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Self-Defence and the Prevention of Crime
Principle
This section offers guidance of general application to all offences susceptible to the defences of:
* self defence;
* defence of another;
* the prevention of crime; and
* lawful arrest and the apprehension of offenders.
This guidance is particularly relevant to offences against the person and homicide, and prosecutors should refer to Offences against the Person, incorporating the charging standard, elsewhere in this guidance and Homicide, elsewhere in this guidance.
In the context of cases involving the use of violence, the guiding principle is the preservation of the Rule of Law and the Queen's Peace.
However, it is important to ensure that all those acting reasonably and in good faith to defend themselves, their family, their property or in the prevention of crime or the apprehension of offenders are not prosecuted for such action. Refer to joint CPS and ACPO leaflet - Householders and the Use of Force Against Intruders.
When reviewing cases involving assertions of self-defence or action in the prevention of crime/preservation of property, prosecutors should be aware of the balance to be struck:
* the public interest in promoting a responsible contribution on the part of citizens in preserving law and order; and
* in discouraging vigilantism and the use of violence generally.
Prosecutors should be aware of the sensitivity of such cases. This is particularly so when the alleged victim of an offence was himself/herself engaged in criminal activity at the relevant time. For instance, a burglar who claims to have been assaulted by the occupier of the premises concerned.
When considering cases where an argument of self-defence is raised, or is likely to be raised, you should apply the tests set out in the Code for Crown Prosecutors, refer to the Code for Crown Prosecutors elsewhere in this guidance.
The guidance in this section should be followed in determining whether the Code tests have been met.
When considering the sufficiency of the evidence in such cases, you must be satisfied that there is enough reliable and admissible evidence to rebut the suggestion of self-defence. The prosecution must rebut self-defence to the criminal standard of proof, see Burden of Proof in this section below.
If there is sufficient evidence to prove the offence, and to rebut self defence, the public interest in prosecuting must then be carefully considered.
Guidance
The Law and Evidential Sufficiency
Self-defence is available as a defence to crimes committed by use of force.
The basic principles of self-defence are set out in (Palmer v R, [1971] A.C 814); see also (Archbold 19-41);
"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."
The common law approach as expressed in Palmer v. R and other authorities, is also relevant to the application of Section 3 Criminal Law Act 1967 (Archbold 19-39):
"A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large."
Section 3 applies to the prevention of crime and effecting, or assisting in, the lawful arrest of offenders and suspected offenders. There is an obvious overlap between self-defence and section 3. However, section 3 only applies to crime and not to civil matters so, for instance, it cannot afford a defence in repelling trespassers by force, unless the trespassers are involved in some form of criminal conduct.
'Reasonable Force'
A person may use such force as is reasonable in the circumstances for the purposes of:
* self-defence; or
* defence of another; or
* defence of property; or
* prevention of crime; or
* lawful arrest.
In assessing the reasonableness of the force used, prosecutors should ask two questions:
* was the use of force justified in the circumstances, i.e. was there a need for any force at all? and
* was the force used excessive in the circumstances?
The courts have indicated that both questions are to answered on the basis of the facts as the accused honestly believed them to be (R v Williams (G) 78 Cr. App R 276), (R. v Oatbridge, 94 Cr App R 367) and (Archbold 19-49).
To that extent it is a subjective test. There is, however, an objective element to the test. The jury must then go on to ask themselves whether, on the basis of the facts as the accused believed them to be, a reasonable person would regard the force used as reasonable or excessive.
It is important to bear in mind when assessing whether the force used was reasonable the words of Lord Morris in (Palmer v R ,1971 A.C. 814);
" If there has been an attack so that self defence is reasonably necessary, it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his defensive action. If the jury thought that that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought necessary, that would be the most potent evidence that only reasonable defensive action had been taken...".
The fact that an act was considered necessary does not mean that the resulting action was reasonable. (R v Clegg 1995 1 A.C. 482 HL) and (Archbold 19-41).
However, where it is alleged that a person acted to defend himself/herself from violence, the extent to which the action taken was necessary will, of course, be integral to the reasonableness of the force used.
In (R v Martin (Anthony) [2002] 1 Cr. App. R. 27), the Court of Appeal held that whilst a court is entitled to take account of the physical characteristics of the defendant in deciding what force was reasonable, it was not appropriate, absent exceptional circumstances which would make the evidence especially probative, to take account of whether the defendant was suffering from some psychiatric condition.
In (R v O'Grady 85 Cr App R 315), it was held by the Court of Appeal that a defendant was not entitled to rely, so far as self-defence is concerned, upon a mistake of fact which had been induced by voluntary intoxication.
Use of force against Those Committing Crime
Prosecutors should exercise particular care when assessing the reasonableness of the force used in those cases in which the alleged victim was, or believed by the accused to have been, at the material time, engaged in committing a crime. A witness to violent crime with a continuing threat of violence may well be justified in using extreme force to remove a threat of further violence.
In assessing whether it was necessary to use force, prosecutors should bear in mind the period of time in which the person had to decide whether to act against another who he/she thought to be committing an offence.
The circumstances of each case will need to be considered very carefully.
(See Public Interest - Use of force against Those committing Crime, below in this chapter)
Final Consequences
The final consequences of a course may not be relevant to the issue as to whether the force used was reasonable. Although, the conduct of the suspect resulted in severe injuries to another or even death, this conduct may well have been reasonable in the circumstances. On the other hand, the infliction of very superficial or minor injuries may have been a product of simple good fortune rather than intention.
Once force was deemed to be unreasonable, the final consequences would be relevant to the public interest considerations.
Police Powers
Police officers are empowered by Section 117, Police and Criminal Evidence Act to use reasonable force, if necessary, when exercising powers conferred by that Act (Archbold 15-26).
Private Rather than Public Duty
Prosecutors must exercise special care when reviewing cases involving those, other than police officers, who may have a duty to preserve order and prevent crime. This includes private security guards (including club doormen), public house landlords and public transport employees. The existence of duties that require people, during the course of their employment, to engage in confrontational situations from time to time needs to be considered, along with the usual principles of 'reasonable force.'
Civilian Powers of Arrest
Care must be taken, when assessing the evidence in a case involving the purported exercising of civilian powers of arrest. Such powers of arrest are dependent upon certain preconditions.
The principle civilian powers of arrest fall under two headings:
* the power vested in both police officers and ordinary citizens to arrest in relation to a breach of the peace (see R v Howell 73 Cr. App R. 31).
* the power conferred by section 24 of PACE (Archbold 15-161 to 15 - 162):
1. to arrest anyone who is in the act of committing an arrestable offence or anyone whom the arrestor has reasonable grounds for suspecting to be committing an arrestable offence (S. 24(4)); and
2. where an arrestable offence has been committed, anyone who is guilty of having committed the offence or anyone the arrestor has reasonable grounds for suspecting to be guilty of having committed it (S. 24(5)).
It follows therefore that if violence occurs when someone purports to arrest, relying on section 24(5), a person he suspects has committed an offence who has, in fact, not done so;
* any force used to affect the arrest may be an assault and unlawful; and
* any force used to resist the arrest may be lawful (see R v Self 95 Cr. App R. 42).
However in (R v Lee, TLR 24 October 2000), it was held that when a defendant was charged with assault with intent to resist arrest, it was irrelevant whether the defendant honestly believed that the arrest was lawful.
You should bear in mind that members of the public (as well as police officers) may take action, including reasonable force, to prevent a breach of the peace, which would not necessarily involve exercising the formal powers of arrest.
Burden of Proof
The burden of proof remains with the prosecution when the issue of self-defence is raised. The prosecution must adduce sufficient evidence to satisfy a jury beyond reasonable doubt that the defendant was either:
* not acting to defence himself/herself or another; or
* not acting to defend property; or
* not acting to prevent a crime or to apprehend an offender; or
* if he was so acting, the force used was excessive.
(Archbold 19-43 to 19- 45)
Prosecutors should take special care to recognize, and ensure a sufficiency of evidence in, those cases where self-defence is likely to be an issue.
Public Interest
Self-defence, being an absolute defence, is a matter of evidence and is not in itself a public interest consideration.
In many cases in which self-defence is raised, there will be no special public interest factors beyond those that fall to be considered in every case. However, in some cases, there will be public interest factors which arise only in cases involving self-defence or the prevention of crime. These may include:
* The degree of excessive force. If the degree of force used is not very far beyond the threshold of what is reasonable, a prosecution may not be needed in the public interest.
* The final consequences of the action taken. Where the degree of force used in self-defence or in the prevention of crime is assessed as being excessive, and results in death or serious injury, it will be only in very rare circumstances indeed that a prosecution will not be needed in the public interest. Minor or superficial injuries may be a factor weighing against prosecution.
* The way in which the force was applied. This may be an important public interest factor, as well as being relevant to the reasonableness of the force used. If a dangerous weapon, such as firearm, was used by the accused this may tip the balance in favour of prosecution.
* Premeditated violence. The extent to which the accused found himself unexpectedly confronted by a violent situation, as opposed to having planned and armed himself in the expectation of a violent situation.
Use of Force Against Those Committing Crime
The public interest factors set out immediately above will be especially relevant where, as a matter of undisputed fact, the victim was, at the material time, involved in the commission of a separate offence. Common examples are burglary or theft from motor vehicles. In such cases, prosecutors should ensure that all the surrounding circumstances are taken into consideration in determining whether a prosecution is in the public interest.
Prosecutors should have particular regard to:
* the nature of the offence being committed by the victim;
* the degree of excessiveness of the force used by the accused;
* the extent of the injuries, and the loss or damage, sustained by either or both parties to the incident;
* whether the accused was making an honest albeit over zealous attempt to uphold the law rather than taking the law into his own hands for the purposes of revenge or retribution.
Apprehension of Offenders
As to the apprehension of offenders there are two important but sometimes contrasting public interest points. On the one hand, the rule of law and the Queen's Peace must be maintained and violence discouraged. On the other hand, the involvement of citizens in the prevention and investigation of crime is to be encouraged where it is responsible and public spirited. The law provides a defence for those who act in extenuating circumstances. However, judicial comment has suggested that the courts should take a firm stand against illegitimate summary justice and vigilantism.
Prosecutors will need to balance these potentially conflicting public interest considerations very carefully.
Procedure
Once a case has been identified by the police as one involving difficult issues of self-defence, the police should be encouraged to seek pre-charge advice from the CPS.
If such a case is brought to a prosecutor for advice, then the decision whether to prosecute or not must be approved by the relevant Unit Head.
Within the CPS, if it is felt that the case involves difficult issues of self-defence, the prevention of crime or the apprehension of offenders, and is likely to attract media attention, a report must be sent through line management to the CCP (Sector Director in London).
Where the case may be media sensitive, the area press officer should be informed. The area press officer should consider informing HQ press office
Principle
This section offers guidance of general application to all offences susceptible to the defences of:
* self defence;
* defence of another;
* the prevention of crime; and
* lawful arrest and the apprehension of offenders.
This guidance is particularly relevant to offences against the person and homicide, and prosecutors should refer to Offences against the Person, incorporating the charging standard, elsewhere in this guidance and Homicide, elsewhere in this guidance.
In the context of cases involving the use of violence, the guiding principle is the preservation of the Rule of Law and the Queen's Peace.
However, it is important to ensure that all those acting reasonably and in good faith to defend themselves, their family, their property or in the prevention of crime or the apprehension of offenders are not prosecuted for such action. Refer to joint CPS and ACPO leaflet - Householders and the Use of Force Against Intruders.
When reviewing cases involving assertions of self-defence or action in the prevention of crime/preservation of property, prosecutors should be aware of the balance to be struck:
* the public interest in promoting a responsible contribution on the part of citizens in preserving law and order; and
* in discouraging vigilantism and the use of violence generally.
Prosecutors should be aware of the sensitivity of such cases. This is particularly so when the alleged victim of an offence was himself/herself engaged in criminal activity at the relevant time. For instance, a burglar who claims to have been assaulted by the occupier of the premises concerned.
When considering cases where an argument of self-defence is raised, or is likely to be raised, you should apply the tests set out in the Code for Crown Prosecutors, refer to the Code for Crown Prosecutors elsewhere in this guidance.
The guidance in this section should be followed in determining whether the Code tests have been met.
When considering the sufficiency of the evidence in such cases, you must be satisfied that there is enough reliable and admissible evidence to rebut the suggestion of self-defence. The prosecution must rebut self-defence to the criminal standard of proof, see Burden of Proof in this section below.
If there is sufficient evidence to prove the offence, and to rebut self defence, the public interest in prosecuting must then be carefully considered.
Guidance
The Law and Evidential Sufficiency
Self-defence is available as a defence to crimes committed by use of force.
The basic principles of self-defence are set out in (Palmer v R, [1971] A.C 814); see also (Archbold 19-41);
"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."
The common law approach as expressed in Palmer v. R and other authorities, is also relevant to the application of Section 3 Criminal Law Act 1967 (Archbold 19-39):
"A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large."
Section 3 applies to the prevention of crime and effecting, or assisting in, the lawful arrest of offenders and suspected offenders. There is an obvious overlap between self-defence and section 3. However, section 3 only applies to crime and not to civil matters so, for instance, it cannot afford a defence in repelling trespassers by force, unless the trespassers are involved in some form of criminal conduct.
'Reasonable Force'
A person may use such force as is reasonable in the circumstances for the purposes of:
* self-defence; or
* defence of another; or
* defence of property; or
* prevention of crime; or
* lawful arrest.
In assessing the reasonableness of the force used, prosecutors should ask two questions:
* was the use of force justified in the circumstances, i.e. was there a need for any force at all? and
* was the force used excessive in the circumstances?
The courts have indicated that both questions are to answered on the basis of the facts as the accused honestly believed them to be (R v Williams (G) 78 Cr. App R 276), (R. v Oatbridge, 94 Cr App R 367) and (Archbold 19-49).
To that extent it is a subjective test. There is, however, an objective element to the test. The jury must then go on to ask themselves whether, on the basis of the facts as the accused believed them to be, a reasonable person would regard the force used as reasonable or excessive.
It is important to bear in mind when assessing whether the force used was reasonable the words of Lord Morris in (Palmer v R ,1971 A.C. 814);
" If there has been an attack so that self defence is reasonably necessary, it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his defensive action. If the jury thought that that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought necessary, that would be the most potent evidence that only reasonable defensive action had been taken...".
The fact that an act was considered necessary does not mean that the resulting action was reasonable. (R v Clegg 1995 1 A.C. 482 HL) and (Archbold 19-41).
However, where it is alleged that a person acted to defend himself/herself from violence, the extent to which the action taken was necessary will, of course, be integral to the reasonableness of the force used.
In (R v Martin (Anthony) [2002] 1 Cr. App. R. 27), the Court of Appeal held that whilst a court is entitled to take account of the physical characteristics of the defendant in deciding what force was reasonable, it was not appropriate, absent exceptional circumstances which would make the evidence especially probative, to take account of whether the defendant was suffering from some psychiatric condition.
In (R v O'Grady 85 Cr App R 315), it was held by the Court of Appeal that a defendant was not entitled to rely, so far as self-defence is concerned, upon a mistake of fact which had been induced by voluntary intoxication.
Use of force against Those Committing Crime
Prosecutors should exercise particular care when assessing the reasonableness of the force used in those cases in which the alleged victim was, or believed by the accused to have been, at the material time, engaged in committing a crime. A witness to violent crime with a continuing threat of violence may well be justified in using extreme force to remove a threat of further violence.
In assessing whether it was necessary to use force, prosecutors should bear in mind the period of time in which the person had to decide whether to act against another who he/she thought to be committing an offence.
The circumstances of each case will need to be considered very carefully.
(See Public Interest - Use of force against Those committing Crime, below in this chapter)
Final Consequences
The final consequences of a course may not be relevant to the issue as to whether the force used was reasonable. Although, the conduct of the suspect resulted in severe injuries to another or even death, this conduct may well have been reasonable in the circumstances. On the other hand, the infliction of very superficial or minor injuries may have been a product of simple good fortune rather than intention.
Once force was deemed to be unreasonable, the final consequences would be relevant to the public interest considerations.
Police Powers
Police officers are empowered by Section 117, Police and Criminal Evidence Act to use reasonable force, if necessary, when exercising powers conferred by that Act (Archbold 15-26).
Private Rather than Public Duty
Prosecutors must exercise special care when reviewing cases involving those, other than police officers, who may have a duty to preserve order and prevent crime. This includes private security guards (including club doormen), public house landlords and public transport employees. The existence of duties that require people, during the course of their employment, to engage in confrontational situations from time to time needs to be considered, along with the usual principles of 'reasonable force.'
Civilian Powers of Arrest
Care must be taken, when assessing the evidence in a case involving the purported exercising of civilian powers of arrest. Such powers of arrest are dependent upon certain preconditions.
The principle civilian powers of arrest fall under two headings:
* the power vested in both police officers and ordinary citizens to arrest in relation to a breach of the peace (see R v Howell 73 Cr. App R. 31).
* the power conferred by section 24 of PACE (Archbold 15-161 to 15 - 162):
1. to arrest anyone who is in the act of committing an arrestable offence or anyone whom the arrestor has reasonable grounds for suspecting to be committing an arrestable offence (S. 24(4)); and
2. where an arrestable offence has been committed, anyone who is guilty of having committed the offence or anyone the arrestor has reasonable grounds for suspecting to be guilty of having committed it (S. 24(5)).
It follows therefore that if violence occurs when someone purports to arrest, relying on section 24(5), a person he suspects has committed an offence who has, in fact, not done so;
* any force used to affect the arrest may be an assault and unlawful; and
* any force used to resist the arrest may be lawful (see R v Self 95 Cr. App R. 42).
However in (R v Lee, TLR 24 October 2000), it was held that when a defendant was charged with assault with intent to resist arrest, it was irrelevant whether the defendant honestly believed that the arrest was lawful.
You should bear in mind that members of the public (as well as police officers) may take action, including reasonable force, to prevent a breach of the peace, which would not necessarily involve exercising the formal powers of arrest.
Burden of Proof
The burden of proof remains with the prosecution when the issue of self-defence is raised. The prosecution must adduce sufficient evidence to satisfy a jury beyond reasonable doubt that the defendant was either:
* not acting to defence himself/herself or another; or
* not acting to defend property; or
* not acting to prevent a crime or to apprehend an offender; or
* if he was so acting, the force used was excessive.
(Archbold 19-43 to 19- 45)
Prosecutors should take special care to recognize, and ensure a sufficiency of evidence in, those cases where self-defence is likely to be an issue.
Public Interest
Self-defence, being an absolute defence, is a matter of evidence and is not in itself a public interest consideration.
In many cases in which self-defence is raised, there will be no special public interest factors beyond those that fall to be considered in every case. However, in some cases, there will be public interest factors which arise only in cases involving self-defence or the prevention of crime. These may include:
* The degree of excessive force. If the degree of force used is not very far beyond the threshold of what is reasonable, a prosecution may not be needed in the public interest.
* The final consequences of the action taken. Where the degree of force used in self-defence or in the prevention of crime is assessed as being excessive, and results in death or serious injury, it will be only in very rare circumstances indeed that a prosecution will not be needed in the public interest. Minor or superficial injuries may be a factor weighing against prosecution.
* The way in which the force was applied. This may be an important public interest factor, as well as being relevant to the reasonableness of the force used. If a dangerous weapon, such as firearm, was used by the accused this may tip the balance in favour of prosecution.
* Premeditated violence. The extent to which the accused found himself unexpectedly confronted by a violent situation, as opposed to having planned and armed himself in the expectation of a violent situation.
Use of Force Against Those Committing Crime
The public interest factors set out immediately above will be especially relevant where, as a matter of undisputed fact, the victim was, at the material time, involved in the commission of a separate offence. Common examples are burglary or theft from motor vehicles. In such cases, prosecutors should ensure that all the surrounding circumstances are taken into consideration in determining whether a prosecution is in the public interest.
Prosecutors should have particular regard to:
* the nature of the offence being committed by the victim;
* the degree of excessiveness of the force used by the accused;
* the extent of the injuries, and the loss or damage, sustained by either or both parties to the incident;
* whether the accused was making an honest albeit over zealous attempt to uphold the law rather than taking the law into his own hands for the purposes of revenge or retribution.
Apprehension of Offenders
As to the apprehension of offenders there are two important but sometimes contrasting public interest points. On the one hand, the rule of law and the Queen's Peace must be maintained and violence discouraged. On the other hand, the involvement of citizens in the prevention and investigation of crime is to be encouraged where it is responsible and public spirited. The law provides a defence for those who act in extenuating circumstances. However, judicial comment has suggested that the courts should take a firm stand against illegitimate summary justice and vigilantism.
Prosecutors will need to balance these potentially conflicting public interest considerations very carefully.
Procedure
Once a case has been identified by the police as one involving difficult issues of self-defence, the police should be encouraged to seek pre-charge advice from the CPS.
If such a case is brought to a prosecutor for advice, then the decision whether to prosecute or not must be approved by the relevant Unit Head.
Within the CPS, if it is felt that the case involves difficult issues of self-defence, the prevention of crime or the apprehension of offenders, and is likely to attract media attention, a report must be sent through line management to the CCP (Sector Director in London).
Where the case may be media sensitive, the area press officer should be informed. The area press officer should consider informing HQ press office
