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Self-Defense And The Law

February 17, 202120 min read

Self Defence & The Law

The “Essence of Self Defence is a thin list of things that might get you out alive when you are already screwed.”  SGT Rory Miller.

Self Defence is a big topic covering areas such as domestic violence to hostage taking, not just an assaults on the street.  It is impossible to train for every scenario.  But correct physical and mental training through Karate can help you be ready mentally and physically.

All Self Defence should be based on avoidance.  Good awareness, posture, confidence, and common sense should keep you out of trouble.  Never delegate your safety to someone else.  And never ignore what your eyes see.  You are an expert on human behaviour, trust your gut.  Awareness, avoidance, escape, and verbal de-escalation are the bedrock of good personal protection.  Good personal protection is more about mental preparedness then physical skill. 

Rule for life, you don’t get to pick what kinds of bad things will happen to you. 

Self-defence is never a choice.  And It is an emotional skill not a physical one.  If you are a victim of a violent assault it will be a surprise.  And don’t kid yourself that you will not be surprised.  You will always be surprised.  If you’re not surprised, then you had some warning and could/should have taken measures to escape or avoid the situation.  Real self-defence is about recovering from the shock and surprise, whether that is a punch to the back of the head or a hand wrapping around your mouth.  If your awareness is good, all confrontations should be in front of you.

If you put yourself in harm’s way and are the victim of a surprise assault.  You are a rabbit to the wolf.  The attacker is in predator mindset.  They have planned, trained, and rehearsed for this encounter.  They know what they are doing with cold logic.  They have a goal to rob or rape for example.  The attacker is ready for the fight and you are inconsequential.  The shock of an attack can cause you to freeze, wondering what’s happening and why.  Reasons or excuses are irrelevant when you are fighting for your life.

The predator is looking for weak, distracted, & passive victim.  Practicing good awareness on the street is vital.  Be alert to your surroundings and those around you.  Look for places where attackers could hide.   Display confidence in your body language.  Avoidance is far better than fighting and know that if you do fight, you will fight far less effectively then how you trained. 

To understand and defend yourself correctly on the street you must understand the difference between social and asocial violence, and the tactics that must be used to deal with each.  The tactics used to avoid/de-escalate social violence could increase your risks with asocial violence.

Social violence = the monkey dance, the interview, sparring/duelling, sorting it outside, have a knockabout. Social violence is violence used for social status, dominance or to teach a lesson. Examples Dave’s mad he took on that huge bouncer last Friday, or how dare he do that, I’ll teach him.

All predatory animals have social violence or some sort of play fighting. Think dogs, foxes, lions, or tigers wrestling and playing. This is how they learn to fight, hunt and display dominance. It is never lethal.  Humans social violence is designed not to be lethal and when it is it is usually from falling and banging their head. With social violence it is for dominance/status or to teach a lesson, i.e. punching someone to teach them to show you respect. The mindset for this must be justified. You will subconsciously be hitting to communicate, not to eliminate,

Asocial violence = the group monkey dance, violent crime, a predator. If you go to kill an insect do you need to get worked up or get angry? Do you need to convince yourself that this is a bad insect? Do you need to justify it like its justice? Do you give the insect a chance and fight or just kill it? This is asocial violence. This can be lethal. Experienced violent criminals have gotten past this and treat people like animals, which gives them a huge advantage. Most people defending themselves cannot. Unless you train to flip the switch. 

The things that can prevent or de-escalate social violence can invite asocial violence and vice versa. In a predatory approach you must be able to distinguish between a crime motivated by cash (resource predator) from one motivated by cruelty (process predator).

Bad guys don’t fight, they’re not in this to lose. They use surprise or blitz attacks. Martial arts work well in social violence where you have time and choices. Asocial violence comes as a surprise and you will be surprised, don’t kid yourself that you won’t be surprised.

Self-defence is not a physical skill it’s an emotional skill, it is all about how fast you can recover when injured or surprised. What to do is almost never the problem. Acting, or beating the freeze is the issue.

And remember there are always two fights to survive.  The first initial violent confrontation and the second legal court case, sometimes years later.

The Irish law on assault and self-defence is covered in the Non-Fatal Offences against the Person Act 1997. The offences that may be committed against a person vary in degree from a threat to do injury to the actual infliction of violence resulting in bodily injury. This legislation outlines what actually constitutes an assault and the levels of severity. It also outlines the position where an assault may be justified by self-defence.

A person commits an assault if he, without lawful excuse, intentionally or recklessly
(1) directly or indirectly applies force or causes an impact on the body of another or (2) causes another to believe on reasonable grounds that they are likely immediately to be subjected to such force or impact (Section 2 NFOAP Act 1997). It is interesting to note that force is not limited to striking a person, but also includes applying heat, light, noise, electricity or other forms of energy in solid, liquid or gaseous form.

There are three levels of seriousness of assault. They are simple or common assault (Section 2), assault causing harm (Section 3) and assault causing serious harm (Section 4). The punishments increase as the seriousness of the assault rises. The level of assault is, counter intuitively, determined by the nature of the injuries caused by the assault and not the actions of the assault itself. A simple punch could end up in a more serious category than a simple assault based on the injuries sustained.

An assault, of any nature, may be justified if the person is protecting themselves or a member of their family from injury, assault or detention caused by a criminal act based on all the circumstances surrounding the incident (Section 18).

A number of other scenarios may also be justified, but the one mentioned above is what is commonly referred to as the self-defence justification. This defence is what is called an affirmative defence. This means that if a person charged with an assault and claiming self-defence must raise and support the claim with evidence. It is then up to the prosecution to disprove the defence beyond a reasonable doubt. In reality, the judge or jury will decide if the self-defence claim is valid.

In layman’s terms this means that an assault is striking a person or making them believe that they are going to be struck. A person is entitled to defend themselves if they are physically attacked or they reasonably believe that they are going to be attacked immediately. The person’s defence must be reasonable and proportionate to the level of aggression shown by the attacked and cannot descend into revenge if the upper hand is gained by the defender.

As mentioned above, Self-defence is an affirmative defence, what this mean is that you are admitting to an action that is a crime and arguing that you should not be punished because it was justifiable under the circumstances. This shifts the burden of proof to you.  The prosecution does not need to prove you committed a crime.  You did this by claiming self-defence.  You must prove that you had no choice but to react the way you did. 

Knowing the law and understanding the legal jargon can be difficult, even reading the law can be difficult.  Therefore, we must understand and teach the I.M.O.P. Principle.  This principle has the benefit of being useful and are also easy to remember on the streets.  If you meet these four criteria, Intent. Means. Opportunity. Preclusion, before taking action, you will have a good case for claiming self-defence.  If one or more are missing you may be on shaky legal ground.  Knowing these elements are in place may not be enough to prevail in court.  We must be able to explain how we personally knew that each element was present in a way that the jury will believe. 

Let’s take a close look at what the I.M.O.P principle is. 

Intent

You must be able to show the threat wanted to do you harm and tell how you knew.  Someone screaming “I’m going to kill you” is fairly clear especially if their body language backs this up.  If they make a fist and draw their arm back you can make a case they where about to hit you.

Intent is critical in claiming self-defence.  People have the chance to kill you every day.  A waiter bringing a steak knife in a restaurant has a deadly weapon and is within range, but we do not leap into action. To be a legitimate threat, the person must have intent and you must be able to explain how you knew that.

Means

With all the intent in the world, will not matter if the threat couldn’t hurt you.  Most people have some means – fists, boots or size or they may have a weapon or say they have a weapon.  A 2-year-old throwing a temper tantrum may have a lot of intent but lack the means to do anything severe.  Claiming you feared for your life will not be enough if you cannot prove why you where afraid.  Somebody wearing a bikini and shouting they are going to shoot you clearly does not have the means if they have no gun in their hand.

Opportunity

Intent and means matter little if the threat cannot reach you.  Someone shouting they are going to kill you outside your house cannot get to you.  If you leave your house to confront them, you cannot claim self-defence. 

Situations in reality are subject to change, often quite rapidly, and it is important that we can articulate how those changes affect the threats intent, means or opportunity.  Intent, means, or opportunity are the desire, the ability, and the access to hurt you.  You must be able to show all three to justify using force in self-defence.  Even if all three do exist there is still one more requirement that needs to be satisfied.

Preclusion

You must be able to show you tried all other alternatives before resorting to force.  Awareness, avoidance, escape, and de-escalation are all viable options before wading in with your fists. 

You cannot claim self-defence if a threat screams, “fuck off or I’ll hit you!”, and you did not leave.  The threat clearly gave you away to avoid a fight, ‘fuck off’ and clearly outlines what would happen if you did not, ‘I’ll hit you’.  It is not self-defence if your ego would not allow you to leave.  To quote the ageing reference of Mr Miyagi, “The best way to block a punch is not to be there”.  Don’t let your ego draw you into something.

However pre-emptive strikes are legal and covered under law.  Just be sure you can articulate why you felt the need to strike first.  From a 3rd part perspective, they witness will claim you struck first and started the fight.  Pre-emption is legal but do you have and train the skills needed to articulate that case?  We will come back to third part perception later.

Preclusion includes questions such as could you have left?  Could you have run?  Did your actions contribute to the situation getting out of hand?  Knowing the law should help you make good decisions, but fear of the law should never stop you defending yourself if your life is in danger.

Consensual violence, the Monkey Dance/The Interview (scripted social violence encounters that are designed to be non-lethal), Street fighting (whatever that is), all fall outside the purview of Self-defence.  Do not let your ego force you into a situation where violence become inevitable.  And you may not succeed on a claim of self-defence.

Attacks in your home (the Irish perspective)

What are your rights?

The Criminal Law (Defence and the Dwelling) Bill 2011 allows a homeowner, tenant, or visitor in a dwelling to defend themselves with reasonable force and specifically states there is no requirement for the person to retreat.

The Bill also states that reasonable force does not preclude any justifiable action taken in self-defence that later results in the death of an attacking intruder. This Bill therefore gives recognition to the unique circumstances which prevail when an intruder enters a property that is normally occupied for the purposes of a domicile. Concerns over liability for damages, an occupier using justifiable force against an intruder won’t be liable for damages if the attacker subsequently sues in respect of any injury, loss or damage arising from such force.

The issue of whether a person could use lethal force in defending his or her home arose in the case of Co Mayo farmer Pádraig Nally, of Funshinaugh Cross, Claremorris, Co Mayo, who shot dead John “Frog” Ward in October 2004 in controversial circumstances. Mr Nally claimed Mr Ward had come to his farm to rob him, and that he had shot him in self-defence.

He was jailed for six years for manslaughter. He served 11 months of that term before the case was taken to the Court of Criminal Appeal, where he was acquitted after it was accepted, he had acted in self-defence.

The case prompted a major public debate about what level of force is reasonable in situations where people act to defend themselves from robbery or attack and the led to the The Criminal Law (Defence and the Dwelling) Bill 2011 being put in place to address this issue clearly.

A court has recently upheld the right of a person to use reasonable force to defend themselves against a home intruder.

In a landmark decision in 2018, a Central Criminal Court jury acquitted Martin Keenan (20) of the murder of an unarmed man he stabbed to death with a part from garden shears after finding him in his bedroom.

It is the first time a murder charge has been defended using the Criminal Law (Defence and the Dwelling) Act 2011, which removed an obligation on householders to retreat, and allows for the use of reasonable force against intruders.

Mr Keenan said he was frightened to find “two junkies” in his bedroom and hit Wesley Mooney (33) with half a pair of garden shears after he came running at him.

The defence relied on the act and a Court of Criminal Appeal judgment, which stated burglary was an act of aggression.  My question is why did he have part of a shears in his bedroom?

The following article from Irish Independent December 6th 2006, gives a very interesting insight into the Nally case mentioned above and the use of reasonable force or extreme lack of in my opinion.

Outlining the general facts of the case for the prosecution, senior counsel Paul O’Higgins said the incident had occurred after Nally heard a car revving outside his house.

When he went outside to investigate, he found Tom Ward, a member of the Travelling community, and he asked “words to the effect of ‘Where was the other fellow?’ believing Tom Ward was not likely to be on his own.”

Mr Ward said another man – his father John Ward (42) – was round the back “having a look”. At this point, Mr O’Higgins said, “Nally said words to the effect that ‘He would not be coming out again'”.

He said jury members would hear of the suspicion of the farmer that Ward was “up to no good” and was there to commit burglary or steal from some part of the farmyard. Padraig Nally got a shotgun from a shed and went to his back door, where he found John Ward. He shot at him from a distance of four or five yards and inflicted a wound on his right hand and hip.

It was not fatal.

The two men then got involved in a struggle, before Nally started to hit the other man with a stick. “He then beat John Ward black and blue,” Mr O’Higgins said.

He said there were eight full lacerations to Ward’s skull, exposing the underlying bone. He said there were more than 25 bruises to his body and his nose was broken.

There was also a break to his left forearm, suggestive of a defensive-type injury.

Mr O’Higgins said Nally had described the beating as “like hitting a badger or a stone. You could hit him but you could not kill him”.

There would be evidence that Nally had heard Tom Ward drive away, he added.

John Ward was lying in a bed of nettles and had begun to attempt to stumble out of the yard when Nally went back into his shed, got the shotgun and three more cartridges.

By this time, John Ward was either out on the roadway or stumbling or limping towards it and had turned right onto the road when Nally followed him and shot him again.

The second shot went through his left arm, back out and through the left-hand side of his chest into his lungs, “killing him almost immediately”.

Mr O’Higgins said Nally then took Ward’s body and “heaved it over some wall” before driving to a neighbour’s house, where the gardai were called.

Mr O’Higgins said it was the prosecution’s case “that the killing in these circumstances was not and could not be a lawful killing”.

“There is not a death penalty, so to speak, for burglary in this country,” he added.

It is interesting to note that Mr Nally was originally sentenced, served 11 months before winning an appeal that he acted in Self-defence.  Heading to a shed to get a gun, reloading and shooting somebody from behind as they are limping away does not constitute self-defence in my book.  Irish law begs to differ.

This brings up the issue of Reasonable Force (or lack of)

Exceeding a reasonable level of force may well turn a victim into a perpetrator in the eyes of a court.  As mentioned earlier, justifiable self-defence is a victim’s defence to a criminal charge, then a reasonable person would only use reasonable force.  Using a higher level of force infers intent to needlessly harm the other or seek revenge.  This allows the perpetrator turned victim to use your defensive actions against you.  Even if you win a criminal case you may still lose in civil court.  Remember your affirmative defence was to admit what you did in the proceeding criminal case. 

The level of force we use must be considered within the context of 3rd part perceptions.  Unreasonable excessive force, biting, eye gouging, stamp or kicking a head of a downed attacker, screaming (kiai) may all play poorly in court when described by the little old lady who witnessed the event while standing at the bus stop across the road.  But who’s attention was only drawn after the altercation had begun.

Disparity of Force

This in some jurisdictions there is a legal expectation of a fair fight.  As a side note, John Steinbeck said, “if you find yourself in a fair fight, your tactics suck.”  But legally, in some places, the law clearly states equal force must be exactly equal.  Regardless of what the law states a person cannot respond to an assault of slight degree with deadly force.  If they attack you with a feather, you cannot respond with a bazooka.  In practice, however, you will want to respond with a degree of force sufficiently, but not greatly, superior.

Proportional Force

There are two advantages to proportional force. 1 It places the defender in a more secure tactical position, and 2 is discourages the assailant from continuing to attack and escalating the levels of force.

You often hear the phrase, “It’s better to be judged by 12 then carried by 6.”  While this is correct.  It is also misleading and wrong and should never be uttered by anyone claiming to teach realistic self-defence.  It implies, incorrectly, that it is not possible to act in self-defence and remain within the law. 

As martial artist, if we train correctly and develop the correct habits, that will kick in unconsciously, we can defend ourselves and remain within the law.  Stamping on legs, to incapacitate your attacker, to facilitate your escape, is legally a better option then stamping on their head or body, as many traditional martial arts may teach. 

There were no laws or civil courts back when those martial arts where developed.  And stamping an attacker’s head may have been the correct option in those bygone days.  Good luck trying to proof that in this day and age.  But remember every case is different, my 13-year-old daughter may be quite justified in kicking her attacker in the head and escaping.  Me as a 6th dan may have my actions viewed very differently two years later in a court of law, with a criminal who lies.

I must say here for legal reasons, if you are attacked and forced to defend yourself, your first action after you have escaped are to call an ambulance for the attacker and to report that you have been assaulted to the police. Remember, you are the victim. The police will investigate all the circumstances of the incident.

There was a case in America in the early 1990’s, the Judge’s summation terrified so much it is embedded in my brain forever.  A professional criminal, a mugger, ran out of an aisleway and attacked a passerby.  The victim, many years previously, had trained in Taekwondo and in the course of the altercation, managed to score a lucky shot and knock out his attacker.  Who fell unconsciously to the concrete and banged his head.  The attacker died.

The victim was taken to court and convicted of manslaughter.  In the Judges summation he said. “up until and including the moment you hit him you were acting in self-defence.  But by not rendering fist aid (on his attacker) he was guilty of manslaughter.”

Now if that does not terrify you, I suggest you read it again.  The alternative versions of those events is having knocked out his attacker and bending over to render first aid.  He is stabbed in the back by his attacker’s accomplice.  Remember every d**khead has a friend.  Do not hang around the scene of an attack unless it is safe to do so.  Escape is the goal, and you must insure you are safe before your thoughts turn to looking after the health of your attacker.

All in all avoidance is your best policy.

Please note that above is an interpretation of the available legislation and practice. If in doubt advice should be sought from a reputable criminal law solicitor.

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