The defendant may use reasonable force to protect himself from unlawful interference by the claimant. Be aware that there is an important difference in the scope of the defence of self-defence as between the criminal law and the law of tort. That was confirmed by the House of Lords in Ashley v Chief Constable of Sussex Police.
James Ashley was shot dead in his bedroom by a police officer, Sherwood, during a drugs raid in the early hours one morning. When Ashley was shot, he had been standing naked and unarmed in the dark. Sherwood was charged with murder but acquitted on the ground of self-defence. The Cs, Ashley’s father and son, brought claims as dependents under the FAA 1976 and for the benefit of his estate under the LR(MP)A 1934 for damages for assault, battery and false imprisonment and negligence. D admitted liability in negligence and for false imprisonment but did not admit liability for assault and battery on the ground of self-defence. The CA, reversing the judge, held that the claims for assault and battery should not be struck out. The House of Lords dismissed D’s appeal.
The House of Lords held while at his trial for murder, it had been sufficient for Sherwood to show that he honestly believed he was at risk of imminent attack, however unreasonable such a belief might have been, to establish the defence of self-defence in tort, Sherwood would have to show that he had both honestly and reasonably believed that he had been at risk of imminent attack.
In 2003, C had been in a car which was stopped by the police in London. C ran off waving the gun he was carrying at the police. Minutes later, and unable to gain entry to his girlfriend’s flat, C fired several rounds at the front door. He again ran off waving the gun before being arrested. As a result of these events, C served five years of an eight year prison term. In 2009 the police in London received intelligence that C was planning to carry out a robbery in the Midlands. At a pre-operation briefing, officers including one identified as Z32, were wrongly told that during the 2003 incident C had fired his gun at the police. Later that day, officers who were keeping C under surveillance wrongly reported that C appeared to be carrying a gun. A decision was made to stop the car in which C was travelling before it left London. While the car was stopped at traffic lights, officers surrounded the vehicle. Z32 looked in through the front passenger window and thought that C was pointing a gun at him. Fearing for his life, Z32 fired one round hitting and injuring C.
C claimed damages, inter alia, for battery. Nicol J dismissed the claim: Z32 had shot C in lawful self-defence as he had had honestly and reasonably, albeit wrongly, believed that he was about to be shot by C.
To avail himself of the defence, D must show that the force he used against the claimant was ‘reasonable’. What is reasonable will very much depend on the circumstances of the particular case. In Cross v Kirkby, the Court of Appeal said a judge should not use ‘jeweller’s scales to measure reasonable force’ and a victim of violence cannot be expected to measure the force he uses in self-defence with mathematical precision.
C, a hunt saboteur, wanted to disrupt a hunt which was taking place on farmland occupied by D. D tried to remove C from his land, whereupon C shouted: ‘You’re fucking dead, Kirkby’. C then jabbed D with a baseball bat in the chest and throat. D started to walk away but C struck him again. D then managed to take hold of the bat and struck C on the side of the head, fracturing C’s skull. The CA held that C’s claim for assault and battery failed because (i) D had acted in self-defence and (ii) of the defence of illegality. The judge had held that D had used excessive force, but the CA allowed D’s appeal, saying that the force used by D had been reasonable. The judge had erred by ‘using jeweller’s scales to measure reasonable force’: a victim of violence cannot be expected to measure the force he uses in self-defence with mathematical precision.
Note that the defence of self-defence extends to property in D’s possession: see, eg, Revill v Newbery [1996] QB 567.
Note also that provocation is not a defence: ‘no verbal provocation whatever can justify a blow’ (Anderson v Marshall (1835) 13 S 1130 (Lord President Hope)) – see Weir, A Casebook on Tort, 10th edn, 401. While it had been thought that evidence of provocation might lead to a reduction in any damages awarded to the claimant, that no longer seems to be correct in the light of the Court of Appeal’s decison in Pritchard v Co-operative Group Ltd.
You cannot copy content of this page
