Article: I fought the law....
I fought the law....
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)
People who turn their swords into ploughshares end up ploughing for people who didn’t.
Total Comments 58
5/09/2013 4:47pm, #2
5/09/2013 4:49pm, #3
... And the law Chunned.
I fought the law,
and the law Chunned!
5/09/2013 4:57pm, #4
- Join Date
- Aug 2011
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
5/09/2013 5:10pm, #5
Lmao @ swimming certificate (shout out to Red Dwarf?) I approve
5/09/2013 5:21pm, #6
- Join Date
- Aug 2011
Indeed it is; but, unlike Rimmer, I can actually swim :-)
5/09/2013 6:08pm, #7
- Join Date
- Nov 2010
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..
5/10/2013 12:19am, #8
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.The fool thinks himself immortal,
If he hold back from battle;
But old age will grant him no truce,
Even if spears spare him.
5/10/2013 7:07am, #9
5/10/2013 7:33am, #10