A Basic Introduction to Common Law and Self Defence.

by Ben Lacey

John has taken his partner out for a meal in a nice restaurant. At the table next to them three rather drunken males are boisterously eating. They are loud and their language is becoming very offensive. John leans over and politely asks them if they could keep their voices down as they are offending other diners in general and his partner in particular.

Two of the men apologise. The third, however, stands up and clenching his fists moves towards John. In an aggressive voice he says ‘I’ll show you how I offend people’.

John is about to be attacked…

What John in all probability is unaware of is that he is not facing a single battle here. He is in fact facing three battles; a battle with himself, a battle with the drunk and lastly, a battle with the law. 

The battle with himself is the momentary assessment of his own capabilities, attitude and beliefs. ‘Can I defeat this man?’ If John loses this battle the chances are that he will be defeated in any conflict with the drunk. He will not have the correct mental attitude.  The second battle, the actual battle with the drunk, is straightforward enough. He will either defeat or be defeated by his opponent. The third battle, however, is the battle that if fought and lost can see John being arrested, charged and attending court. It can lead to a criminal conviction even though John was not the cause of the altercation. It is on this third battle that I would like to focus. I want to discuss the law around ‘self defence’.

You may ask yourself, ‘Why do I need to know about this’. Well any of us can find ourselves in the same position as John. To have some basic understanding of the law can assist us in ensuring that what we do at the time is appropriate. It can also help us to better explain to police (or the judiciary) why we did what we did. For those who teach karate it is always helpful to students if then can be given guidance as to under what circumstances a technique could be employed.

Let’s get back to John…

If the drunk attacks John, the Common Law of England gives him the right to defend himself or others. However the use of force must be necessary and it must be reasonable. These are two very important factors which need to be understood. John is justified in using force against the violent drunk. That is clear enough. However should John grab a knife from the table and stab his assailant it could be deemed that the level of force was excessive under the circumstances. Also, let’s say the drunk’s attack was blocked and countered by John and the drunk backed off and ceased the attack. Any further force used by John could be deemed as unnecessary as the attack was over.

But does John need to wait to be attacked before he can defend himself? Well the simple answer is no. John can, under certain circumstance strike first.

Common Law gives John the right to strike the first blow if he has an ‘honestly held belief’ that he or another is ABOUT to be the victim of violence. The important factor here is the term ‘honestly held belief’. John has to be in honest fear that he or another is about to be attacked. He may have to satisfy a magistrate or jury that he did indeed have such a fear within him. This fear can be created by the words, tone, action and general demeanour of the attacker coupled with how these made John feel at the time. This first strike is called a ‘pre-emptive strike’ in common law. And just as in the earlier paragraph the use of this strike must be necessary and the level of force used must be reasonable.

I personally know of a case where a young neighbour of mine was subjected to a series of violent threats by a group of young men in a nightclub. During the  evening he went to the toilet. He noticed that one of the group had followed him in. He turned and noticed that the man looked very aggressive as he slowly walked closer with his fists clenched and seemed to be setting himself up to throw a punch. My neighbour honestly believed he was about to be assaulted so did what he thought he should do… He punched the threatening man once squarely on the chin and knocked him out. Staff were made aware of the incident and rendered first aid and called police. My neighbour was arrested. During interview he made mention of the threats earlier in the bar. He clearly described the behaviour of the man who had followed him into the toilet and how that behaviour made him feel. He highlighted the fact that he had a honest belief that he was about to be attacked and to defend himself he had struck first. He felt his punch was reasonable and he stopped all force immediately the man ceased to be a threat.

Bottom line is that although he went to magistrate’s court he was found to have acted in self defence and used appropriate and justified levels of force.

It is also worth pointing out that if a pre emptive strike is carried out in error there is still a legal defence providing the striker had an honestly held belief that they were about to be assaulted.

An interesting consideration to be borne in mind is how being a student of karate can affect the concept of a ‘reasonable use of force’. In karate the student is taught and practices a myriad of techniques that can seriously injure and even kill. If such techniques were to be used, then the student of karate would need to be able to justify why they did so. 

So in a nutshell…
- All force must be necessary
- All force must be reasonable
- It must cease immediately the threat itself ceases
- You can strike first if you honestly believe you are about to be attacked
- You may have to justify your actions in a court of law so always keep in mind how you felt, what you saw and what you heard
- Don’t go to nightclubs where your girlfriend’s ex boyfriend hangs out!!!!

Ben Lacey is a retired Firearms Instructor with the Metropolitan Police.

This article is for information purposes only and does not constitute legal advice.