Martial arts and the law

gerarda

Hi all,
Probably been done before but I was wondering what is considered 'lawful' if you get into a confrontation on the street. Lets say a junkie threatens your partner with a syringe? How far can you go within the law?

Khannie

I can move this to the legal discussion forum if you'd like?

Ug Lee

gerarda wrote: »

Hi all,
Probably been done before but I was wondering what is considered 'lawful' if you get into a confrontation on the street. Lets say a junkie threatens your partner with a syringe? How far can you go within the law?

I think this is very relevant. This forum is called "Self Defence & Martial Arts" and I think the legal aspect is very relevant to self-defence. I would even go so far as to suggest that something like this be made a sticky.

cletus

if its to be made a sticky, then it needs direct input from somebody trained in the law, to avoid pages and pages of posts about black belts having to regidter themselves as deadly weapons etc

Ug Lee

cletus wrote: »

if its to be made a sticky, then it needs direct input from somebody trained in the law, to avoid pages and pages of posts about black belts having to regidter themselves as deadly weapons etc

Yep, there was a regular contributer a while ago who was studying law and gave a good overview.

Boston

You can't offer legal advice on boards. No one can say, yea you can break limbs, knock out teeth and you'll be ok. In many ways martial arts training isn't a factor. Heres the legal position in Ireland with regards to self defence.

gabhain7 wrote: »

Irish law allows for the use of force in reasonable circumstances as a person believes them to be, as permitted by s.18 of the Non-Fatal Offences Against the Person Act for protection of self, others or property or by s. 19 for the effect of an arrest. This applies an objective statutory test with subjective perception of circumstances so allows for someone's mistake as to facts.

I believe there is debate as to whether these statutory provisions apply when you kill someone in self defence, because although the sections don't limit themselves to non-homicide situations, it's part of an act entitled the "non-fatal offences against the person".

In any case Irish Common law allows for reasonable force to be used in self defence which would be in addition to these statutory provisions and would certainly cover when self defence results in homicide. Irish law adopts the reductive approach as per People v. Kealty. What this means is if you thought the force was reasonable, and the jury thought objectively the force was reasonable you get an acquittal. However if you honestly thought the force was reasonable but the jury thinks it was objectively unreasonable you get convicted of manslaughter. If however the jury do not believe you honestly thought the force was reasonable you are convicted of murder.

In using self defence, there is a duty to retreat if this is practicable (R. v. Palmer), for example if you were assaulted in the street and you used self defence, and then circumstances arose where you could safely retreat but chose not to and continued to attack the assailant you would be liable for assault. This duty to retreat however doesn't apply to force used against an unlawful entrant when you are in your own home. (This exception to the duty to retreat is called the castle doctrine, your home is your castle)

Case law (don't have it to hand) also holds that you can not use self defence if you created the situation where violence was employed. (For example you steal from someone, he then strikes out at you, you can not use self defence). Similarly an illegally held weapon (an illegally held firearm or knife in a public area) can not be used in self defence. For example you walk about streets with a knife, someone mugs you, and you stab them, you would be liable for assault causing harm (they would be liable for robbery), since you were carrying an illegal weapon.

Self defence is an affirmative defence, you must raise it with prima facie evidence, then the state must disprove it beyond reasonable doubt to convict.

fergpie

gerarda wrote: »

Hi all,
Probably been done before but I was wondering what is considered 'lawful' if you get into a confrontation on the street. Lets say a junkie threatens your partner with a syringe? How far can you go within the law?

If you feel the threat of imminent harm to yourself or others you can use reasonable force to defend yourself or another person. what is termed 'reasonable' would be determined from an objective viewpoint. Therefore if u used excessive force in defending yourself u could be liable....

ColinJennings

I posted this a while ago in reply to another thread about a bar fight. It is identical to what gabhain7 says in terms of advice, but directed at the martial artist.

ColinJennings wrote: »

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.

To answer the OP's question if a junkie threatens your partner with a syringe noone can tell you what is ok. I doubt that there would be any problem proving a necessity to use force, but the level of force you can use is an objective test. The particular jury that you draw decides what is ok.