The Martin Case
The case of R v Martin (Anthony) highlights the problems in law when a person can use force to defend themselves against attacks on themselves or their property. Examine and discuss the issues surrounding self-defence and reasonable force.
The Martin case is instrumental in the study of self-defence, or private defence, due to the key issues involved, and the problems with the law that it identifies. However, in order to examine these issues, it is important to understand how and under what circumstances the defence of self-defence can be established.
Self-defence is available to those defendants who were (or honestly believed they were) in danger of an ‘unjust attack' or threat, and that the force used by the defendant was reasonable under the circumstances, therefore making their conduct and force lawful. This defence can also apply in situations in which force was used to prevent a crime from being committed There are a few terms for this defence, including private and lawful defence, but self-defence is ‘probably the phrase most familiar to the person in the street.' Even so, the term self-defence can be misleading, since the defence is also available to those who use force protecting others from danger. The law pertaining to self-defence has two sources, at common law and in section 3 subsection 1 of the Criminal Law Act 1967, which states that:
‘A person may use such force as is reasonable in the circumstances in the prevention of crime or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.'
However, any possible conflict between the rules of the common law and those of the Criminal Law Act is provided for in section 3 subsection 1 of the Act:
‘Subsection (1) above shall replace the rules of the common law on the question when force used for a purpose mentioned in the subsection is justified by that purpose.'
The next thing to establish is to which crimes self-defence can be used as a defence. There are cases to suggest that it can only be available if the defendant that has been charged for a crime involving force, such as R v Renouf (although the use of force to describe the defendant's conduct is rather tenuous.) On the other hand, DPP v Bayer offers the view that, even when no force has been used, the defendant may still have the defence available. This could be considered a more preferable view to take, as ‘it seems unjustifiable to allow a defendant to use force to avoid a threat, but not to take a non-forceful, but illegal, way of escaping a threat.' However, it was confirmed in Blake v DPP that for the defence to be available, the offence must involve force.
The Martin case demonstrated the elements of the defence, and what needs to be shown for it to be available. The victim of the defendant's attack must have posed a threat, either to the defendant or to someone else. In the Martin case, since the burglars were posing little or no threat to Tony Martin's life, there was the far less clean-cut and more complicated matter of whether the defence can be applied to the defence of property. The answer ‘it seems, is that it is all a matter of what the jury consider reasonable.' The jury in the Martin case decided that it wasn't reasonable for Tony Martin to shoot the burglars in protection of his property.
The threat against the defendant must be unjustified for the them to rely on the defence. This is not to say that attacker must be committing an offence. For example, a child cannot be guilty of an offence (‘it shall be conclusively presumed that no child under the age of ten years can be guilty of any offence'), but a person may rely on the defence if they injure a juvenile attacker. However, in either case, the attack must be unjustified. A person who strikes another, then defends themselves from the retaliation with further force, cannot rely on the defence. Since the original victim was justified in their retaliation, any further force used by the original attacker cannot be justified (R v Rashford.) In the Martin case, there was no threat as such to the life of Tony Martin, but there was a possible threat to his property. However, the force used by Tony Martin was far too excessive to allow him to plead self-defence. On the other hand, in Tony Martin's appeal, the issue of diminished responsibility was raised. In this case, the appeal was allowed because psychiatric conditions meant that Tony Martin was more likely to believe he was being attacked than a person suffering from no mental abnormality. Therefore, he could not be held responsible for what he had done.
For the defence to be available, it must be shown that the use of force was absolutely necessary to prevent the attack or crime from occurring. If the situation could have been prevented by any other non-forceful means, but the defendant didn't do so, the defence cannot be relied on. This can also be seen in R v Rashford, as the appellant in this case provided evidence that they had been swinging a knife to ward off the attackers. Because of this (along with factors of revenge), it was found that the defence was not open to the appellant, since to resort to force was not the only means of escape. For a long time in England and Wales, the common law imposed upon a person the duty to retreat in order to claim self-defence, as a person would only have then resorted to force after all means of peaceable escape had been exhausted. In the case of a homicide, it was the attempt to retreat that ‘made the difference between manslaughter and killing in self-defence. Retreat was expected before the fatal blow was struck.' In comparison, in the United States of America, the original laws were based by the colonists upon the laws of England and Wales, and as such the duty to retreat was also present in US law. However, after much debate between the right to life and the right to defend oneself from attack, the ‘doctrine was pronounced legally dead in the Supreme Court decision in the celebrated case of US v. Brown (1921) 256 US 335.' The law of England and Wales soon followed suit following the case of Julien, in which Lord Widgery stated that:
‘It is not ... the law that a person threatened must take to his heel and run in the dramatic way suggested by counsel for the appellant; but what is necessary is that he should demonstrate by his actions that he does not want to fight. He must demonstrate that he is prepared to temporise and disengage and perhaps make some physical withdrawal; and to the extent that it is necessary as a feature of the justification of self-defence …'
As such, since then, the defendant does not have to retreat, if it is reasonable for them to either use force or escape from the situation. The question is not, however, if it is reasonable to escape, but if it is reasonable to use force. This element of the defence was instrumental in the decision in the Martin case - the burglar who was shot and killed ‘had in fact been trying to flee when the fatal shot was fired.' Due in part to this fact, the jury decided that the defence could not be used, as the fatal use of force was not justified - Tony Martin could have allowed the intruder to flee.
If the use of force is considered reasonable, what should be considered next is the level of force used, and whether it is reasonable in the circumstances. The definition of reasonable is not what is thought to be reasonable by the defendant, but what a reasonable person would say was an acceptable level of force. For example in R v Owino, the appeal was dismissed on the grounds that the use of force should not be a level that the appellant felt was necessary. The extent of force that can lawfully be used can sometimes be unclear. The confusion between what is reasonable and excessive force is one of the major criticisms of self-defence. Both the common law and Criminal Law Act 1967 stipulate that a person may use force to prevent a crime or aid a lawful arrest, so long as that force is reasonable in the circumstances. This much is certain, but the problem is in defining what constitutes reasonable force, and is a key issue in the Martin case. The recent Criminal Justice and Immigration Act 2008 attempted to clarify self-defence and the reasonableness of force:
‘(3) The question whether the degree of force used by D was reasonable in the circumstances is to be decided by reference to the circumstances as D believed them to be, and subsections (4) to (8) also apply in connection with deciding that question.'
Even so, the view may be taken that this has done very little to actually make clear how much force is reasonable in a given circumstance. The Act has been suggested to merely codify the common law, and it has been suggested that the Act is a ‘disappointment, a missed opportunity to legislate at the detailed level rightly recommended by the Law Commission.' Similarly, a Criminal Law Review Editorial in 2008 stresses that ‘criminal lawyers will recognise these well-established law which can be found in all the criminal law textbooks.' Crucially, though, this does not make it clear for the average member of the public what amounts to reasonable force. On the one hand, legislation would suggest that a person may only use what force is reasonably necessary in the circumstances. On the other, as is examined in an article by Adrian Turner, publications issued by the Government confuse the general public as to what this means. For example, Turner asks the question ‘if a burglar breaks into your house can you hit him (or her) with a frying pan, attack him with a knife or, as some American states permit, shoot him dead with impunity?' and goes on to answer, ‘the leaflet advises this.' The position currently is that the defendant's use of force will be judged on the facts as they believed them to be. As such, the jury must decide whether the extent of the force was reasonable in the circumstances. Where the prosecution is trying to prove that force was excessive, they must prove that the defendant intentionally or recklessly used force that they were aware was excessive in the circumstances. However, this is where a potential issue arises: Turner states that ‘people are guided by honest instinct, and not the boundaries explained, however eloquently, in advisory leaflets.' In other words, what a person does in a situation is not governed by what the reasonable person would consider to be reasonable force, but by ‘heat of the moment' emotions, and as such, a person may still have been acting with what he honestly believed was the required level of force at the time. For this reason, it is possible to argue that the principles of reasonable force and necessity are too ‘mechanical for the sudden and confused circumstances of many such cases.'
The Martin case also highlighted the issue of the public opinion on self-defence law. In his article ‘The courts already respect the right to self-defence', John Cooper suggests that it is a ‘strongly held view among the public that the law is inappropriately balanced between houseowners and burglars,' but he also believes that ‘public concern about the treatment of people who fight back against burglars and other criminals is misplaced: the law on murder and manslaughter is in good working order, providing ample protection in most cases for those who act in self-defence.' He backs up his view by way of the experience in the courts. He suggests that ‘for years, judges and juries have dealt with cases where intruders have been injured by property owners who were protecting their homes or personal safety.' An example of such a case is the incident in 2002 which two would-be thieves broke into the home of John and Carol Lambert, and threatened Carol with a knife. In the ensuing struggle, John Lambert stabbed the burglar to death. The Crown Prosecution decided not to prosecute Mr Lambert, a decision Hunt J agreed with: ‘no blame can be attached to him for what he did.'
In the weeks after the trial of Tony Martin, many members the general public were outraged that he had been convicted. The feeling was that ‘self-defence has now been watered down to such an extent that it amounts to a crime to defend yourself in your own home' However, an examination of the historical common law authorities shows that this is not strictly true. Use of lethal force during the night can be traced back to Biblical times: ‘if a thief is caught breaking in and is struck so that he dies, the defender is not guilty of bloodshed; but if it happens after sunrise, he is guilty of bloodshed …' However, as the passage makes clear, this rule does not apply in daylight. The origins of the English law is thought to be Seymane's case, which is the origin of the maxim ‘an Englishman's home is his castle.' If the defendant used force against a trespasser, he did not have the duty to retreat as described before, but even so, it is stressed that lethal force should only be used as a last resort (as such, the idea of reasonable force was as relevant in the past as it is now.) The law regarding defence of home and property are not much different today, and this is evidenced by the high aquittal rate and comparatively favourable view that courts take towards individuals using force to protect themselves.
An issue that has been debated over the past decade is whether or not the law of self-defence is compatible with the Human Rights Act 1998. Article 2 of the European Convention of Human Rights states that:
‘1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:
( a ) in the defence of any person from unlawful violence;
( b ) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
( c ) in action lawfully taken for the purpose of quelling a riot or insurrection.'
Paragraph 2(a) protects a person's right to defend themselves. However, the European Court has interpreted it to mean that it may only be relied upon if the force was necessary and proportionate. The Court has also accepted that paragraph 2(a) can also apply where a person is mistaken as to a threat, so long as the reason is a good one. However, in English and Welsh law, the only requirement for a mistake is that it was honestly held - it does not need to be reasonable. This has caused controversy:
‘… in allowing an honest unreasonable mistake to ground an aquittal on the basis of self-defence, English law is contrary to Article 2 of the ECHR … in allowing the unreasonably mistaken defendant to escape punishment in this way, English law fails to respect the right to life of the person who, through no fault of their own, is mistaken for an attacker.'
The counter-argument to this view is that a person who honestly believes they are under attack and as a result kills another should not be punished. The English law is not disregarding the right to life for the victim, but merely assessing the extent of the defendants blame. Obviously, Article 2 cannot be relevant where non-deadly force is used.