When can you use self-defence as a defence in criminal law?

What is the law on self-defence?

The nature of self-defence was set out by the court in Palmer [1971] AC 814 and approved in McInnes, 55 Cr App R 551.  The court found,

It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do, but only do, what is reasonably necessary.

The definition is also found in section 3 of the Criminal Law Act 1967:

A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.

The two key points to understand, then, about self-defence are that:

1. You must be acting to prevent a crime e.g. to stop yourself or another being assaulted.
2. The force you use must be considered ‘reasonable’.

When is self-defence legally allowed?

There are four basic situations where you may be legally entitled to use force against another person:

1. Self-defence – protecting yourself from the potential for harm by another.
2. Defence of another – protecting someone else from the potential for harm by another.
3. Prevention of crime – preventing someone from carrying out a crime e.g. burglary.
4. Lawful arrest and apprehension of offenders – where you have to use force to restrain or otherwise facilitate an arrest of apprehension of an offender.

What is ‘reasonable force’ in self-defence?

There are two key points:

1. Was the use of force necessary in the circumstances? (i.e. was there a need for any force at all?)
2. Was the force used reasonable in the circumstances?

Exactly what is considered ‘reasonable force’ will depend on the circumstances.  Importantly, it is to be decided by reference to the circumstances as the defendant believed them to be (section 76, Criminal Justice and Immigration Act 2008).

In other words, the level of force you used must have been no more than what was needed to deal with a threat that you honestly and reasonably believed existed at the time of the alleged offence.  The reasonableness or otherwise of that belief is critical.

It is not enough to say, for example, when justifying the use of force, that you believed someone was intending to kill you. You must show that it was reasonable under the circumstances for you to have believed that that was their intent.  They may, for example, have used a weapon or threatened to kill you.

It is important to note that you do not need to show that this was their intent, merely that you reasonably believed it was their intent.

Even if you were mistaken in your belief about the level of threat posed, the key point is whether or not the mistake was a reasonable one to have made.  A key point is whether the belief you held was an honest one. Obviously, the more unreasonable the belief, the less likely it is that the court will accept it was honestly held.

What is ‘excessive self-defence’?

Excessive self-defence is where force was used beyond what was reasonable under the circumstances.   If you are believed to have used excessive self-defence, the Crown Prosecution Service (CPS) may decide to prosecute you. This may depend on how far you exceeded the use of reasonable force.

If you are prosecuted for an offence related to the excessive use of force in self-defence, the fact you were trying to defendi yourself can still be critical to your defence. It might, for example, significantly reduce any penalties imposed on conviction

Do you have to be attacked first to claim self-defence?

Many people think that they must be attacked first in order to claim self-defence.  This is not always the case. Depending on the circumstances, you may be justified in making a ‘pre-emptive strike’ to prevent a crime occurring or to protect yourself.  Crucially, there is no rule in law to say that a person must wait to be struck first before they may defend themselves, (see Deana, 2 Cr App R 75).

Can you claim self-defence if you failed to retreat?

Failure to retreat when attacked and when it is possible and safe to do so, is not conclusive evidence that a person was not acting in self-defence.

Instead, failure to retreat is simply a factor to be taken into account when deciding whether the degree of force was reasonable in the circumstances (section 76(6) Criminal Justice and Immigration Act 2008).  There is no requirement for a person to show that they do not want to engage in physical violence by walking away first (R v Bird 81 Cr App R 110).

Can you claim self-defence if you went looking for the alleged victim?

The fact that you went looking for the alleged victim, for example to exact revenge for an earlier attack or other action, does not necessarily rule out the use of self-defence if you were then attacked.  In Rashford [2005] EWCA Crim 3377 it was held that:

The mere fact that a defendant went somewhere to exact revenge from the victim did not of itself rule out the possibility that in any violence that ensued, self-defence was necessarily unavailable as a defence.

However, an aggressor, cannot rely upon self-defence to render his aggression lawful. During a fight, blows will be struck, but an aggressor will also defend themselves by warding off blows from an opponent.  Anyone who starts a fight cannot rely on defensive actions taken within that fight to escape conviction.

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