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wiccaman
5/09/2013 4:25pm,
Hi All

I’ve always subscribed to the view that it’s better to keep quiet and be thought a fool than speak up and prove it; however the website keeps suggesting I should post something.

You guys (and gals) seem to have all the percussive stuff covered so perhaps the only thing I can bring to the party is a bit of a discussion of the legal aspects of use of force.

This is a bit of a speciality of mine so maybe I can make a contribution.

I’m going to post a few things based on some seminars I run. Normally they’re aimed at a military or police audience so if people have any specific points they want addressing let me know and I’ll see what I can do.

OK having got that out of the way let me explain what I’m trying to achieve.

I call the seminars “Lawyer Proofing”. There’s nothing wrong with surviving an encounter and then instructing a good lawyer at that stage (if needed). However it’s far better to get your defence in early as it were. Even if you’re ultimately acquitted after a trial you’ve had months/years of worry, you’re out of pocket and there have probably been all sorts of other undesirable consequences (trouble with employers, CRB check hassles, suspension by SIA etc.) So my aim is to give you the grounding so things never get that far (One of my points for example is ‘Learn how to be handcuffed like a gentleman).

I’m not going to give you ‘black letter’ law, rather an overview of the applicable laws and, more importantly, the legal process. The most common response I get after seminars is along the lines of “Wow, it’s all smoke and mirrors”. In other words I want to demystify the legal process and show you a few tricks of the trade used by investigators and how to counter them.

These posts will be relevant to anyone in a ‘common law’ jurisdiction. That’s basically anywhere where us Brits have ever planted a flag and introduced railways J

OK so let’s get started.

Here’s a nice quote for you:

"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."

So in other words you can use ‘reasonable force’. But what does that mean?

When assessing reasonableness the common law applies a two part test:



What is the threat?




Is the response reasonable?


The threat is assessed on a SUBJECTIVE basis, i.e. what did the ‘victim’ believe the threat to be.

As far as the criminal law goes;

Belief must be honest (even if mistaken) but need not be reasonable

In the UK that also used to be the case in regard to civil law but (thanks to the Stockwell kerfuffle) in civil law the belief must be also reasonable.

So to give an example: If you approach me in a fur coat and I honestly believe you’re a bear so I shoot you, I cannot be prosecuted but you (or rather your dependants) might be able to sue me.

The response is OBJECTIVE.

What would a reasonable person do when facing the perceived threat?

Now, this is where it’s useful to know your stuff. As the test is objective your own views on the appropriate response are technically irrelevant and therefore inadmissible.

However there are ways of ensuring your views do get considered by the prosecuting authorities and, if it’s all gone pear shaped, the jury.

It may be that you state your rationale to the police at the scene. Your comments will be noted and, if you’ve been cautioned (or Miranda-ised) then they become evidence in the case (technically if they are ‘self serving’ then they are not admissible but there are ways round that which I’ll address in later posts).

The other opportunity is if you are formally interviewed.

In later posts I’ll discuss the psychological aspects of a post force scenario which will give some insight into whether it’s a good or bad idea to speak at the earliest opportunity or wait until you’ve had a chance to ‘cool down’.

The key thing is though that you don’t want the response to be evaluated by people with no experience of combat. Otherwise you risk someone saying: “I’ve heard you can stop a knife attacker by simply putting your finger on his acccupressure point”.

Contrary to all that bull about ‘Registering your hands as lethal weapons” there’s actually an advantage to knowing martial arts, self defence systems etc. (I’ll keep the politics about eh terminology out of this). You are in effect an expert. However as the objective test is based on what a ‘normal’ person would do it’s meant to be within an ordinary person’s competence to judge. So you need to get your expert opinion in by the back door. You can also get other experts’ opinions in by referencing them in your own interview.

E.g. “From my own experience in class I’ve learnt that I am not competent to apply a cavalier hold to a resisting opponent. I’ve also studied the work of (insert favourite expert here) and his research suggests that strking is successful in preventing death in X% of cases but trying to restrain only prevents death in <X% of cases”.

OK so that’s a key point to grasp:

The threat is subjective. So it’s your belief that counts. If you can show an expertise in recognising threats (say by reference to the ‘5 stages” model) then you’ll have a lot more credibility. The trick is to come across as informed rather than paranoid.

As we’ve said, it only requires an honest belief but the more credible you are then the more likely you are to be believed.

If you can show that you honestly believed (and had good grounds for that belief) that you (or a third party) were genuinely at risk of death or serious injury then you’ve gone a long way to justifying any objectively reasonable response.

I’ll leave you on a positive vibe.

Remember in any prosecution for ‘assault’ (inc homicides) it is for the prosecution to prove that the force used as UNLAWFUL.

In other words the unlawful aspect is an essential element of the offence.

Once self defence/defence of another is raised it is for the prosecution to prove that the defendant was NOT acting in self defence; the defendant doesn’t have to prove a thing.

The prosecution have to prove this to the requisite standard. In criminal law that is “beyond reasonable doubt” (as they say on TV or “so that you are sure” as we actually say in court). (In civil law the standard is ‘balance of probabilities’ i.e. is it more likely than not)

So a prosecutor/jury has to be SURE that it wasn’t self defence.

So even if it seems highly probable that it wasn’t self defence unless it can be 100% ruled out you’re not guilty.

OK, that’s probably enough to digest for now.

All and any feedback welcome.

I’ll do follow up posts as time permits. (Assuming you don’t all tell me to STFU in the meantime)

Stray safe

Al

People who turn their swords into ploughshares end up ploughing for people who didn’t.

lionknight
5/09/2013 4:47pm,
What are your qualifications?

Savateur
5/09/2013 4:49pm,
... And the law Chunned.

I fought the law,

and the law Chunned!

wiccaman
5/09/2013 4:57pm,
Good point.

Barrister; Called October 1997 (Middle Temple)

Specialities inc 'use of force law'.

Lecturer to various UK police forces and SO groups.

Former Lecturer at MOD Specialist Training School (Halton)

Member of Association of Military Court Advocates.

Lots of court martial and civil criminal law experience.

Legal advisor to various Military and Security Service agencies.

Cycling Proficiency Test

100m Swimming Certificate

AKRhino
5/09/2013 5:10pm,
Lmao @ swimming certificate (shout out to Red Dwarf?) I approve

wiccaman
5/09/2013 5:21pm,
Indeed it is; but, unlike Rimmer, I can actually swim :-)

jdempsey
5/09/2013 6:08pm,
I'm in need of a good barrister over the next few Weeks for this kind of thing, how about coming down under for some pro bono work.? Lol, just kidding..... Kinda..

TheMightyMcClaw
5/10/2013 12:19am,
This is something I bring up a lot in street vs sport debates, while there's a lot of talk of the "deadly techniques" used for self-defense that are forbidden in most competitive settings (eye-poking, groin-kicking, etc.), there's little discuss of the reverse; sportive techniques that are legally and ethically all but unconscionable in a street fight.
For example, If someone shoots on me and I counter with a crucifix in a MMA match, I can apply the neck crank until he taps. If this same thing happens in a street fight, I'm in a much trickier position; if I apply the crucifix to fruition, I'll break his neck. I'm now stuck in the awkward position of either inflicting an extremely grievous injury, or releasing a foe will potentially still want to harm me, but unless it's a fight to the death, less than I would've harmed him with the crucifix.
I found myself in much this same situation last year when I was attacked with a knife by a homeless fellow; I restrained him in a full nelson, and was eventually put in the position of either let him go or break his neck. I had relieved him of the knife, so I opted for the former of the two, largely because I do not want to explain to a court why I felt it necessary to author a quadriplegic.

tl;dr: there are sport techniques that are too deadly for the street. Namely, neck cranks.

ermghoti
5/10/2013 7:07am,
I found myself in much this same situation last year when I was attacked with a knife by a homeless fellow; I restrained him in a full nelson, and was eventually put in the position of either let him go or break his neck. I had relieved him of the knife, so I opted for the former of the two, largely because I do not want to explain to a court why I felt it necessary to author a quadriplegic.

Somewhere, Phil Elmore started frantically masturbating, and didn't know why.

DerAuslander
5/10/2013 7:33am,
Indeed it is; but, unlike Rimmer, I can actually swim :-)

If God is omnipotent...and the universe is ever expanding...would you like a piece of toast?

wiccaman
5/10/2013 1:37pm,
would you like a piece of toast?

Thanks, but I'm more of a waffle man.


[That's both an RD reference and a self depreciating comment]

wiccaman
5/10/2013 2:09pm,
This is something I bring up a lot in street vs sport debates, while there's a lot of talk of the "deadly techniques" used for self-defense that are forbidden in most competitive settings (eye-poking, groin-kicking, etc.), there's little discuss of the reverse; sportive techniques that are legally and ethically all but unconscionable in a street fight.
For example, If someone shoots on me and I counter with a crucifix in a MMA match, I can apply the neck crank until he taps. If this same thing happens in a street fight, I'm in a much trickier position; if I apply the crucifix to fruition, I'll break his neck. I'm now stuck in the awkward position of either inflicting an extremely grievous injury, or releasing a foe will potentially still want to harm me, but unless it's a fight to the death, less than I would've harmed him with the crucifix.
I found myself in much this same situation last year when I was attacked with a knife by a homeless fellow; I restrained him in a full nelson, and was eventually put in the position of either let him go or break his neck. I had relieved him of the knife, so I opted for the former of the two, largely because I do not want to explain to a court why I felt it necessary to author a quadriplegic.

tl;dr: there are sport techniques that are too deadly for the street. Namely, neck cranks.

Thanks for that, you raise a very relevant point.

I can cover this in more detail later but a key thing to understand is that 'reasonable' force is not synonymous with 'minimum' force.

Again it's all about justification.

Here you were presented with a situation where you had only two options: release an attacker or use lethal force.

You took the risk to release him. However, as a matter of law, you could have justified the use of lethal force in that situation.

The attacker had demonstrated that he was willing to use potentially lethal force (i.e. the knife). Now it's irrelevant whether the attacker (a) knew that knives can be lethal* or (b) he might not have actually carried out the implicit threat to stab you.

[* It's quite common, especially where youths are involved for the attackers to claim they did not realise that a particular weapon could cause a fatal injury. We get quite a few cases over here where kids stab each other in the leg (to prove a point) and then are surprised with the resulting femoral arterial spurt. But remember it's the threat as YOU perceive it that counts. Now most people on this board probably know how dangerous knives are (I recommend 'victims' quote the statistic that you have a 70% chance of surviving a single knife wound as opposed to a 90% chance of surviving a single bullet wound. If you add the statistic that the average (as opposed to median) number of knife wounds in a stabbing is 9 then you go a long way to justifying your belief that this was a life or death encounter.]

In your case, although the attacker was temporarily disarmed he was (presumably) still non compliant. So on releasing him you were effectively giving him a chance to grab the knife and start again. The law doesn't require you to do that.

As *your* only options were the neck crank or the putting yourself in mortal danger again then the neck crank would be reasonable force.

Now it may be that someone else may have had more options; either because they had the attacker in a different hold or they knew more techniques. This is where the bit about justifying the response becomes important. An ill-informed prosecutor or jury member may think that there are non-lethal options. You need to explain that *in your particular circumstances* there were in fact no other options.

A key point to get across is the difference between incapacitation and killing.

Now it may well be that the incapacitation proves fatal, but it's the intent that matters.

You can inflict an untreatable ultimately fatal stab wound but the recipient may still be able to fight on for the 30 seconds or longer that it takes to bleed out. Whereas some form of neck/throat injury may be instantly fatal or quite survivable but the key thing is that it instantly incapacitates. You need to explain that that was your goal. Something along the lines of "Hey, I'd have been happy for him to make a full recovery so long as he wasn't able to carry on attacking me".

The trick is to show that your aim was survival rather than retaliation or punishment.

Ironically it's easier to justify lethal force with less trained individuals on the grounds that it takes less skill to use strikes to incapacitate than holds to restrain.

I admire your restraint and morals, however you did take an unnecessary risk (as far as the law is concerned).

For our colonial cousins facing knife threats there's a really nice Oliver Wendel Holmes quote:

"No man is totally rational in the face of an upturned knife"

So US law pretty much gives you carte blanche when faced with a knife threat; and it's the same in the UK *if you know how to deal with the legal system*.

A key point I stress in lectures is that

"It's not what you do that gets you into bother, it's what you say afterwards."

If you know the ropes you can pretty much justify anything. For UK viewers I tend to use Kenneth Noye as an example. That doesn't go down too well with police audiences but they do get the point.

wiccaman
5/10/2013 2:18pm,
pro bono work.?

Reported for offensive language!

:-)

[actually, if you do need some off the books advice feel free to PM me]

TheMightyMcClaw
5/10/2013 4:22pm,
I realized in retrospect that I probably would've been legally justified in breaking the guy's neck, but at the time, that didn't occur to me. It didn't even occur to me that I was in a fight; it just seemed like a very stern conversation, that involved a bit of a grappling. It was only after the fact that I realized "holy ****, did I just fight a guy with a knife?"
Also in retrospect, I'm glad I didn't hurt the guy. The situation was well in hand; I was substantially larger and stronger than he was, and beyond substantially more sober. He was alone, where I had about twenty friends with me (one of whom took the knife when he was disarmed). I was, I **** you not, wearing a shirt of chainmail throughout the encounter (I have very eccentric fashion sense). I threatened to choke him unconscious at the beginning of the encounter, and most of the fight seemed to leave him at that time. (I initially had him in a modified rear naked choke, and later switched to the full nelson when I realized he might have a second knife on him).
Had I been alone, unarmored, and my opponent more fearsome, I might've felt it was necessary to injure my foe in the same circumstance. As it was, though, it did not strike me as such.
Also, I feel that this is anecdote also makes an excellent counter to the "jiujitsu is useless against knives" rhetoric. I am living proof that, even in knife fights, BJJ wins again.

Fuzzy
5/10/2013 5:08pm,
Wiccaman, I've been told that a decent defense here in the UK is to claim: "I saw red, I was in fear for my life and I just reacted". What's your take on that?

wiccaman
5/10/2013 5:53pm,
Wiccaman, I've been told that a decent defense here in the UK is to claim: "I saw red, I was in fear for my life and I just reacted". What's your take on that?

Ah, I'm just about to address that in a response to Mr McClaw. Stay tuned.

[Call me Al by the way, the wiccaman thing is just a username]