When aggressive force has been directed against another person, a court will decide whether a crime has been committed by taking into account the following elements of the crime:
- Conduct – the presence or absence of a specific human act.
- Causal link – whether the conduct can be linked to the accused.
- Unlawfulness – whether the act can be justified or not.
- Culpability – whether the conduct was intentional or negligent, and whether the accused was able to distinguish between right and wrong at the time.
Private defence is indeed one of the defences which can be raised to justify conduct that would otherwise be unlawful. However, this defence is not a ‘one-size-fits-all’ defence and it must also be asked whether the level of force was reasonable or unreasonable under the circumstances.
Imagine the following two basic scenarios:
- Mr A is walking down a busy pavement when he is approached by Mr B who demands his wallet. Mr B does not appear to have a weapon, but is an intimidating character. Mr A pulls out a gun and shoots Mr B in the chest, killing him.
- Mr A wakes up to find Mr B in his bedroom aggressively pointing a gun in the direction of Mr A and his wife, with his finger on the trigger. Mr A pulls a gun out from under his pillow and shoots Mr B, killing him.
At the trial of Mr A (in both scenarios), he pleads private defence as grounds for what he regards as the lawful killing of Mr B. Before such a defence is accepted, a court will consider the circumstances surrounding Mr A’s conduct and apply the ‘reasonable man test’ by asking “what would a reasonable man placed in the same situation do?” The factors which a court will then examine are the following:
- Whether an unlawful attack had taken place or was about to.
- Against whom or what the attack was directed, and whether it was a person or property worth protecting.
- Whether force was necessary to protect the person or property that was threatened, or whether alternative options existed to avert the threat.
- Whether the force was directed against the attacker.
- Whether the force was proportional to the threat.
Taking account of these factors, it is quite likely that a court would find that in the first scenario, an unlawful attack could be perceived as having been imminent against Mr A and his property, and that his life and property was worthy of protection. However, a court would probably find that a reasonable man in the same situation as Mr A would consider the killing of Mr B to be unreasonable, as alternative options and/or lesser force could have been applied with the same result. For instance, as the attack occurred on a busy pavement, a reasonable man could shout for help, run away, or as a last resort, pull out his gun and warn the perceived attacker to back off. Additionally, a reasonable man may also be held to be aware that a shot to the chest has a far greater likelihood of fatality than a warning shot or shot to, for example, a foot. In this scenario, the probability indicates that the force exerted by Mr A was not proportional to the unlawful attack by Mr B and Mr A’s conduct would not be considered justified.
In the second scenario, an unlawful attack would also be perceived as having been imminent against Mr A and his wife’s life, which would be worthy of protection through the direction of force against the attacker. The court would in all probability also find that a reasonable man in the same situation would assess that there were limited opportunities for escape, that it would be highly unlikely that he could disarm or overpower Mr B without risking their safety, and if action was not taken immediately, he and his wife might be in a potentially fatal situation. Accordingly, as a last resort Mr A directed the only force which would be effective in such a situation, namely to fire on the attacker with the intent to disable him. In these circumstances a court would most probably find that the force directed at Mr B was proportional and justifiable under the circumstances.
It is vitally important to remember that consequences flow from all actions and that the use of force should never be considered or taken lightly. Where no other option is reasonably available, force may be applied against an attacker. The circumstances behind each case however is unique, and one cannot compare one decision to exert force to a decision in another set of circumstances. Likewise, what may or may not be a justifiable defence will always need to be approached with circumspection. Anger or fear alone must never be used to justify the exertion of force, and the question of “to shoot or not to shoot” can only be answered with “do I have any other option?”