Ed: Continued from Part I published here
What is a Reasonable Law of Self-defence?
What then is a reasonable law of self-defence? The great bugbear at present is proportionality of response. In drafting a new law, I would start from the premise that an attacker forfeits his right to the protection of the law, that he literally takes his life into his hands.
If the attacker is seriously wounded or even killed, that should be seen simply as a reasonable consequence of the attack. The test of ‘reasonable force’ would become defunct. All that would have to be investigated after an assault was whether there was evidence that suggested that the claimed attacker was in fact not the attacker.
Provided such evidence did not exist, the person assaulted would have no case to answer. I would also remove from an attacker who suffers injury any opportunity to take civil action against his victim.
The great danger with such a law is that murder could take place under the guise of self-defence. I would make two responses to that. Firstly, murder is very rare in Britain: approximately 800 murders take place in England and Wales each year. The majority are ‘domestics’, that is, the murder of a sexual partner. Murder for purely criminal reasons, for example, robbery, is rare.
Murder has also been rare historically. The Canadian criminologist Elliott Leyton published a study of murder in England a few years ago entitled Men of Blood. He found that throughout history murder in England had been abnormally low, so low as to be inexplicable except in terms of the social norms of the society. In other words, there are good sociological reasons to believe that few murders would take place under such an amended law.
My second point is that a claim of self-defence would still have to conform to the facts of the death. It would be no use, for example, claiming that a fight had taken place at / on the morning of May the 3rd, if the forensic evidence dearly showed that the body had been dead before that time.
I would introduce one further criterion to determine whether self-defence was proved, namely was the threat offered by the assailant credible. For example, most people have encountered the mad old lady who suddenly for no apparent reason sets about people in the street with a newspaper or some other equally inoffensive instrument. Clearly, such a person would not present a credible threat to anyone other than another old lady or a young child. It would be ridiculous for a fit, younger adult to be able to claim self-defence against such an assailant. If on the other hand that same old lady entered someone’s house uninvited in the middle of the night and was struck down and killed by the householder in the dark under the apprehension that she was a burglar, that would be self-defence.
A law on the lines that I have suggested would not be perfect. There would still be problems about establishing who was the assailant and who the victim. But that problem already exists under the present law. What such a law would definitely do is prevent the prosecution of householders such as Tony Martin who surprise those within their homes.
My proposal would also accommodate perhaps the most contentious part of self-defence, namely, pre-emptive action. An assault that results in physical action against someone is clear-cut. But the law does not say that to commit assault physical violence has to be used. A person may believe themselves to be in imminent danger of being assaulted, someone may be making threatening statements or carrying a weapon or coming rapidly towards someone else. In such circumstances, the law gives the person who fears he or she is about to be assaulted the right to defend themselves before they are assaulted.
However, a person who engaged in such behaviour as things presently stand would have the greatest difficulty in sustaining such a claim if reliable witnesses were not present at the time. And if such witnesses were present, a prosecution might well result on the grounds that the presence of witnesses made an assault unlikely or one that could have been resisted. It is a ticklish problem to say the least. But one could use one of the main criteria for determining whether a physical assault had taken place to decide whether an assault was likely to take place, namely the credibility of the witnesses.
In short, all my law would require someone to do would be to show that they had been assaulted by an assailant in circumstances where a credible threat existed. If that was proved, no prosecution would take place. There might be some rough justice in that, but less than there is at the moment. Moreover, what rough justice there was would most probably be at the expense of the wrongdoer rather than the law-abiding citizen.