Authored By: Mitali Khandekar
Middlesex University
The law of self-defence walks a razor-thin line between justification and criminality, between the instinct to survive and the duty to restrain. Nowhere is this more powerfully encapsulated than in Lord Morris’s dictum in Palmer v. R,[1] where he acknowledged the visceral, split-second judgments made in moments of “unexpected anguish.” Self-defence is a full defence in criminal law, covering both common law and statutory frameworks. A successful plea leads to complete acquittal, yet the criteria for determining “reasonable force” are controversial and often confusing.[2] This essay critically examines how the concept of “reasonableness” in self-defence is shaped, stretched, and constrained by the courts.
Self-defence encompasses three main branches, private defence under common law, defence of property partially codified in the Criminal Damage Act 1971,[3] and public defence under s.3 of the Criminal Law Act 1967.[4] S.76 of the Criminal Justice and Immigration Act 2008[5] attempts to codify and clarify the law by reaffirming that a person may use reasonable force in self-defence,[6] provided it is necessary and proportionate based on their honest belief of the circumstances.[7]
The courts apply a hybrid test, the subjective and objective test. The subjective test focuses on a person’s actual state of mind ie. what they honestly believed, knew, or intended at the time of an event, regardless of whether that belief was reasonable. In criminal law, it’s used to assess a defendant’s mindset. For instance, if someone claims they acted in self-defence, the court would consider whether they genuinely believed they were in danger, even if that belief was mistaken or unreasonable. The objective test, much like the subjective test considers what the defendant believed but is still judged using an objective standard in terms of the force applied, the court looks at whether the force used was reasonable in the eyes of a reasonable person.[8] Even if the defendant believed their actions were justified, their defence may fail if the force was excessive by objective standards.[9]
This combination of subjective and objective elements makes it difficult to fully account for the defendant’s psychological and emotional state, such as fear or confusion, which could have influenced their actions. In Palmer,[10] the House of Lords recognized that individuals acting under threat may not always be able to accurately gauge the appropriate level of force, highlighting the challenge of balancing the reasonable person standard with the defendant’s genuine emotional response to danger.
Another key challenge is determining what constitutes excessive force. The test requires that the force used must not be disproportionate given the circumstances, but defining what is “excessive” can be subjective, even when applying an objective standard.[11] For example, in R v. Clegg,[12] a soldier shot and killed a civilian, believing he was still in danger, despite the fact that the civilian no longer posed an immediate threat. The court ruled that the force was disproportionate, even though the defendant genuinely believed he was under threat. This raises concerns about how the law assesses the reasonableness of a response, given that perceptions of danger can differ significantly. The reasonable person standard may not always align with the split-second decisions made under intense stress.[13]
This dilemma was further highlighted in R v. Martin,[14] where a farmer, suffering from a paranoid personality disorder, shot a burglar in the back. Despite his genuine belief that he was under threat, the court found his use of force excessive and convicted him of murder. This case highlighted the limitations of the objective test in considering the mental state of the defendant. On the other hand, R v. Bird established that there is no obligation to retreat in self-defence, affirming the validity of instinctive and immediate responses.[15] However, the situation becomes more complicated when such responses escalate into lethal actions, as seen in R v. Hussain,[16] where a defendant chased a burglar and caused harm even after the threat had subsided.
Underlying these cases are conflicting moral theories that shape the understanding of self-defence. The consequentialist theory justifies self-defence on the grounds that it leads to better outcomes, as it is preferable for the attacker to be harmed rather than the victim.[17] However, this approach can overlook situations where the defender may also share some blame for the conflict. In contrast, the forfeiture theory, as proposed by Suzanne Uniacke,[18] argues that aggressors lose their right to safety by initiating the threat. However, this theory becomes more complex when considering cases like R v. Rashford,[19] where an initial aggressor may still invoke self-defence if the situation shifts, challenging the idea that their right to protection has been forfeited.
In conclusion, the objective self-defence test of reasonableness faces significant challenges in legal assessments. While aiming for fairness and consistency, it often overlooks the defendant’s psychological state and the complexities of decision-making under duress. The “reasonable person” standard does not always capture how someone might react in moments of fear or stress. Additionally, the difficulty in defining disproportionate force and the lack of consideration for mental health conditions complicate the application of the test. These issues suggest a need for legal reform to make the self-defence test more flexible, while maintaining fairness in decision-making.
BIBLIOGRAPHY
Primary Sources
Legislations
- Criminal Damage Act 1971
- Criminal Law Act 1967
- Criminal Justice and Immigration Act 2008
Case Law
- Palmer v. R [1971] AC 814
- R v. Bird[1985] 1 WLR 816
- R v. Clegg [1995] 1 AC 482
- R v. Hussain & Anor [2010] EWCA Crim 94
- R v. Martin (Anthony Edward) [2001] EWCA Crim 2245
- R v. Rashford [2006] Crim LR 547
Secondary Sources
Journal Articles
- Colvin E, ‘Ordinary and Reasonable People: The Design of Objective Tests of Criminal Responsibility’ (2001) 27(2)Monash University Law Review 197
- Crosby C, Subjectivism and Objectivism in the Criminal Law: An Examination of the Limits of Recklessness and Negligence(PhD thesis, Teesside University 2013) 104
- Foster S and Leigh G, ‘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) 4European Human Rights Law Review 389
- Storey T, ‘Self-defence: Insane Delusions and Reasonable Force’ (2014) 78Journal of Criminal Law 12
- White S, ‘Excessive Force in Self-Defence’ (1971) 34(1) Modern Law Review106
Textbooks/Publications
- Boaz Sangero,Self-Defence in Criminal Law (Hart Publishing 2006)
- Jonathan Herring,Criminal Law (15th edn, Macmillan 2023)
- Suzanne Uniacke, ‘Permissible Killing: The Self-Defence Justification of Homicide’ (Cambridge University Press 1994)
[1] Palmer v. R [1971] AC 814.
[2] Tony Storey, ‘Self-defence: Insane Delusions and Reasonable Force’ (2014) 78 Journal of Criminal Law 12.
[3] Criminal Damage Act 1971.
[4] Criminal Law Act 1967, s. 3.
[5] Criminal Justice and Immigration Act 2008, s. 76.
[6] Boaz Sangero, Self-Defence in Criminal Law (Hart Publishing 2006) 1.
[7] Stephen Foster and Gavin Leigh, ‘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.
[8] Catherine Crosby, Subjectivism and Objectivism in the Criminal Law: An Examination of the Limits of Recklessness and Negligence (PhD thesis, Teesside University 2013) 104.
[9] Eric Colvin, ‘Ordinary and Reasonable People: The Design of Objective Tests of Criminal Responsibility’ (2001) 27(2) Monash University Law Review 197.
[10] Ibid (n 1).
[11] Stephen White, ‘Excessive Force in Self-Defence’ (1971) 34(1) Modern Law Review 106.
[12] R v. Clegg [1995] 1 AC 482.
[13] Ibid (n 11).
[14] R v. Martin (Anthony Edward) [2001] EWCA Crim 2245.
[15] R v. Bird [1985] 1 WLR 816.
[16] R v. Hussain & Anor [2010] EWCA Crim 94.
[17] Jonathan Herring, Criminal Law (15th edn, Macmillan 2023) 428.
[18] Suzanne Uniacke, ‘Permissible Killing: The Self-Defence Justification of Homicide’ (Cambridge University Press 1994).
[19] R v. Rashford [2006] Crim LR 547.
