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The right to Self Defence

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Comments

  • Closed Accounts Posts: 5 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.


  • Registered Users, Registered Users 2 Posts: 70 ✭✭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."


  • Registered Users, Registered Users 2 Posts: 2,084 ✭✭✭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.


  • Registered Users, Registered Users 2 Posts: 70 ✭✭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.


  • Registered Users, Registered Users 2 Posts: 2,084 ✭✭✭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.


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  • Closed Accounts Posts: 2,923 ✭✭✭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.


  • Registered Users, Registered Users 2 Posts: 2,084 ✭✭✭mark.leonard


    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.....


  • Closed Accounts Posts: 2,923 ✭✭✭Nothingcompares


    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.


  • Closed Accounts Posts: 2,085 ✭✭✭Baggio...


    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.


  • Closed Accounts Posts: 5 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.


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  • Registered Users, Registered Users 2 Posts: 2,084 ✭✭✭mark.leonard


    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.


  • Closed Accounts Posts: 13,497 ✭✭✭✭Dragan


    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 )


  • Registered Users, Registered Users 2 Posts: 2,084 ✭✭✭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.


  • Closed Accounts Posts: 2,085 ✭✭✭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.


  • Registered Users, Registered Users 2 Posts: 232 ✭✭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.


  • Closed Accounts Posts: 2,923 ✭✭✭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.


  • Closed Accounts Posts: 1,253 ✭✭✭cushtac


    Colin,

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


  • Registered Users, Registered Users 2 Posts: 232 ✭✭ColinJennings


    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.


  • Registered Users, Registered Users 2 Posts: 30 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?


  • Closed Accounts Posts: 757 ✭✭✭FiannaGym.com


    Colin Jennings,

    Thanks a lot for that post!

    Peace


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  • Closed Accounts Posts: 13,497 ✭✭✭✭Dragan


    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.

    Colin, if you wouldn't mind putting in the effort that would be great. I imagine a lot of the guys here would be very interested to read it as this has come up before in conversation and, no doubt, will again in the future.


  • Closed Accounts Posts: 2,085 ✭✭✭Baggio...


    Thanks for taking the time to post Colin - very interesting and essential stuff.


  • Registered Users, Registered Users 2 Posts: 1,336 ✭✭✭Dave Joyce


    Same here, Colin, thanks for an interesting post. One thing from the past on this subject that REALLY pissed me off was when reading in the papers about one of the local court cases in Galway, a known (to me and others) scumbucket (usual long list of previous) used the "I was fearing for my safety and hit him first" as a fuvking "defence" to his obvious assault on this other person.

    Just also wondering Colin, if you consider one's ability to present oneself in a cofident manner in court important, as I've known of cases where although the individual in question was in the right (morally AND legally), but didn't express themselves very well when under scutiny resulted in them losing their case.

    Last point, gotta agree with Baggio and the relevence of Geoff Thompson's approach to the whole area of self protection ie using the fence and using the verbals (which is something that needs to be practised like any other skill set) so that potential witnesses recollection of events should then be remembered in hindsight as "Yea, he didn't want to fight and had his hands up pleading with the guy and I remember him saying calm down, take it easy, I'm not looking for any trouble/don't want to fight you".


  • Registered Users, Registered Users 2 Posts: 232 ✭✭ColinJennings


    I'll start re-typing it over the weekend. The dissertation was aimed at lawyers, not martial artists, so there is an element of over simplification of martial arts (and a slight emphasis on TKD), but if you overlook that, I think it might be interesting. It is also entitled "Are all Martial Artists Insane?" as I go through all the defences available to a marital artist and one of the defences addressed is insanity.
    Roy Batty wrote: »
    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?
    Well the answer to that is three fold.

    1. Do these youths/troublemakers put you in fear of attack by thier actions?
    2. If yes, can you run away?
    3. In no, is the force you use reasonable in respect of the threat posed?

    Thats what you need to conisder and that I'd hope is what everyone does. Itis nothing further than common sence.

    Section 6 of the Criminal Justice (Public Order) Act, 1994 deals with threats, abuse or insults. What needs to be proved is that they intended to provoke a breach of the peace. It is a faily minor offence and used mostly where the threats are addressed towards members of the Gardaí as threats are rarely reported and if they are, I'd assume the Gardaí have other more pressing matters to attend to. You need to remember murder, manslaughter and assault causing serious harm have life sentances, assault causing harm carries a maximum sentence of 5 years, this public order offence carries a maximum sentence of 3 months. Also assaults are reported more frequently
    (1) It shall be an offence for any person in a public place to use or engage in any threatening, abusive or insulting words or behaviour with intent to provoke a breach of the peace or being reckless as to whether a breach of the peace may be occasioned.
    [GA]

    (2) A person who is guilty of an offence under this section shall be liable on summary conviction to a fine not exceeding £500 or to imprisonment for a term not exceeding 3 months or to both.
    Dave Joyce wrote: »
    Just also wondering Colin, if you consider one's ability to present oneself in a cofident manner in court important, as I've known of cases where although the individual in question was in the right (morally AND legally), but didn't express themselves very well when under scutiny resulted in them losing their case.

    It is all about pleasing the judge/jury. You must convince them that your story is right. You may be right, you may be wrong, but without getting too much into detail, barristers are under a duty to take thier client's word as gospel. We just need to present the client's story, unless we know it to be a falacy.

    It all boils down to whether you are capable of telling your story and it adds up under severe questioning; that is your job as a witness. Even though I've only been practicing for less than one year, I've managed to make witnesses trip over themselves without too much hassle. The job of cross examination is to get the truth out. It is very difficult to continue to lie efffectiely if you are being questioned about every angle, particularly if it is as relentless as some of the cross examining I've seen. If you are telling the truth, confidence will come out as your story is so strong.


  • Users Awaiting Email Confirmation Posts: 108 ✭✭conor rowan


    "2) A person who is guilty of an offence under this section shall be liable on summary conviction to a fine not exceeding £500 or to imprisonment for a term not exceeding 3 months or to both."

    i see threats are on a par with bunking the dart.

    good posts colin, really explain a lot. keep them coming


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