Ed ¬ This is Part 1, please lookout for part 2 in the next few days.
The law on reasonable force as it is presently interpreted goes something like this: if you are attacked with a knife you may defend yourself with a knife: if you are attacked with bare fists you may defend yourself likewise. Do more in either instance and you will be in danger of being charged with an offence against the person, anything from common assault to murder. Pedantic proportionality is all. If you carry on assaulting your assailant after he is disabled, you will most likely face charges. If you have the opportunity to run away but do not, that may count against you in any assessment of whether you should be prosecuted. All this is demonstrably absurd. It assumes that people under attack can reasonably be expected to make judgements in the heat of the moment which in reality require calm consideration.
What is Reasonable Force?
Consider a few of the variables in assessing what is ‘reasonable force’. Women, the disabled, children, and older men cannot reasonably be expected to defend themselves from a simple physical assault from a fit, strong assailant. Other things being equal, a small man cannot be expected to fight a large man; an older man a younger man, a fit man an unfit man. But, of course, other things are often not equal. Many men who are physically capable of fighting are absolutely hopeless at it. I have known a man of six and a half feet allow himself to be beaten by a man a foot smaller. Fighting is a matter of heart above all else.
But it is also a matter of practice. Most men throwing a punch at someone’s face would be more likely to harm their fists than their opponent because they have never been taught to punch correctly. (For those without any experience of fighting, I would recommend the knee in the groin or a good old-fashioned headbutt.) More importantly, those who are not used to fighting (and middle-class men generally fall into this category) are not psychologically prepared for a fight. This will mean one of two things: the person either capitulates utterly or goes into a berserk rage and keeps on damaging their opponent until the rage passes.
To these disparities of size, sex, age, and mental and physical competence, we may add others. Someone who is assaulted does not know whether an assailant is going to restrict themselves to simple assault without a weapon. They may be armed for all the victim knows. Nor need this be obvious. Take a well-publicised case, that of Kenneth Noye who was convicted of murder in a road-rage incident. Noye carried a knife when he got out his car to confront his victim, but he only produced and used the knife when he began to get the worse of things as the two fought. Noye is also a good example of the effect of age on the ability to fight. He was 48 at the time of the murder. His victim was in his twenties. Noye was a career criminal with a reputation as hard man. Yet until he produced a knife, he got the worst of a fight he might reasonably have expected to win. Age had caught up with him.
It is also true that even if an assailant does not have a weapon, the victim cannot know how far the assailant is likely to go. Will he restrict himself to punching? Or is the assailant the sort to put the boot in when someone is on the floor? No one can know. Perhaps even the assailant does not know.
The obviously armed assailant presents a particular problem in judging what constitutes proportionality of response. If someone comes at you with a knife, is it in order to use a gun? If the assailant has a club, may one use a knife? The law as it stands gives no clear guidance. It is all “every case has to be judged on its merits”.
Then there is the question of what happens should you disable your opponent. Suppose that a small man fells a much larger man with a lucky blow of, shall we say, a candlestick. The smaller man is then left with the problem of what to do next. If he allows the more powerful man to recover, the smaller man will in all probability end up being badly hurt. The smaller man might be able to avoid that fate simply by running away (this is what the law would want you to do), yet he may be unable to reasonably do this even if he wishes to. That would be the case if the temporarily disabled man was a burglar and the smaller man’s wife and children were in the house where the fight took place. Let us further assume that there is no phone and the house is isolated, as was the case with Tony Martin. In such circumstances, it could be argued with some force that it was reasonable deliberately to disable the burglar by a further assault while he was unconscious to prevent the chance of violence from the burglar when he recovered consciousness.
Behind all these circumstantial problems stand the very human emotions of panic and rage. When one is attacked, the only desire is to ensure one’s safety. Adrenaline flows and to say that any human being is in control of themselves in such circumstances is patent nonsense. The law does in practice take into account panic, but again it is all very hit-and-miss. Rage on the other hand is no excuse for what is judged a disproportionate assault.
The law as it presently stands effectively ignores human nature. It says that someone who is attacked must exercise truly marvellous self-control. In defending himself, the victim must not lose his temper and carry on attacking the attacker after the attacker has been disabled. This is utterly unrealistic. Someone in a blind rage or panic is manifestly not in control of their actions. There are good evolutionary reasons for that. When someone is responding to an attack, an uncontrolled response is the best way of responding to protect oneself. The evolutionary bottom line is: dead attacker equals safety.