From: "John Hurst", [EMAIL PROTECTED]
>If you lawfully hold a firearm for, say, shooting deer, there is absolutely
>nothing wrong in using it for self defence in the home PROVIDED that:
>It is the minimum force required in the circumstances.
>It is proportional to the perception of the threat at the time.
>The full circumstances are such that it is reasonable.
IG,
I agree with you except for "minimum force" and the concept of
"reasonable in the full circumstances". Necessary force can be used in self
defence and in home invasion scenarios.
As you know doubt know Section 3 of the Criminal Law Act 1967 goes like
this;
(1) "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" .
(2) Subsection (1) above shall replace the rules of the common law on the
question when force used for a purpose mentioned in the subsection is
justified by that purpose."
Stones Justices Manual.
Note that Section 3 (2) confirms that this Act only supersedes the common
law rules in relation to the prevention of crime and the arrest of
offenders and not self defence.
This was acknowledged in the House of Lords debate when Viscount
Colville, IIRC, raised it in debate and proposed an amendment which became
Section 3 (2). He did this because other Sections of that Act which replaced
rules of the common law did so explicitly.
The common law rules on self defence therefore remain. What those rules are
and what the term " is reasonable in the circumstances" means were covered
in the debates on the Criminal Law Act 1967.
On 1st November 1966 Lord Brentford pointed out in debate;
"The Common Law permits the use of reasonable force where necessary" and
asked why the word "necessary" had been omitted in the Bill because " it is
the tradition of this country that a person may use force only if and when
force is necessary"..."adding the word "necessary" will be beneficial for
constables and others in that if they are limited to reasonable force they
may have very great difficulty in arresting a criminal who is seeking to get
away and who himself uses force. Under the wording of the clause as it is
drawn they are entitled only to use reasonable force.
Now what is reasonable force? Obviously, reasonable force can only be force
of a moderate character. But, in the circumstances that I have described, it
may be necessary, in order to effect an arrest, for the constable to use
force of a major character, or to use the maximum degree of force. In the
circumstances, that force would be "such force as is reasonably necessary".
Lord Stonham, a sponsor of the Bill, replied explaining that the Government
preferred the Bill as drafted without the word "necessary" because;
"If we accepted Lord Brentford's amendment then a person who used even
reasonable and justifiable force would not be excused unless he could prove
that the force was reasonably necessary. There are two things, reasonable
and necessary. In the view of my department, that would place too heavy a
burden on a person who acted in a way reasonable in the circumstances at the
time.
It is important to bear in mind the kind of case in which clause 3 would be
operating. There is a shout of "stop thief". You look up and see three men
run from a bank and jump into a car and you pick up some heavy object and
throw it at the windscreen. Or a man discovers a burglar in his house and
tackles him by any means that occur to him.
In neither case does he know of the existence of this particular provision,
nor could he stop to think what his legal rights were. The important thing
is that, in our view, the provision as we have it fulfils what is essential
that it should protect anyone who, on the spur of the moment, behaves in a
common sense and public spirited way. In our view it would not be right for
the provision to give rise to nice, exact questions, argued with hindsight,
after the event, in the sedate atmosphere of the law courts, as to whether
the action taken was strictly necessary, or as to what alternatives there
may have been... we use only one conception, reasonableness."
This confirms that the subject is entitled to use as much force as is
necessary to prevent himself getting hurt when he perceives that he is
seriously threatened. It also confirms Blackstones definition of "duress" or
"necessity" in my previous posting and shows that the subject is not
expected to be held to the standard of
"The full circumstances are such that it is reasonable".
An authority for these interpretations is the Met Police "Officer Safety
Manual" BTW, which also confirms that there is nothing in common or statute
law which limits a defender to "minimum" force. And neither does the Human
Rights Act before you ask <g>.
Regarding home invasion, a nocturnal break in to an occupied dwelling is
regarded in law as the same as an assault. This common law rule was
confirmed in " R. V. Hussey (1927
IIRC);
" In defence of a mans house the owner or his family may kill a trespasser
who would forcibly dispossess him of it, in the same manner as he might by
law kill in self defence a man who attacks him personally, with this
distinction however, that in defending his house he need not retreat, as in
other cases of self defence, for that would be giving up his house to his
adversary".
Regards, John Hurst.
Cybershooters website: http://www.cybershooters.org
List admin: [EMAIL PROTECTED]
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