The right to Self Defence

Canacourse

I have an up to date self defense book which claims that it legal to attack an agressor if you "think" you are about to be attacked or you feel threatened. The book was published in the UK.

Assuming the author was correct does the same law apply over here?

Also, What would be the legal position in general terms if I was attacked and fought back and the attacker died directly either from a blow to the head or even indirectly after hitting his head on a kerb for example?

Thanks...

username123

Canacourse wrote: »

Also, What would be the legal position in general terms if I was attacked and fought back and the attacker died directly either from a blow to the head or even indirectly after hitting his head on a kerb for example?

Thanks...

You'd be done for manslaughter. It happened I guy I knew years ago, fight broke out in a bar, he got punched in the face, stood up and punched the guy who had hit him first, yer man went over backwards, and severed an artery in his neck on broken glass when he landed, and died. The guy I knew used self defence as his defence in court, was sent to portlaoise prison for a few years for manslaughter.

In the case of using a skill set such as martial arts to defend yourself you may even face a heavier sentence.

mark.leonard

There is no provision for "pre-emtive" self defence in the legal system in this country AFAIK, perhaps somebody in the Guards or practicing Law could correct me?

If you can prove that you used reasonable force to defend yourself then criminal charges wouldn't be upheld, but if someone dies you have a serious uphill battle doing that.

There was a case a couple years ago in Donegal where some guys went after a guy who had battered one of their younger brothers. The older brother hit the guy and knocked him out, his head hit the kerb and he died. They were charged with Manslaughter/accessory to and are in prison.

Canacourse

username123 wrote: »

You'd be done for manslaughter. It happened I guy I knew years ago, fight broke out in a bar, he got punched in the face, stood up and punched the guy who had hit him first, yer man went over backwards, and severed an artery in his neck on broken glass when he landed, and died. The guy I knew used self defence as his defence in court, was sent to portlaoise prison for a few years for manslaughter.

I don't know the details of that case but that sounds pretty unfair to Me. What was he meant to do, allow the attacker to beat the crap out of him and do nothing?

username123

[quote=Canacourse;56195217I don't know the details of that case but that sounds pretty unfair to Me. What was he meant to do, allow the attacker to beat the crap out of him and do nothing?[/quote]

According to the judge he was supposed to leave and not fight back, after the first punch was thrown the guy who threw it turned away, the guy I knew (didnt know him well, through a friend), stood up, put his hand on yer mans shoulder, yer man turned round and bam in the face. Judge said guy I knew had chance to walk away and press charges himself but he chose to take the law into his own hands and serve his own justice. Whole bar witnessed it and said he did have chance to walk away.

Baggio...

I guess it depends on the context to. A bar fight is a ridiculous scenario anyway, and you should always leave at the first sign of trouble. The will law always questions could you have left in the first place?

Now, if it was in a dark alley way – with no escape, and you were attacked by a career criminal that would be a different story. Say he hit his head on the kerb and died, you'd get away with it (I presume - I'm no law man). And assuming you used a "level of force to level of threat parallel". By that I mean if you manage to knock the guy down then just run away, you don't keep kicking him as punishment.

But the best self-protection is: just don't be there... (if you can)

username123

Baggio... wrote: »

I guess it depends on the context to. A bar fight is a ridiculous scenario anyway, and you should always leave at the first sign of trouble. The will law always questions could you have left in the first place?

Now, if it was in a dark alley way – with no escape, and you were attacked by a career criminal that would be a different story. Say he hit his head on the kerb and died, you'd get away with it (I presume - I'm no law man). And assuming you used a "level of force to level of threat parallel". By that I mean if you manage to knock the guy down then just run away, you don't keep kicking him as punishment.

But the best self-protection is: just don't be there... (if you can)

Yes I agree, in the particular case I outlined it was a drunken brawl but the guy I knew could have left after he had been hit once. Thats a completely different scenario to some psycho who keeps coming at you. I would still think you would be charged with manslaughter in such a case, but perhaps convicted of a lower crime and/or no custodial sentence? Im not a law person - just thinking aloud.

Baggio...

A lot of it will depend on what 3rd party witnesses see. If you're insulted in a bar for example and you “rise” to the threat by hurling abuse back - that does not look too good in court, as it is effectively throwing fat on the fire. It shows you did nothing to try to avoid trouble in the first place.

Where as, if you have your hands are up in a passive way, a fence, and you say stuff like, “look man, I don't want any hassle, I'll leave now...”, etc. That will look a lot better in court when the witnesses say, he tried to avoid the trouble and leave.

Also, for CC TV, if your hands are up in that universal “passive stance” that will be in your favour to. As it will appear that you wanted no part of it.

Baggio...

username123 wrote: »

Thats a completely different scenario to some psycho who keeps coming at you. I would still think you would be charged with manslaughter in such a case, but perhaps convicted of a lower crime and/or no custodial sentence? Im not a law person - just thinking aloud.

It's true... you could be convicted alright. Just watch the news these days.:(

So avoid and escape at all costs. If not, just to enough damage so you can run away. If something accidentally really bad happens.... I'd prefer a few years in prison than being put in the ground.

Raze_them_all

The problem with the reasonable force thing, there's nothing that defines it, It's up to the judge on the day to decide if it was reasonable or not, which i have a problem with, how can someone decide what was resonable months down the line?

username123

Baggio - you make a very valid point about the universal passive stance - witnesses or cctv will then prove you didnt want to get involved.

I would also prefer prison than death.

Im sure there are many permutations of it, if someone attacled you with a deadly weapon and you accidently killed them, no chance of escape for you, cornered and faced with a gun - I think a judge would have to rule you were wrong to take a life, but I cant imagine you would be sent down for many years.

Baggio...

Raze_them_all wrote: »

It's up to the judge on the day to decide if it was reasonable or not, which i have a problem with, how can someone decide what was resonable months down the line?

Very true... Not to harp on about G. Thompson, but he refers to the law as "the second enemy", which I always found very interesting.

Also, criminals don't tend to follow the whole "reasonable force" issue either.

Charlie3dan

As Raze said the key thing is reasonable force.
Whether the attacker dies directly or indirectly as a result of your actions, you are held responsible. As the lads suggested above, the circumstances surrounding the attack will be taken into account, but you are still legally responsible regardless of whether the person throws a drunken punch in a bar or a serious attack in a dark alley.

Again as Raze said, reasonable force is a subjective term, but for example, if a guy pushes you and you throw a punch back, that’s excessive force. (In the eyes of the law). Even if the guy were to have a knife, and you managed to disarm him, that doesn’t mean you can succeed where he failed and plunge the knife into him. It all comes down to reasonable force in the given situation.

If you are teaching self defence, it’s got to be practical whether the law is on your side or not but I think it’s important to address that the law may not look kindly on (let’s say) digging your thumb into someone’s eye socket. Most people think if you disarm someone with a knife it’s perfectly ok to use it to stab them and succeed where they failed. In reality you can’t be overly concerned with reasonable force but it’s something to be aware of. In any case, your main concern should be with defending yourself, not hurting the other guy, but I think we’d all take a cell over a body bag.

Raze_them_all

even if someone has a weapon, lets say a knifeand u grab something like a pool cue do distance yourself and try defend yourself, it's considered unreasonable to hit the person with the aim to knocking them out, your supposed to aim for the arm holding the weapon. I would glady hit someone in the head with a pool cue to defend myself from being stabbed and risk the he moved arguement rather than finding out how deep the knife would go inside me. I don't know bout you guys but if someone got hit in the arm when they had a knife it'd only encourage them further to use it IMO

mark.leonard

Raze_them_all wrote: »

The problem with the reasonable force thing, there's nothing that defines it, It's up to the judge on the day to decide if it was reasonable or not, which i have a problem with, how can someone decide what was resonable months down the line?

By looking at the available evidence? Much the same way the courts decide anything.

Probably the best solution is to get Judges on Giant Motorcycles give them big guns and call them something colorful like "Lawmaker" or something like that, give the judges more powers than the police in addition to their existing sentencing and let them hold trials on the spot. Seemed to work 8 years ago, but I don't think the uptake has been great outside Mega City 1

Boru.

Actually, it's quite well defined what is and is not reasonable. In fact I teach it in detail in all my courses and even have a small book published on the subject called "Use of Force, the law and self defence". (Incidentally if you would like a copy free of charge, pm me your email and I'll forward it on to you). The legality of self defense is a vital component of any self defence course and martial art, yet it is rarely if ever taught or explained in detail. We even have a little diagram for it - one that has since been adopted by major police and law enforcement organisations aound the world, including recognition of it in Ireland.

mikemac

Would the fact that you have skill and training (like most posters here) make a difference?

For instance, a weak and untrained person might throw a lucky punch and cause the aggressor to fall and hit their head off a kerb.
But if a person with years of experience in sport and martial arts did the same thing, would the judge think they had more knowledge and knew their own power.

So the person trained in martial arts might get a stiffer sentence?

Power Chords

There's something that strikes me often in these discussions on this board, it's the idea that you get offside, or leave the bar or try to run away if possible.
As competitive mma fighters or martialists how likely is that you would actually be able to walk away from such a sitution?
i.e, some gimp smacks you in a bar (doesn't like especially like he's gona hit you again) in front of your mates, your girlfriend, her mates and every other random bystander, I'm not sure I'd easily be able to walk away. Pride's a f**ker like that, not to mention the adrenaline and training for reaction. Of course it could just be me but I doubt it.

mark.leonard

I demand someone acknowledges my excellent 200AD joke at the end of the first page.

username123

Power Chords wrote: »

There's something that strikes me often in these discussions on this board, it's the idea that you get offside, or leave the bar or try to run away if possible.
As competitive mma fighters or martialists how likely is that you would actually be able to walk away from such a sitution?
i.e, some gimp smacks you in a bar (doesn't like especially like he's gona hit you again) in front of your mates, your girlfriend, her mates and every other random bystander, I'm not sure I'd easily be able to walk away. Pride's a f**ker like that, not to mention the adrenaline and training for reaction. Of course it could just be me but I doubt it.

Would your training and discipline not make you more likely to walk away, you dont have anything to prove?

Charlie3dan

micmclo wrote: »

So the person trained in martial arts might get a stiffer sentence?

It's up to the solicitor to present this information. If they managed to find out you were an MA instructor they could well use some information against you such as conditioning your knuckles to be able to hit harder (for example). Something like that could very well influence a judge.

Having the skill in itself is not enough to argue a stiffer sentence. A martial artist might also have faster reaction times but it couldn't really be argued that he/she could control whether or not to take advantage of this attribute. The same should be true of MA skills, they are part of you, not something you "have" like a secret weapon or something.

hardCopy

mark.leonard wrote: »

I demand someone acknowledges my excellent 200AD joke at the end of the first page.

Duly acknowledged. For the record, it ceased to be funny once you explained it :pac:

Raze_them_all

mark.leonard wrote: »

I demand someone acknowledges my excellent 200AD joke at the end of the first page.

RedXIV

username123 wrote: »

Would your training and discipline not make you more likely to walk away, you dont have anything to prove?

+1, i've walked out of a pub before after getting hit. More worried that the people i was with were going to get hurt rather than me get arrested or a lack of pride. Especially my gf at the time who didn't take it well at all :rolleyes:

Charlie3dan

username123 wrote: »

Would your training and discipline not make you more likely to walk away, you dont have anything to prove?

Very tough question, I can see where power chords is coming from.
Guys that get black belts, or win tournaments, or go to internationals representing ireland are gonna be well known in their area and have probably been in the local paper, won local sports awards etc etc.
Not so easy to just walk away, but I think this comes down to the individual.

mark.leonard

In Bigger cities scumbags look for weaker prey, aside form staying away from dives where trouble happens, and mates who cause trouble. Having the aura of being a predator reduces the number of attacks you are likley to suffer greatly.

phoenix-MT

what about defending other people? I nearly got charged with GBH when i broke a lads jaw...because he had a girl pinned up against the wall with a knife to her throat. Now, i was an instructor at that point and this all came to light in court. I would be one of the first to walk away if some drunken idiot was "kicking off" but in this situation i couldnt. It wasnt going to well for me in court, even though i had witnesses and the victim, they were pretty convinced that what i did- it was excessive force. I am not being funny but if someone comes at me with a knife, i am not going to keep hitting them-starting with a slap gradually getting harder untill they stop! i want to immobilize them and reduce that threat asap then get away! Anyway as far as the case went, some CCTV managed to appear and some good local high up coppers acted as character references which helped me out.

Power Chords

Not having anything to prove is all well and good in a stare down, when you get to say 'hey man, this'll get ya no where', fairly sure I'm happy to laugh and walk away (and have done) but after taking a punch, especially one of those nothing attempts at a haymaker from some asshole who tried coke for the first time and thinks he can take on the world, in your local maybe, where not that you're known as a martial artist but just known as a random bloke.
Apologies for taking this a bit off topic but it was just something I've noticed and I find it hard to believe that many lads would walk away and be forced to leave a pub with all of their mates for the convienence of an attacker who any one of us here could probably sort quickly and effectively without much hassle.
The potential of an all out brawl that puts the other half in the firing line is something completely different all together, every sitution should be considered on its own merits.

Clive

mark.leonard wrote: »

Having the aura of being a predator reduces the number of attacks you are likley to suffer greatly.

Sokoudjou takes Mark's advice a little too literally...

hardCopy

Clive wrote: »

Sokoudjou takes Mark's advice a little too literally...

How'd that work out? :pac:

challengemaster

Definatly hit the nail on the head with reasonable force & first try to calm/prevent it. However why is it that the law sides in favour of the criminal here? I don't exactly want the extreme opposite (eg. Texas) Shoot first, ask questions later, but the law being on the side of people trying to defend themselfs would be nice.

BysonArdvark

According to the judge he was supposed to leave and not fight back, after the first punch was thrown the guy who threw it turned away, the guy I knew (didnt know him well, through a friend), stood up, put his hand on yer mans shoulder, yer man turned round and bam in the face. Judge said guy I knew had chance to walk away and press charges himself but he chose to take the law into his own hands and serve his own justice. Whole bar witnessed it and said he did have chance to walk away.

I'm sorry I thought this was America... isn't this America? What I can't stand up for myself now? Sorry I thought this was America.

Canacourse

I posted a reference to this thread in the Legal Dicussion forum. Got an intersting reply from impr0v.


"Assault in this country is not only the application of force but also, as defined by section 2 of the non-fatal offences against the person act:

Quote:
2.—(1) A person shall be guilty of the offence of assault who, without lawful excuse, intentionally or recklessly—

( a ) directly or indirectly applies force to or causes an impact on the body of another, or

( b ) causes another to believe on reasonable grounds that he or she is likely immediately to be subjected to any such force or impact,

without the consent of the other.


Therefore, if you reasonably suspect that you were going to be subjected to force, and it's an honestly held belief, it is lawful to strike first in self defence.

Any force you do use in such a scenario must be reasonable. To answer the question posed in your original post, i.e. if you killed someone in self-defence, would it be murder; again, the force you employ must be reasonable in the circumstances. The test for reasonableness in the circumstances is subjective, if I recall correctly, and the defence of necessity would apply if you were prosecuted for murder. The court will first assess if some force was objectively necessary (would a reasonable man have believed it was necessary in the circumstances) and, if it was, was the force actually employed reasonable. If you used fatal force and knew it to be unreasonable, you would be guilty of homicide. If you used fatal force and it was unreasonable, but you honestly thought it was reasonable, you'd be guilty of manslaughter.

It is possible that a person trained in martial arts will be expected to exercise a greater degree of restraint in the face of a possible threat, given that he or she is capable of defending themselves, and would also be expected to apply any necessary force more carefully, given that he or she would possibly have the skills to seriously injure someone if they so desired.

It used to be a requirement that, faced with a threat you retreated as far as possible, but it's no longer the case. However, the degree to which one retreated is still a factor that can be considered by the court.

Basically, avoid confrontation if you can. If you can't, and you honestly believe you going to be attacked in seconds, then use as little force as you can to protect yourself from that threat.

The statutory provisions in relation to justifiable use of force are set out in section 18 of the above quoted act and are too long to quote here."

mark.leonard

Best of luck proving that though - "I had to hit him your honor, I believed he was going ot hit me" is flimsy at best, good to know there is some provision for preemption all the same.

Canacourse

1. Try to get away.
2. Tell the attacker you don't want a fight - loudly so witnesses hear it.
3. If its still going ahead, Wait for the attack and react.

I think this would be the safest approach from a legal of point view.

mark.leonard

Canacourse wrote: »

1. Try to get away.
2. Tell the attacker you don't want a fight - loudly so witnesses hear it.
3. If its still going ahead, Wait for the attack and react.

I think this would be the safest approach from a legal of point view.

I think you might be right there, though as long as you don't let "Pride fu** with you" to quote Pulp Fiction walking away is very often well doable.

In my door days I always waited until I was assaulted [b[on camera[/b] before I would think about hitting back, and even then it would usually be a restraint of some form I'd apply.

Nothingcompares

Just to repeat what I've said on similar threads. If I was in a position where I was forced to defend myself physically the potential criminality of my behaviour wouldn't be my first concern. Of course, it would be beneficial down the line to be as savvy as possible. Having said that, I don't see how any circumstances would arise in which I'd be holding a metal bar or some tool suited for GBH so I don't think I'd have to worry about manslaughter.

mark.leonard

Nothingcompares wrote: »

Just to repeat what I've said on similar threads. If I was in a position where I was forced to defend myself physically the potential criminality of my behaviour wouldn't be my first concern. Of course, it would be beneficial down the line to be as savvy as possible. Having said that, I don't see how any circumstances would arise in which I'd be holding a metal bar or some tool suited for GBH so I don't think I'd have to worry about manslaughter.

You could throw a right straight, knock the guy out and he could hit his head and die.....

Nothingcompares

mark.leonard wrote: »

You could throw a right straight, knock the guy out and he could hit his head and die.....

I could also knock a guy down in my car and kill him. I don't expect to kill someone every time I get in the driving seat, I don't expect to kill someone when I hit them.

Baggio...

Nothingcompares wrote: »

I could also knock a guy down in my car and kill him. I don't expect to kill someone every time I get in the driving seat, I don't expect to kill someone when I hit them.

Great point... any intention is just to do enough to facilitate my escape (not to damage the guy per se). While it is technically possible to kill someone with one shot. It's very very unlikely, unless you're going to put the boot in while the guy is on the floor, or use a weapon. Which of course is not the case - since we are law abiding citizens.

Another aspect if you constantly think, and worry about all the "what if's" - you'll be really slowing yourself down when the time comes, you might even freeze up entirely.

Get your head right first, and the rest will follow.

BysonArdvark

I could also knock a guy down in my car and kill him. I don't expect to kill someone every time I get in the driving seat, I don't expect to kill someone when I hit them.

Just to give perspective on this, just think how many people get punched in the head every day in Ireland. Somewhere in the thousands or tens of thousands I'd imagine?

And then think how often you hear about someone being killed by a punch to the head... once every four years or so.

They're some mighty fine odds if you ask me. You're more likely to kill him by giving him a bite of your chicken burger than you are from punching him in the head.

Which of course is not the case - since we are law abiding citizens.

Not me, I had friends who were homosexual before 1990 in this country and I didn't turn them in to the Garda. I can give countless examples of stupid/ridiculous/immoral/wrong laws that tear apart the whole idea of being law-abiding just for the sake of being law-abiding.

I suppose it all boils down to whether you'll just let someone hit you and let them get away with it. The law is getting more and more "f*ggot" every day. Two hundred years ago you'd probably be given a medal if you bet the sh*t out of someone trying to burgle your house. Today you'd be up in court for restraining a man trying to rape a child.

If I killed someone who was burgling my house, I'd dispose of the body and be done with it, forget it ever happened. If you call the Garda to your house where the burglar is lying on your sitting room floor with a knife in his chest, then really I just think you're a fool. In a lot of cases the system is against you, so you just have to think about the seventy or so years you plan on spending on this planet -- are you gonna spend them in a jail?

As regards having a fight in public and the other guy gets seriously hurt... well if there were no cameras and nobody knew me then I'd leg it. If I was well known and there was a camera on me, the I'd act like a wimp all traumatised and all, crying saying I was terrified, fake a panic attack and ask someone to hold my hand. Then when it comes to court I'd talk with a stammer, tell them how I'm having panic attacks and tell them my life has been irreparably damaged from the attack. I know I sound quite perverse in saying that, but really it's exactly what I'd do. I'm not going to jail just because some scumbag decided to headbutt me so he'd look mad in front of his scumbag friends.

Judges and courts aren't human any more, you can't plead your case as a nice decent person and expect to be treated as a nice decent person. You have to manipulate the courts if you've any chance of living a normal life. If I really thought I'd no chance of winning a case, I'd leg it home, grab my passport and head to the airport. First flight to Thailand please.

mark.leonard

mark.leonard wrote: »

You could throw a right straight, knock the guy out and he could hit his head and die.....

You stated that you wouldn't be worried about manslaughter, I just mentioned it is a possibility. This all goes back to staying out of physical confrontations, and it is possible.

Dragan

mark.leonard wrote: »

You stated that you wouldn't be worried about manslaughter, I just mentioned it is a possibility. This all goes back to staying out of physical confrontations, and it is possible.

Agreed.

Physical confrontations i was in up to the age of 19, countless.

Physical confrontations i was in between 20 and 22 - very small.

Since the age of 22? none.

It's called lifestyle and attitude changes.

( not including door/security work of course )

mark.leonard

Dragan wrote: »

Agreed.

Physical confrontations i was in up to the age of 19, countless.

Physical confrontations i was in between 20 and 22 - very small.

Since the age of 22? none.

It's called lifestyle and attitude changes.

( not including door/security work of course )

Yeah, I was leaving Doorwork out of this as well as in that case its your job to manage possibly violent encounters.

Baggio...

Dragan wrote: »

Since the age of 22? none.It's called lifestyle and attitude changes.

Same here...

It's the last thing I want to do these days is get in a scrap with some scumbag.

ColinJennings

I'm a black belt in Taekwon-Do and am a practicing barrister, having done my college dissertation on martial artial artists and the law of self defence, I feel somewhat qualified to answer, some of the questions posed.

Self Defence
The law on self defence in contained within Section 18 of the Non-Fatal Offences Against the Person Act, 1997. It states:

(1) The use of force by a person for any of the following purposes, if only such as is reasonable in the circumstances as he or she believes them to be, does not constitute an offence -

(a) to protect himself or herself or a member of the family of that person or another from injury, assault or detention caused by a criminal act; or
(b) to protect himself or herself or (with the authority of that other) another from trespass to the person; or
(c) to protect his or her property from appropriation, destruction or damage caused by a criminal act or from trespass or infringement; or
(d) to protect property belonging to another from appropriation, destruction or damage caused by a criminal act or (with the authority of that other) from trespass or infringement; or
(e) to prevent crime or breach of the peace.

So what does that mean?
The lawful use of force is governed by the Non-Fatal Offences Against the Person Act 1997, as set out above, which permits the use of force by a person only such as is reasonable in the circumstance as he or she believes them to be.

This creates an unusual two-part test, where the necessity to use force is a subjective test, ie: if you can proove you are scared regardless of how other people might react in the same situation you can use force on them, however the reasonableness of the force used is an objective test. So the first question is what is objectively reasonable apropos force?

Reasonable Force
Reasonableness is an objective test, as the standard of reasonableness is decided as a matter of fact by the jury. There is no one test and varying amounts of force and various discharges of weapons have been found to be reasonable in one case and excessive in another. Unfortunately this is the scary area for a martial artist in particular, as a good barrister will convince the jury that either you could pull your punch as in non-contact sparring or that you knew how powerful you were and could have chosen to use only 70% of your power.

While you can gague your power to some extent, I don't believe any martial artist can:

a) Know that the first punch will also be the last,
b) Gague precicely how much force is needed to make the first punch the last punch and
c) Apply precicely that amount of force,

I don't think anyone here believes any of that, but a jury might hear black belt and think Bruce Lee movies.

"Force", as mentioned earlier, is defined in sections 18 and 19 of the Non-Fatal Offences Against the Person Act 1997 as the physical impact, threatened physical impact or detention without the use of force to both the person and the property of that person. This was confirmed in the New Zealand case of Terewi where threatened assault of police officers was allowed as otherwise the law would allow you to hit a police officer in self defence, but no threaten to hit said police officer. That also allows for pre emptive strikes.

Opportunity to retreat
In Ireland you must generally avail of an opportunity to retreat if you wish to rely on self-defence. It has become an evidential issue as if you immediately resort to violence without seeking alternative courses of action, it may be inferred that you were acting from some improper motive such as revenge in deciding to strike first. The problem is that one may see and take an opportunity for a pre-emptive attack in order to minimise the chance of an encounter. It was even suggested to me that for a martial artist who knows and understands the routine of attack, they may be unable to rely on this defence if they do not allow an attacker attack fist. Personally I don't think that it is fair, but can see their point.

The ultimate arbiter of whether an attack was excessive is the jury and it is merely speculation that they will consider an attack to be excessive. Unfortunately there have been no cases on the issue, but a powerful punch could be considered reasonable in one instance and not in another. It always depends on what the jury feels is reasonable. If you do have a chance to walk away and choose not to, then you have made a positive choice to attack them and you cannot rely on the above as you are not in fear. Rather you've decided to take the law into your own hands and exact revenge. That I feel is what was the downfall of the guy in the bar fight mentioned earlier in this post.

Homocide
If it is difficult to prove that a powerful punch is reasonable, it is made much more difficult if that punch has fatal consequences. In R v Trevor the pathologist found that the force used in a fatal assault was not excessive, as suggested in the previous section, but rather it was the location of the punch and the relaxation of the muscles caused by alcohol that caused the punch to be fatal.

“The pathologist's evidence was to the effect that the blow was of no more than average force, that the site on which the blow landed was crucial; indeed it was the pathologist's evidence that if it had been only an inch or so away it would have caused only a minor injury.”

If you manage to kill someone, you have a lack of moral culpability if you use excessive contact in a fatal defence of yourself to be convicted of murder. The test was laid out in the cases of McKay and Viro. In Viro, Stephen J accepted the principle that:

“… The moral culpability of a person who kills another in defending himself, but who fails in the plea of self defence only because the force which he believed necessary exceeded that which was reasonably necessary falls short of the moral culpability ordinarily associated with murder.”

A martial artist may also be able to avail of the defence of provocation (essentially the defence of he started it!?), but that is only available where the attack is a fatal one. Unless you kill your opponent then you are unable to use this defence. It is also a partial defence, as if you manage to prove provocation, you are convicted of manslaughter, not murder. That is still a very serious crime.

Attitude of Judges in the caselaw
The sentences given to martial artists and boxers who fatally injure someone who has attacked them, historically have been more lenient. In the case of Davies, the sentence imposed was only 18 months as the sentencing judge, Lord Woolf of Barnes, L.C.J (the highest judge in England and Wales), utilised section 109 of the Powers of Criminal Courts (Sentencing) Act 2000. The Lord Chief Justice found “exceptional circumstances such as to justify not imposing a life sentence”. In R. v Rumbol a seven year sentence for an assault by a boxer which had an element of premeditation was reduced to six years on appeal as the House of Lords found the sentence initially imposed to be unduly harsh in the light of his previous good character and the fact that he did not intend to cause the victim serious harm.It is not all good news as in passing sentence the learned judge said that she was influenced by the fact that the appellant was a professional boxer and that his fists were in a way to be regarded as weapons.

Nothingcompares

Hey Colin is your dissertation available any where to read (preferably download)?

Mark Leonard I understand the point you are making and I'm in full agreement. It's a dangerous possibility that when you hit someone even only once they could bang their head off the kerb/wall and never get back up. I definitely agree someone that's a bouncer/doorman type guy should be very reluctant to put their hands on someone, not just due to the potential liability but the possibility of unforeseen accident.

i remember seeing a small brawl break out in which one guy was punched and then staggered in front of a passing car. Luckily the car slowed down and he was only "knocked down" and not seriously hurt. Also reminded of a friend of a friend who punched a guy and the guy hit his head on the stone bridge and died. Also reminded of a friend that punched a guy and broke his hand. But they're 3/4 awful stories from perhaps a few dozen street fight anecdotes.

cushtac

Colin,

Am I right in saying that the need to retreat is removed or lessened if attacked in your own home?

ColinJennings

Nothingcompares wrote: »

Hey Colin is your dissertation available any where to read (preferably download)?

Sadly not. I lost the soft copy when my laptop got stolen, but if you are intersted in reading it, I could re-type it out over the weekend for you. It isn't that long.

cushtac wrote: »

Colin,

Am I right in saying that the need to retreat is removed or lessened if attacked in your own home?

Yes. Given that you have a right to protect your "property from appropriation, destruction or damage caused by a criminal act or from trespass or infringement", how can you protect that right if you need to run away? In saying that, there is also caselaw that says if you are in the doorway of your house and they are outside threatening you, you should avail of the oportunity to retreat and close the door. With a door in the way, you would find it very difficult to convince a jury that you were in fear.

Roy Batty

To go back to the original scenario of someone being harassed and threatened with being killed by some youths / troublemakers / call them what you will.

If the law is so strick about the actions you take in a "self defence" situation, why is not equally strict about the harassment and serious threats made?

Surely these too are against the law?

FiannaGym.com

Colin Jennings,

Thanks a lot for that post!

Peace