Self-defence reform: Playing to the Gallery

A criminal justice agenda built on populism complicates the law and ultimately, when little actually changes, costs votes rather than wins them. Nevertheless, the MOJ has confirmed reports that emerged on Sunday in both The Guardian and The Telegraph that the Government will bring forward  amendments to the Crime and Courts Bill to expand the law on self-defence to include use of "disproportionate force".

It is not yet clear exactly what form the proposal will take but according to Justice Secretary Chris Grayling:

"The public should be in no doubt that the law is on their side, that is why I am toughening up the current law for those who defend themselves and their loved ones."

I - The current law and motivation for reform

The law as it currently stands is codified by section 76 of the Criminal Justice and Immigration Act 2008, although for the most part, it simply states an historic principle of the common law: when confronted with a threat (or a perceived threat) of violence, either against oneself and or a loved one, that person is entitled to use "reasonable" force to defend themselves. So, what would the new proposals change? And is the government right in its assessment that the law is "against" the law abiding citizen because it causes them to be "interrogated as criminals" rather than "interviewed as witnesses"?

The government position is premised on the idea that people who purport to act in self-defence are judged by some  almost unobtainable moral standard that has little or no regard for the pressure that would-be victims of crime might find themselves under. As a result, it wants to strengthen the protection to those who "act honestly and instinctively in self-defence". In essence, the law already addresses both of these points.

The law looks at the reasonableness of the force used and the reasonableness of the belief in the need to use that force. The starting point in deciding whether the degree of force used was "reasonable" is  decided

"by reference to the circumstances as D believed them to be". 

In other words, the first thing that a jury has to do is put themselves in the defendant's position, whether that is stood on their landing at 4am, faced by a masked intruder or the assailant that appears suddenly from a side-street.

It follows from the starting point that even if it turns out that the defendant was mistaken and they were not under some sort of threat or attack, they will not prevented from relying on self-defence, provided that they reasonably and genuinely believed in the authenticity of the threat. Whilst the reasonableness or otherwise of such a belief will impact of the jury's decision about how genuine it was, the assessment is neither purely objective nor undertaken with the benefit of 20:20 hindsight.

To underline the point, the 2008 Act also makes clear that in determining the reasonableness of the force used the jury must bear in mind that a person who legitimately believes they are faced with a threat:

"may not be able to weigh to a nicety the exact measure of any necessary action"

Moreover, the law not only shares Grayling's concern to protect those who act instinctively as a matter of principle, it positively endorses it:

"evidence of a person's having only done what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken by that person for that purpose. (emphasis added: s.76 (7)(b))

II - "Disproportionate force" - an unwelcome and unnecessary change

So, despite all the posturing, the law already does much of what the government wants and where it doesn't, this is for good reason. All that we are left with is the proposed acceptability of "disproportionate force". It seems to me (and I'm in some pretty good company) that this proposal would represent an unnecessary, unwelcome and unsound change in the law.

Against the broad canvass on which the assessment of "reasonable force" is drawn, taking account of the circumstances as the defendant believed them to be and appreciating that decisions can be taken in a split second, a decision that the force used was still disproportionate represents the line that cannot be crossed, it is the buffer against vengeance and vigilantly justice. That decision has great force precisely because of the allowances that are otherwise made for the defendant. Further more, the current proposal simply moves that boundary to the realm of "grossly disproportionate" force, which will still be unlawful. But  (i) what constitutes "grossly disproportionate" force, (ii) how will it differ from plain old "disproportionate force" and (iii) how easy or otherwise will it be for courts and juries to apply the different tests in practice? Hopefully, the substantive proposals will hint at some answers. And that's not all, will these changes apply only to residential property and if so, on what basis, surely the right to protect one's business premises is equally as important?

III - Playing to the Gallery

The government (like the ones before it) is playing to the gallery on this one. The triumphalism of the Telegraph, who welcomed the announcement as "a major victory" in its “Right To Defend Yourself” campaign provides a case in point:

"The campaign won the support of many politicians and senior criminal justice figures - and its proposed changes regularly win overwhelming public backing in opinion polls."

And what of the suggestion that innocent victims are being treated as criminals? Well, I think what the Justice Secretary describes as "interrogation" might be better described as due process. Neither he nor the Telegraph have complained about any of the cases in which a defendant has been found to have used disproportionate force but rather those where the police have simply investigated the matter. It must surely be right that a claim of self-defence cannot simply be accepted at face value where there are reasonable (there's that word again) grounds to suspect that that was not the case. If it were otherwise then we really would have ceded ground to the mob - which the Minister assures us he does not favour.

Patrick Mercer MP welcomed the decision saying:

"This has been a very long time coming. At last my constituents and very householder will be properly protected against intruders."     

The reality is that the law has offered ample protection to householders, would-be mugging victims and anyone else who may have cause to defend themselves for centuries. Perhaps the baying from the gallery was so distracting our lawmakers just didn't realise it.