Thursday, 1 May 2008

Self Defence (House of Lords)

From The Times
April 24, 2008
Difference in civil and criminal self-defence
House of Lords
Published April 24, 2008

Ashley and Another v Chief Constable of Sussex Police

Before Lord Bingham of Cornhill, Lord Scott of Foscote, Lord Rodger of
Earlsferry, Lord Carswell and Lord Neuberger of Abbotsbury
Speeches April 23, 2008
A civil claim against the police for assault and battery by the family
of an unarmed man shot dead during a police raid was not to be struck
out despite the responsible officer’s acquittal of murder because, in
civil law, a plea of mistaken self-defence required not only that the
assailant’s mistaken belief that he had been under threat had been
honestly held, as required by the criminal law, but also that it had been
reasonably held.

That question could be determined by the courts even though, as the
police had admitted liability for negligence and agreed to meet all
damages flowing from the incident, a finding of liability on the battery
claim would not result in any additional damages being awarded.
The House of Lords so held (Lord Carswell and Lord Neuberger dissenting
in part) in dismissing an appeal by the defendant, the Chief Constable
of Sussex Police, from the Court of Appeal (Sir Anthony Clarke, Master
of the Rolls and Lady Justice Arden, Lord Justice Auld dissenting in
part) (The Times August 30, 2006; [2007] 1 WLR 398) allowing an appeal
by the claimants, James Ashley, junior, and James Ashley, senior, the
son and father of James Ashley, the deceased, against Mrs Justice Dobbs,
who on March 21, 2005, struck out their claim for assault and battery
against the Sussex Police.

During a police armed raid on the deceased’s flat in the early hours of
the morning of January 15, 1998, the deceased, who was naked and
unarmed, was shot and killed by PC Christopher Sherwood. Following his
acquittal of murder, the claimants brought actions against Sussex Police for
damages for, inter alia, assault and battery, negligence and false

The police admitted liability in negligence and false imprisonment but
had resisted the assault and battery claim on the basis that the police
officer had acted in self-defence in the mistaken belief that the
deceased was armed and about to shoot.

Mr Edward Faulks, QC and Mr Paul Stagg for the chief constable; Mr Keir
Starmer, QC and Mr Richard Hermer for the claimants; Mr Stephen
Suttle, QC and Mr Aidan Eardley for PC Sherwood, intervening.
LORD SCOTT said that the first issue was whether self-defence to a
civil law claim for tortious assault and battery, where the assailant acted
in the mistaken belief that he was in imminent danger of being
attacked, required that the assailant acted under a mistaken belief that was
not only honestly but also reasonably held.

For the purposes of the criminal law, even if the mistake was an
unreasonable one, if the defendant had been genuinely labouring under it, he
was entitled to rely on it. It had been argued that the criteria for
self-defence in civil law should be the same.

However, the ends to be served by the two systems were very different.
One of the main functions of the criminal law was to identify, and
provide punitive sanctions for criminal behaviour. As a general rule, no
one was to be punished for the consequences of an honest mistake.
The function of the civil law of tort was different: to protect the
rights that every person was entitled to assert against others. Where the
rights of one person ran counter to those of others it had to strike a
balance between the conflicting rights.

Every person had the right in principle not to be subjected to physical
harm by the intentional actions of another. But every person had the
right also to protect himself by using reasonable force to prevent an
imminent attack.

The rules and principles defining what did constitute legitimate
self-defence had to strike the balance between those conflicting rights.
To hold, in a civil case, that a mistaken and unreasonably held belief
by A that he was about to be attacked by B justified a preemptive
attack in believed self-defence by A on B would constitute a wholly
unacceptable striking of the balance.

It was one thing to say that if A’s mistaken belief was honestly held
he should not be punished by the criminal law. It would be quite another
to say that A’s unreasonably held mistaken belief was sufficient to
justify the law in setting aside B’s right not to be subjected to
physical violence by A.

For civil law purposes, an excuse of self-defence based on nonexistent
facts that were honestly but unreasonably believed to exist had to

The second issue was whether the assault and battery claim should be
allowed to proceed to trial.

In view of the chief constable’s admissions on negligence and
acceptance of responsibility for any damages which could be proved to have
flowed from the incident, a finding of liability on the assault and battery
claim would not add anything to the quantum of damages recoverable.
However, although the principal aim of an award of compensatory damages
was to compensate for the loss suffered, there was no reason in
principle why they should not also fulfil a vindicatory purpose.
But it was difficult to see how compensatory damages could fulfil a
vindicatory purpose in a case of alleged assault where liability for the
assault was denied and a trial of the issue never took place.
The family were determined to take the assault and battery claim to
trial not for the purpose of obtaining a larger sum by way of damages but
in order to obtain a public admission or finding that the deceased had
been unlawfully killed by PC Sherwood.

They had pleaded a case that, if reasonably arguable on the facts,
could not be struck out as being unarguable in law. Why, therefore, should
they be denied the chance to establish liability at a trial? It was
open to the chief constable to avoid a trial by admitting liability on the
assault and battery claim.

It had been contended that the claim should not be permitted because
that would amount to an unlawful collateral attack on PC Sherwood’s
acquittal. His Lordship did not accept that.

PC Sherwood had been entitled to be acquitted because the prosecution
had been unable to lead evidence probative of a rebuttal of his
assertion that he had believed himself to be in imminent danger of a deadly
attack and in that belief had shot the claimant in self-defence.
But an acquittal of a defendant on a criminal charge of assault based
on an assertion by him of the need for self-defence did not mean that he
had not unlawfully assaulted the victim.

If a defendant’s acts in the believed need for self-defence were a
reasonable and proportionate response to the facts as he honestly believed
them to be, it would be quite wrong for the criminal law to impose
sanctions upon him.

But if an individual was attacked because the assailant mistakenly
believed that the attack was necessary as an act of self-defence and that
belief, although honestly held, was unreasonable in all the
circumstances, it would seem a travesty for the victim to have to be told that the
attack was a lawful one.

The prosecution of the civil action was not a collateral attack on PC
Sherwood’s acquittal. It raised issues different from those on which the
criminal charges against him had turned.

Lord Bingham and Lord Rodger delivered concurring opinions; Lord
Carswell and Lord Neuberger delivered opinions agreeing with Lord Scott on
the first issue but dissenting on the second.

Solicitors: Weightmans LLP, Deighton Guedalla LLP, Islington; Russell
Jones & Walker.
From The Times
April 24, 2008

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