It would be quite wrong to suggest that the issue of self-defence (and the law relating thereto) is a libertarian issue. But it is probably true that, for many years, there was next to no debate about it as an issue outside of libertarian circles.
For free market advocates, self-defence (and the natural right thereto) is not just an important issue, it is a cornerstone of individualist philosophy. Yet, while libertarian scholars and writers debated passionately about the issue, it barely registered a blip on the radar of wider public interest.
That is, until a certain Tony Martin shot two intruders who had broken into his remote Norfolk farmhouse, killing one of them. The news that he had been arrested and charged with murder, led to a broken-dam deluge of furious and passionate debate about the right of self-defence and which flooded every medium.
Overnight, it seemed, self-defence had become a hot topic, not least because, as with so many debates, it has tended to generate more heat than light.
I do not intend to simply re-hash the Martin case and the various reasons why his actions either were or were not justified. That has already been done in some length here and elsewhere. What I want is to examine the reasons why practical self-defence has, to all intents and purposes, become illegal in the UK.
The obvious starting point is the law itself. While I believe that broader phenomena have played their part in creating the current situation, it is critical to examine how they worked to shape both law and custom as it stands. There is not, as such, any statutory right of self-defence but self-defence is permissible under the terms of S3 (1) of the 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.
Thus a person may use force to prevent the commission of a crime which includes a crime being committed against that person (such as assault, rape etc). However the crucial caveat is that the use of force must be limited to ‘such force as is reasonable in the circumstances’. This means that a person who is subjected to an attack must have regard to proportionality in their response to that attack. Their actions can, and will, be judged objectively after the event.
It is often said, indeed it is widely assumed, that the 1967 Act merely codified the previous common law position. But, on closer scrutiny, I think that claim holds no merit. The English common law (which, in theory at least, still exists) managed to establish some important and meritorious distinctions reference to which can be found in The Law of the Constitution by A.V. Dicey (MacMillan, London 1885).
That is not to say that the lines were straight or the issue black-and-white. In fact, Judges struggled to maintain a balance between the individual right and wider public interest.
Discourage self-help, and loyal subjects become the slaves of ruffians. Over-stimulate self-assertion, and for the arbitrament of the Courts you substitute the decision of the sword or the revolver.
Despite grey areas (which are unavoidable), the Courts dealt with self-defence cases by eschewing dogma in favour of applying common-sense principles. The result of this was the emergence of two separate doctrines. The first, according to Dicey:
In defence of a man’s liberty, person, or property, he may lawfully use any amount of force which is both “necessary” – i.e. not more than enough to attain its object – and “reasonable” or “proportionate” – i.e. which does not inflict upon the wrongdoer mischief out of proportion to the injury or mischief which the force used is intended to prevent; and no man may use in defending his rights an amount of force which is either unnecessary or unreasonable.
Clearly the 1967 Act is a codification of this doctrine (“legitimacy of necessary and reasonable force”).
However, Dicey goes on to describe a second doctrine (“the legitimacy
of force necessary for self-defence.”), thus:
A man, in repelling an unlawful attack upon his person or liberty, is justified in using against his assailant so much force, even amounting to the infliction of death, as is necessary for repelling the attack – i.e. as is needed for self-defence; but the infliction upon a wrongdoer of grievous bodily harm, or death, is justified, speaking generally, only by the necessities of self-defence – i.e. the defence of life, limb, or permanent liberty.
A far more robust doctrine and one which does not require of the citizen the employment of either proportionality or reasonableness provided the use of force is strictly in defence of life or limb.
Dicey concludes from these two doctrines:
If, however, it be necessary to choose between the two theories, the safest course for an English lawyer is to assume that the use of force which inflicts or may inflict grievous bodily harm or death – of what, in short, may be called extreme force – is justifiable only for the purpose of strict self-defence.
But extreme force is expressly stated to be ‘justifiable’ in those circumstances and, indeed, this doctrine was reaffirmed by the ruling of Lord Chief Justice Parker in the case of Chisham (1963 – 47 Cr App Rep 130):
“…. where a forcible and violent felony is attempted upon the person of another, the party assaulted, or his servant, or any other person present, is entitled to repel force by force, and, if necessary, to kill the aggressor ….”.
Note that there is no mention of either ‘reasonableness’ or ‘proportionality’.
Put simply, the two doctrines combined represented a judicial recognition of the difference between crimes of a life threatening nature and crimes of a non-life threatening nature. In the case of the latter the force used had to be proportionate and reasonable. In the case of the former, no such qualifications applied. So, for example, a shopkeeper cannot take out a gun and shoot someone who has been merely pilfering from his shop because the act of pilfering does not represent a threat to the shopkeeper’s life and limb. However, if the criminal enters the shop wielding a knife to use on the shopkeeper then, under the common law doctrines, the shopkeeper would be permitted to shoot the miscreant dead.
In my view the fault of the 1967 Act was in ignoring the important ‘second doctrine’ of the legitimacy of force necessary for self-defence and instead using the ‘first doctrine’ as a blanket provision. By doing so the Act also extinguishes the previous recognition of the practical difference between life threatening and non-life threatening crimes. This means that the citizen is in a weaker position post-1967 because he or she required to respond ‘reasonably’ and ‘proportionately’ regardless of the nature of the threat he or she may be facing.
However, my opinion is that the British citizen today has been put in an even more helpless position than they should have been by the 1967 Act and this is due to the pre-eminence of various political and cultural phenomena.
All the common law described by Dicey is predicated on the firm assumption that the ordinary citizen had not just a right to prevent crime but even a duty to prevent crime. Truly the law was in the hands of the people although they were still required to abide by it. Today, this assumption has been turned completely on its head and although it is difficult to identify the precise provenance of this change or any specific turning point, what does seem clear is that, sometime during, or possibly just after World War II, the business of crime prevention and self-defence was wholly nationalised.
The change in attitude can be illustrated by the extract from a speech given in 1953 by the then Home Secretary, Sir David Maxwell Fyfe:
The government do not wish to lend themselves to the support of the proposition that it is right or necessary for the ordinary citizen to arm himself in self-defence. The preservation of the Queen’s peace is the function of the police, and… ‘it would be a great pity if anything were done explicitly by statute to condone actions which imply the inability of the forces of law and order to maintain the Queen’s peace.”
[This extract is taken from the book ‘Guns & Violence: the English Experience’ by Joyce Malcolm]
Fyfe was most likely referring to the issue of gun-control but the attitude he exhibits is, I suggest, typical of the political attitude to the subject of self-defence in general. The prevention of and resistance to crime was no longer the duty of the citizen nor even the right of the citizen; it was now seen as being wholly the function of the state to be exercised as a monopoly by its various agencies.
Thus, the citizen who ‘takes matters into his own hands’ is so deeply offensive. Aside from the question of any mischief he may or may not have inflicted upon his tormentor or assailant, his worse ‘crime’ lies in the usurpation of a power that the state regards as being within its sole competence.
The law is now in hands of the government. The citizen is merely required to obey.
Every British government since at least the 1940’s has held as a core belief that safety of the citizen and the prevention of crime is a matter for the government and the government alone. Indeed, so deeply ingrained has this assumption become in every branch of the state that, in practice, any action taken by the citizen that is more than mere token resistance is regarded by the police and the judiciary as unreasonable. The same culture has fuelled the missionary zeal with which the British state has pursued (with great success I might add) the complete disarmament of its citizens.
But even that is, perhaps, not entirely the picture for I find it hard to believe that the post-1960’s ascendancy of post-modernism has not also left its mark. I say this because of the number of times that, whenever the issue has been the subject of public discourse, I have heard self-defence described as ‘vigilantism’ or ‘retribution’. This is a squalid and reprehensible distortion of the truth but it is one which is entirely consistent with a philosophy by which acts of resistance to barbarism are ascribed a far worse degree of moral turpitude than the manifestations of barbarism itself.
My opinion is that the law should be changed to take into account the greater breadth and depth provided by the common law tradition. But the law itself is only a part of the picture because the real problem has been caused by an unfortunate agglomeration of Conservative Paternalism, Labour Statism and moral relativism that has abolished self-help, stripped the citizen bare, and delivered each one of them up as the ‘slaves of ruffians’.
Though a change of law may be required, of itself it will not be enough. What is required to reverse this situation is also a change of culture and, above all, a reclamation of the kind of common sense and pragmatism that once informed all those English judges.
[Thanks are due to Dr.Sean Gabb for his invaluable research materials and to Steven Chapman for the quote from Joyce Malcolm.]
All state monopolies are rigorously defended against acts which might undermine them. The state security apparatus is no exception.
The law, which once upon a time was seen as a tool of liberty, has become an instrument of state. Free action by citizens weakens the state ability to pursue its own agenda. Therefore “vigilantism” is dealt with more severely than the original crimes.
The monopolisation of the law by the state is probably one of the leading causes of the increase in crime. It is unthinkable that the public would not sort out problem criminals themselves if the state didn’t threaten such grevious punishment for doing so. In every community, the main criminals are known to the public, who remain powerless do defend their freedoms from them.
Self defense should be the right of every citizen. Where it is not, the citizen is powerless to protect their rights, not just from criminals, but also from the state.
I find that whenever a senior police officer admonishes the public “not to take the law into their own hands”, it usually immediately follows an incident where a victim defended themselves from a serious criminal harm.
Any rational person would want the police to intervene to protect their person/property. So obviously there must be some compelling reason for a victim to decide otherwise. Yet the reason a victim was forced to choose self-defence is seldom acknowledged and certainly never condoned by police services. Instead they just ignore the hard reality that there are occasions when it is simply impossible to provide timely police intervention.
The lack of effective/timely police intervention is not automatically the fault of the police, as they cannot be everywhere at once, and nor should they be. However, the law is at fault in not allowing that citizen’s can appropriately protect themselves when such intervention is known to be unavailable.
To insist an innocent citizen placidly set aside their own personal safety in the unrealistic hope the police will somehow arrive in time is ludicrous. To force a victim to continue to rely on a system that has already failed (ie cannot be immediately present to save them from the full effects of a crime) is perverse. Doing so guarantees every future victim of crime will be completely defenseless.
Then again, perhaps that the law creates a defenseless citizenry is an unintended but fully acceptable result.
Creditable analysis, good observations. The sort of thing one visits this blog for.
An excellent piece David.
Eamon
Jonathan L writes: “It is unthinkable that the public would not sort out problem criminals themselves if the state didn’t threaten such grevious punishment for doing so.”
But the problem is actually deeper than that. Modern people are just used to being told what to do. People have become passive and dependent on agents of external authority regardless of its legitimacy and are thus passive in the face of threats from criminals.
Chief constables admonish people for “taking the law into their own hands” only because they can’t consistently punish it.
It’s not that the state bullies people into neglecting their own interests, but that it undermines the habit of doing so. Once it is someone else’s job, we can be lulled into thinking that that therefore we have no responsibility to do it, and eventually no entitlement to do it either.
The reason the lone highwayman holding up a coach is a legendary figure, is that to do so was suicidally brave, and could only be carried off by someone with immense charisma. In the 18th century the victims of crime were used to looking after themselves. They didn’t expect anyone else would. Real highwaymen came in heavily-armed dozens because they expected to be fought off unless they offered overwhelming force.
Excellent history and analysis, thank you for making & posting it.
llater,
llamas
Biased Observer wrote:
“Then again, perhaps that the law creates a defenseless citizenry is an unintended but fully acceptable result.”
Whatever makes you think it is unintended?
The government really has created an intolerable situation here. On the one hand, the police are frank and explicit that they can’t effectively patrol rural areas. On the other, householders aren’t permitted to defend themselves unless they can demonstrate after the fact that they were in mortal danger.
Rural people have taken such a kicking from this government, I don’t know why they haven’t done more than one tame (if very large) march. I can’t see they got any satisfaction out of it. Something involving pitchforks, torches and hot tar seems more in proportion.
There is also a question of equality – or the lack of it – before the law. Police are, it would seem, exempt from both the act quoted and the various laws on the carrying of weapons, given that they ‘take the law into their own hands,’ use force ‘unreasonable in the circumstances’ on a regular basis and can now be found carrying so-called ‘assault weapons’.
There’s a continuum here between the issue of self-defence and the issue of taxation. If I coercively extract a proportion of your money from your wallet, this is a crime called theft. But when the state does it, it calls it taxation and justifies it with the kind of high-minded rhetoric that, were it to come from the mouth of a thief, would be laughed out of court.
So there is a double injustice of citizens accused of ‘taking the law into their own hands’ and thier accusers consisting of those who themselves are able to bypass or gain exemption from that same law. The police are, after all, agents of the very same entity – the state – that makes the law in the first place. See the pattern?
Guy Herbert – That was a very astute post. You are correct that the will to defend oneself has been weakened by the state. Your point about the lone highway was illuminating, too. I’d never thought of it that way before.
I also agree with Steven Chapman’s post.
Surely the law belongs to me (and everyone else)? How did the police get themselves into the position of being able to forbid me to defend myself? By what right do the police reserve law keeping unto themselves? Is there a statute, or is this just vague received wisdom? I find British passivity very eerie.
Courtesy of John Hurst, who follows this subject in connection with his interest in the Bill of Rights, here are some pertinent extracts from the Lords debates on the Prevention of CrimeAct 1953:
“it is the Common Law duty of every citizen to take what steps he can to prevent a breach of the peace, and that this duty may include the bringing of assistance to the victim of an unlawful assault of which he may be a witness”.
Lord Lloyd, Hansard, 28 April 53.
“I have always held that the preservation of the Queen’s peace was the duty of everyone of her subjects, and the police were only citizens with special responsibilities”… “In fact, the idea that a person could not defend himself was, in Lord Halsbury’s time, unthinkable. This was not the first time that it had been sought to make the police into a privileged class, but the attempt had always been rejected, and I hope that it will be rejected again”… “If the citizen was not allowed to defend himself, the Government would have to accept responsibility for his defence, at least in public places.”
And:
“The Government will have the sole responsibility. Are they prepared to accept a benefit from their failure to discharge the duty they have undertaken? If no-one is allowed to carry any sort of weapon to defend himself or herself against the strong and armed, and defence becomes a peculiar function of the policeman, will the relatives of the killed or injured have a right to compensation if the Government fail in the discharging of the duty they are undertaking? If I am wrong, then it must be that the theory is that the Government are the shepherds of Her Majesty’s subjects, with the right to shear, kill or let die as best please themselves.”
Lord Soulton quoting from Lord Halsbury’s Laws of England on a private person’s common law power of arrest.
The Lord Chancellor said that this was not a Bill tipped against the poor person. It was designed to protect all people alike and it would give a wrong balance to suggest that it favoured one section of the community. Lord Lloyd said ” If a woman has reasonable cause for thinking she was going in danger of her life, she can carry a weapon. There is no absolute prohibition”. Hansard, 14 April 1953.
Regarding Lord Soulton’s comments on victims’ relatives bring actions against the police for failing to protect someone, I believe I’m right in saying that when tested in court (both here and in the USA) it has been confirmed that the police are held to have no legal responsibility to protect any given individual citizen…
S. Weasel wrote:
Rural people have taken such a kicking from this government, I don’t know why they haven’t done more than one tame (if very large) march. I can’t see they got any satisfaction out of it. Something involving pitchforks, torches and hot tar seems more in proportion.
Unfortunately the government (and no doubt large sections of the media) would cite such an occurrence as “clear evidence” of how “uncivilised” these gun-toting country folk are, even if, as you and I believe, it would be a proportionate response to the treatment they have received from the government. All the government would do is bring into play the monopoly on lethal force it tries to exercise, through the use of well-armed police officers, paid for with the money stolen from these very same country folk. Oh well.
Being as ever the naive optimist, may I say that David Carr’s point about changing cultural attitudes on self-defence may, at last, be starting to happen. The Tony Martin case is very far from being a perfect one for self-defence advocates to rally over, but it has certainly unleased a torrent of comment about self defence to an unprecedented degree. I get a sense – correct me if I am wrong – that this episode has affected public attitudes. But we have a very long way to go.
We have to maintain the momentum this case has generated. We have to continually focus on the lunacy of the present legal position. And we also have to spread the idea that defending the weak and helpless against attack is not just the job of the police, but the job of all of us.
100 years ago, if I saw a man being assaulted in the street, I hope I would have the bravery to help him out. Today, the underlying assumption is – don’t interfere, and don’t be a “hero”. That has to change.
It is a common misconception among critics of liberalism that such a society requires one to take a wholly self-centred view of one’s life. Not so. A healthy libertarian society would, for starters, require that most of its inhabitants felt a reflexsive sense of obligation towards their weaker peers and help them in distress. What is so crazy about Big Government is that this sense of mutual responsibility has been snuffed out, leaving nothing in its wake accept the ability to dial 999.
Excellent, excellent discussion. The quotes from the House of Lords are a particularly fine contribution – shows why an upper house is always a good thing to have.
I think it’s important to separate the roles of the police from the rest of the criminal justice system in these discussions.
To be sure, the police organization fails badly when it essentially declares parts of its jurisdiction to be ‘bandit country’, and as another poster commented, the passivity of the UK populace in the face of such airy dismissals is – eerie. When was the backbone of the average rural resident jellified to this extent?
But when the police do respond, it should be borne in mind that they don’t set the rules or make judgements – that’s the prosecutor’s job. The police don’t get to decide who will be charged and who will not, in fact, if there is prima-facie evidence of an offence, they must arrest – they have no choice.
If people are being charged and convicted with/of crimes in circumstances which any reasonable person would agree are self-defence, then the problem lies with the prosecutors and (in the end) the legislators who passed the laws that they enforce. They set the tone – not the police.
It should also be borne in mind that arrested, charged and convicted are three very separate things. We’ve seen cases described where a person was arrested or charged under circumstances which turned out later to be entirely innocuous or justifiable, and all too often those cases are described as though some terrible injustice has been done. I detect (again) too much of a mindset that says ‘the police ought to take what upstanding, ratepaying householders (like ME) say at face value, it’s an outrage that people are arrested for defending themselves!’. No, it’s an outrage when people are convicted for defending themselves. If the police arrive and find evidence of mayhem and violence, it’s not their job to decide who was in the right and turn them loose.
Talk of how the police have been made into a ‘privileged class’ is not really true – in most cases, the police have no more real powers against an individual than the average citizen (theoretically) possesses. It’s more that the average citizen has been denied the means of exercising those powers, by a combination of the confiscation of the physical means and their indoctrination that they should not do so.
llater,
llamas
Yes, llamas, but the police have not only declared parts of their jurisdiction as ‘bandit country’ to anyone they see as horning in on their territory, but they have subliminally deterred the population from feeling its responsibility to their fellow citizens with ridicule. Not only the po-faced, supercilious caution about “taking the law into your own hands” – as though by so doing one were somehow misappropriating the law. But also ridiculing people who tried to help others. “Have a go grandad” knocked unconscious. “Have a go widow” dragged by car. “Have a go teen battered with hammer.” (I made these headlines up, but they’re generic.) The person who had summoned the bravery to attempt to save someone else is made to look like a loser and a fool, especially as the story will be accompanied by the “have a go-er” swathed in bandages. It is inevitably followed by a hearty, reassuring police warning along the lines of, “Leave the police work to the professionals. If you are witness to an incident, get to a phone and dial 999 immediately. Don’t try to take the law into your own hands.”
We get a lot of the same rot about “vigilantes” and whatnot in the US, but the heroic example of the Flight 93 passengers who tackled the 9/11 highjackers with their bare hands to save the Capitol building has pretty much put paid to nannies and the sissies who counsel passivity.
For now.
On of the differences between the U.S. and the rest of the world is illustrated by the following story told by Theodre Roosevelt. A British lord is visiting Teddy Roosevelt’s ranch to hunt. He comes upon a cowboy. He says to him, “My man take me to your master.” The cowboy says, “That sumbitch ain’t been born yet.” Most Americans still think that way. We not only have the right to defend ourselves we have the means. Thank G-d for the second amendment. (Tony Martin should have got a medal. All he did was pest removal).
There is some confusion here between self defense, which the law does allow in both the UK and the US, and vigilante action, to which the various quotes from officials about “taking the law into one’s own hands” are probably referring.
The painful historical steps taken by many generations of Englishmen to acquire such things as trial by jury and rights of the accused are also very real aspects of the right of self defense, as the primary violater of the citizen’s safety was often the very crown whose peace is so often cited. Most situations of criminal activity do not require the use of deadly force, and those that do should be scrutinized carefully.
From the perspective of the US, there was a very strong tradition of vigilante action which the establishment of professional police forces, developed in the mid 1800’s in Britain and then brought to the US, were supposed to supplant. It is often the case that the police discourage citizens from taking action because they either do not know what to do, and end up getting hurt, or do too much, and end up as part of a vengeful mob.
There are no shortage of incidents in which the “suspect” ended up hanging from a tree, either because the crowd thought there was enough “evidence” to string him up, or he was the wrong color. There was an incident in Chicago last year in which 2 men were beaten to death when their car jumped up on a curb and struck down some people there. I’m sure there were any number of comments about taking the law into one’s own hands after that, and those need to be seen in context.
veryretired – I don’t think anyone reading this thread confuses self-defence with vigilanteism. Americans have the right to self defence, plus – separate issue – they have a history of vigilanteism, now thankfully rare. The British have neither.
I don’t hink it is fair to say that “the British have neither”. As the discussion shows there is a precendent for self defence in Britain – even lethal self defence – if the circumstances permit.
It would appear unfortunate that the precedent is applied somewhat unevenly. In Tony Martin’s case the difficulty was that he shot a fleeing youth who was trying to escape. Had he shot the youth in the chest, inside “Bleak House” there would have been much less of a case against him and probably no charge to answer. However there have been several cases when a person was shot and killed by police who judged them selves to be in danger. In such cases all the defendants had to prove was that they were in “fear of violent or fatal injury”.
It’s not that there isn’t a legal precedent. It is more that it is not uniformly applied. In Britain shooting someone and getting away with it seems to be reserved for criminals and government agents.
Hopefully there is a difference!
Posie wrote:
‘Yes, llamas, but the police have not only declared parts of their jurisdiction as ‘bandit country’ to anyone they see as horning in on their territory, but they have subliminally deterred the population from feeling its responsibility to their fellow citizens with ridicule. Not only the po-faced, supercilious caution about “taking the law into your own hands” – as though by so doing one were somehow misappropriating the law. But also ridiculing people who tried to help others. “Have a go grandad” knocked unconscious. “Have a go widow” dragged by car. “Have a go teen battered with hammer.” (I made these headlines up, but they’re generic.) The person who had summoned the bravery to attempt to save someone else is made to look like a loser and a fool, especially as the story will be accompanied by the “have a go-er” swathed in bandages. It is inevitably followed by a hearty, reassuring police warning along the lines of, “Leave the police work to the professionals. If you are witness to an incident, get to a phone and dial 999 immediately. Don’t try to take the law into your own hands.”
and your point is well-taken. I’m old enough to remember the original ‘have-a-go’ story, and even then, there was a faint air of ridicule around it. If it is, as you say, that the police have set themselves up as a closed-shop, and gone from prudent advice about not exposing onself to unnecessary danger to actively discouraging people from looking out for themselves ( and ridiculing those who do) then it’s time for a change.
The UK police have long (in my recollection) suffered from an institutional attitude problem and a sort of fixation about distancing themselves from the public, especially in urban environments. The montonous ‘official’ language of every word that comes out of their mouths, the ‘jobsworth’ mentality that seems to be endemic and the general attitude of disinterested superiority does appear (from descriptions here) to have bloomed quite handily since I’ve been gone. But ’twas ever thus, to some degree.
That’s good to a degree, because it’s not a good idea to have the police altogether too entangled with the public. Creates conflicts of interest and reduces policing to a popularity contest. But on the other hand, a police force that is isolated from the public and disinterested in their welfare is even worse.
Something to be said for local police chiefs who are elected or locally-appointed. If my county sheriff declared parts of the county to be ‘bandit country’ where his deputies could not guarantee response, he would be an ex-county-sheriff right quick.
llater,
llamas
llamas writes: Talk of how the police have been made into a ‘privileged class’ is not really true – in most cases, the police have no more real powers against an individual than the average citizen (theoretically) possesses.
That conception of police power was largely true for many years, but was finally snuffed out by the Police and Criminal Evidence Act 1984. (Which incidentally gave the police powers to do a number of things that they had been doing illegally on a large scale during the miners’ strike, such as setting up selective road-blocks.)
Guy Herbert wrote:
‘llamas writes: Talk of how the police have been made into a ‘privileged class’ is not really true – in most cases, the police have no more real powers against an individual than the average citizen (theoretically) possesses.
That conception of police power was largely true for many years, but was finally snuffed out by the Police and Criminal Evidence Act 1984. (Which incidentally gave the police powers to do a number of things that they had been doing illegally on a large scale during the miners’ strike, such as setting up selective road-blocks.)’
Your point is well-taken, and that’s why I wrote “in most cases’. PACE was a great leap backwards in this regard, I fully agree, and gave the police some powers do do some things which were very troubling, both as regards the lack of any sort of judicial review and the definition of powers which could be exercised in an entirely subjective manner.
I was once arrested and detained under a power granted by PACE, shortly after it passed, and while in the company of an admitted barrister and deputy justices’ clerk. She was absolutely gobsmacked that this was possible, and yet so it was.
It’s my understanding that some of the more tyrannical possibilities under PACE ’84 have been modified and/or removed in subsequent legislation. Any practicing hyenas care to comment?
llater,
llamas
If the laws are such that self-defense is frowned upon because it’s the government’s job to protect people, any way to compel the government to do its job? For example in the Martin case, I’ve not read any article that mentions actions to be taken *against* the police for refusing to do their job.
Could someone bring this matter to court? Perhaps arguing that if the government is unable or unwilling to protect the citizens, self-defense will be encouraged? The government could empower local citizens, non-police officers, to help protect and defend their communities. (Of course, taking care vigilante groups are not the result.)
I do not wish to imply in my above post that I believe a government needs to empower people to defend themselves. Self-defense is a right no government can take or give.
However since I wished people to stay out of trouble with the law, I used the phrase about the government empowering people. This is a concession to how many would view it, not what I believe is the right of government.
VeryRetired wrote “There is some confusion here between self defense, which the law does allow in both the UK and the US, and vigilante action, to which the various quotes from officials about “taking the law into one’s own hands” are probably referring.”
This misses one point of the discussion, which is that the distinction between vigilantism and self-defence is being blurred or eliminated by the law/police, and not by commentators here. Whenever an official uses the phrase “taking the law into their own hands”, the public correctly associates it with vigilantism. The problem occurs when an official uses this phrase (or some similar admonishment) in a case that is clearly self-defence, and in no way connected to vigilantism. This careless usage establishes in the public mind that the law/police equates self-defence with vigilantism, and with the associated penalties. There are numerous media accounts that confirm this linkage.
Very Retired stated “…the police discourage citizens from taking action because they either do not know what to do, and end up getting hurt, or do too much, and end up as part of a vengeful mob”.
Very true, but the problem is with how the law is increasingly equating the former (self-defence =Should not) with the latter (vigilantism=Shall not). Every victim must make a frantic, instantaneous decision to react to a threat either aggressively (officially not recommended) or passively (officially sanctioned). Regardless of well-intentioned police discouragement, it is the panicked victim who must consider (if they can) the extreme personal risks involved-murder, rape, bodily harm etc. The victim’s panicked decision is further complicated in that his actions, made under extreme duress, will later be assessed by a dispassionate, uninvolved, and completely unaffected legal system, a system that has a disposition to see things much differently from the comfort and safety of a courtroom.
The law allows that not all claims of “self-defence” are justified (VeryRetired’s “too much”) and has appropriate prohibitions (i.e. you can’t shoot a co-worker for eating your lunch). The emerging problem is that the law is now immediately treating all claims of self-defence as if they were unjustified, thus treating them, at least initially, as vigilantism). Adherents to this approach always falls back on the claim that being charged is not equivalent to being convicted. However, this conveniently ignores the hard reality that very real adverse consequences are heaped upon the victim in just being charged-the stress and financial penalties of proving ones innocence.
The entire problem is that it now seems as if the law is stating that you SHALL not defend yourself against an armed intruder standing in your bedroom at 3am. If you do, you WILL be charged.
Commenters here are being very fair in not just lambasting the police for the situation we find ourselves in, but I believe they must share much of the blame for the current division of responsibility whereby private citizens are discouraged from defending themselves, because maintaining order is strictly the prerogative of the State and its agents. In recent years especially, the UK police have succumbed to a ghastly form of managerialism, rejecting their traditional role of simply protecting civil society from the criminal minority. A fellow contributor to another list, some years ago, gave this personal account of a discussion that might throw some light on this:
“We were sat in the pub one night, several scoops too many (nb for US readers, this means somewhat the worse for liquor) and someone asked (an officer in Greater Manchester Police) why he had a black eye. He got it taking a Japanese katana off a 72 year grandmother who had been mugged 8 times in two years in Openshaw in East Manchester. When asked why shouldn’t people have weapons to defend themselves (the police officer) said: “‘Cos people who have guns to look after themselves don’t need the police and don’t give a shit if there is or is not a copper around. They can go where they want and can look after themselves – with terminal force if necessary. That is something a lot of senior bods don’t like. They like to think they are in charge. Like they can order people around. Can’t do that to a man with a gun, can you ? Especially if he can use it better than most coppers in the land. That’s why people ain’t allowed to be armed….”
Speaks for itself, really.
llamas: “It’s my understanding that some of the more tyrannical possibilities under PACE ’84 have been modified and/or removed in subsequent legislation. Any practicing hyenas care to comment?”
Not a practicing hyena, but, my understanding is that things have got fairly steadily worse, that PACE powers have been augmented by a vast variety of additional ones under various legislation, notably the various Criminal Justice Acts, Terrorism Act and RIP Act (etc, etc…). What has happened to define the PACE powers more closely is that the Codes of Practice which control their excercise have been repeatedly revised.
See here for the most recent version.
In practice of course the average copper doesn’t comprehend a huge amount of this either. They tend to know the powers they frequently use, make the rest up as they go along, and have “trade secret” ways round the more obvious rules. Fortunately for them, they have so much latitude in powers that it is difficult to do anything not obviously criminal (as opposed to merely unlawful) that will get a prosecution thrown out.
A very interesting discussion. There are a few points I would add
i) I think it is mostly about power and control – many people in government and the police are terrified by the idea of people being able to look after themselves, as it would then make them to a large extent redundant. Also, it would make widespread public protests (e.g. fuel strike, countryside march, poll tax riots) far more serious challenges to the state’s authority. It would effectively crimp the state’s ability to ram through controversial or downright unpopular legislation.
ii) I think it is dangerous to give policemen legal powers beyond that of a normal citizen. However, once the state starts doing things which would be serious crimes if done by individuals to each other, then it is just a matter of time before more and more agents of the state become empowered to do these same things.
iii) The fact that state police did not exist for most of the UK’s history demonstrates that they are simply not necessary to establish law and order. Britain in 1840 was not a lawless den of anarchy and social chaos. Would South Central LA or Hackney be safer or more dangerous if there was no police force but people were allowed to arm and defend themselves by force, with the law on their side? I don’t see how it could be any worse than the current situation where the police have no control, and private citizens are legally barred both from defending themselves and conducting effective citizens arrests.
Mad Dog said
“In Tony Martin’s case the difficulty was that he shot a fleeing youth who was trying to escape”
Sorry Mad Dog, this is just not true. There is no evidence that Barras was shot whilst trying to escape. There is a suggestion that Fearon’s second wound was caused whilst he was trying to get out of the window, but the fatal wound in Barras’ back was consistent with him bending down, possibly stuffing his swag in to a holdall found at the scene.
See the Court of Appeal report for more detail.
http://www.courtservice.gov.uk/judgmentsfiles/j528/MARTIN.htm
Very interesting