We have represented many clients who have faced the stress of being arrested for by the police despite lawfully defending themselves during a confrontation. The early direction of a police investigation is often influenced by who called the police first and the assumptions made by officers attending the scene.
These assumptions can be made particularly quickly in a domestic setting. A distressed or emotional complainant may immediately be perceived as the victim, even though their presentation says nothing about who started the confrontation. If there are eyewitnesses, they may only have seen the physical altercation itself, without seeing how it began or what happened earlier that provides crucial context.
The Law on Self-Defence
The law is clear: a person is entitled to use force to defend themselves or another person. Self-defence turns on two questions:
Did you honestly believe that force was necessary?
Was the force used reasonable in the circumstances as you believed them to be?
The law allows a degree of flexibility when judging the amount of force used. A person is not expected to perfectly calibrate their response during a confrontation. Evidence that a person acted honestly and instinctively is an important factor when deciding whether the force was reasonable.
Once sufficient evidence of self-defence has been raised, the prosecution must disprove it beyond reasonable doubt.
Pre-Emptive Strikes in Self-Defence
The law also permits someone to strike first. A person does not have to wait to be punched before defending themselves.
Again, the question is whether the force was necessary and reasonable. If a person honestly believes that they are about to be attacked, they can deliver a pre-emptive strike in self-defence. This principle can apply to various allegations of assault or violent crime.
From a defence lawyer’s perspective, we assess the full circumstances surrounding the confrontation. It is important to consider the credibility of an account and the chances of success at trial.
Can You Hit Someone When They Are Down?
It is not uncommon for the police or CPS to rely on evidence that strikes were delivered while the other person was on the floor and suggest that this clearly demonstrates excessive force.
Much depends on the specific circumstances. It is possible for self-defence to apply even where multiple strikes were delivered while someone was on the floor and the force ultimately left them incapacitated. A person on the ground may still present a threat. If the defendant honestly believed that allowing them to get back up would expose them to a further attack, that will form part of the court’s assessment of whether the continued use of force was reasonable.
The court must consider the complete sequence of events and the circumstances as the defendant honestly believed them to be. Whether the force remained necessary and reasonable is ultimately a question of fact. The credibility of the defendant’s explanation will often be crucial.
Can You Use a Weapon in Self-Defence?
Yes. It is possible to use a weapon lawfully during a confrontation and rely on self-defence. If a person honestly believes that they are facing an immediate threat, they may be entitled to pick up and use an object to defend themselves. The fact that the object caused serious injury does not, on its own, mean that the force was unlawful.
Again, everything depends on the circumstances. Important factors include whether the other person was armed, the nature of the threat, the difference in size or strength between those involved, and how the weapon was actually used. There is an obvious difference between using an available object to stop an ongoing attack and continuing to use it once the danger has passed.
Does Self-Defence Need to Be Mentioned in the Police Interview?
When someone is interviewed by the police, the decision about whether to answer questions is crucial and often shapes what happens next.
If a suspect does not clearly put forward their account of self-defence during the interview, this could create a problem at trial. The prosecution may ask the court to draw an adverse inference from the failure to mention facts later relied upon, suggesting that the account was made up afterwards.
It is also worth recognising that, in less serious cases, relying on self-defence can affect how the matter is resolved. Self-defence is a complete defence to the allegation. An out-of-court resolution, such as a caution or community resolution, requires an admission that an offence was committed and will therefore not be available to someone who maintains that their actions were lawful.
How We Can Help
If you have been released under investigation or placed on police bail, we can review the allegation and advise whether any proactive steps can be taken to advance your defence. This may include gathering defence evidence, such as witness statements, CCTV and digital material, as well as identifying weaknesses or inconsistencies in the complainant’s account of what happened.
Some investigations involve a second interview under caution. We can advise whether further details of your account should be put forward and how best to respond to any new evidence. In some circumstances, we may consider asking the police to conduct a further interview if this would assist your position.
If you are prosecuted, we can advise on the strength of the case, the likely sentence if convicted and the preparation required for trial. We will carefully consider whether the prosecution holds unused evidence that may assist the defence. Where necessary, a defence statement can be served identifying the issues in dispute and seeking further disclosure from the CPS.
About the Author
Nathan Seymour-Hyde is a Partner within our Private Crime team and an experienced criminal defence solicitor. He represents clients accused of a wide range of criminal offences, advising from the early stages of a police investigation through to trial.
