Self Defence - The Law - And You

Discussion in 'Self Defence' started by Simon, Mar 7, 2020.

  1. Simon

    Simon Moved on Admin Supporter MAP 2017 Koyo Award

    I've thought long and hard about creating this thread, but the information is out there for those who wish to do the research.

    It's been created to help dispel some of the myths surrounding self defence and hopefully help you in making the correct decisions should you be faced with the need to protect yourself.

    Of course self defence starts way before any physical confrontation, so there is some advice on that front too.

    Different countries will have differing laws, so it is your responsibility to make yourself aware of those laws.

    This particular thread is based around UK law.

    How do we begin to understand what constitutes self defence?

    When does the law allow me to go physical and how much force is reasonable?

    Firstly UK law states the following:
    The basic principles of self defence are set out in Palmer v R, [1971] AC 814; approved in R v McInnes, 55 Cr App R 551:


    "It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do, but only do, what is reasonably necessary.“

    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."

    So what is reasonable force?

    A person may use such force as is reasonable in the circumstances for the purposes of (in the alternative):

    • self defence

    • defence of another

    • defence of property

    • prevention of crime

    • 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?

    • Was the force used reasonable in the
    circumstances?

    The courts have indicated that both questions are to be 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 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.

    Scalable Response Options & Impact Factors

    This video by Hannibal received a lot of positive feedback and explains scalable response options and impact factors.

    The video was shot on the back of a situation that took place in his dojo.

    The response options and impact factors are listed below.

    Hannibal is recognised as a use of force expert in the UK, Canada and I believe also America.

    Death – threat and delivery of death

    GBH – maiming or permanent injury (between broken arm & permanent injury, or disfigurement)

    ABH – bumps and bruises

    Assault by action – throwing a punch, or a push

    Assault by words or posture – pre assault. Aggressive words or posturing

    Verbal disagreement – yes you did, no I didn’t etc

    Discuss – you are having a discussion and fundamentally disagree

    Impact Factors

    Size, skill, environment (friends for example) and male / female



    I'm going to add a few videos at this point and would urge you to watch them again after going fully through this thread.

    As we are dealing with self defence there is some very strong language and violence.

    Some of those you will have seen before, but I hope you'll gain a greater insight through this thread.



    This video is graphic. You have been warned.



    The I.M.O.P. Principle & Aftermath

    I.M.O.P is an acronym of intent, means, opportunity and preclusion and in order for you to have a solid case all four of these criteria need to be in place.

    Take one of these away and your case is going to be harder to argue.

    Intent

    •You must be able to ague that the threat (aggressor) meant to do you harm.

    •How did you know he meant to do harm?

    For example did he shout, “I’m going to punch your ******* head in” and back that up with posturing, neck pecking etc?

    •Were his fists clenched?

    •Did he reach for a weapon (did you mistake that for him reaching for a phone / wallet / keys?

    •Did he follow you after being told to back off?

    An example often given is the waiter has knives. He has the means, but not the intent.

    In our first video the drunk guy in the white shirt draws back his fist. He is clearly showing intent (read on before deciding you are justified in punching him in the face).

    Means

    •Intent means nothing if the threat can’t hurt you. In our video example we couldn’t shoot the guy unbuttoning his shirt, as although he has the intent at this point, he is too far away to have the means to hurt you.

    •A jury will also consider size, age, sex and strength. A young child may wish to do you harm, but lacks the size and strength to do you any real harm. They lack the means (I refer you back to the impact factors).

    "I was in fear for my life”, is often something you hear as justification for going physical, however, if you can’t prove their intent, means and opportunity, that argument will fall on deaf ears.

    Post confrontation articulation is what Hannibal and myself call Aftermath and it's the ability to clearly explain what you did and why.

    •A jury will expect and require you to explain exactly what made you fear for your life.

    •The woman in the second video had the intent (she left her home intending to cause harm)
    and the means (she was carrying an axe).

    Opportunity

    Intent and means do not matter if the threat cannot reach you.

    A person in a car may be waving a knife at you, or screaming that that are going to cause you harm, but they aren’t an immediate threat.

    Should they accelerate toward you, or suddenly close the distance, then circumstances have changes, as has their opportunity.

    Watch the first video again and decide yourself how often the dynamic and the opportunity changes.

    In summary intent, means, and opportunity are the desire, the ability, and the access to hurt you.

    You must be able to show all three to justify using force for self defence.

    Preclusion

    There is another important factor to consider and that is preclusion.

    •Even if the aggressor has intent, means and opportunity you need to show that you had no other reasonable option other than to go physical (could the coach in the first video just left and returned to his house)?

    •The jury will be asked, “could you have left, run away or taken other means to prevent the situation from going physical?”

    •If you fail to show the above it could be argued that you are therefore engaging is mutual combat.

    If I was the defence lawyer for the drunk in the first video I would argue my client NEVER wanted to fight and that the coach was guilty of GBH (I have a student who disagrees, which shows how hard it may be to convince a jury).

    In this next clip look at it through the eyes of the victim.

    What mistakes did he make and how did he contribute to the conclusion (getting shot in the face)?



    We now move on to Cooper's Colour Code, which isn't liked by all. For example John Titchen isn't a fan, but both Hannibal and I do us it in our lectures.


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    The late Jeff Cooper's “Colour Code” has been embraced and taught by defence instructors for many years

    as a mental process, not a physical one. Essentially, Cooper broke down alertness levels into four colours:

    White, Yellow, Orange and Red, although a fifth colour Black is also included. Black is a complete mental shutdown.

    Hannibal uses code brown, but I'll leave it to your imagination as to what that is.

    Condition White

    White is unaware and unprepared.

    If attacked in Condition White, the only thing that may save you is the inadequacy or ineptitude of your attacker. When confronted by something nasty, your reaction will probably be "Oh my God! This can't be happening to me.“

    I liken this to the people who stop in the middle of a shopping aisle to chat. Completely switched off to their surroundings.

    This has been reported on MAP before, but I had an incident happen to me when I was in condition white.

    A knock at the door late at night and I was confronted by someone with a large kitchen knife.

    I should have said to myself, “who is that at this time of night?”

    Just asking myself that question would have put me in condition yellow, or maybe even orange.

    I was lucky, as I just shut the door (remember preclusion)?

    Condition Yellow

    Yelllow is relaxed alert.

    No specific threat situation you are simply aware that the world is a potentially unfriendly place and that you are prepared to defend yourself, if necessary.

    You should always be in Yellow whenever you are in unfamiliar surroundings or among people you don't know.

    You can remain in Yellow for long periods, as long as you are able to "Watch your six.“

    I liken this to crossing the road. No fear, but just an alertness.

    Condition Orange

    Orange is specific alert.

    Something is not quite right and has your attention.

    You shift your primary focus to determine if there is a threat (but you do not drop your six).

    "If that person does X, I will need do Y".

    If the threat proves to be nothing, you shift back to Condition Yellow.

    In our crossing the road analogy a car approaches faster than we thought, so we jog, or run across the road and then return to condition yellow.

    Condition Red

    Condition Red is fight.

    Your mental trigger has been tripped and 'X' has happened.

    The fight is on.
    In the next video look how Cooper’s Colour Coding and alertness saved this woman’s life.

    She is walking down the street in Condition Yellow and spots the guy sitting down.

    Just a casual glance from her says, “I’ve seen you”, makes her less of a victim and saves her life.

    The next person to walk by isn’t so switched on and the results are horrendous.



    Mens Rea & Actus Reus

    The mens rea is the guilty mind and the actus reus is the guilty act.

    The words come from a Latin maxim that holds there to be no punishable act that is not the result of a guilty mind.

    •It is not a crime merely to think guilty thoughts.

    •Guilty thoughts must be linked to an act.

    •An act that is not the result of a guilty mind is not a crime.

    The Law recognizes four different levels of mens rea:

    •purpose (same as intent)

    •knowledge

    •recklessness

    •negligence

    The defendant must commit all elements of the crime with a mental state of:

    Recklessness or greater (i.e., recklessness, knowledge of purpose).

    Purpose

    A person acts purposefully (intentionally) if he acts with the intent that his action causes a certain result.

    In other words, the defendant undertakes his action either intending for, or hoping that, a certain result will follow.

    Knowledge

    A person acts knowingly if he is aware that his conduct will result in certain consequences. In other words, a person acts knowingly if he is aware that it is practically certain that his conduct will cause a specific result.

    Recklessness

    A person acts recklessly if he is aware of a substantial risk that a certain result will occur as a result of his actions.

    The risk must be substantial enough that the action represents a gross deviation from what a reasonable law abiding person would do.

    The difference between recklessness and knowledge is that where a person acts knowingly he acts with the certainty that a certain result will follow from his actions.

    However, where a person acts recklessly, the person does not know for sure that a specific result will follow.

    Rather, he only knows that there is a substantial risk that the result will follow.

    The actus reus is the physical act of the crime.

    It must be a voluntary act, so stealing something, starting a fight etc.

    To summarise:

    Pre-emptive strikes

    There is no rule in law to say that a person must wait to be struck first before they may defend themselves, (see R v Deana, 2 Cr App R 75).

    A man who is attacked or believes that he is about to be attacked may use such force as is both necessary and reasonable in order to defend himself. If that is what he does then he acts lawfully.

    Remember though to re-evaluate the threat. If you have your attacker on the ground with his body in the foetal position and his arms covering his head, then further attacks switch from self defence to an attack.

    Burden of Proof

    The burden of proof remains with the prosecution when the issue of self-defence is raised.

    The prosecution must provide sufficient evidence to satisfy a jury beyond reasonable doubt that the defendant was either:-

    not acting to defend himself/herself or another; or not acting to defend property; or not acting to prevent a crime or to apprehend an offender; or if he was so acting, the force used was excessive.

    Hopefully this has been insightful and goes a long way to explaining why we say martial arts is not self defence.

    Simon
     
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  2. Simon

    Simon Moved on Admin Supporter MAP 2017 Koyo Award

    Video 1

    Let's take a look at video 1 from the point of view of the coach (the homeowner).

    If he had been on the path with the drunk he could have justifiably taken action after just a few seconds.

    The drunk guy draws back his right hand, the neck starts pecking and he is showing all the signs of starting a fight.

    This initial breakdown should form part of your post-event explanation should you be questioned by the police.

    After a few more seconds however the bully backs off, meaning his opportunity to strike has lessened somewhat.

    Taking action now would make it harder for you to argue your case for self defence.

    In addition this is a perfect opportunity for the coach to take himself and his family inside.

    As we move further into the video the drunk takes off his shirt, continues to posture and opens his arms as part of his gesturing.

    I'd argue that this point the coach could again take physical action and be justified in doing so.

    If I were in a lecture / self defence session covering the scenario I'd have the coach putting up a fence and saying, "sorry, but I really have to go".

    He should then angle away and begin to move off.

    He is on video and then clearly trying to diffuse the situation. If he is followed by the drunk then he is justified in taking action.

    His failure is prolonging a situation that had many opportunities to leave. In the end he actually steps towards drunk guy and attacks him.

    He has in my opinion attacked the drunk and his wife has filmed him doing so.

    After the drunk goes down the threat is over, so even if you argue the first strike was justified the kick wasn't.

    He has committed actual bodily harm and possible grievous bodily harm.

    Video 2

    This video is interesting for many reasons.

    At 25 seconds the guy who was attacked sees Evie and this is where he makes his first mistake.

    We all have an in-built warning system. A little signal that says, "something isn't right."

    I'd urge you all to buy Gavin De Becker's book, The Gift of Fear, which explains this in depth.

    https://www.amazon.co.uk/Gift-Fear-...ywords=the+gift+of+fear&qid=1583697149&sr=8-1

    I think the guy has seen Evie and thought something wasn't right, but then thought, "nah, I'm sure it's just nothing."

    That initial instinct that something is wrong should have been listened to.

    At this point he should have left, or knocked he spark out.

    The justification was that someone walked past him late at night in a store carrying an axe,.no shopping basket and no goods.

    If you feel it was too early to take action then watch at 0.33.

    He smiles and points at her. I assume he is questioning the axe and again he is in denial as to why.

    Cooper's Colour Coding should have had him switch from code yellow yo at least code orange.

    Something is wrong and I may need to take action, be that fight or flight.

    He allows her inside conversation range, where action beats reaction.

    There is a reason that when you approach the police in a heated situation they say, "hold itt here please? and keep you at a length of about 6 foot.

    At this distance should you try and attack they have time to react.

    Inside about 3 feet and you cannot act fast enough.

    The results of him not taking action are horrendous.

    Sometimes you have to act first, but remember, you need to be able to justify it. You can't just say, "I was in fear for my life, or I thought he / she was going to hit me."

    A good exercise would be to write down a statement from the point of view of the guy.

    Write as though you took physical action and include I.M.O.P, Mens Rea and Actus Reus,

    Video 3

    This video is ridiculous. In the end the guy who got shot pretty much deserved it.

    Initially he has the chance to retreat. The gunman clearly didn't want to shoot and the other guy had it all on camera.

    This is where confrontations can we won without the need to go physical.

    It's a skill that requires practice the be able to say, "I'm sorry, your are right and I apologise."

    At all times you need to be ready should your words fail, but with good training you can diffuse a situation, appear to give the other person what they wat and live to fight another day.

    Ian Abernethy has a good lesson on what he calls L.E.A.P.

    • Listen
    • Empathise
    • Ask
    • Paraphrase
    Listen to what the aggressor is saying. Interrupting isn't going to help.

    Empathise by saying something like, "I'm sorry. I'd be annoyed if someone spilt my pint.

    Ask. "If I buy you another drink are we okay?"

    Paraphrase. So use different words to express what the aggressor agrees to. "Thank you. I'll get you and your friend another drink and we leave on a handshake."

    Again all of this takes practice and should form part of a good legally underpinned self defence programme.
     
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  3. Andrew Johnson

    Andrew Johnson New Member

    Excellent points made there and very thorough. In all of the video situations, being aware and switched on to the possible threat is key to the outcome. The "coach" always maintains distance sufficiently to control the threat. The others, sadly, don't deal with the possibility of an attack at all. The incident with the gun is rather strange, to say the least.
    This type of article is something quite specific that should be taught as part of self-defence/martial arts, but in my experience, it rarely is. Understanding the Law and how it works in a violent confrontation is a very important thing to learn.
    Is this something quotable in an article you have somewhere, or only in this forum?
     
    Simon likes this.

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