Self Defence And The Law

31/01/2010 09:49:00

this article was published in Jissen magazine issue No5. Jissen magaziine can be viewed at www.jissenmag.com

Round Two, The Second Fight
Self Defence And The Law


As a detective in a busy CID I have dealt with numerous cases of violence of all kinds. Policing is a demanding and at times difficult job and on the whole police officers are professional in the way they carry out their duties. Being a detective in the police today is probably one of the most stressful roles due to the heavy case loads officers have, always under time pressures to get things done, and the paperwork is never-ending. This being the case officers sometimes simply want to deal with a case in the easiest and most expedient way, as a result there have been occasions when people who have acted lawfully in self-defense have been charged or cautioned with offences as a result of being unfamiliar with the Police and Criminal Justice System method of operation.

This article is intended to highlight the issues that arise after you have been involved in a situation where you have had to act in self defence or otherwise lawfully use force against another person. This is about the second round of the fight, the one with the law and the criminal justice system.

So you have had some idiot threatening you and have exercised your right to act in self defence. You carry on as you were having dealt with the matter and thinking life is all rosy, however there sometimes comes after the physical encounter another confrontation which can be far harder to deal with, this fight is with the law and the criminal justice system. For those unfamiliar with Police procedure and the way the criminal justice system and its various agencies work, this can be far more stressful and ultimately life changing if handled wrongly.

English law provides the right for every person to be able to lawfully defend him or herself under common law. In order to use force against another in self defence you must honestly believe that your actions were reasonable and necessary to deal with the situation. The key words here being “Honestly Believe” and Reasonable”.

If your use of force to defend yourself is to be considered reasonable in the eyes of the law then it is necessary to show that you must have held an honest belief that your actions were no more than that which were required in order to negate the threat or perceived threat against you. It is vitally important that you cite your honestly held belief that your actions were reasonable in the circumstances as you saw them at the time.
According to English Law the issue of reasonable force comes from two main sources, English Common Law and Section 3(1) of the Criminal Law Act 1967.
1. English common law states that:
A person is permitted to use reasonable force in order to:
• Defend himself from attack
• Prevent an attack on another person
• Defend his property
2. Section 3(1) of the Criminal Law Act 1967 states that:
Any person may use such force as is reasonable in the circumstances in order to:
• Prevent a crime from being committed,
OR
• Make or assist in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.
The lawful use of force in any circumstance includes the overriding principle that it must be deemed reasonable and necessary. In assessing the reasonableness of the force used, prosecutors must ask two questions:
• Was the use of force justified in the circumstances, i.e. was there a need for any force at all?
• Was the force used excessive in the circumstances?
Both questions must be answered on the basis of the facts as the accused honestly believed them to be at the time. However 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. This basically boils down to having to justify our own actions.

It is now worth looking at what could happen legally after you have acted in self-defence. Let’s assume that you have to all intents and purposes acted lawfully in self-defence. However the police have been called and upon arriving at the scene receive an allegation of assault from the aggressor. The officers locate you and inform you that they are arresting you for assaulting the aggressor.

When the police approach you to effect an arrest they should state the nature of the allegation, what you are being arrested for, why an arrest in necessary and then caution you. Once you are identified as a suspect to officers and they have enough grounds to arrest you they should not be asking you any questions other than to establish your identity. Once arrested you will then be taken to the nearest available police custody suite.

During this journey the officers are not allowed to discuss the allegation with you, this can make for one of two situations occurring during the journey;
1) The officers will engage in general seemingly innocent conversation with you.
2) The journey will be conducted in silence or private conversation between the officers only.
They may be reluctant to talk to you, as they are under an obligation to write down and record everything you say, which can be hard work in a moving vehicle with a nervous suspect who cannot stop talking.

At the police station the officers will present you to the custody officer and give the grounds and circumstances of the arrest. The custody officer having authorised your detention must then explain your legal rights while in police custody, the most important of which are;
• Right to speak to a solicitor and have one present during interview.
• Right to a phone call to inform someone that you have been arrested.
• Right to be provided upon request with writing materials.
The custody officer must also determine whether you may need medical treatment, your fingerprints, DNA and photo will then be taken. These can be taken without your consent and by force if necessary. The police may also seize as evidence your clothing if it has blood or saliva on it or if it is an identification issue. In most cases a person arrested in such a manner can be kept in police custody for up to 24 hours.

At some stage you will be interviewed by officers about the incident. This interview must be recorded. If you have asked for a solicitor, when they arrive at the station they will be met by the officer dealing with the case who will then tell the solicitor a certain amount information about the case. This process is called disclosure. The solicitor will attempt to find out as much as they can about the strength of the police case against you. The solicitor will then see you in a private consultation where they will give you appropriate legal advice, such as to exercise your right to silence during interview (usually done when the police case is weak), formulate a written statement or to answer all questions unless they say otherwise.

As mentioned earlier there have been instances where people who have acted lawfully have been charged or cautioned with offences. These cases are most usually instances when the person who has acted in self-defence has said the wrong thing and not sought legal advice from a solicitor whilst in custody.

Should you ever find yourself in a situation where you have acted in self-defence or had to use reasonable force against another for whatever reason, the following is good advice on how to prepare for dealing with any potential legal fallout after the physical engagement is over.
1. Upon arrest; Say something along the lines of,
“Officers I would like you to record the following in your notebooks. I have acted in self-defence and I am willing to cooperate with police in any way I can but I will not discuss the incident without first speaking with a solicitor”.
Insist on them writing this down so that you can then sign it and then maintain your right to silence.
WARNING;
AT NO STAGE TELL THE POLICE THAT YOU HAVE ANY SORT OF MARTIAL ARTS / SELF DEFENCE TRAINING
2. During the journey to the police station try not to engage in any conversation with the officers, be polite but mind what you say and try to remember the details of any conversation for later recollection.
3. When being booked into custody the custody officer will ask you if you understand the reason for your arrest after the officers have told him the circumstances. At this point repeat what you told the officers originally as and ask that it be written on the custody record. Do not discuss the incident further, as this process is also generally video and audio recorded.
4. If you need to, make a phone call to someone to let them know where you are but do not discuss the incident at all.
5. At the earliest opportunity ask to speak to a solicitor, this can be your own or the duty solicitor which is free, you will be able to speak to them by phone but this could be over heard by officers and custody staff so don’t say too much.
6. Ask the custody staff for some writing material and tell them you wish to make some notes, which are covered by legal privilege and are for your solicitor.
7. When making notes:
a) Write out a full and legible note of everything that happened in the correct sequence of events
b) Write down everything that was said, word for word if possible, particularly any conversation you had with police officers
c) Record the names and numbers, if you know them, of the police officers involved.
d) Sign the notes at the bottom and put the time and date.
e) If there are witnesses to the incident, take their names and addresses if possible and ask them to make notes.
f) Ensure that you keep these notes with you at all times whilst in custody until you can give them to your solicitor. If police try to take them insist that they are subject to legal privilege and that they are committing an offence by taking them from you.
8. If you have any injuries, for example, swelling / grazing on your knuckles, defensive wounds etc ensure that you insist on police
a) Taking photographs of such injuries.
b) Ask to see the custody doctor or nurse so that your injuries are recorded.
9. Now comes the hard bit, sit back and wait to be interviewed and do not discuss the case with anyone. This could take some time and a police custody suite is not the most comfortable of environments when all you want to do is get out and resolve the issue. Remember the police can hold you for up to 24 hours.
10. If an officer attends your cell Do Not get talked into being interviewed without a solicitor being present. It is illegal for officers to do this but it can be done in a subtle manner.
11. When you speak with your solicitor prior to interview tell them that you train in Martial Arts / Self Defence. Your solicitor will after hearing your version of events explain the custody and interview process and what the potential outcomes are. They will then advise you on how to proceed during the interview as mentioned earlier.
12. Once the interview is finished the police will they have to consult the Crown Prosecution Service who will review the evidence in the case. This could take place whilst you are still in custody or after you have been released on bail to return to the police station at a later date while a decision is made as to how to proceed with the case.

One of the most important points to bear in mind is that no matter what else is going on in your life at the time you are in custody none is as important as the issue for which you have been arrested. Keep your mind on the issue at hand as if you deal with this properly at this stage it could save you a lot more stress later on.
As mentioned above, in addition to using force in defence of yourself, you can also use force in order to defend a third party, protect your property from damage or theft, prevent a crime being committed or restrain and detain a person you suspect of having committed an offence (commonly called a citizens arrest). The same principles as outlined above for acting in self defence apply in each respect. However people have fallen foul of the legal system when acting under these provisions due to their having said the wrong thing at the wrong time to the police.

As martial artist we all train for different reasons, if it is for self defence then what you are in fact doing is preparing for something that may happen in the future. Is it not therefore prudent to also prepare for that possible eventuality of having defended ourselves, our loved ones or our property that we also prepare for the legal battle, a battle that can be far harder to deal with, and can be far more stressful and ultimately life changing if handled wrongly. Hopefully you will never have call to rely upon this advice but forewarned is forearmed and it would be a shame to have all of our training only to fall foul of the legal system, which would give the idiot that threatened you in the first place a great deal of amusement.

D Cooper

 

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