¹ 1 B1.Comm. 119.

² Locke, Second Treatise of Government, ch. II, 6.

³ Hobbes, Leviathan, ch. 27 (Blackwell 1947, p. 196).

⁴ Cf. Paley, Principles of Moral and Political Philosophy, bk. IV, ch. I, who holds that there is a natural right of self-defence which “is suspended by the establishment of civil society,” except in those cases where the law cannot interpose to protect the individual. Even then, “this liberty is restrained to cases in which no other probable means of preserving our life remain, as flight, calling for assistance, disarming the adversary, etc.”

⁵ Bentham. Theory of Legislation, ed. Ogden (1931), p. 269.Google Scholar

⁶ The United Kingdom is a signatory to the European Convention on Human Rights, article 2 of which purports to protect the right to life: see below, p. 288.

⁷ Dicey, Law of the Constitution, 10th ed. (1959), p. 199.

⁸ Cf. Dias, “The Value of a Value-Study of Law” (1965) 28 M.L.R. 397.

⁹ Criminal Law, 3rd ed. (1973), p. 261.Google Scholar

¹⁰ Discussed below, pp. 293–294; cf. generally on the old common law rules relating to justifiable force, Russell on Crime, 12th ed. (1964), pp. 434–457.Google Scholar

¹¹ Cf. below, pp. 302–303.

¹² op. cit., p. 261; cf. Cross & Jones, An Introduction to Criminal Law, 7th ed., (1972), p. 101: “A person acting in self–defence is inevitably engaged in the prevention of crime; but the section may be confined to the prevention of crime against persons other than the accused.”

¹³ Cf. Professor Smith, in [1969] Crim.L.R. at pp. 382–383: “the old authorities on the duty to retreat should be regarded as repealed” by the 1967 Act.

¹⁴ This clearly emerges from the report of the Criminal Law Revision Committee on “Felonies and Misdemeanours,” Cmnd. 2659, paras. 22–23 and notes to cl. 3 at p. 50; cf. now Harlow, “Self-Defence: Public Right or Private Privilege” [1974] Crim.L.R. 528.

¹⁵ Smith & Hogan (op. cit., p. 261) cite McInnes [1971] 3 All E.R. at 302; but Edmund Davies L.J., merely stated that s. 3 holds that a person may use such force as is reasonable in the circumstances in the prevention of crime, and “the degree of force permissible in self-defence is similarly limited.” This fails to carry the point: reasonableness has always been a limitation at common law, and the question now is whether it is the sole limitation.

¹⁶ [1969] 2 All E.R. 856.

¹⁷ Ibid., at p. 858H.

¹⁸ The court expressly rejected counsel's “sturdy submission” that “an Englishman is not bound to run away when threatened, but can stand his ground and defend himself where he is”: [1969] 2 All E.R. at 858F. Equally, however, the court did not accept counsel's“dramatic” formulation of the duty to retreat: hence Lord Widgery's re-formulation (quoted in the text).

¹⁹ [1971] 3 All E.R. 295.

²⁰ This duty-terminology is criticised by Smith & Hogan (op. cit., 261) on the ground that it fails to allow for the liberty to make a pre-emptive strike (“the rule that force may be used to ward off an imminent attack”). But the court did not address itself to the question of exceptions to the general duty, and there is ample authority for exceptions to the duty to retreat which the court neither expressly nor impliedly overruled: cf. below, p. 294.

²¹ [1972] Crim.L.R. 435.

²² Holmes-Laski Letters, I, 335, a discussion prompted by the Supreme Court case of Brown v. U.S. (1921) 256 U.S. 335Google Scholar, in which Holmes J., delivered a well-known judgement: cf. below, p. 299.

²³ Cf. Timothy v. Simpson (1835) 1 C.M. & R. 757. There are other decisions o' the same era which suggest that there is not merely a liberty but a duty to assist a constable to suppress a breach of the peace when called upon to do so (Brown (1841) Car. & M. 314), and a duty to assist in suppressing a riot (Charge to the Bristol Grand Jury (1832) 5 C. & P. 262n.). It is uncertain whether these authorities still represent English law.

²⁴ The term “punishment” in this context is used to refer to any non-compensatory order made by a criminal court on the conviction of an offender; thus it includes, e.g., probation orders, which some might not regard as punishment.

²⁵ Although Stephen accepted the duty to withdraw in cases where the alternative was to inflict death or serious harm on the assailant, he adopted the “stand fast” approach in relation to the use of “force short of the intentional infliction of death or grievous bodily harm.” (This is the distinction subsequently rejected in Julien: cf. above, p. 286 and note 18.) Stephen argued that “if this were not the law, it would follow that any ruffian who chose to assault a quiet person in the street might impose upon him the legal duty of running away, even if he were the stronger of the two”: Digest of the Criminal Law, 6th ed. (1904), p. 125.Google Scholar

²⁶ Dicey, Law of the Constitution, 8th ed. (1915), p. 489.

²⁷ As with self-defence, If the person is charged with an offence against the person, the prosecution must prove beyond reasonable doubt that his conduct was not justifiable.

²⁸ Cf. de Smith, Constitutional and Administrative Law, 2nd ed. (1973), chap. 20, for a discussion of the citizen's liberties to assist in the enforcement of the law. Cf. also below, p. 303.Google Scholar

²⁹ Mr. Ranulph Bacon, Assistant Commissioner in the Metropolitan Police, at a press conference on 31 December 1964, reported in The Times, 1 January 1965, p. 4; correspondence on the subject followed in The Times on 4, 5 and 9 January 1965.

³⁰ Lord Macaulay, Works, ed. Trevelyan, Vol. vii, p. 450.

³¹ Stephen, loc. cit.; Dicey, loc. cit.; Smith & Hogan, op. cit., pp. 260–262, referring to the 1st ed. of their work (1965), pp. 230–238, where the common law and their criticisms are set out at length.

³² Dicey, Law of the Constitution, 8th ed. (1915), p. 492.

³³ Cf. above, p. 287.

³⁴ Ouoted above, p. 286; cf. the subsequent decisions in McInnes and Field, discussed thereat.

³⁵ Cf. above, note 25, for Stephen's distinction between the use of serious and non-serious force.

³⁶ Chaplain of Gray's Inn's Case (1400) Y.B. 2 Hen.IV, fo. 8, pl. 40; Barfoot v. Reynolds (1721) 2 Str. 953; Symondson (1896) 60 J.P. 645; Chisam (1963) 47 Cr.App.R. 130; Devlin v. Armstrong [1971] N.I.L.R. 13.Google Scholar

³⁷ Cf. Beale, “Retreat from a Murderous Assault” (1903) 16 Harv.L.R. 567; the term “home” was strictly construed, even in the nineteenth century, so that in Dakin's Case (1828) 1 Lew. 166, where the accused was merely a lodger in the house, Bayley J., directed that “If [he] had known of the back way, it would have been his duty to have gone out backwards, in order to avoid the conflict.”

³⁸ Cf. the authorities discussed by Lanham, “Defence of Property in the Criminal Law” [1966] Crim.L.R. 368, 426; an example of trial practice is provided by Frankum (reported in The Times, 11 May 1972Google Scholar), where Cusack J. directed the jury to acquit of manslaughter a householder who killed with a sword a drunken man who was breaking windows at his home and threatening to enter. Cf. the American Law Institute, Model Penal Code, which holds that the duty to retreat does not apply when a person is attacked in his dwelling: s. 3.04 (2) (b) (1).

³⁹ [1972] Crim.L.R. 435.

⁴⁰ Above, pp. 286 and 293.

⁴¹ (1938) 53 Wyo. 304.

⁴² (1882) 9 Q.B.D. 308; cf. Smith & Hogan, op. cit., pp. 610–614.

⁴³ S. A. de Smith, op. cit., pp. 505–506.

⁴⁴ A duty to report threats of violence to the police has received some recognition in cases of duress (cf. Hudson and Taylor [1971] 2 Q.B. 202, and Law Commission Working Paper no. 55. “Criminal Law: Defences of General Application,” p. 13), and in cases involving the possession of an offensive weapon (cf. below, pp. 297–299.

⁴⁵ If the attack were sudden and there was no reasonable opportunity to inform anyone in authority, the principle should not come into play.

⁴⁶ Report of the Royal Commission on the Law Relating to Indictable Offences (1879, C. 2345), note B, at p. 44; cf. also at p. 11 of the main report: “We take one great principle of the common law to be, that though it sanctions the defence of a man's person, liberty and property against illegal violence, and permits the use of force to prevent crimes, to preserve the public peace, and to bring offenders to justice, yet all this is subject to the restriction that… the mischief done by, or which might reasonably be anticipated from, the force used is not disproportioned to the injury or mischief which it is intended to prevent.”

⁴⁷ E.g., Mancini v. D.P.P. [1942] A.C. 1, at 6–7Google Scholar; Palmer v. R. [1971] A.C. 814, at 831Google Scholar; cf. also Taylor v. Mucklow [1973]Google Scholar Crim.L.R. 750, where the defendant aimed a loaded airgun at a builder who was demolishing brickwork on the defendant's property. He was convicted under s. 19 of the Firearms Act 1968, and the Divisional Court made this general observation: “For anyone to argue nowadays that a loaded firearm was a suitable way of restraining the kind of bad temper exhibited by the builder was to show a lack of appreciation of modern trends and dangers.”

⁴⁸ Cf. Greenwood, Firearms Control (1972), for a review of the history and presentday problems. The author writes that, prior to the Pistols Act 1903, members of parliament “spoke frequently of their habit of carrying pistols and of their willingness to use them in self–defence.” (at p. 245).

⁴⁹ The burden of proving “reasonable excuse” lies on the defendant, in contrast to cases where self–defence is raised on a charge of murder, assault or other offence of violence, where the prosecution must negative it beyond a reasonable doubt.

⁵⁰ [1972] 3 All E.R. 412.

⁵¹ Cf. Peacock [1973]Google Scholar Crim.L.R. 639, and the particularly hard case of Bradley v. Moss [1974]Google Scholar Crim.L.R. 430, where a juvenile had been threatened by older youths. began to carry weapons, was charged by the police, and was subsequently beaten by a gang of youths.

⁵² An offence is committed under the 1953 Act even where a person picks up an object such as a stone and uses it to cause Injury: Harrison v. Thornton [1966]Google Scholar Crim.L.R. 388.

⁵³ (1910) 4 Cr.App.R. 51; cf. Mancini v. D.P.P. [1942] A.C. 1, 7.Google Scholar

⁵⁴ Above, p. 295 and note 39.

⁵⁵ (1921) 256 U.S. 335, with passage quoted at p. 343; cf. above, note 22.

⁵⁶ For summaries of the scientific evidence on this point, see Grossman, Physiological Psychology (New York 1967), 500–515, and, more descriptively, Vernon, Human Motivation (Cambridge 1969), chap. 4.

⁵⁷ cf. Hobbes (above, note 3), and Blackstone: “the law … respects the passions of the human mind; and (when external violence is offered to a man himself, or to those to whom he bears a near connection), makes it lawful for him to do himself that immediate justice, to which he is prompted by nature, and which no prudential motives are strong enough to restrain.” (Comm., 3, pp. 3–4)

⁵⁸ [1971] A.C. 814, 832; cf. also Lane J., in Reed v. Wastie [1972]Google Scholar Crim.L.R. 221: “one does not use jeweller's scales to measure reasonable force.”

⁵⁹ Cf. Lord Morris in Palmer v. R. (above, note 58), convincingly criticised on this point by Leigh (1971) 34 M.L.R. 685.

⁶⁰ Cf. the discussion of this aphorism above, p. 299, and also the discussion of the Field principle, above, pp. 295–296.

⁶¹ Hale, 1 P.C. 480–481.

⁶² Hawkins, P.C., ch. IX, s. 17.

⁶³ Foster, C.L. 273.

⁶⁴ Foster, C.L. 277.

⁶⁵ East, 1 P.C. 285, following Hawkins on the latter point by arguing that “the necessity which was induced from his own faulty and illegal act, namely, the agreement to fight, was in the first instance deliberately foreseen and resolved upon in defiance of the law.”

⁶⁶ Cf. The Digest of Offences drawn up by the Criminal Law Commissioners (1839. B.P.P. [168 xix–235]), p. xx and Articles 34 and 37.

⁶⁷ [1942] A.C. 1, 6–7 (H.L.).

⁶⁸ (1963) 47 Cr.App.R. 130 (C.C.A.).

⁶⁹ [1969] 2 All E.R. 856 (C.A.), above, pp. 285–286.

⁷⁰ Cf. notes 64, 65 & 66 above; in modern cases, the English courts have manifested an unwillingness to use of the offence of manslaughter in cases where a defendant has exceeded the limits of justifiable force or has abused a legal liberty to inflict force. Whereas the Australian judges accept that it is reasonable to use the man-slaughter verdict in such cases (cf. Morris & Howard, Studies in Criminal Law. ch. IV), the English judges have ignored the institutional writings and have built a line of authority against the doctrine: cf. P. Smith, “Excessive Defence” [1972] Crim.L.R. 524.

⁷¹ [1971] 1 Q.B. 428; in this case it was a father who used force in an attempt to secure the release of his son from unlawful police detention.

⁷² The principle is accepted by the American Law Institute, Model Penal Code, s. 3.04 (2) (a) (1), which provides that the use of force is not justifiable “to resist an arrest which the actor knows is being made by a peace officer, although the arrest is unlawful”; but cf. earlier English authorities, such as Wilson [1955] 1 W.L.R. 493, and Kenlin v. Gardiner [1967] 2 Q.B. 510.

⁷³ Cf. note 78 below, and text thereat.

⁷⁴ Cf. the academic debate reviewed above, pp. 284–287; it would be technically incorrect to regard defence against an attack by an insane or excusably mistaken assailant as conduct in the prevention of crime, since no crime was being committed; and it would surely be inappropriate to classify the conduct of someone who provoked conflict and then later had to defend himself against excessive retaliation as conduct for the purpose of preventing crime.

⁷⁵ Cf. Greenwood, “The Evil Choice” [1975] Crim.L.R. 4, on the distinction between defensive force by citizens under attack and positive force used by police officers. Greenwood discusses some of the policy questions which must be resolved if the law relating to the justifiable use of force by police officers is to be rendered less vague and more informative. Cf. also above, note 23, as to the possibility that in some situations citizens (as well as policemen) have a duty to intervene to prevent crime.

⁷⁶ The court must classify the facts of the case: the immobility of the property is just as much a condition of the application of the principle as is the possibility of withdrawal by a threatened individual.

⁷⁷ Cf. Lanham, “Defence of Property in Criminal Law” [1966] Crim.L.R. 368. 426, for a discussion of some of the issues involved in cases of defence of property.

⁷⁸ Smith & Hogan, op. cit., p. 264: “His mistake is now one, in effect, of law.”Cf. Street, Law of Torts, 5th ed. (1972), p. 78, and Winfleld and Jolowicz, Tort, 9th ed. (1971), p. 642, both asserting that the reasonableness of force is always a question of fact in each case.

⁷⁹ Rose (1884) 15 Cox C.C. 540; Chisam (1963) 47 Cr.App.R. 130; Palmer v. R. [1971] A.C. 814.Google Scholar

⁸⁰ [1975] 2 All E.R. 347; it appears that even the dissenting judges would accept that “a mistake of a relevant fact is a defence if the mistake was honest and genuine, even if it was also unreasonable” (per Lord Edmund–Davies, at p. 379H), although they differed from the majority as to whether the court or parliament should alter the law.

⁸¹ Law Commission Working Paper no. 31. pp. 61–63.

⁸² Cf. Ashworth, “Excusable Mistake of Law” [1974] Crim.L.R. 652.

⁸³ [1971] A.C.814, 831–832, discussed above, p. 299.

⁸⁴ Cf. Lord Morris, ibid.: “If there is some relatively minor attack, it would not be common sense to permit some action of retaliation which was wholly out of proportion to the necessities of the situation.” For a possible alternative to the complete subjective test, cf. the hybrid test discussed by the author in [1974] Crim.L.R., 654–657.

⁸⁵ Cf. above, p. 294.

⁸⁶ Cf. above, p. 295.

⁸⁷ Julien, above, pp. 285–286, and note 25.

⁸⁸ It should be noted, however, that these codes only allow the individual assaulted to stand fast when he has not provoked the assault. If he provoked his assailant, then he is under the normal duty to withdraw. Cf. Queensland Code, ss. 271–272; Western Australia Code, ss. 248–249; Tasmanian Code, ss. 46–47.

⁸⁹ Cf. above, pp. 298–300.

⁹⁰ Cf. a parliamentary question on the use of force and defensive weapons by private citizens, by Mr. McNair-Wilson, M.P., in May 1973 (H.C.Deb., vol. 855, cols. 1440–1441); on the need for clearer guidance for police officers, cf. Green–wood (above, note 75); for the armed forces, security firms and others, cf. the letters printed in [1975] Crim.L.R. at pp. 186 and 302.