Authored By: Hania Zainab
Middlesex University Dubai
The doctrine of self-defence occupies a central place in criminal law, balancing the right to personal protection against the rule of law and public safety. In Palmer v R [1971], Lord Morris recognised that instinctive and honest reactions in moments of fear could constitute potent evidence of reasonable force, highlighting the human dimension within legal assessments. This essay critically explores what qualifies the objective self-defence test of “reasonableness,” focusing on the complex interplay between subjective belief and objective proportionality. Through analysis of key case law, this discussion evaluates how courts manage mistaken beliefs, anticipatory action, intoxication, and the heightened standards in householder cases, ultimately questioning whether the legal standard of reasonableness adequately reflects human imperfection in high-pressure situations.
As Lord Morris recognised in Palmer v R [1971], that the law does not demand perfect judgment from a person acting in fear.[1] This reflects the recognition that decisions made in moments of panic may not be measured with precision. This essay critically assesses what qualifies the objective self-defence test of reasonableness, focusing on how courts balance a subjective belief of the defendant with the objective requirement of proportionality. While the legal test involves both subjective and objective limbs, determining what is reasonable remains complex, particularly where excessive force arises from understandable panic or where defensive actions are driven by morally questionable motives.[2]
The law recognises that individuals may act mistakenly under pressure, allowing an honest belief in the need for force to justify self-defence, even if that belief is mistaken. This is reflected in R v Williams [1984][3] and R v Beckford [1988], where the courts accepted that a genuinely held belief, however unreasonable, supports a defence.[4] Similarly, R v Scarlett [1994] confirmed that if a person honestly believed the level of force was necessary, they should not be convicted, regardless of how unreasonable that belief was.[5] However, this lenient approach has since shifted. In R v Owino [1995], the court clarified that while the perception of threat is judged subjectively, the force used must be objectively reasonable based on that belief.[6] This hybrid test marks a more structured approach, suggesting that although mistaken beliefs may still justify defensive action, they are now filtered through an objective lens when assessing proportionality. The shift reflects the effort to balance individual instinct with public standards of acceptable force, directly engaging with the reasonableness assessment.
The concept of reasonableness also extends to both pre-emptive defensive action and duty to retreat. Courts have accepted that self-defence may justify striking first where an attack is imminent. This was reflected in Attorney-General’s Reference (No 2 of 1983), where the defendant prepared petrol bombs in anticipation of another riot attack.[7] Although no attack occurred, the court accepted it as a lawful self-defence. Likewise, in R v Bird [1985], the Court confirmed that a defendant may respond immediately, even without demonstrating unwillingness to fight.[8] These decisions illustrate that the objective reasonableness test is not rigid; it accounts for instinctive and anticipatory reactions, reinforcing the view in Palmer that defensive action taken honestly and instinctively can still be reasonable.[9]
In self‑defence cases, voluntary intoxication cannot support a mistaken belief about the need for force as increases the ‘defensive activity’.[10] Under s.76(5) of the Criminal Justice and Immigration Act 2008, any such belief is excluded from the self‑defence defence. This was affirmed in R v O’Grady [1987], [11]and R v O’Connor[1991], where intoxication‑induced mistakes about threat were rejected by the courts.[12] While self‑defence requires a genuine belief in imminent danger, the statute bars reliance on perceptions distorted by drink, thereby reinforcing that only what a reasonable person would believe in conscious circumstances can satisfy the objective test of reasonableness.
The law establishes an altered threshold for reasonableness in householder self‑defence, permitting force that is disproportionate, but not grossly so. Under s76(5A),[13] as amended by Crime and Courts Act 2013 s43, householders enjoy greater freedom, a standard upheld in Denby Collins [2016].[14] Section 76(7) recognizes the instinctive nature of self‑defence, while s.76(6) still requires force to be reasonable in light of the householder’s genuine belief, with grossly disproportionate force excluded and a jury determining reasonableness. Cases such as R v Hussey [1924] once justified shooting to protect one’s home from unlawful eviction.[15] The modern statutes such as Criminal Law Act 1967 s3 and leading texts make clear that deadly force to protect property alone is rarely reasonable.[16] Even in a domestic context, the two‑tiered model means most defendants face a strict proportionality test, whereas householders receive more latitude. Critics warn these risks blurring defensive force with retributive violence, raising issues of moral justification, legal consistency, and the Right to life of intruders under ECHR Article 2.[17] Nevertheless, the jury safeguards ensure that the expanded rights remain bound by the core requirement of reasonable force.
The objective reasonableness test applied in cases such as R v Martin (Anthony) [2001] ,[18] and R v Clegg [1995] illustrates the rigidity in law for evaluating defensive force.[19] In Martin, the court held that the mental condition could not lower the standard of reasonableness.[20] In Clegg, the use of force became unlawful once the threat had passed, despite the stressful circumstances.[21] This strict objectivity limits the ability of the court to account for individual perception. Fletcher critiques by arguing that mistaken self-defence should be treated as an excuse rather than a justification, since a genuine but mistaken belief does not make the act lawful but may reduce blame.[22] Section 76(4) supports this by allowing mistaken yet honest beliefs to justify self-defence, even if unreasonable.[23] This reflects a more nuanced approach to culpability, challenging the binary between objective and subjective standards and acknowledging the moral complexity involved. Therefore, Lord Morris views that instinctive and honest actions may serve as strong evidence of reasonable force that resonates with this blended approach, where legal reasonableness accommodates human imperfection.
Conclusion:
Mistaken beliefs, even if genuine, are allowed to justify self-defence but are filtered through an objective lens to ensure that defensive actions align with public expectations of reasonable force. Ultimately, the law seeks to strike a balance between personal perception and the broader need for consistency in self-defence claims, acknowledging human imperfection while safeguarding against excessive force.
Reference(S):
[1] Palmer v R | [1971] | AC | 814.
[2] Norrie Alan, | ‘The Problem of Mistaken Self-Defense: Citizenship, Chiasmus, and Legal Form’ | (2010) | 13(2) | New Criminal Law Review | 357,362-363.
[3] R v Williams (Gladstone) | [1984] | 78 Cr App R | 276.
[4] Beckford v R | [1988] | AC | 130.
[5] R v Scarlett | [1994] | Crim LR | 288.
[6] R v Owino | [1995] | Crim LR | 743.
[7] Attorney-General’s Reference (No 2 of 1983) | [1984] | QB | 624.
[8] R v Bird | [1985] | 1 WLR | 816.
[9] Palmer v R (n 1).
[10] Kyd Sally, Elliott Tracey, Walters Mark, | Clarkson and Keating’s Criminal Law | (9th ed, Sweet & Maxwell, 1994) | 402.
[11] R v O’Grady | [1987] | 3 WLR | 321.
[12] R v O’Connor | [1991] | Crim LR | 135.
[13] The Criminal Justice and Immigration Act 2008 s76(5A0.
[14] R (on the application of Denby Collins) v Secretary of State for Justice | [2016] | EWHC | 33 (Admin).
[15] R v Hussey | [1924] | 18 Cr App R | 160.
[16] Ormerod DC,| ‘Smith & Hogan’s Criminal Law’ | (1996, | Oxford University Press) 266.
[17] Foster, Stephen, and Leigh, Gavin, | ‘Self-defence and the Right to Life: the Use of Lethal or Potentially Lethal Force, UK Domestic Law, the Common Law and Article 2 ECHR’ | (2016) | 4 | European Human Rights Law Review | 389,409.
[18] R v Martin (Anthony Edward) | [2001] | EWCA Crim | 2245.
[19] R v Clegg | [1995] | 1 AC | 482.
[20] R v Martin (n 18).
[21] R v Clegg (n 19).
[22]George P Fletcher, | Basic Concepts of Criminal Law | (New York, | Oxford University Press | 1998) 89.
[23] Criminal Justice and Immigration Act 2008 s76(4).
