Legal Eagle : Understanding lawful self-defence

September 05, 2016

Louis Armstrong's song, 'What A Wonderful World', paints a picture of a world filled with joy, people being courteous to each other and the amazing development of young people but that is the good side.

The bad side is that the world is filled with violence, bigotry and hate. So just like the character 'Tommy' who had to fight in the Kenny Rogers song Coward of the County, sometimes you have to fight to be alive.

At the end of these 'Fights' one person may end up dead and the killer is left to tell the story. The killer, who is the one left standing, is sometimes criminally charged and becomes the accused.

Often times, the accused will tell the police that he was defending himself from an attack by the deceased when the deceased met his death. Consider this scenario. The accused's account of the incident is that as he was about to lock up his business place after all the workers had gone for the day. A man whom he knew before for many years knocked on his door. He opened the door. The man walked in and pointed his finger in his face and accused him of disrespecting his wife. However, before the accused could respond, the man, who was about four feet from him, pulled a knife from his waistband and advanced towards him. The accused moved away from the man and ran to an adjoining room, but before he could close the door behind him, the man entered and seemed even more determined to harm him. The man was now close to him and made an attempt to cut him in his face, but the accused held up his left hand and received a cut. He continued to move away from the man, who continued to come towards him with his knife, threatening to kill him. The accused pulled out his licensed firearm and fired one shot in the direction of the man. The man fell. The accused ran from the room and called the police, who were quickly on the scene. The man was pronounced dead upon arrival at hospital.

 

BODILY INJURY

 

So what is the law? The law is well settled that a man who is attacked, or who honestly believes his life to be in danger, or that he is in danger of serious bodily injury, may use such force as he believes is necessary to prevent or resist the attack. If in using such force he kills his attacker, he is not guilty of any crime, even if the killing is intentional. In fact, in the celebrated Jamaican case of Solomon Beckford v The Queen, Lord Griffith, sitting in the Privy Council, stated that "a man about to be attacked does not have to wait for his assailants to strike the first blow or fire the first shot; circumstances may justify a pre-emptive strike".

An accused man who mistakenly believes that he was being attacked may also rely on self-defence, as the judge would be required to direct the jury on the defence of mistake.

It should be noted, however, that the degree of force used must be reasonable; that is to say, that it must be such force as was necessary to ward off the attack. The force used must not be excessive. The force used must also not have been by way of revenge, for example, after the attack or danger from it had ceased. Unnecessary or excessive force destroys the defence of lawful self-defence.

Although on the facts above, the accused retreated when he was first attacked, however, an important question is whether there was a duty on him to do so? The answer is no. There is no general duty on a person being attacked to retreat, albeit that the possibility of retreating is a factor that will be taken into account by the court in determining whether it was reasonably necessary to have used such force as was used. If a person could safely retreat without the use of force, then it could be found in such a situation that the use of force was unnecessary. But a person is not obliged to retreat if it is physically impossible for him to do so or if in attempting to do so; he would be exposed to danger of death or serious bodily injury. There is also no duty on one to retreat from his own premises.

In the light of the law, it is clear that the accused in the scenario given above could properly rely on the defence of lawful self-defence. Once that defence is raised by him, It would be for the prosecution, in the end, to negative it by proving beyond a reasonable doubt that he was not acting in lawful self-defence. It is not for the accused to prove that he was so acting. Failure on the part of the prosecution to rebut the defence would lead to an acquittal of the accused.

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