Discussion in 'Articles' started by pgm316, Aug 17, 2005.
I prefer to say no comment when someone wants information to use against me
Originally Posted by fthl
my tuppence - I go with BKG, Timmy and the American Lawyer chap.
I read the article and thought it was a little naive, and not the tack I would take in any regards.
Mine do to, I've never argued about ANY laws!
- Please clarify - I don't understand this comment - mine do to? Sorry if I'm just too tired at 17.46...
You have however put together an argument called fighting and the law and some of the points you raise are legally dubious. It is also worth noting that 'fighting' is always illegal, save for where volens non fit injuria applies.
Morally, fine, you are entitled to your opinion, but on a legal basis, and therefore on a basis designed to avoid repercussions, the argument is flawed.
I totally understand if you don't agree with some of what I wrote but some of it is obvious and really goes without saying. Its not that controversial The fact is the vast majority of PEOPLE will put there own safety first, and generally they'll do this without breaking the law.
Some...maybe, but much of what you wrote IS controversial...it is NOT obvious and if the 'people' to whom you refer follow your advice, then they could potentially be in more trouble than before. Please also remember that you studied law at a very basic level, I am not saying your degree was worthless but i have experience of the differences between an llb and the type of course you studied, it is designed to give an idea, but not to give any depth of knowledge. I apologise in advance if I have misunderstood your course and it DID give you Law Soc exemptions. For eg, could you have just enroled on the bvc or the lpc or would you have needed to take the GDLP first?
there is a wide difference between legal standards and moral standards as everyone has their own moral code. This is the point that is often missed my martial artists when they are discussing the law.
You can use pre-emptive strikes, technically, but it could be ropey. You need to have the honest belief that you are going to be imminently attacked. So you can do it, but proving it afterwards, and that you could not run away, therein lies the rub, as it were.
This follows on from what we are calling the duty to retreat, if you have the opportunity to escape, and do not take it, then self defence as a defence is lost. The waters are clouded here if you are with someone, you are allowed to use reasonable force in defence of yourself, others, or property. Of course the standard of reasonablness shifts to be lower when it comes to property. Also there would be a difference for a wallet vs a home instrusion. For eg - if it is clear all they want is your wallet, and there is no apparent threat to you, eg a pick pocket, then the force you could use is limited. If however you are being threatened with a knife, then they are threatening to kill you, and THEN take your wallet. Reasonable force then, potentially becomes leathal force providing that you do not disable, and then 'finish off'. Ie, when you are in control of the situation, you retreat.
Home instrusion: I'm less clear hear, I'll admit. I've not looked into this quite as much. You can use reasonable force to evict an intruder, and such force is dependent on what you perceive their intent to be.
How far this would go and how much force you could use against someone who was just sitting on your sofa and refusing to leave, I'm not sure. If there was no apparent iminent threat, I think the standard would be very low.
Nice, probably fictitious story:
Chap wakes in the middle of the night hearing noises from his garden. Looks out of the window and sees two guys robbing his shed. He calls the police, tells them this and they ask him if he is in iminent dange, are they in the house. No he replies, but come now and you can catch them. Sorry they reply, we're too busy if you are not actually in danger. we'll come when we can.
They hang up.
The homeowner leaves it 5 mins, and calls them back and says, 'about those shed burglers, don't worry about hurrying around, I've shot them. Take your time'
60 seconds later the place is crawling with police, they find the burglers still in the shed, struggling to nick a lawn-mower.
The police confront the homeowner who saying that he'd told them he'd shot them. The homeowner said 'and you told me you were too busy to come...'
A not so fictitious story, from a reported case, although I don't have the reference I am afraid. Someone with current access to the appropriate case law libraries could probably dig it up.
I TKD chap is pushed and then his attacker attempts a clumsy punch. the tkd chap evades easily, blocks and counters with an axe kick. One block. One strike. This strike had the effect that this strike is designed to have - it killed the attacker. The 'victim', the tkd chap went to prison - the judge held that the force he used was neither reasonable nor commensurate to the attack - he used a martial arts technique designed to kill or seriously injure against an attack where there was no iminent threat. It didn't matter that it was an automatic reflex, it was unreasonable force.
A point to make in the UK - anything designed, intended or adapted to be a weapon is illegal and will show mens rea - therefore that element of aforethought loses you the defence of self defence. So swap that kubotan on your key ring for a mini maglite. Lock knives, flick knives, specifically named as illegal. Any blade above 3" illegal to carry.
It is also worth noting that provocation and self defence are defences, not excuses. You still get done, the consequences are just potentially nullified.
I'm off home now.
there is no right to silence in the UK - the jury can infer things by your silence...
You might be thinking of the US 5th Amendment...
Short answer, yes!
With the right to remain silent, your right in the uk your no longer allowed to use the no comment bit. As something you may later say may as you rightly say be infered to be untrue.
On the other hand how true this is and to what extent they can "infer" something is highly debatable.
In hindsight I wish I worded it more carefully, which is why its useful to debate points with people like yourself as opposed to other certain members turning it into a flamefest
Still, it was always about more than the law I know, from the resources I have access to I could easily find all relevant laws on the subject.
Don't listen to anyone,
it's a great post.
Technically speaking, you do still have the right to remain silent. The fact that the jury may draw adverse inference from it may make it unadvisable to do so, but you won't be prohibited from doing it.
No offence fthl but I think you've got it wrong if you're talking about English law.
I agree with this bit completely, as an aside.
The burden of proof is not reversed for self defence, so it's more a case of the prosecution disproving it than vice versa.
There is no duty to retreat in English law.
Provocation is a completely different defence and only applies to murder. Its effect, if successful, is to reduce a conviction of murder to that of voluntary manslaughter. Self defence, on the other hand, provides the defendant with a complete defence i.e. it gets him off completely.
"The burden of proof is not reversed for self defence, so it's more a case of the prosecution disproving it than vice versa."
I agree...not technically...but as you will be aware, there is a difference between academic law, and practice. Yes the onus is on the prosecution to prove it was not self defence but in practical terms, if you use a pre-emptive strike it is often not difficult at all for the prosecution to satisfy this burden. Also factor in that many of these types of cases will be heard without a jury and by, perhaps cynical magistrates. Academically, you are right, in practice this is not so clear cut...
"There is no duty to retreat in English law."
There is if you want to rely on self defence - although we don't call it such. If you do not escape when you have the opportunity to do so, then the cry of 'self defence' won't work.
Provocation is a completely different defence and only applies to murder. Its effect, if successful, is to reduce a conviction of murder to that of voluntary manslaughter. Self defence, on the other hand, provides the defendant with a complete defence i.e. it gets him off completely.[/QUOTE]
Yes...so without going into the technicalities...we agree...I was using them as examples to make the point, they are defences as opposed to excuses - you still get done, you need to defend yourself. At some point the onus of responsibility rests with the accused. Cf with an involutary action, or killing whilst at war. Self defence is not a get out of jail free card, it is the spoon they give you to dig your way out. Killing whilst at war is [subject to lots of exceptions] the get out of jail free card.
Fair enough, but I was under the impression that conviction rates from magistrates weren't drastically higher than those of juries.
Then surely one could appeal on a point of law if the defendant did display some behaviour that indicated he didn't want to fight other than escaping when given the opportunity, given the fact that Lord Griffiths stated specifically in Beckford v R that it was not the only way?
If the end result is the same, isn't this a bit of a moot point?
a bit of a moot point, yes, it doesn't quite mean the same thing and if you are discussing self defence and the potential repercussions then the difference is important. I suppose it is a difference in attitude that many martial artists have, they don't understand that there will be repercussions, they have the opinion that 'it is self defence so it will be ok'. The difference is a trial or not and the impact that could have on your life. But yes, the END result is the same, the process may not be...
re duty to retreat...
Agreed, it is not the only way, but to engage other defences, such as the one you refer to in Beckford, and also in Bird then collarteral evidence is required.
· R v Bird  1 WLR 816 - The defendant had been slapped and pushed by a man. She was holding a glass in her hand at the time and she had hit out at the man in self-defence without realising that she still held the glass. The trial judge directed the jury that self-defence was only available as a defence if the defendant had first shown an unwillingness to fight. The Court of Appeal quashed the defendant's conviction saying that it was unnecessary to show an unwillingness to fight and there were circumstances where a defendant might reasonably react immediately and without first retreating. It was up to a jury to decide on the facts of the case.
Would the result above have been different if if had been a 6 foot bloke with a pint glass - and there were no witnesses. I think it would. Also the standard of reasonableness would have been different.
Also - whether safe retreat was available appears unlikely on the facts.
As I stated before, pre-emptive strikes are technically ok, it is establishing that they are reasonable that is the problem, witnesses help.
Cf the above with the case [forget the name, sorry] where the chap attacked another chap, punched him forgetting he had a glass in his hand. I think he went down for murder, even though arguably the intent to kill with the glass was not there, the intent to injure is there.
with reference to beckford, I haven't the time to look it up in detail, what with work and all, but from my dusty recollection is it not the main point of that case that the facts are to be judged on how the defendent saw them at the time, not what the conditions actually were?
Maybe I should clarify my opinion to state that you must retreat if you can and it is reasonably safe to do so.
Re magistrates, as a question of fact magistrates are generally less likely to listen to defences and excuses they have heard 20 times before THAT day, juries will take more stuff on face value, they have not had 30 people whinging about xxx before them. There is more cynicism.
I did understand the the conviction rates were higher in the lower courts, but haven't got any stats. I am relying entirely on second info from my crim lit lecturer...I'd be interested to see the breakdown if anyone has any access to it.
You're right, sorry I quoted the wrong case name. The case I'm talking about is R v Bird, and the judge was Lord Lane CJ. I'd only just woken up when I wrote that reply, so I'll use that excuse
I seem to remember from doing A level law that the rates were something like 42% for juries and 57% for magistrates. I might look around for the official stats today if I can be bothered.
heres something to note.
LAW is FACT, and as such is not open to opinion, its appliance is but the law itself is a fact, your views do not change what it is
for example I own a computer, you dont have to believe that I do but that does not refute the FACT that I do.
an opinion is based upon something factual or non factual, for example you could have an opinion on how the law was applied(fair unfair etc) but an differing opinion on a fact is stupid.
your opinion may say that 2+2 is 3 but the fact is that 2+2 IS 4.
(well I suppose you could argue in the case of non-functional formulae but I dont have a root button on my comp so it could get quirky)
Yes but we're not disputing what the law says. We're discussing how these cases tend to work out in practice. Since I'm a law student and he's an actual lawyer, you can be sure we knew this already
We still need to;
1, Know what the laws in our area are
2, How there applied to a given situation
The reason why I said "pity" to you in an earlier post refers to "when you get arrested and the other guy showd up with areally good lawyer" not for you "to break any laws." Also, the reason why I find most of your comments funny is because you're taking a hoodlums stance on law interpretation rather than from a legal standpoint. Furthermore, when an attempt was made to correct you, you called their opinions foolish and then proceeded to make an appeal on respecting other people's opinions. (An very good example is when BKG advised giving a disclaimer on whether your article comes from a LEGAL standpoint you violently shot him down).
If the law of the land is perfect, people like BKG will be out of the job (and I'm sure he knows this). Lawyers exist because the law is so convoluted, that it needs people well-versed in it to argue and interpret it. Which is why you shouldn't begrudge BKG of his opinions regardless of how well it sits in your gut.
I think this very good advice for everybody here even for the non-lawyers: regardless of whether you know the law and how it applies in your area, it is better to assume that you do not know enough. Your knowledge and particular interpretation of the law will more likely not agree with how policemen, judges, and lawyers look at it.
a law is a law and you cant chnage it! you say that but a law can be disputed and also passed aside by the law enforcer ,. speaking from past experince, a policeman told me if ppl come to my house tonight after i had a big ruckus down at the centre
then a cricket bat is reasonable force . hahahah
*how bout butterfly knives* lol
huh what? I take it English is not your first Language Tinnit?
I think this is the classic mistake of confusing an excuse with a defence. An excuse - you don't get done, a defence to get done, you just get off.
i more english than you ever will be. im at work posting so i cant re-read posts to correct spelling sorry if you find it hard to read a mistake within the english lanaguage
any way i know that all laws are not inforced but do stand within a court of law
I don't plan on getting arrested, I'm not doing anything illegal!
No, the hoodlum is the attacker. If I was the attacker then fair enough but if someone attacks me I don't see why I owe them anything.
BKG can comment on the law far better than I can, I don't disagree with any points about law he made. However there was no need for his insults, like you just said about respecting peoples opinions, its a two way thing!
Separate names with a comma.