"Clayton E. Cramer" <[EMAIL PROTECTED]> writes: > ----- Original Message ----- > From: "Tim Lambert" <[EMAIL PROTECTED]> >> In the light of claims that self-defence is now illegal in Britain, >> readers might be interested in my post at >> http://cgi.cse.unsw.edu.au/~lambert/cgi-bin/blog/2004/07#gullible4 >> It's rather long so I'll just post a few extracts: >> >> Joyce Lee Malcolm, writing about British law on self-defence: >> >> That willingness was further undermined by a broad revision of >> criminal law in 1967 that altered the legal standard for >> self-defense. Now everything turns on what seems to be >> "reasonable" force against an assailant, considered after the >> fact. As Glanville Williams notes in his Textbook of Criminal Law, >> that requirement is "now stated in such mitigated terms as to cast >> doubt on whether it [self-defense] still forms part of the law." >> >> Malcolm has doctored the quote from Glanville Williams to reverse its >> meaning. The word "it" does not refer to self-defence as Malcolm's >> addition to the quote indicates, but to the requirement that the >> defender's belief that his actions were necessary had to be a >> reasonable belief. If this requirement is no longer part of the law it >> makes it easier to plead self-defence. >> >> Here is the entire paragraph that Malcolm pulled her quote from. It is >> is clear that "it" refers to "The requirement of reasonableness" and >> not to "self-defence": >> >> The requirement of reasonableness is unhappy. Enough has been said >> in criticism of it, and the CLRC has recommended that it should be >> expunged from the law. In practice, as we have seen, the >> requirement may be construed indulgently to the defendant, for, as >> Holmes J memorably said in the United States Supreme Court, >> "detached reflection cannot be demanded in the presence of an >> uplifted knife." As we shall see in the next section, the >> requirement is now stated in such mitigated terms as to cast doubt >> on whether it still forms part of the law. >
> I spent a bit of time reading the full quote, and I don't think > "doctored" is the right word. In fact, I am not even sure that > Malcolm has it wrong. The pronoun "it" could be read as referring > to either the requirement of "reasonableness" or self-defense. Don't be ridiculous. The term "self-defence" does not even appear in that paragraph, "It" is used three times in the paragraph, each time to refer to the requirement of reasonableness. > Part > of why I suspect that Malcolm has correctly identified what "it" > refers to, and that you have not (a easy mistake to make considering > the text), is some other text that Malcolm quotes from Glanville > Williams in _Guns and Violence: The English Experience_ at p. 187. > She quotes Williams at considerable length, without anything > bracketed or ellipsed, in which Williams gives examples such as > this: I'm afraid that Malcolm is not quoting Williams correctly. At best, what she writes is a paraphrase. > In 1978 a man, O'Shea, feared he was about to be set upon by a > gang of youths. While defending himself, he accidentally killed > one. The court rejected his plea of self-defence and sentenced him to > four years in prison. On appeal his sentence was affirmed. The actual wording: 7. In O'Shea (1978) 142 JPN 472 a man who feared he was about to be set upon by a gang of youths was sent to prison for 4 years for accidentally killing one of them in the course of defensive action; and the CA affirmed the sentence. Malcolm gave a paraphrase, not a quote. More importantly it's been taken out of context. This was in the section about using deadly force to protect property, not to defend oneself. The next one isn't even an accurate paraphrase. > In 1980 Shannon was attacked by a bully--a heavily built man who > had previous convictions for violence and had threatened Shannon's > life. Shannon fought back and witnesses described the fight > (evidently one-sided) "pretty frightening." Shannon testified that > he was held by the neck and was being dragged down and "kneed." He > lashed out with a pair of scissors and inflicted a fatal blow. The > jury heard a great deal of questioning about how Shannon happened to > be carrying scissors, an issue irrelevant to the charge. In the > event the jury found him guilty of manslaughter. The Court of > Appeal reversed the decision, not because of the verdict, but > because of a fault in the judge's charge. What Williams actually wrote is below. Pay special attention to the last paragraph, which is what he was referring to when in the previous section he wrote: "As we shall see in the next section, the requirement is now stated in such mitigated terms as to cast doubt on whether it still forms part of the law." In order to give proper width to the right of self-defence an Australian court stated the law negatively: "Would a reasonable person in the defendant's situation have regarded what he did as out of all proportion to the danger to be guarded against?" A somewhat different approach to the problem was adopted by the Court of Appeal in Shannon, basing itself on the following dictum of Lord Morris: "A person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action. If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonable defensive action had been taken." Approving this statement, the Court of Appeal quashed a conviction because the trial judge had not conveyed the point to the jury and had not directed them broadly in Lord Morris's words. The real issue, the court thought, was: "Was this stabbing within the conception of necessary self-defence judged by the standards of common sense, bearing in mind the position of the defendant at the moment of stabbing, or was it a case of angry retaliation or pure aggression on his part?" In future, an instruction to the jury in these terms will evidently be necessary in many cases of self-defence. The facts of Shannon were that the deceased, a heavily built man who had convictions for violence, had been making threats against Shannon for having (as he believed) "grassed" him. Shannon, who had no history of violence or aggression, must have been living in fear of an attack for some time. When the attack came he fought back, the fight (though evidently largely one-sided) being described by a bystander as "pretty frightening." Shannon's evidence was that he was being held very tightly by the neck and was being dragged down and "kneed;" he feared that if he fell while in the grip of his attacker he would have "got beat up by his feet." He lashed out with a scissors and inflicted a fatal blow. On the issue of self-defence the judge left the case to the jury with the bald question: Did the defendant use more force than was necessary in the circumstances?" On this the jury, surprisingly, returned a conviction of manslaughter. The conviction was quashed, as already said, for inadequate direction to the jury; but the Court of Appeal expressed no other criticism of the verdict. We are left with the impression that if in a similar case the judge reads out Lord Morris's dictum to the jury, who nevertheless convict, the conviction will stand. On the dictum, it is not easy to see how "what the defendant thought" could be evidence of what it was reasonable for him to do. The usual opinion is that the question what is reasonable, in the multifarious applications of that word, is for the unaided vote of the jury, and is not a matter for "evidence" in the ordinary way. It looks very much as though the dictum is a way of escaping from the test of reasonableness without acknowledging the fact. This conclusion is strengthened by the above-quoted remark of the Court of Appeal, which (epitomising a lengthy statement of Lord Morris) distinguishes sharply between "necessary self-defence" on the one hand and "angry retaliation or pure aggression" on the other. The dichotomy allows no place in between for unnecessary but putative self-defence. All putative self-defence, it seems, falls into the category of "necessary self-defence." In this part of the judgment, the idea that the defendant's belief is merely evidence of reasonableness has suddenly vanished; indeed, the very word "reasonable" is dropped. It seems, therefore, that the decision makes a radical change in the law. At least where the defender fears death or serious injury, there is no proportionality rule any longer; and a good thing too--in view of the jury's verdict in Shannon. German law, it seems, gets on without a proportionality rule, and so could we, where the facts are similar to those in Shannon. The reasoning in the decision is fudged, but that is the price one pays for a beneficial change in the law. I have posted the text of both sections from Glanville Williams here: http://cgi.cse.unsw.edu.au/~lambert/cgi-bin/blog/guns/files/selfdefence.html -- Tim _______________________________________________ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/firearmsregprof