West Law Report

ASHLEY & ANR v CHIEF CONSTABLE OF SUSSEX

Posted in Assault, Battery, House of Lords (case), Self-defence, Westlaw Reports by mrkooenglish on May 2, 2008

Last updated: 8:21 PM BST 30/04/2008
House of Lords

Lord Bingham of Cornhill, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Carswell, Lord Neuberger of Abbotsbury

April 23, 2008

Assault – Battery – Damages – Self-defence – Defendant mistakenly believing attack imminent – Need for belief to be reasonably held

FACTS

The appellant chief constable appealed against a decision ([2006] EWCA Civ 1085, [2007] 1 WLR 398) that the respondents (X) should be permitted to take their assault and battery claim against him to trial.

X were the son and father of the deceased, who had been fatally shot by a police officer during an armed raid on his home. X brought proceedings against the chief constable alleging, among other things, negligence and assault and battery. The chief constable conceded liability for negligence and for all compensatory damages flowing from the shooting. The issues were

  1. (i) whether self-defence to a civil law claim for tortious assault and battery, in a case where the assailant acted in the mistaken belief that he was in imminent danger of being attacked, required such mistaken belief to have been not only honestly but also reasonably held;
  2. (ii) whether, in the light of the chief constable’s concessions, the assault and battery claim should be allowed to proceed to trial.

The chief constable argued that

  1. (1) the criteria for self-defence in civil law should be the same as in criminal law, where the defendant’s genuine mistaken belief in an attack did not have to be reasonably held;
  2. (2) given the concessions that he had made, allowing the assault and battery claim to proceed to trial would serve no useful purpose.

ISSUES

(1) Whether the criteria for self-defence in civil law should be the same as in criminal law, where the defendant’s genuine mistaken belief in an attack did not have to be reasonably held.

(2) Whether, given the concessions that the chief constable had made, allowing the assault and battery claim to proceed to trial would serve no useful purpose.

HELD (appeal dismissed) (Lords Carswell and Neuberger dissenting on the second issue).

(1) (Per Lord Scott) The assailant’s mistaken belief in an attack did have to be not only honestly but also reasonably held. Every person had the right in principle not to be subjected to physical harm by the intentional actions of another person. But every person had the right also to protect himself by using reasonable force to repel an attack or to prevent an imminent attack.

The rules and principles defining what constituted legitimate self-defence had to strike the balance between those conflicting rights. The balance struck was serving a quite different purpose from that served by the criminal law when answering the question whether the infliction of physical injury on another in consequence of a mistaken belief by the assailant of a need for self-defence should be categorised as a criminal offence and attract penal sanctions.

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 pre-emptive 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 would be sufficient to justify the law in setting aside B’s right not to be subjected to physical violence by A.

(2) (Per Lord Scott) The assault and battery claim should be allowed to proceed to trial. The purposes for which damages could have been awarded to the deceased, had he not died as a result of the shooting, were not confined to a compensatory purpose but included a vindicatory purpose. Although the principal aim of an award of compensatory damages was to compensate the claimant for loss suffered, there was no reason in principle why an award of compensatory damages should not also fulfil a vindicatory purpose, and there were no grounds on which it could be said that it would be inappropriate for the claim to proceed for such a purpose.

(3) (Per Lord Neuberger) The factors militating against allowing the assault and battery claim to proceed to trial outweighed those in favour of doing so. The former included the following: the three primary routes to obtaining a public investigation had been taken or not adopted; two internal inquiries had been held; a public apology had been made; liability for damages had been conceded; the police officer in question had been prosecuted and acquitted; further, substantial costs and court time might have to be devoted to the claim.

Edward Faulks QC and Paul Stagg (instructed by Weightmans) for the appellant.

Keir Starmer QC and Richard Hermer (instructed by Deighton Guedalla) for the respondents. Stephen Suttle QC and Aidan Eardley (instructed by Russell Jones & Walker) for the interveners.

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