honestly believed in the existence of facts which might afford him that defence and that that belief was based upon reasonable grounds. …”

Another aspect of this case is the decision whether to stay the civil action. The details need not be considered here, but it was a policy decision, and as such it is notable that, although there was some disagreement over this issue, both sides found support in dicta of Cooke P (as he then was, subsequently Lord Cooke) in Re Chase [1989] 1 NZLR 325 (CA).

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