Legal stuff

The information below has been compiled by Tony Richardson.

The format has been changed slightly to fit into this web page.

Basic Legal Briefing

Use of force in effecting restraint.
The aim of this page is to provide you with a basic understanding and working knowledge of various laws that refer to the use of physical force including:

Physical restraint is: 

The positive application of force for the purpose of overcoming a subjects resistance to:

1)  Preventing the actual or imminent physical assault to self or others

2)  For the purpose of effecting a lawful arrest 

3)  To stop and / or prevent serious damage to property

 And should be limited to use only in the above three circumstances.

Physical restraint is the absolute last resort in managing conflict.

Physical force should only be used for its lawful purpose and not for:

 Section 3 (1) of the Criminal Law Act 1967 provides that:

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.

This is an Act of Parliament therefore, provides in it’s interpretation, the right of all citizens to use force in their defence or in the defence of others in the prevention of a crime (based on the fact that any infliction of force upon Another person may amount to an assault against the person and such a crime.

What is Reasonable?

Whether or not a person’s actions were reasonable or excessive will depend on all of the circumstances surrounding the case.

The following slide is a true case example of an incident that occurred. 

A man is attempting to rape a woman who he pinned to the floor in a park. He straddled across the upper part of her body and the full weight of his body is preventing her from getting up off the ground. He is also attempting to gain control of her by hitting her viciously in the face.

A Policeman out on his own on a routine patrol, walks around the corner and is immediately presented with this situation. He is carrying a baton, handcuffs, c s spray and a radio and he is also wearing body armour. His response in going to the woman’s defence is to kick the aggressor in the face. 

Later on the aggressor has the police officer charged with assault and the case goes to court. 

Was the officers actions reasonable or excessive? Guilty or not guilty?) . Justify your answer with your reason as to why.

Was it ‘ Reasonable?

The requirement to the use of force which is reasonable in the circumstances involves two issues:

1)   Was the force used necessary (or believed to be necessary)

2)   Was the force used proportionate to the evil to be avoided?

The standard is best defined in the terms of what is reasonably proportionate to the amount of harm likely to be suffered by the defendant or likely to result if the forcible intervention is not made.

Lawful Excuse

The use of force against the person may be justified or excused in the law because the force was reasonably used in the defence of certain public or private interest.

1)   To prevent or terminate a crime – governed by S. 3 (1) of the Criminal Law Act 1967 ; (i.e  G.B.H. Assault etc.)

2)   To prevent or terminate the lawful detention of oneself or another – governed by common law ;

3)   To prevent or terminate a breach of the peace – governed by the common law ; 

Breach of the peace

The peace is the normal state of society and a breach of the peace occurs when harm is done or likely to be done to a person, or in his presence to his property, or a person is in fear of such harm.  R V. Howell (1982) . 

Lawful Excuse

The use of force against the person may be justified or excused in law because the force was reasonably used in the defence of certain public or private interests.

1) To prevent or terminate a crime – governed by S. 3 (1) of the Criminal Law Act 1967 ;

2) To prevent or terminate the unlawful detention of oneself or another – governed by the common law ;

3) To prevent or terminate a breach of the peace – governed by the governed by the common law ;

4) To protect oneself or another from unlawful force or personal harm (often referred to as ‘private defence’) governed by the common law;

Defence to Assaults

12.2 Particular care must be taken in dealing with cases of assault where the allegation is made by the “victim” who was, at the time engaged in a criminal activity himself . For instance, a burglar who claims to have been assaulted by the occupier of the premises concerned.

CPS offences Against the person charging.

Standard 26 April 1996. 

Defences to Assaults

12.3     It is lawful for an individual to use reasonable force in the following circumstances.

1) In self – defence; or

2) To defend another; or

3) To defend property; or

4) To prevent crime; or 

5) Lawfully arrest. 

CPS offences against the person charging.

Standard 26 April 1996 

Defence to Assaults

12.4     Where the use of force in any of these circumstances is reasonable the “assailant” has an absolute defence and charges relating to the assault should not be brought.

CPS offences against the person charging

Standard 26 April 1996.

Honest Held Belief

The general approach of the law is that it allows such force to be used as is reasonable in the circumstances  as the defendant believes them to be, even if his belief was a mistaken one and (if so) even if his mistake was an unreasonable one.

Example: 

Courtroom security staff see a man running from out of a courtroom being chased by the clerk of the court 

The security staff, respond to prevent the person escaping and end up restraining the person on the ground by the use of arm locks and wrist locks.

It then comes to light that the man had become upset during a domestic court case regarding the custody of his children and had left the courtroom in tears. The clerk of the court had been dispatched by the judge to make sure he was ok.

As no crime had been committed, how do the security team stand with regard to their action.

Question

Do we have “ lawful excuse to use physical force?

If we have ‘lawful excuse’ how much force can be used in private defence?

The General Rule of Law

S 3 (1) of the Criminal Law Act 1967 provides that:

A person may use such force as is reasonable in the circumstances in the prevention of crime. 

What does ‘Reasonable’ mean?

The requirement to use force, which is reasonable in the circumstances, involves two issues:

1)   Was the force used necessary (or believed to be necessary) to prevent the crime or effect arrest.

2)  Was the force used proportionate to the evil to be avoided?

The standard is best defined in terms of what is reasonably proportionate to the amount of harm likely to be suffered by the defendant or likely to result if the forcible intervention is not made.

The Proportionality Rule

The standard of proportionality is best defined in the terms of what is reasonably proportionate to the amount of harm likely to be suffered by the defendant or likely to result if forcible intervention is not made. 

An example of proportionality

A 15-year – old boy is located in a children’s ward situated on the 4th floor of a hospital. The boy attempted to jump out of the window, below him is a concrete pavement that will seriously injure him or possibly kill him. The staff attempts to stop him and in doing so end up by accident, break the boys arm.

Was the staff action ‘proportionate’ in so much as the harm caused to the boy prevented a greater harm from occurring.

What if they hit me and runaway?

If the use of force is not necessary (e.g. because the initial aggressor has started to retreat) it will not be reasonable in the circumstances to use force.- see Priestnall v Cornish (1979) crim LR 310, DC.

How much force May I use? 

If it was ‘necessary’ to use force (or believed to be necessary) then the only question that remains is, how much force may be used by a person defending themselves or others from a unlawful attack.

The rule involves a community standard of reasonableness and is left to the consideration of the jury.

The standard is best defined in terms of what is reasonably proportionate to the amount of harm likely to be suffered by the defendant or likely to result if the forcible intervention is not made.

How am I supposed to remember all this when being assaulted?

It is recognised that a person defending himself cannot weight to a nicety the exact measure of his necessary defensive action.

If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be the most potent evidence that only reasonable defensive action had been taken. (Palmer v R (1971)  1 A11, ER 1077, PC.

Can we use force pre – emptively?

Although a person who acts in private self – defence is normally actually being attacked, the defence is not limited to this situation, since it has been recognised that there may be situations in which it will be justified to use reasonable force by the way of pre – emptive action against an apprehended attack.

(A.G’s Reference (No 2 of 1983) (1984} 1 A11 ER 988, CA; Beckford v R (1987) 3 A11 ER 425, PC.

Defences to Assaults

12.4  Where the use of force in any of these circumstances is reasonable, the “assailant” has an absolute defence and charges relating to the assault should not be brought.

CPS offences against the person charging

Standard 26 April 1996.

Any force used in restraint or defence must be

1)  Necessary

2)  Proportionate to the crime

Question

A man is attempting to rape a woman who he has pinned to the floor in a park he is straddled across the upper part of her body and the full weight of his body is preventing her from getting up off the ground. He is also attempting to gain control of her by hitting her viciously in the face.

A Policeman out on his own on routine patrol walks around the corner and is immediately presented with this situation.

He is carrying a baton, handcuffs, cs spray and a radio and he is also wearing body armour. His response in going to the women’s defence is to kick the aggressor in the face.

Later on the aggressor has the police officer charged with assault and the case goes to court.

What defence, if any , does the officer have and do you think he will be found guilty or not guilty of the charge of assault?

Physical Restraint is:

The positive application of force for the purpose of overcoming a subject resistance to:

1)  Prevent the actual or imminent physical assault of self or others ;

2)  For the purpose of effecting a lawful arrest

3) To stop and / or prevent serious damage to property.

And should be limited to use only in the above three circumstances.

Physical restraint is the absolute last resort in managing conflict.

Physical force should only be for it’s lawful purpose and not for:

Revenge

Retaliation

Retribution

Teaching people a lesson.

        Summary