The lawful use of force is established when the act of force is aimed at resisting, repelling, or preventing an unlawful immediate threat. The purpose of this article is not simply to consider this definition, but to examine the nature and the limits of the permissible use of lethal force, specifically by those who are entrusted to enforce the law. These issues will to be considered in conjunction with Home Office and ACPO guidelines to police officers regarding the use of lethal force, and in the light of the present Government's public commitment to the European Convention on Human Rights.' It is arguable that these considerations impose on the police a more restrictive stipulation than the “reasonableness” criterion required by the domestic law.
Get full access to this article
View all access options for this article.
References
1.
Properly known as the Convention for the Protection of Human Rights and Fundamental Freedoms. Signed in Rome on November 4, 1950 and entered into force on September 3, 1953.
2.
Defence of property is regulated by s.5 Criminal Damage Act 1971.
3.
Smith and Hogan (1996) Criminal Law, 8th edn, p. 263.
4.
See also Clegg [1995] 1 All ER 334 at p. 343. Professor Ashworth offers a different interpretation, suggesting that such a view is, “unacceptable as an analysis of English law”. Ashworth argues that s.3 was not intended to replace the common law rule on self defence; “s.3 has little relevance in practice to self-defence cases. Those who contend that that s.3 is the law are in reality using the section to argue that the law on self-defence ought to consist merely of a general standard of reasonableness”. I find it difficult to agree with Ashworth's interpretation, because he appears to be suggesting that there are two standards of reasonableness available for a Judge or jury to consider where private or public defence is raised. Ashworth (1975) “Self-defence and the Right to Life”, Cambridge Law Journal, 282–307, at p. 287.
5.
Allen points out that if s.3 were interpreted as having superseded the common law on private defence, D would be left defenceless where P, in attacking him is not committing a crime (as where P is under 10 years of age, or insane. Allen (1995) Textbook on Criminal Law, 3rd edn, p. 165.
6.
[1971] 3 All ER 302.
7.
See also Cousins [1982] QB 526.
8.
Allen (1995) Textbook on Criminal Law, 3rd edn, p. 169 — From the test laid down by Lord Diplock in Attorney-General for Northern Ireland's Reference (No.1 of 1975) [1977] AC 105.
9.
[1989] NILR 341.
10.
A provision identical to the Criminal Law Act 1967.
11.
The court held that the use of force was not reasonable to make an arrest, the other justification allowed by s.3.
12.
The Kelly case went much further on its facts than the Attorney-General's Reference case in which the supposition was that the escaping suspected terrorist who was shot and killed would at once join other terrorists to ambush the army patrol.
13.
Palmer v. R [1971] AC 814, PC.
14.
[1984] 78 Cr. App. Rep. 276, CA.
15.
[1976] AC 182. This case, dealt with the issue of consent in rape, and established that a belief honesty held did not need to be based on reasonable grounds.
16.
[1987] 3 All ER 411; 78 Cr. App. 276.
17.
Section 24, Police and Criminal Evidence Act provides that an arrest is only lawful if the police officer has reasonable grounds for suspecting that a person is about to commit an arrestable offence.
18.
Smith (1994) “Using Force in Self-Defence”, Current Legal Problems, p. 107.
19.
Cmd. 2345, 11.
20.
Waddington (1990) “Overkill or Minimum Force?”, Criminal Law Review, p. 696
21.
Clegg [1995] 1 All ER 334. The specific issue discussed in this case was whether the law allowed a verdict of manslaughter instead of murder where the force used was excessive. The answer was clearly no. The issue was also addressed by the House of Lords en passant in A-G for Northern Ireland's Reference (No.1 of 1975) [1977] AC 105 where Lord Diplock stated (p. 148) “If a plea of self-defence is put forward in answer to a charge of murder and fails because excessive force was used though some force was justifiable, as the law now stands the accused cannot be convicted of manslaughter”.
22.
[1994] 98 Cr. App. R.
23.
[1995] Crim. LR743
24.
Law Com No.218 Legislating the Criminal Code: Offences Against the Person and General Principles, para.36.9.
25.
Ibid., n.20, p. 697.
26.
Blom-CooperL. (1988) “Justifications for homicide”, Independent, September 1, 1988.
27.
See Waddington, n.20 for a detailed account of why this is the case.
28.
Manual of Guidance on Police Use of Firearm, April 1996, paras. 1.2(a) and 1.2(b)
29.
See n.9.
30.
See n.8.
31.
At p. 135.
32.
At p. 138.
33.
For example, Stephen Waldorf suffered multiple bullet wounds after he was repeatedly shot by two police officers who mistakenly identified him as a dangerous escaped prisoner. Cerry Groce was accidentally shot by police officers during an early morning raid on her house at which officers were searching for her son Michael. John Shorthouse was accidentally shot and killed during an early morning raid on his house. In all cases the officers involved were acquitted of any offences.
34.
See n. 20, p. 701.
35.
The Government intends to adopt a model similar to that used in New Zealand, which does not allow the courts to strike down Acts of Parliament, rather than the radical solution adopted in Canada which permitted them to do so.
36.
No.10044/82, 39 DR 162 at 171 (1984).
37.
This was accepted by the Northern Ireland courts, although the case presented by the applicants differed considerably from the account presented by the respondents. The civil claim in tort failed on the basis that the force used was lawful under s.3(1) of the Criminal Law Act (NI) 1967.
38.
The Commission relied on an interpretation adopted in the earlier case of Association X v. UK, (December 12, DR. 14/31): “The concept that ‘everyone's right to life shall be protected by law’ enjoins the state not only to refrain from taking life ‘intentionally’, but further, to take appropriate steps to safeguard life.”
39.
No.17579/90 (1993) unreported. See also Farrell v. UK No.9013/80, 30 DR 96.
40.
144 NLJ at 356 (1994).
41.
Section 14. “1. A member of Her Majesty's Forces on Duty may arrest without warrant, and detain for not more than four hours, a person who he suspects of committing, having committed or being about to commit an offence.”
42.
PACE does not operate in Northern Ireland. Section 2 Criminal Law Act (NI) anyone may arrest without warrant a person who is in the act of committing or has committed an arrestable offence but only a constable may arrest without warrant anyone who is, or whom he has reasonable grounds for suspecting to be about to commit an arrestable offence.
