A legal question

[Mirannan]

There seem to be people here who have quite a lot of knowledge on various subjects. So I'll ask a legal question and see what happens. (This is in relation to plausibility for my fiction; I won't be relying on it!) In British law:

I am aware that the standard for response to physical threat is "reasonable force" which I understand to mean, using an example, that if someone attempts to punch you on the nose then a similar punch (or a damaging martial arts move or similar) is reasonable force; disembowelling him with a katana is not. (Yes, I know carrying the sword in the first place is unlawful!)

Scenario: Very highly trained, unarmed, martial artist being suddenly attacked with knives by three people who aren't actually all that proficient in their use. How much damage is it considered reasonable to inflict in the course of self-defence? And does the situation change if the martial artist is defending someone else? Related to that, how about disarming one of them and using the weapon thus gained?

 

[Ray McCarthy]

I thought I couldn't possibly answer a legal question when I saw the title. But such cases have happened in UK.

So it depends...

I remember a guy was arrested for a killing at a pub. He was possibly facing a murder charge. The defence argued that as the Government had trained him to kill with his bare hands the charge should be lowest level of accidental manslaughter. I think he was in the SAS and defending himself from an attacker.

In Ireland a farmer killed a Traveller with a shot gun. He argued he was in fear of his life. I forget how that turned out. An internet search may help as it was recent.

In UK a thief that broke in was chased and beaten with a bat. Have search for that one too. Not so long ago either.

 

[The Judge]

What follows is the law in England and Wales. I don't know what the situation is in Scotland and Northern Ireland, though I imagine it's similar.

Taken from the CPS website at http://www.cps.gov.uk/legal/s_to_u/self_defence/ (but abridged and my bolding)

... it is important to ensure that all those acting reasonably and in good faith to defend themselves, their family, their property or in the prevention of crime or the apprehension of offenders are not prosecuted for such action. The CPS have published a joint leaflet with ACPO for members of the public making clear that if householders have acted honestly and instinctively and in the heat of the moment, that this will be the strongest evidence for them having acted lawfully and in self-defence.

The common law approach as expressed in Palmer v R is also relevant to the application of section 3 Criminal Law Act 1967:

"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."

Reasonable Force
A person may use such force as is reasonable in the circumstances for the purposes of:

• self-defence; or
• defence of another; or
• defence of property; or
• prevention of crime; or
• lawful arrest.

In assessing the reasonableness of the force used, prosecutors should ask two questions:

• was the use of force necessary in the circumstances, i.e. Was there a need for any force at all? and
• was the force used reasonable in the circumstances?

The courts have indicated that both questions are to answered on the basis of the facts as the accused honestly believed them to be (R v Williams (G) 78 Cr App R 276), (R. v Oatbridge, 94 Cr App R 367).

To that extent it is a subjective test. There is, however, an objective element to the test. 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.

It is important to bear in mind when assessing whether the force used was reasonable the words of Lord Morris in (Palmer v R 1971 AC 814);

"If there has been an attack so that self defence is reasonably necessary, it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his defensive action. If the jury thought that that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought necessary, that would be the most potent evidence that only reasonable defensive action had been taken ..."

The fact that an act was considered necessary does not mean that the resulting action was reasonable: (R v Clegg 1995 1 AC 482 HL). Where it is alleged that a person acted to defend himself/herself from violence, the extent to which the action taken was necessary will, of course, be integral to the reasonableness of the force used.

In (R v OGrady 85 Cr App R 315), it was held by the Court of Appeal that a defendant was not entitled to rely, so far as self-defence is concerned, upon a mistake of fact which had been induced by voluntary intoxication.

Basically, it depends on the exact circumstances of the incident, even down to where it takes place and the relative sizes of the parties. The best self-defence is running away, so if the attack is in a wide open space, that option should be taken if possible, whereas if one is trapped against a wall in a pub, that option isn't available; a 5 ft tall elderly disabled woman faced with a 6' 6" 24 yo heavily built male attacker is going to have more leeway in what is "reasonable" than if the situation were reversed.

I take it by "Very highly trained... martial artist" you mean someone from Special Forces or similar who is used to fighting for his/her life and/or killing others, rather than simply someone who takes part in martial arts as a recreational activity.** In such a case that person would almost certainly be held to a higher standard than others. Picking up and using one of the attacker's blades would be acceptable if fending them off was impossible in any other way, but how your trained killer used it would be looked at closely. If I, terrified and unused to weapons, managed to get hold of my single attacker's blade and by a fluke killed him with it, it's highly unlikely I'd be treated as other than a very lucky near-victim, and although I'd be questioned and possibly investigated, prosecution isn't on the cards unless the attacker had already broken off the attack when I killed him -- ie I can't chase him down the road to knife him in the back, since that is no longer self-defence. However, someone who is trained should be able to control his/her actions better plus s/he has other options of disabling them by all the fancy martial arts stuff.

The fact there are three attackers, and therefore your trained killer has less time to react in a more measured way with all three of them coming at once, plus the need to reduce the odds, would work in his/her favour, as would the need to protect someone else who presumably is vulnerable, but nonetheless s/he'd be expected to use the minimum force possible in the circumstances. Knocking them unconscious, causing broken bones, would almost certainly be OK; using the knife, eg by stabbing one of them in the leg to get the attacker to fall back would also probably be acceptable. If the punch/kick is misjudged, or the knife accidently cuts the femoral artery, resulting in death, then that's more open to question and possible prosecution for manslaughter since your trained killer should know the risks. Deliberately killing any of them is almost certainly going to result in prosecution unless there really was no other option and your killer can show that.


** I've read that actually that kind of training might not be of as much help as you might think when faced with a real threat, because the trained person isn't used to the fear/adrenalin rush etc which comes in real life

 

[Denise Tanaka]

I don't know the UK laws, but I've done some legal research for classes. In addition to tapping the pool of wisdom here on the Chrons, I suggest finding your nearest research librarian - preferably a law library - and look up the statute. I'm of a certain age where I prefer books made of paper, but these days the legal databases are more up-to-date than published statutes. Legal databases are also searchable by keyword. LexisNexis is one of the biggest ones, and just now I looked to discover they have a UK version: http://www.lexisnexis.com/uk/legal/ Don't be scared that it requires a subscription and a password. Like I said, go to a law library and ask if you're allowed to log-in as a guest on site.

 

[Maieius]

I thought this might be a legal question about publishing or something haha. This was a great plot twist.

 

[Mirannan]

The Judge - Yep. Not only trained, but accustomed to real HTH combat with weapons or otherwise. Of course, the cops don't necessarily know that, but there is a good clue to it. What you describe is more or less what I thought; to some extent up to the policeman on the scene what happens after this incident.

OK, that's the way the scene was written and it looks as if it isn't too far out of line. Thanks.

 

[ralphkern]

In the scenario you describe above - lethal force could be considered reasonable. The response of the attacked would be judged as to whether it was the minimum force necessary, but balanced against that fact is in those kinds of circumstances it is impossible to 'weigh that force to a nicety'. (The law basically saying in the heat of a scrap, someone is not able to judge every blow).

In your circumstances, if they were able to disarm an opponent and takes the knife and the fight continues against the others (who still have knives, or potentially even not if he has already disarmed them, as they have already demonstrated their willingness to use lethal force) and he kills them - he's probably okay from a legal POV. If he has beaten them to the ground or they are running away... then no, he has no legal basis to finish them off.

What you are describing regarding your attacked being highly trained etc would be what is called 'person impact factor'. Anything about the attackers is called 'subject impact factors' and then anything about the surroundings is called 'environment impact factors'. All of those are obviously considered.

The laws that dictate reasonable use of force are Section 3 of the Criminal Law Act 1967 and Common Law: self defense.
There are a few more that guide the actions of police and soldiers, but if your guy is not one of them they do not apply. Self defense also applies to the defense of another. If you read them, you'll see they are vague and deliberately so in order for the courts to view each case on its own merits.

If the opponents are killed, almost certainly your character would be arrested / voluntarily interviewed. If the evidence is overwhelming he was acting in self-defense, he will be No further Actioned (although it would be a brave prosecutor who decides not to put the matter before the courts to decide). Practically, once any relevant first aid has been completed, I would arrest all (who are still breathing!). That way, it can be investigated in a far more controlled manner. Despite what the Daily Mail would have you believe, an arrest is not anyone saying a person is guilty, merely that we are going to ask them a bunch of questions about whats gone on. (Whether they answer, is of course up to them)

I will echo TJs point. As a cop, I strongly disagree with people marketing martial arts as self defense (fitness/disciplinary etc yes, fine). In my experience, it has invariably led to over confidence with a person thinking they can defend themselves when simply they simply don't have the nature, temperament or instincts to win in a scrap. They then get themselves beaten up despite the fact they hold a black belt in Karate/ Tai Kwan Do/ Origami etc). Fights nearly always turn into brawls where disciplined strikes are nigh on impossible. If you want to see the closest sport to what fighting really is between trained fighters, watch MMA matches. You'll note they look a hell of a lot messier than a sparring match. That fighting style is HEAVILY weighted towards one on one though.

 

[Ray McCarthy]

Origami

If you spray lemon juice, the paper cuts are really painful. See "Princess Bride"

Most real "Martial Arts" is about display, the actual magical fighting is a cinema fiction. As useful as asking your assilant to wait while you put on the gloves and check the Marquess of Queensbury rule book.

1) Best idea: Don't be there.
2) if that fails remember Rincewind. Running away.
3) The winner/last standing is at least someone arrestable. You better have a really good lawyer, CCTV etc if you win.

 

[LittleStar]

I don't suppose I'll be able to add much more, Ralph or TJ seem to have it all covered, but I do vaguely recall an instance on one of those 'follow police with cameras' programmes, of a coupe of guys starting a fight outside a club, but the man they were ganging up on was an amateur boxer. He got pulled up something like assault with a deadly weapon, or some such, simply because he had training with his fists.

I'll also echo ralph's point about martial arts not looking like the movies. Maybe one on one if the attacker comes in a text book fashion, but brawls quickly become anarchy. And I've always wondered why the group of baddies don't just time five punches at once, even with arms and legs all blocking perfectly, one punch still connects! (and one punch might be all that's needed as well)

 

[Mirannan]

One more thing that might make a difference is that the one being attacked interrupted a rape by turning up. Make any difference?

 

[ralphkern]

Section 3 of the Criminal Law Act:

A person may use such force as is reasonable in the circumstances in the prevention of crime or the apprehension of someone unlawfully at large.

Your character is covered.

If the others are dead, he would likely still get arrested though. People are still dead, and the cops need to figure out why and secure & preserve evidence.

Once the dust has settled he'd get a citizens award though!

 

[ralphkern]

Also, something that came in a bit later. I forget the act and don't have to hand at the moment. There is something which codifies that a threat is as the person perceives it.

The example was, a person is walking down the street and his mate jump out on him for a laugh, brandishing a fake knife and wearing a mask. If that person punches his mate so hard he kills them - His use of force is still lawful as he perceives he is under threat from lethal force.

But again, don't mistake the fact it would be investigated as the cops necessarily saying that he's a murderer (in this case our hypothetical guy isn't). The cops mission is to gather the evidence to help the courts establish the truth of what has occurred.

Compare that against Tony Martin, the farmer who got himself into bother a few years ago. The reason why he was convicted was because he shot, and killed someone running away (and injured the other). They were not an immediate threat to him. Had they been running towards him it would have been a different story. That was diversive as people thought they had it coming to them being burglars. Bottom line, he couldn't justify lethal force.

 

[psychotick]

Hi,

One more thing to consider. In any criminal prosecution the balance of evidence has to be "beyond reasonable doubt" before a conviction can be given. And the ones doing the deciding as to who gets prosecuted and who doesn't are the prosecutors - at least here in NZ. They are utterly aware of this requirement and won't even take a case in general if they don't feel they have the evidence to reach this standard.

That means that if your guy can talk a good case he's almost certain not to be charged and prosecuted. There are of course exceptions. Consider the Trayvon / Zimmerman prosecution where the prosecution was carried out because - lets be honest - there was a media frenzy in the offing - and where the prosecution was lost. Yes Zimmerman was armed, but there was enough circumstantial evidence and his testimony to suggest self defence and so he had to be acquitted. Yet Zimmerman had a gun and admitted that he had persued the suspect a little way, when he should have remained in his car. Under normal circumstances he would likely not have been charged at all. (Not saying he's innocent, just that he had sufficient grounds to make prosecution of him an uphill battle from the start.)

Cheers, Greg.

 

[Brian G Turner]

@Mirannan - I always recommend Violence: A Writer's Guide by Rory Miller, for anyone looking to cover real-world effects of violence - not just about facing it, but also the after-effects. As TheJudge and ralphkern mention about, many fights reportedly end up as brawls, no matter the individual's training, because they get such a big rush of adrenaline that motor co-ordination is completely disrupted. However, people with long experience of such high-pressure confrontations can become more accustomed to dealing with that.