Your Rights to Self Defence

The Legislation of Common Law and the use of force

Relevant Legislation:

Section Three (1) Criminal Law Act 1967:

“A person may use such force as is reasonable in the circumstances in the prevention of a crime, or in the effecting or assisting in the lawful arrest of offenders or suspected offenders unlawfully at large”.

Human Rights Act 1998

The Human Rights Act has two basic purposes:

1. The law of the European Convention on Human Rights (E.C.H.R.) and specifically the rights and freedoms set out in the convention will be actionable before the UK courts.

2. Courts and tribunals, public authorities and Government Ministers will have to act in a way that is “compatible” with the law of the Convention. Failure to do so may be unlawful, although not a criminal offence.

Use of Force and Human Rights

When making a determination as to whether the level of force used was lawful in any particular instance the courts will take cognisance of the articles under the E.C.H.R. The rights which are most likely to be directly interfered with in situations where force is used are:

1. Article Two: The right to life.

2. Article Three: Prohibition from torture, inhumane or degrading treatment.

3. Article Eight: The right to respect for private and family life.

Article Two: The Right to Life

Everyone’s right to life shall be protected by law. No one shall be deprived of his life Intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

a. In defence of any person from unlawful violence.

b. In order to affect a lawful arrest or to prevent the escape of a person lawfully detained.

c. In action lawfully taken for the purpose of quelling a riot or insurrection.

Article Three: Prohibition from torture, inhumane or degrading treatment

The activities prohibited by article three were characterised by the European Court in Ireland v UK(1978) as:

Torture: Deliberate inhuman treatment causing very serious and cruel suffering.

Inhumane Treatment: Treatment that causes intense physical and mental suffering.

Degrading Treatment: Treatment that arouses in the victim a feeling of fear, anguish and inferiority capable of humiliating and debasing the victim and possibly breaking his or her physical or moral resistance.

Where extreme or excessive force is applied, or where the application of force is maintained for longer than necessary (even if its use is to achieve a lawful aim) this may amount to torture, inhumane or degrading treatment. This may include the unnecessary / prolonged use of ratchet handcuffs.

Article Eight: The right to respect for private and family life

1.  Everyone has the right to respect for his private and family life, his home and correspondence.

2. There shall be no interference by a public authority with the exercise of this right except
such as is in accordance with the law and is necessary in a democratic society in the 
interests of national security, public safety or the economic well-being of the country, for the
protection of health and morals, or for the protection of the rights and freedoms of others.

As can be seen from the above, Article Eight provides a qualified right which can be interfered with, providing one of the conditions in paragraph two applies. Article Eight is not just a right to privacy. It has been held to include respect for an Individual’s physical and moral integrity. For this reason, an assault may amount to a breach of Article Eight.

In relation to all the above articles the use of force must be based on an honestly held belief that it is absolutely necessary, this is perceived for good reason to be valid at the time. On each occasion in which force is used it should be reported how, why, when and to whom.

Common Law

Common law is the law as determined by legal cases that are heard before judges. “Precedence‟ is determined by the most recent decision taken by the highest court i.e. in the UK, the House of Lords.

“The common law has always recognised a person’s right to act in defence of themselves or others. If a person has to inflict violence on another in doing so such action is not unlawful as long as their actions are reasonable in the circumstances as they sees them. The test to be applied for self defence is that he/she acted reasonably in the circumstances as he/she honestly believed them to be in the defence of him/her or another.” The use of force must be based on an honestly held belief that it is necessary, which is perceived for good reasons to be valid at the time.