"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

      "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

   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:

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