West Law Report


Posted in Self-defence, Westlaw Reports by mrkooenglish on May 2, 2008

Last Updated: 12:01am GMT 19/12/2007

Divisional Court
Dyson LJ, Henriques J
December 6, 2007

Affray – Self-defence – Failure to consider subjective element of self-defence


The appellant (D) appealed by way of case stated against his conviction for affray. D had entered a restaurant and was warned that a man (S) with whom he had previously had a violent confrontation was sitting at a table on the upper floor. In due course, D went upstairs and approached S, who had been drinking heavily. The conversation became heated and D and S began to shout at each other. At that point the police were called and by the time they arrived, D and S were fighting. At the hearing, D claimed that S had initiated the fight and that he had been acting in self-defence. S accepted that he might have initiated the fight but said that he had no memory of the incident.

Based on evidence she had before her from the police officers who were at the scene, the magistrate concluded that it was an even position between D and S and that either man could have stopped or retreated. She found that at the point at which the police began to observe the fight, it was no longer reasonable or necessary for D or S to continue fighting. She held therefore that D’s actions could not be considered as self-defence and were accordingly unlawful.


(i) Whether the magistrate was entitled to conclude that there was a point during the course of the incident when D’s actions ceased being legitimate self-defence.

(ii) Whether the magistrate was entitled to conclude that D had a duty to retreat, or, in some other way, refrain from using force himself whilst remaining under attack from S.

HELD (appeal allowed)

Neither question in the case stated was directed to the essential aspect of the appeal. The real question was whether the magistrate had considered the subjective element of the issue of self-defence. There was nothing that indicated that the judge had applied her mind to the facts as they were perceived to be by D himself at the time of the incident. D did not dispute that at the time of the police’s arrival he was engaged in a fight but he must have sought to justify his sustained use of violence on the basis that he believed that if he had desisted he would have been subject to continued attack from S. That was an aspect of the case that was simply not dealt with. Had the magistrate had regard to the subjective element of self-defence she would at least have summarised what D had to say about his continued use of violence, but there was a very real possibility that she adopted a purely objective approach to the issue.

Harvey Murray (instructed by Watson Woodhouse, Middlesborough) for the appellant. Harry Hadfield (instructed by Crown Prosecution Service) for the respondent.


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