19 posts / 0 new
Last post
Iain Abernethy
Iain Abernethy's picture
The universal truth of pre-emption

One of the things that always delights me is that way that good martial advice tends to transcend system, culture and geographic location. What works, works. Therefore, we see much commonality between what can seem, on the surface at least, to be radically differing systems.

I have just started reading “Self-defence for gentlemen and ladies” by Colonel Thomas Hoyer Monstery (1824 – 1901); which was originally published in 1877. Thomas Hoyer Monstery was a Danish-American fencing and boxing instructor, duellist and mercenary.

In the part of the book that deals with self-defence (which I have obviously skipped forward to!) he writes the following:

Always try to get in the first blow in a chance encounter. Parley with your enemy, and watch him until you see that you will be assaulted …

Here we see an understanding that many situations have a dialogue component and that pre-emptively striking, when you beleive an attack is immanent, is advised.

Of course we see that mirrored in the advice of today’s self-protection experts such as Geoff Thompson:

“You are either first or you are last, and last in this arena might mean the cold slab. If you have to be physical, the pre-emptive strike is the only consistently effective technique … You only have to look at human conflict (civil, national and global) over the centuries to see that war always demands artifice and it always demands pre-emption. The street might be a war in microcosm, but it is no less war-like. The pre-emptive strike really is just common sense, and the moment you face an angry man who wants to flatten the world with your head you will know, no-one will need to draw you diagrams, you will just instinctively know.”

We also see it mirrored in the advice of past masters such as Gichin Funakoshi, Choki Motobu and Kenwa Mabuni:

"When there are no avenues of escape or one is caught even before any attempt to escape can be made, then for the first time the use of self-defense techniques should be considered. Even at times like these, do not show any intention of attacking, but first let the attacker become careless. At that time attack him concentrating one's whole strength in one blow to a vital point and in the moment of surprise, escape and seek shelter and help." – Gichin Funakoshi

“When faced with someone who disrupts the peace or who will do one harm, one is as a warrior in battle, and so it only stands to reason that one should seize the initiative and pre-empt the enemy’s use of violence. Such action in no way goes against the precept of ‘no first attack’ …the expression ‘karate ni sente nashi’ [no first attack in karate] should be properly understood to mean that the karateka must never take a hostile attitude, or be the cause of a violent incident; he or she should always have the virtues of calmness, prudence and humility in dealing with others.” – Kenwa Mabuni

“There is a saying ‘no first attack in karate’ …To be sure, it is not the budo [martial art] spirit to train for the purpose of striking others without good reason. I assume that you already understand that in karate one's primary goal must be the training of mind and body… But when a situation can't be avoided and the enemy is intent on doing you serious harm, you must fight ferociously. When one does fight, taking control of the enemy is vital, and one must take that control with the very first move. Therefore, in a fight one must attack first. It is very important to remember this.” – Choki Motobu

What we can see in the above quotes is the need to avoid violence through awareness and good behaviour. Once again, Colonel Thomas Hoyer Monstery mirrors this advice in his book:

My final advice on boxing is: be civil to all, and never seek a quarrel, but if one is forced on you, strike quick and surprise your opponent.”

Here we have a former British bouncer, three Okinawan karateka, and one American fencing / boxing instructor all recommending the same ideals and practicalities.

As Geoff states, “the pre-emptive strike is the only consistently effective technique.” It should therefore come as no surprise that is it so widely recommend. This truth is wider than any one specific system such that all systems should embrace it. Truth must shape system, as opposed to system trying to redefine “truth”.

These commonalities also help illustrate that we are best served when we seek universal truths as opposed to the idiosyncrasies of style. In seeking those truths, we do well to seek alternative expressions of those truths from outside our own style; because in doing so, we better understand the truths that lie at the heart of the style we use as a base. Truth is truth; no matter where it is found.

All the best,

Iain

Marc
Marc's picture

Thanks Iain, nice collection of quotes concerning pre-emptive strikes.

And a good reminder to watch and learn from others outside your own system: If you see something you already know from you own system, you have evidence that there might be truth in it. If you see something new that resonates with you, try to incorporate it in your system. It might even be there already but you've never seen it as such. If you see something new that doesn't work for you, try to find out why it does not work for you, and then search you own system for the same flaws to eliminate them from your system.

Take care

Marc  

Ian H
Ian H's picture

Great post!

What are your thoughts on avoiding legal complications arising out of self-defence pre-emption?  Presumably if we want to have the luxury of throwing the first blow, we need to be able to explain that to the police &c to convince them that we were in the right.

Iain Abernethy
Iain Abernethy's picture

Ian H wrote:
Great post!

Thank you!

Ian H wrote:
What are your thoughts on avoiding legal complications arising out of self-defence pre-emption?  Presumably if we want to have the luxury of throwing the first blow, we need to be able to explain that to the police &c to convince them that we were in the right.

UK Law permits the use a pre-emptive strike in self-defence. This is covered on the Crown Prosecution Service website: http://www.cps.gov.uk/legal/s_to_u/self_defence/#Pre-emptive

“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).”

It would not be in the public interest for a potential victim to have to be physically struck before they could defend themselves.

Further the webpage says:

“Section 76(3) confirms the question whether the degree of force used by the defendant was reasonable in the circumstances is to be decided by reference to the circumstances as the defendant believed them to be.”

So long as you had good reason to believe an attack was imminent (even if you were mistaken), then your pre-emptive strike would be lawful.

The law itself defining reasonable force can be found here: http://www.legislation.gov.uk/ukpga/2008/4/section/76

There would be no more complications arising out of pre-emption than acting is self-defence generally. Indeed, if the pre-emptive strike facilitated a clean escape, then it could be earlier to demonstrate to the police, CPS, court, etc satisfaction that you were acting in self-defence.

All the best,

Iain

Ian H
Ian H's picture

Iain Abernethy wrote:
UK Law permits the use a pre-emptive strike in self-defence. ... It would not be in the public interest for a potential victim to have to be physically struck before they could defend themselves.

I'm from Canada ... but we seem to have basically the same laws here.

I don't think many jurisdictions are going to put the criminal blame on whoever threw the first punch no matter what, although different places take different approaches to how much leeway they give the "self defender".

Iain Abernethy wrote:
There would be no more complications arising out of pre-emption than acting is self-defence generally. Indeed, if the pre-emptive strike facilitated a clean escape, then it could be earlier to demonstrate to the police, CPS, court, etc satisfaction that you were acting in self-defence.

The "demonstrating to the police &c that you were acting in self-defence" is more what I was aiming at.  We have the techniques and tactics for physical self-defence, but what about "legal self defence" ... in the sense of making it easier for "The Law" to agree with our claims of self defence?  What sort of things can we do ... "before, during and after" ... to make the conclusion of "self defence" easier?

Obvious example: if I call our 'help! police! I'm being attacked!' when I pre-empt my attacker, I'm in a better situation than if I cry out "I'm gonna effing kill you!".  I'm better off if I can accurately and in detail describe what led me to believe I was about to be attacked, rather than just say "I thought he was gonna hit me".

Iain Abernethy
Iain Abernethy's picture

Ian H wrote:
I'm from Canada ... but we seem to have basically the same laws here.

It’s been a long time since I looked at Canadian law, but I do recall them being similar.

http://laws-lois.justice.gc.ca/eng/acts/C-46/page-13.html#docCont

It is sections 34 & 35 of the Canadian Criminal Code that relate to self-defence. Section 34 begins with (my highlight):

34. (1) A person is not guilty of an offence if

(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;

(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

(c) the act committed is reasonable in the circumstances.

Pre-emption would therefore seem to be OK in the case of a “belief on reasonable grounds” of an unprovoked “threat of force”. This is mirrored in UK law (my highlight):

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.” - (R v Balogun [2000] 1 Archbold News 3).

A look through the law generally sees that the UK “genuinely held belief” has a Canadian parallel of “belief on reasonable grounds”. To a layman such as myself, that would suggest that the UK law is more forgiving of mistakes:

Criminal Justice and Immigration Act 2008 Section 76 (4 & 5):

(4)If D claims to have held a particular belief as regards the existence of any circumstances—

(a) the reasonableness or otherwise of that belief is relevant to the question whether D genuinely held it; but

(b) if it is determined that D did genuinely hold it, D is entitled to rely on it for the purposes of subsection (3), whether or not—

(i) it was mistaken, or

(ii) (if it was mistaken) the mistake was a reasonable one to have made.

(5)But subsection (4)(b) does not enable D to rely on any mistaken belief attributable to intoxication that was voluntarily induced.

Under UK law you are entitled to rely on a belief that was both mistaken and unreasonable, so long as it was genuinely held (providing that mistaken belief was not a result of alcohol, etc.). It could be difficult for the prosecution to prove a belief was not genuinely held (seeing as the burden of proof is theirs). Canadian Law, it would seem, does not place the onus on the individual’s beliefs but demands the higher test of whether it was reasonable (in the eyes of the justice system) to hold that belief.

Ian H wrote:
The "demonstrating to the police &c that you were acting in self-defence" is more what I was aiming at.  We have the techniques and tactics for physical self-defence, but what about "legal self defence" ... in the sense of making it easier for "The Law" to agree with our claims of self defence?  What sort of things can we do ... "before, during and after" ... to make the conclusion of "self defence" easier?

I don’t think we need do anything other than wholeheartedly committing to avoid unnecessary violence, ensure out training includes the alternatives to violence (de-escalation, escape, etc.), ensure we understand the law, practise explaining what we did so we don’t create a false impression, and focus on safety and escape as opposed to “wining the street fight”.

The law gives us the right to protect ourselves and, so long as that is what we are doing i.e. not fighting or seeking retribution, we should have everything we need to make the case that we were acting in self-defence.

Ian H wrote:
Obvious example: if I call our 'help! police! I'm being attacked!' when I pre-empt my attacker, I'm in a better situation than if I cry out "I'm gonna effing kill you!".

I’d avoid that because screaming “help, police” before pre-empting as it will put the assailant on high alert. This will also take away the chance to use verbal deception to create an opening for the pre-emptive strike.

If we had space and it was in an area where shouting could draw attention to the criminal’s acts then that could be a wise thing to do. Fear of discovery may make them abort that potential attack. However, if we feel that a pre-emptive strike is needed to facilitate escape, then feigning compliance / passivity for the moments before the strike is a better idea. It will engage their brain and make the shocking effect of the strike much greater because it was unexpected.

Ian H wrote:
I'm better off if I can accurately and in detail describe what led me to believe I was about to be attacked, rather than just say "I thought he was gonna hit me".

Absolutely. If we can articulate why we held that belief it helps demonstrate it was honestly held. Which is what the UK law requires, even if that belief was mistaken. However, Canadian law, it would seem, requires that the belief be demonstrated to be “on reasonable grounds” and hence it is even more important to be able to demonstrate and communicate why that belief was a reasonable one to hold. It’s a very good idea to include that in any scenario training that is done.

All the best,

Iain

Ian H
Ian H's picture

Iain Abernethy wrote:
Under UK law you are entitled to rely on a belief that was both mistaken and unreasonable, so long as it was genuinely held (providing that mistaken belief was not a result of alcohol, etc.). It could be difficult for the prosecution to prove a belief was not genuinely held (seeing as the burden of proof is theirs). Canadian Law, it would seem, does not place the onus on the individual’s beliefs but demands the higher test of whether it was reasonable (in the eyes of the justice system) to hold that belief.

... Absolutely. If we can articulate why we held that belief it helps demonstrate it was honestly held. Which is what the UK law requires, even if that belief was mistaken. However, Canadian law, it would seem, requires that the belief be demonstrated to be “on reasonable grounds” and hence it is even more important to be able to demonstrate and communicate why that belief was a reasonable one to hold. It’s a very good idea to include that in any scenario training that is done.

Thanks for the discussion!

One point to correct ... in court, when mounting a "self defence" defence, the burden is not on the Crown, but on the accused.  Normally, yes, the burden of proof is on the Crown (AKA District Attorney, for our American friends): they have to prove all the elements of the offence.  But ... and this is a big "but" ... the claim of self-defence is an "affirmative defence" ... which basically means you admit you did what was alleged by the Crown, and now it's up to you, the Accused, to prove that it was acutally self defence.

If the judge doesn't believe you had the honest belief, you go to jail.

It's easy, after the fact, for everyone to say "I honestly and soberly believed that the other bloke was about to attack me, and that's why I slugged him, officer."  I'll suggest that police, prossecutors and judges look past those easy-to-make statements as little more than the aware-of-the-law-adult version of "he started it" "no, he started it" from the schoolyard, and look to the facts of the case to see whom, if any, they should believe.  Here, I suggest, an English judge, just like a Canadian judge, would look to "all the circumstances of the case" to decide if the claim of self defence is to be accpeted.  They would, of course, frame that enquiry and deliberation in the terminiology of the respective statutes governing them, but ... I suspect that the facts which they use to decide their deliberations will be far more similar than you may believe.  

We do seem to have quite similar laws.  When I look at the Canadian language:

A person is not guilty of an offence if they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;

And I look at the English language: 

If D claims to have held a particular belief as regards the existence of any circumstances—the reasonableness or otherwise of that belief is relevant to the question whether D genuinely held it; but

I see a very similar test, actually, that one must actually have the belief of iminent harm, and that belief must be "reasonable".  In Canadian law, "believing on reasonable grounds" is NOT the same as "it actually was true": it's kind of like that old Hollywood cliche of the "finger gun in the pocket", where the good guy invariably bluffs his way out of trouble by tricking the bad guys into thinking he has a gun in his jacket pocket.  (A crude example, perhaps, but illustrative of "resonable perception at the time" differing from "what we find out to be the acutal facts later".)

I remember a podcast you did a while back about verbal de-escalation.  You made a comment about there being more danger from someone who appears to have become calm but who remains "in your face" compared to someone who is still upset and yelling but who is walking away.  Knowledge about the signs of an attack being imminent ... their behaviour and demeanour betraying their emotions and intentions, long before a sharp intake of breath and a stiffened shoulder telegraph an imminent punch ... and the ability to knowledgeably explain to a police officer &c how your pre-empted attacker displayed any such signs: therein lies safety.

The Canadian Criminal Code s.34 continues, describing factors to be taken into consideration regarding the "reasonablness" of the self defence actions.  I suggest that they set out some good criteria for everyone to consider, whether they are in Canada or not:

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:

  • (a) the nature of the force or threat;

  • (b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;

  • (c) the person’s role in the incident;

  • (d) whether any party to the incident used or threatened to use a weapon;

  • (e) the size, age, gender and physical capabilities of the parties to the incident;

  • (f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;

  • (f.1) any history of interaction or communication between the parties to the incident;

  • (g) the nature and proportionality of the person’s response to the use or threat of force; and

  • (h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

I wanted to raise a question in relation to (g) "proportionality of response".  I know you have said that English law does not require the self-defender to "judge to a nicety" the level of force used.  I am curious to know if the English courts have addressed the issue of whether or not the level of force used can be so excessive to the circumstances as to render the claim of self defence invalid.  

I'm not talking about the case where a guy starts off defending himself, gains the upper hand, and then continues attacking long after the necessity to defend himself has ended.  Does one still have to have a rough sense of judgment as to how much force would be "way too much" in the circumstances?  If a cranky old codger in the grocery store decides to start whacking me in the head with his cane because I took the last can of beans on the shelf just as he was reaching for it, presumably I can't respond with quite the same amount of deadly force as when three hulking great ruffians come at me screaming bloody murder in the alleyway.  

Thanks!

Iain Abernethy
Iain Abernethy's picture

Ian H wrote:
which basically means you admit you did what was alleged by the Crown, and now it's up to you, the Accused, to prove that it was actually self defence …

… It's easy, after the fact, for everyone to say "I honestly and soberly believed that the other bloke was about to attack me, and that's why I slugged him, officer."

I think we may be getting confused here between “self-defence” generally and the “honestly held belief” part of it. The law that gives us the right to for us to protect ourselves is:

"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." - Section 3 Criminal Law Act 1967

So you do need to demonstrate that the force used was in line with the above i.e. the prevention of crime, including a crime against you.

In the example you gave above, there was no crime taking place, nor was there any sign one was about to.

It would be different in the scenario of, “Person X was behaving in a manner I perceived as threatening. I honestly believed he was about to attack me so I delivered a pre-emptive strike before fleeing.”

When it comes to whether the action taken was “reasonable in the circumstances” then that is determined solely on the beliefs of the individual (and it is the prosecution's job to show that belief was not honestly held).

“The question whether the degree of force used by D was reasonable in the circumstances is to be decided by reference to the circumstances as D believed them to be”

Under UK law, it’s very much about your individual beliefs. The onus would be on the prosecution to prove a belief was not honestly held if they were question the action taken as part of a claim of self-defence. That’s not a “free for all” though.

For the example you gave, the prosecution could simply ask, “Why did you believe the other bloke was about to attack you?” If the person making such a claim could not give a satisfactory answer, the prosecution could use that to help show the belief was not legitimately held:

“In the case of self-defence, where self-defence or the prevention of crime is concerned, if the jury come to the conclusion that the defendant believed, or may have believed that he was being attacked or that a crime was being committed and the force was necessary to protect himself or to prevent the crime, then the prosecution have not proved the case. If however, the defendants alleged belief was mistaken and if the mistake was an unreasonable one, that may be a powerful reason for coming to the conclusion that the belief was not honestly held and should be rejected. Even if the jury come to the conclusion that the mistake was an unreasonable one, if the defendant may genuinely have been labouring under it, he is entitled to rely on it.” - Crown Vs. Williams 1984

As we can see, it is the belief of the individual that key. This is reflected in the statute law that the above case law gave rise to:

Criminal Justice and Immigration Act 2008 – Section 76

(4)If D claims to have held a particular belief as regards the existence of any circumstances—

(a)the reasonableness or otherwise of that belief is relevant to the question whether D genuinely held it; but

(b)if it is determined that D did genuinely hold it, D is entitled to rely on it for the purposes of subsection (3), whether or not—

(i)it was mistaken, or

(ii)(if it was mistaken) the mistake was a reasonable one to have made.

Ian H wrote:
If the judge doesn't believe you had the honest belief, you go to jail.

That’s not true. The court needs to give reasons, in writing, for all its rulings. “I don’t believe you” is not enough. It needs to be demonstrated to the court – by the prosecution – that the belief was not honestly held; not simply mistaken or unreasonable. Crown Vs. Williams 1984 could not be clearer on this.

Canadian law asks for a “belief on reasonable grounds”. So it should seem you not only need to demonstrate belief, but that belief is on “reasonable grounds”

UK Law just asks for an honestly held belief, “whether or not it was mistaken, or (if it was mistaken) the mistake was a reasonable one to have made.”

Both strike me as good law, and it is fine distiction, but UK law would therefore seem to be more forgiving of error on that basis. One demands “belief on reasonable grounds”: One is ok with an “unreasonable belief” so long as it was legitimately held. UK Law places the emphasis on the beliefs of the individual involved. Canadian Law has the higher test of the reasonableness of the belief needing to be demonstrated.

Once again though, the key thing is to ensure we are acting in self-defence. We will therefore easily be able to rebut any claims that a belief was not honestly (in the unlikely event that comes up) because we can show the reasons we held it with ease.

We are talking about a person legitimately acting in self-defence, not how someone could “get off” with acts of violence. If you were honestly acting in self-defence, the wider evidence will strongly support that.

Ian H wrote:
I wanted to raise a question in relation to (g) "proportionality of response".  I know you have said that English law does not require the self-defender to "judge to a nicety" the level of force used.  I am curious to know if the English courts have addressed the issue of whether or not the level of force used can be so excessive to the circumstances as to render the claim of self-defence invalid.

In an interview with Mark Dawes, Professor of Law Gary Slapper noted that the CPS had found in 2005, when they looked at prosecutions over the preceding 15 years, there had been over 20 million crimes that they had looked into with regard to the use of force, but during that time there had only been 11 cases where people had been prosecuted for excessive use of force in self-defence. So it hardly ever happens. If memory serves, one the cases that was prosecuted involved a man who lay in wait for an intruder and then beat him, threw him into a pit and set him alight. So it would seem it needs to be waaayyy over the top.

Also, before a case even gets to court, it has to be determined to be “in the public” interest by the CPS. Their guidance states:

“When reviewing cases involving assertions of self-defence or action in the prevention of crime/preservation of property, prosecutors should be aware of the balance to be struck: the public interest in promoting a responsible contribution on the part of citizens in preserving law and order; and in discouraging vigilantism and the use of violence generally.”

It’s not in the public interest to prosecute people that were legitimately protecting themselves. So long as we ensure that is what we are doing (i.e. not fighting or “getting our own back”) then the law is very much on our side.

Ian H wrote:
I'm not talking about the case where a guy starts off defending himself, gains the upper hand, and then continues attacking long after the necessity to defend himself has ended.  Does one still have to have a rough sense of judgment as to how much force would be "way too much" in the circumstances?  If a cranky old codger in the grocery store decides to start whacking me in the head with his cane because I took the last can of beans on the shelf just as he was reaching for it, presumably I can't respond with quite the same amount of deadly force as when three hulking great ruffians come at me screaming bloody murder in the alleyway.

I would state that’s not a legitimate case of self-protection. You simply walk away and buy beans somewhere else :-)

We should only resort to a physical response when needed. When it is needed, the law is very much on our side and does not require “judgement to a nicety”, understands that we can legitimately base our actions on mistaken and even “unreasonable” beliefs, and that all we need to do is act “honestly and instinctively” with regards to the situation as we believed it to be:

(7)In deciding the question mentioned in subsection (3) the following considerations are to be taken into account (so far as relevant in the circumstances of the case)—

(a)that a person acting for a legitimate purpose may not be able to weigh to a nicety the exact measure of any necessary action; and

(b)that evidence of a person's having only done what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken by that person for that purpose.

It’s good law I think that takes into account the reality of such situations. It we resort to physical action without good reason (i.e. punching an old guy for tapping us with a walking stick) then the law is against us. However, if we are truly forced to use a physical response to protect ourselves and our loved ones, the law is very much on our side. The wording of the law, and the statistics of it in action, very much bear that out.

All the best,

Iain

Leigh Simms
Leigh Simms's picture

Ian H wrote:

One point to correct ... in court, when mounting a "self defence" defence, the burden is not on the Crown, but on the accused.  Normally, yes, the burden of proof is on the Crown (AKA District Attorney, for our American friends): they have to prove all the elements of the offence.  But ... and this is a big "but" ... the claim of self-defence is an "affirmative defence" ... which basically means you admit you did what was alleged by the Crown, and now it's up to you, the Accused, to prove that it was acutally self defence.

That is incorrect if you are referring to UK Law. f you check out the CPS website it is made clear that the Burden of Proof remains with the Prosecution. - http://www.cps.gov.uk/legal/s_to_u/self_defence/. The relevant part from that page is: -

The prosecution must adduce 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; ornot acting to prevent a crime or to apprehend an offender; or
  • if he was so acting, the force used was excessive.

Prosecutors should take special care to recognise, and ensure a sufficiency of evidence in, those cases where self-defence is likely to be an issue. 

:) ALthough, I am not sure what the law states in Canada if that was what you were referring to! 

Iain Abernethy
Iain Abernethy's picture

Hi Leigh,

I was hoping you'd lend your expert eye to this thread :-)

All the best,

Iain

Michael Rust
Michael Rust's picture

I teach the Criminal Code of Canada as part of my job as a Use of Force/Defensive Tactics Instructor. Iain is quite right a Pre-emptive strike is perfectly lawful especially if one "perceives grevious bodily harm or death" however; you must understand what reasonable force is in Canada. The court system has a added a list of factors one will be judged by when using force in Canada and will include your training. Essentially anything you do you need to justify. So hitting your threat for example and getting a few more shots in while he is defenceless would not be considered reasonable most likely. Here are the factors:

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:

  • (a) the nature of the force or threat;

  • (b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;

  • (c) the person’s role in the incident;

  • (d) whether any party to the incident used or threatened to use a weapon;

  • (e) the size, age, gender and physical capabilities of the parties to the incident;

  • (f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;

  • (f.1) any history of interaction or communication between the parties to the incident;

  • (g) the nature and proportionality of the person’s response to the use or threat of force; and

  • (h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

 

Iain Abernethy
Iain Abernethy's picture

Michael Rust wrote:
(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:

  • (a) the nature of the force or threat;

  • (b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;

  • (c) the person’s role in the incident;

  • (d) whether any party to the incident used or threatened to use a weapon;

  • (e) the size, age, gender and physical capabilities of the parties to the incident;

  • (f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;

  • (f.1) any history of interaction or communication between the parties to the incident;

  • (g) the nature and proportionality of the person’s response to the use or threat of force; and

  • (h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

That’s interesting and you can see what each section is driving to both promote and avoid. Conversely UK Law is not as specific and it ultimately comes down to the situation as the person believed it to be. There is not quite the same “post event tick sheet”.

Related to this is following quote from Judge Lord. He was the Lord Chief Justice from 2008 to 2013 and in a 2012 press conference, while taking about home intrusion, he said:

"I suspect if any of you have come home to find a burglar in your home, or have been in bed at night -- or indeed having an afternoon snooze and found a burglar in your home - you are not calmly detached. You are probably very cross and you are probably very frightened - a mixture of both - and your judgment of precisely what you should or should not do in the circumstances cannot, as another predecessor of mine, Lord Lane, said, you cannot measure it in a jeweller's scale. You have to face the reality of how people are and how people react to these situations - and justifiably react.

"The householder is entitled to use reasonable force to get rid of the burglar and that in measuring whether the force is reasonable or not, you are not doing a paper exercise six months later. You have to put yourself in the position of the man or woman who has reacted to the presence of a burglar and has reacted with fury, with anxiety, with fear, and with all the various different emotions which will be generated, and who has no time for calm reflection.”

This reflects that law in that, “that evidence of a person's having only done what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken by that person for that purpose.” (Criminal justice and immigration act 2008, 76-7b).

Personally I prefer the UK law as I feel it more realistic and does not require the same degree of 20-20 hindsight or “precision under pressure”. Canada has a better standard of living, cheaper goods, and much better scenery though, so you’re all still ahead :-)

All the best,

Iain

Michael Rust
Michael Rust's picture

That's very kind of you, but you guys have way better Reality Based Martial Artist's ! I'm doing my best over here to add to our numbers.

Kevin73
Kevin73's picture

In the US, this can vary from state to state, and it will also differentiate self-defense vs. lethal force in regards to a self-defense situation.

In Michigan, for example, "Self-Defense" is a LEGAL defense.  As someone else pointed out, the prosecution has only to prove the elements of an assault and battery (ususally the preemptive verbal being the "assault" or threat of violence, and the "battery" is the unwanted physical contact portion) or some will have a city statute/ordinance called "disorderly by fighting".  It is upon the defendant to use the legal defense to support their case which would agree that they did engage in a "battery" against another person, BUT there were justifications that would otherwise be an illegal act.

Michigan's Self-Defense Act (non lethal protion)  

(2) An individual who has not or is not engaged in the commission of a crime at the time he or she uses force other than deadly force may use force other than deadly force against another individual anywhere he or she has the legal right to be with no duty to retreat if he or she honestly and reasonably believes that the use of that force is necessary to defend himself or herself or another individual from the imminent unlawful use of force by another individual.

The bolded part is the important part.  Many people get caught up in the "monkey dance" or the game of "escalato" and keep arguing, name calling or trading threats.  Many prosecutor's/judges may negate your claim of self-defense because the threat of violence is against the law, so you WERE engaged in the commission of a crime.  The crime has already occurred and they were a willing participant.  Provoking the other guy to want to physically harm you is a moot point to you claiming a preemptive self-defense.

Iain Abernethy
Iain Abernethy's picture

Kevin73 wrote:
The bolded part is the important part.  Many people get caught up in the "monkey dance" or the game of "escalato" and keep arguing, name calling or trading threats.  Many prosecutor's/judges may negate your claim of self-defense because the threat of violence is against the law, so you WERE engaged in the commission of a crime.  The crime has already occurred and they were a willing participant.  Provoking the other guy to want to physically harm you is a moot point to you claiming a pre-emptive self-defense.

That’s a really good point. Self-defence is legal. Fighting in the street is not.

In the UK we have a similar thing:

“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.” – Criminal Law Act 1967

You can only claim self-defence in when engaged in the prevention of a crime; not in the enacting of one.

All the best,

Iain

Andi Kidd
Andi Kidd's picture

A lot of this thread talks about justification of actions,  but does anyone ever practice this? Knowing that you need to show reasonable force and to say that ‘you were in fear of your own safety’ is a good start but it is like practicing kata performance and never doing bunkai. Rory Miller got me into doing this some years ago and I believe all self-protection orientated groups should do it.

Criminals are old hands at ‘telling a story’ in court and generally us good guys aren’t. So although your actions could be fully justified, if you don’t articulate them well then a cold, non-adrenaline fuelled courtroom could have the wool pulled over their eyes.

Like with everything else, practice is needed to improve your ability.

Marcus_1
Marcus_1's picture

On this subject, I believe I am right in saying that somewhere within legislation in the UK (unsure if it's S.3 Criminal Law or if it's in Common Law), it is stated something along the lines of

"A person is not expected to judge to a nicety the level of force used"

In that I interpret it as saying that, in the event of self defence being used as a defence in law, the judge does not expect the defendent (or in this matter - you), to explain to the nth degree exactly how much force was used.

Thinking about this a bit more, I believe it may be in common law that it is stated.  I seem to recall when I was teaching use of force for the prison service, we used a "real life" case as an example, the story of this case went something like this:

"There was an off duty police officer on the train with his daughter, it was a busy train and there was nowhere else for them to go. In their carriage was a group of rather drunk men, they were being obnoxious, swearing and threatening others. The off duty police man approached the group and asked them to keep the noise down and stop swearing explaining that there were young children etc on board the train. The group met this with more swearing and one member of the group said something along the lines of "If you don't f off, I'll throw your f'ing daughter off the train", believing this to be a true and honest threat on his daughters life, the off duty police officer proceeded to punch the guy on the nose, causing much pain and a rahter a lot of claret. The policeman was arrested, but sited self defence and was released with no charge".

You may want to look it up as I can't remember the specific case it came from, but it is there, in case law now therefore creating a legal precedent.

Iain Abernethy
Iain Abernethy's picture

Marcus_1 wrote:
On this subject, I believe I am right in saying that somewhere within legislation in the UK (unsure if it's S.3 Criminal Law or if it's in Common Law), it is stated something along the lines of

"A person is not expected to judge to a nicety the level of force used"

In that I interpret it as saying that, in the event of self defence being used as a defence in law, the judge does not expect the defendent (or in this matter - you), to explain to the nth degree exactly how much force was used.

Section 76 of the Criminal Justice and Immigration Act 2008 (7a):

“a person acting for a legitimate purpose may not be able to weigh to a nicety the exact measure of any necessary action”

http://www.legislation.gov.uk/ukpga/2008/4/section/76

All the best,

Iain

Iain Abernethy
Iain Abernethy's picture

Andi Kidd wrote:
Criminals are old hands at ‘telling a story’ in court and generally us good guys aren’t. So although your actions could be fully justified, if you don’t articulate them well then a cold, non-adrenaline fuelled courtroom could have the wool pulled over their eyes.

I thinks this is very important! I’d also go back further and say it’s even more important to be aware of what happens immediately after any event. By the time it gets to court we may have already made many mistakes.

In court we will have the assistance of legal professionals, and they will have had an extended period to work with us to prepare a case. What’s perhaps more pressing is not what happens in court, but what we do immediately after any event.

I have been questioned by police twice: it’s not fun, but in both cases the police were very sympathetic and helpful. One involved a formal interview (I was not arrested, but attended the police station voluntarily). I was informed no action would be taken within 24 hours. They have professional codes of conduct to follow, but the police were as clear as they could be that they felt I was in the right, and they were aware that the other parties were being dishonest. So in my case, it’s never got close to court.

I’m sure I said the right things, but that was because I had actually done the right things and was honestly describing what I had done.

Additionally, I followed my own advice and spoke with a solicitor before being interviewed … and to be fair the police officer interviewing me recommended I do that too.

The law and the public interest are not served by wasting court time when good people have done no wrong. Most police officers are also good folk who have sympathy for individuals who find themselves in this situations because of the negative actions of others.

People can of course do the right thing, but have it presented in such a way that it now seems, to those not there, as if the action may be unlawful. That’s what we need to avoid.

It is also VERY important to remember the bad guy is not going to say, “Yes, I did illegally attack them, and even though they protected themselves, I want to confess to my actions so I can be prosecuted.” They are going to try to make out it was all you, so you need to make sure that your actions (most importantly) and your explanation of your actions make it very easy for those not there to correctly see that you are the good guy.

This forum post contains some advice I’ve collected from various sources (police, magistrates, etc.) on how to navigate the time immediately after a situation:

Iain Abernethy wrote:

In addition to knowledge of the law, knowledge of the how the interview process will go is also important. The below is part of dojo materials and was put together a few years ago following the gathering of advice from various sources including police officers, police trainers and magistrates (NOT TO BE TAKEN AS LEGAL ADVICE).

A basic list of considerations:

1 - Report the incident to the police; or, if appropriate, leave your contact details with a trusted person (i.e. manager or door staff) so you can be contacted (and to make it clear you have nothing to hide) should the aggressor make a complaint and the police make enquiries.

2 - If you should be arrested ask the officers to make a note in their note books that you have acted in self-defense, and are happy to cooperate, but you will not discuss the incident without first speaking to a solicitor.

3 - When being booked into the custody suite repeat the above and ask it be written into the custody record.

4 -  As soon as possible, ask to speak to a solicitor (your own or the duty solicitor). Ask for writing materials in order to make notes for your solicitor. You may then use these notes for your own reference as well at a later date (just as the police will use their own notes). Write out everything that happened, including dates and times, names of witnesses, names and numbers of involved police officers, etc. Keep these notes with you and only pass them onto your solicitor. The police would be committing an offence and breaching legal privilege if they attempted to take them from you.

5 - If you have any injuries (no matter how minor) insist that the police take pictures of them and ask to see a doctor or nurse so that the injuries are recorded.

6 - Be aware that it is very likely that it will be quite some time before you are interviewed. In the intervening time, it is important not to discuss events with anyone; even as part of banter / general conversation. Do not let yourself be talked into being interviewed / released from custody sooner if you consent to being interviewed without a solicitor present.

7 - When you have your private meeting with your solicitor, you will tell them your version of events. The solicitor will then explain how the interview process will work and will advise you on the best way forward. If you are unhappy with the advice given, you do not have to follow it and you can also ask for another solicitor.

8 - During the interview be very mindful of police officers paraphrasing what you said hence potentially misrepresenting it. The temptation can be to go with the flow, but make sure that your version of events is accurately recorded at this stage as later clarification may be seen as “changing your story”. Do not sign or agree to anything unless it exactly matches your version of events.

9 - Once the interview is concluded, the police will then consult with the Crown Prosecution Service who will make a decision on how to proceed with the case. This can happen while you are still in custody or at a later date.

http://iainabernethy.co.uk/comment/9280#comment-9280

I think it’s important to note that the law, the public interest (a test the CPS will apply before proceeding with a case), and the majority of police officers will be firmly on the side of someone who has legitimately acted in self-defence. Practising making your case in court comes much later, and you’ll have legal help with that. It’s therefore perhaps more pressing to be aware of the initial procedures after any event.

With regards to scenario training, it’s a good idea to think of how you would justify what you did in court though. Not just so you practise explaining your actions, but so you can reflect on the nature of your actual actions. If you have done something hard to justify in the drill, or something that could be easy to misinterpreted by witnesses, then you can try to avoid that the next time you do the drill.

Andi Kidd wrote:
if you don’t articulate them well then a cold, non-adrenaline fuelled courtroom could have the wool pulled over their eyes.

Thankfully, here in the UK, there is advice for judges, from the highest level, against doing just that:

"You have to face the reality of how people are, and how people react to these situations - and justifiably react. The householder is entitled to use reasonable force to get rid of the burglar and that in measuring whether the force is reasonable or not, you are not doing a paper exercise six months later. You have to put yourself in the position of the man or woman who has reacted to the presence of a burglar and has reacted with fury, with anxiety, with fear, and with all the various different emotions which will be generated, and who has no time for calm reflection.” - Lord Judge, the Lord Chief Justice (2012)

Section 76 of the Criminal Justice and Immigration Act 2008 also makes it clear that people should be judged on the situation as they believed it to be (even if that belief is mistaken) and that it’s unreasonable to expect people to judge the level of force used to a “nicety”.

Sadly, not every country has laws that reflect the reality of such situations as well as here, and in some localities people will be judged on their actions as if they took place in a calm and logical environment.

However, the system in the UK with regards to self-defence law is pretty robust and based on reality and common-sense. The statistics seem to bear this out and persecutions of those acting in self-defence are extremely rare (and in those rare cases they have normally gone WAY over the top i.e. setting bugler on fire, chasing a home invader down the street and beating them with sports equipment until they were left brain damaged, etc.)

We definitely need to be aware of the law and train in accordance with it; and if we do that it means we are likely to act in accordance with it. And, as Andi says, that should include “navigating the aftermath” too.

All the best,

Iain