I've been having a discussion with Kevin Baker about his claim that self-defence in the UK is practically illegal. The discussion started when Carl Lindsay was convicted of manslaughter after killing an intruder who was trying to rob him. I wrote:
Pro-gunners such as John Lott, Glenn Reynolds and John Derbyshire have written about the Martin case, apparently unaware of the facts that showed that the killing was not in self defence, and proceeded to make bogus claims that self defence was against the law in Britain. Claims which they have never bothered to correct.
Now, there are two possible explanations for Lindsay's conviction:
- The jury knew more facts that those which appeared in the brief story and these showed that the killing was not in self defence.
- Self defence is illegal in the UK.
The reaction from bloggers was swift and extensive. At the time of writing, Technorati reports 61 blogs linking to the story, all going for explanation 2, none even considering the possibility that the killing was not self defence.
In his latest response, Baker objects:
Note that Tim doesn't wonder why 61 out of 61 blogs choose option 2 - to him it's obvious that we're all just "gullible gunners" and there is no prior evidence that would lead us to believe that "self defence is illegal in the UK," this story being only the latest example.
Actually, I specifically stated that the "prior evidence" as put forward by Lott, Reynolds and Derbyshire was bogus. Tony Martin did not act in self-defence. The person who has done the most to misinform pro-gunners about British law on self-defence is Joyce Lee Malcolm. In a book and several articles she has mislead her readers, falsely claiming that Tony Martin was convicted after defending himself and writing about British law on self-defence:
That willingness was further undermined by a broad revision of criminal law in 1967 that altered the legal standard for self-defense. Now everything turns on what seems to be "reasonable" force against an assailant, considered after the fact. As Glanville Williams notes in his Textbook of Criminal Law, that requirement is "now stated in such mitigated terms as to cast doubt on whether it [self-defense] still forms part of the law."
Malcolm has doctored the quote from Glanville Williams to reverse its meaning. The word "it" does not refer to self-defence as Malcolm's addition to the quote indicates, but to the requirement that the defender's belief that his actions were necessary had to be a reasonable belief. If this requirement is no longer part of the law it makes it easier to plead self-defence.
Here is the entire paragraph that Malcolm pulled her quote from. It is is clear that "it" refers to "The requirement of reasonableness" and not to "self-defence":
The requirement of reasonableness is unhappy. Enough has been said in criticism of it, and the CLRC has recommended that it should be expunged from the law. In practice, as we have seen, the requirement may be construed indulgently to the defendant, for, as Holmes J memorably said in the United States Supreme Court, "detached reflection cannot be demanded in the presence of an uplifted knife." As we shall see in the next section, the requirement is now stated in such mitigated terms as to cast doubt on whether it still forms part of the law.
You can see this paragraph in context here. Here is more from Williams (my emphasis) that shows how extraordinarily selective Malcolm had to be with her quotes to make it look like self-defence was no longer part of the law:
All putative self-defence, it seems, falls into the category of "necessary self-defence." In this part of the judgment, the idea that the defendant's belief is merely evidence of reasonableness has suddenly vanished; indeed, the very word "reasonable" is dropped. It seems, therefore, that the decision makes a radical change in the law. At least where the defender fears death or serious injury, there is no proportionality rule any longer; and a good thing too---in view of the jury's verdict in Shannon. German law, it seems, gets on without a proportionality rule, and so could we, where the facts are similar to those in Shannon. The reasoning in the decision is fudged, but that is the price one pays for a beneficial change in the law.
Back to Kevin Baker's post. He conceded that British law allows self-defence, but argued that prosecution of self-defenders means that it is not legal in practice. I challenged him on this, pointing out that he didn't have a single case where this had occurred. In his latest post Baker tries to find "just one example of the government prosecuting someone for an obvious case of self defense". I've organized the cases he mentions into a table and added several more that I was able to find. I've only included the ones where someone was killed because the information on the other cases is less complete, making it difficult to determine what really happened. For some of the cases I've given two versions of what happened. The first version only tells part of what happened and makes it look like the case was self-defence. The second version adds the details that suggest that the killing was not self-defence.
| Killer | Version 1 | Version 2 | Outcome |
|---|---|---|---|
| Tony Martin | Shot a burglar who broke into his house. | Burglar was shot in the back while fleeing. Martin's story about what happened was contradicted by the forensic evidence. * | Convicted of murder, reduced to manslaughter on appeal because Martin suffered from a paranoid personality disorder. |
| Satpal Ram | Defended himself against a racist who attacked him with a broken glass. * | Stabbed victim in back 2-3 times with a flick knife as well as inflicting multiple other wounds. Did not even plead that it was self-defence. * | Convicted of murder. |
| Carl Lindsay | Stabbed one of four armed robbers with a sword. * | Chased robber out of his home and stabbed him the back. * | Convicted of manslaughter. |
| Thomas O'Connor | Stabbed in the chest an intruder who broke down his front door. * | Not prosecuted | |
| Barry-Lee Hastings | Stabbed a burglar who he thought was armed with a machete * | Stabbed him in the back 12 times, outside the house and while the burglar was lying face down. | Convicted of manslaughter. |
| Steven Parkin | Stabbed a burglar * | Stabbed from behind while the burglar was fleeing | Judge directed a not guilty verdict |
| John Lambert | Stabbed a burglar in the chest* | Not prosecuted | |
| Brett Osborn | Stabbed an cocaine-addled intruder * * | Intruder was unarmed and stabbed five times in the back | Pleaded guilty to manslaughter. |
| Nick Baungartner | Tackled a burglar who suffered a severe neck injury * | Not prosecuted. | |
| John Campbell | Stabbed a burglar who attacked him with a baseball bat * | Not prosecuted | |
| Dean Davis | Stabbed a burglar * | Not prosecuted | |
| Richard Watkins | Stabbed an armed robber in the chest * | Not prosecuted | |
| Shannon | Stabbed an assailant with scissors * | Convicted of manslaughter, conviction quashed on appeal because judge did not describe the law on self-defence correctly |
There is a pattern here. In the obvious cases of self-defence, the ones where the fatal wound was inflicted in the front, the killer was not prosecuted. This alone disproves Baker's assertion that self-defence in England is practically illegal. The cases involving back-stabbing or back-shooting were prosecuted. These cases are not obviously self-defence, though it is possible they might have been. Kevin Baker argues (writing about the Hastings case):
Yes, the burglar was stabbed in the back. So? If you're grappling with an attacker with a knife in your hand, where is the blade going to go?
The trouble with this is that we have less information than the jury. If Hastings had been grappling with the burglar when he stabbed him in the back then his lawyer would have made sure that the jury knew this. If you want to argue that jury decided the case wrongly it is not sufficient to speculate that there were some additional facts that would prove it was self-defence---you have to find and present those facts. As it happens, when Hastings was stabbing the burglar in the back again and again, the burglar was not grappling with him but lying face down outside the house.
In most of the cases we have similar difficulties. We have less information than the jury and are in no position to argue that they made the wrong decision. In the case of Satpal Ram we fortunately have more information. Baker points to a Guardian article that claims that Ram was convicted of murder for defending himself from a racist attack, but the author of the Guardian article (and Kevin Baker) just took Ram's word for what happened without checking to see whether he was being truthful. Alexander Baron has a web site arguing that Ram is guilty of murder and has posted the judgment of the appeal that shows how Ram lied to the reporter. The evidence presented in the judgment shows Ram's claims are contradicted by eye witness testimony and the coroner's report.
| Satpal Ram's story | The truth |
|---|---|
| Satpal responded by drawing a short-bladed penknife. | Satpal used a flick knife with a five-inch blade. |
| Prior to his trial Satpal had only one 40-minute consultation with his barrister, the late Douglas Draycott QC, who informed him that because of the number of stab wounds Pearce had sustained a plea of self-defence - which is an absolute defence - was destined to fail. This was based upon a misreading of a pathologist's report. It did list six wounds, but said that only two of them were the result of the blade. The rest were superficial and caused when Pearce fell on to broken glass. | Pearce received the wounds before he fell down, so all of them were inflicted by Ram. |
| At the trial, a whole series of Asian witnesses, who could have supported Satpal's version of events, were never called. The evidence of the one who did take the stand was dismissed because his broken English could not readily be understood. No translator was employed. | There were no such witnesses. The witness who spoke in broken English was a witness for the prosecution who was actually able to give a statement in fluent English to the police. |
| At one point the judge told the jury he would translate, even though he did not speak Bengali. | Does this sound even faintly plausible? |
In the whole list there is only case where it is clear that someone was convicted after defending himself. That is the case of Shannon whose conviction was reversed on appeal. But that was back in 1980 and the appeal set a precedent so that it would not happen again.
Finally we turn to Brett Osborn. Baker claims that this is a case of the government prosecuting someone for an obvious case of self defence. Like all the killers who were convicted he stabbed the victim in the back. This doesn't sound he was defending himself, but there were others present so he could have been defending them; we just don't know for sure. In any event, it certainly isn't an obvious case of self-defence. In this case we don't know what the jury thought of the evidence because Osborn chose to plead guilty to manslaughter. Why?
Osborn decided that he could not face the risk of life imprisonment. "You see it in the paper," Osborn has said, "that bloke Tony Martin who shot the kid who was burgling his house. He went to prison for years.
Osborn mistakenly believed that Martin had been convicted despite acting in self-defence. And the reason why he believed that was because of the activities of the "Tony Martin is innocent brigade". If Osborn was really acting in self-defence then the jury would have acquitted him but Osborn was unsure of this because of people like Baker who argue that self-defence is legally risky in England. As a result Osborn is now in jail.
The law and the results of the cases seem clear. Self-defence in Britain is lawful. There may be some chilling effect on people because of fear of being convicted for self-defence, but the people responsible for that are on Baker's side of the question.
Your readers may also be interested in this story from last week's Economist:
Those who believe that proportionate self-defence is ("practically" or actually) illegal or particularly legally risky in the UK might ponder why, if that were the case, the court would behave in this way....
My response is up.
And I think that probably concludes this exchange, don't you?
"If Osborn was really acting in self-defence then the jury would have acquitted him but Osborn was unsure of this because of people like Baker who argue that self-defence is legally risky in England. As a result Baker is now in jail."
I'm going to assume a Freudian slip there, Tim. (ROFL - I missed that on the first pass!) I assure you, I'm NOT in jail. For ANY reason! Though I'd imagine there are more than a few who'd like to see me there.
Oops. Fixed.
Much of the sensationalistic reporting of these cases seems to coem from papers which are aligned with the Conservative Party. (British papers including the serious press have explicit party affiliations which seems quit odd to Americans and Australians.) Since the Conservatives have been campaigning on a law & order platform and championing the case of Tony Martin. If any explanation for their reporting is required beyond laziness, lack of time and a desire to sell more papers, I'd suggest this is the cause.