I have changed certain paragraphs to italics to save those who can't be bothered to read the whole lot - so they know why I have posted this here. Can looking aggressive be a reason to physically defend yourself? Please comment on any or all of this - I would love to know what your opinions are... Law allows assault in self-defence, jury told - 15/11/2004 - 12:03:46 The jury in the trial of a garda accused of assaulting three "Reclaim the Streets" protesters in 2002 has been told the law allows assault in self-defence. Mr Patrick J McCarthy SC, defence counsel, in his closing address for the accused, Garda Donal Corcoran, told the jury it had heard evidence he was acting in defence of a colleague when he struck one of the demonstrators as he has admitted in evidence. Garda Corcoran, of Mountjoy Garda Station, has pleaded not guilty to three counts of assault causing harm to Oisin Breen, Butterfield Park, Rathfarnham, Katie Crean, New Cabra Road, Dublin 7 and Brian Hayden, Knockmore Grove, Tallaght on May 6, 2002. Earlier, Mr Sean Gillane BL said, in his closing statement for the prosecution, there were three trials that need to be considered in this case. He said everyone was in agreement that Mr Hayden was struck by Garda Corcoran but the question was why? Mr Gillane (with Mr Tom O’Connell SC) said Garda Corcoran claimed it was in defence of a colleague and that Mr Hayden was acting in an aggressive manner towards gardaí. He suggested that Mr Hayden was plucked from the crowd and struck from behind and deliberately so. "Mr Hayden did not even so much as lay an eyeball on the garda who struck him," he said. Mr Gillane said Ms Crean’s honesty was immediately obvious and had not overemphasised her situation, stating she was not in need of medical attention as a result of receiving a baton blow. She was looking behind her and she saw who struck her. Mr Gillane said everyone was in agreement Ms Crean had been struck but the question was by who? Mr Gillane described Mr Breen as a "colourful witness". He said Mr Breen had admitted that other gardaí hit him but he remembered Garda Corcoran as hitting him as he was the one who hit the first blow. Counsel said the question in relation to Mr Breen again was who hit him and indeed where they hit him? Mr Gilliane advised the jury not to decide the case on the basis of prejudice or sympathy they might have for either protesters or gardaí. They should leave all sentiments outside the door. Mr McCarthy urged the jury to consider the law of assault which he said allowed for assault when it occurred because of self-defence. He said there was evidence showing that Garda Corcoran was acting in defence of a colleague when he struck Mr Hayden. He advised the jury it must decide if there was a reasonable possibility that in Garda Corcoran’s state of mind at the time his actions were justifiable. He told the jury they should put themselves "in the mind of the alleged assailant" to determine if Garda Corcoran was right in doing what he did He agreed with Mr Gilliane that Ms Crean presented as an open, honest and candid witness but he warned the jury to consider she was mistaken in her identity of Garda Corcoran as her assailant. Mr McCarthy said there was a serious state of confusion at the time and his client was one of 20 gardaí who were in the line directly behind her. Mr McCarthy said Mr Breen gave a "welter of conflicting evidence" and he asked the jury to consider it did not surmount to a sufficient level to convict his client on this count. He also said that there was a weakness in Mr Breen’s identification and that his evidence in court contradicted that given in his statement. Mr McCarthy concluded that Garda Corcoran did not have a high level of experience and was relatively junior. He further said that his client was not prepared for his duties that day and because of a lack of management on the day was thrown into the situation. The trial continues before Judge Yvonne Murphy. I have changed certain paragraphs to italics to save those who can't be bothered to read the whole lot
In a word, probably yes. You are required to prove that you reacted to the situation based on your perception of the situation at the time, regardless of whether you percieved the situation correctly or not. I believe that there have been a few cases that have highlighted this, as soon as i dig them out I'll post them up.
I can just imagine the defence saying to this Garda Officer: "So he growled and looked menacing to you did he? Is that why you gave the first blow? What if he was about to sneeze? As usual there aren't any witnesses to this sort of thing either. I would hate to be that officer today.
Ok a couple of case histories.... In 1971 Lord Morris said "a person can not weigh to a nicety the exact measure of his necassary defensive action". This appears to have lead to the idea used that force used was "reasonable in the circumstances he believed them to be" In R Vs Williams (1984) Lord Chief Justice, Lord Lane stated "In a case of self defence, where self defence or the prevention of a crime is concerned, if the jury come to the conclusion that the defendant believed, or may have believed that he was being attacked or that a crime was being committed and that force was necassary to protect himself or to prevent a crime, then the prosecution have not proved the case" In a similar case to the one above, R Vs Hegerty (1986), in which a police officer shot a person at close range during a riot with a baton round. The victim died. The defence was that the officer had seen about to strike another officer with a stave. The prosecution argued that the weapon was fired without order, not directed by force instructions and was within the minimum mandated distance of 20 metres. The judge came to the conclusion that "The defendant acted almost instinctively to defend his colleagues without having time to assess the situation.... and without having time to balance the nature of the injury which migh have been caused to the deceased against the nature of the injury which might be caused to the... [other] ... Police officers" From this we can say, depending on the facts in each case, any person who strikes a person in order to protect themselves, or another, will only be justified if they have a genuine belief that there is an imminent danger that justifies the use of force reasonable in the circumstance, based on that belief. Linking this to what Lord Griffith said in R Vs Beckford (1988) "Furthermore, a man about to be attacked does not have to wait for his assailent to strike the first blow or fire the first shot, circumstances may justify a preemtive strike. Neither does he, or she have to retreat before using force." It is possible to state that a person could genuinly believe that an attack is imminent, based on observing a persons body language. If such force is used, based on this belief, to negate this attack, it may be justified. In terms of our own defence, it is not unreasonable to suggest that you respond to the body language of your potential assailent, to judge whether force should be used in order to defend yourself. It is important to note that it has been held that mistaken belief due to intoxication is not usually held as a statement of self defence, based on a belief.
I don't know if I personally agree, but in theory the police are trained to identify potentially violent situations and diffuse them using appropriate force. That also means pre-emptive violence. If they had to wait until an actual attack occurred, there'd probably be many more on-the-job deaths. Whether the attack was justified is another issue.
The preemtive strike is certainly not an easy thing to do. I for one find it very difficult to strike like this "cold". As for the case in question, I'm not sure using a baton from behind is necassarily "reasonable force" in response to an aggressive person, but as nzric pointed out, would you really take the risk in a riot?
Give me a nice, simple, bill of inalienable rights any day of the week. All this meddling about with perceptions is Westminster's biggest problem. It's clear and it's straight cut. "I've got a gun on my belt. You step on my foot, I shoot you. You were going for my gun. Now give me my space." And in the case of dealing with potentially unruly protesters, you assemble a paramilitary force a short distance away with plenty of backup and you tell them to move on with a megaphone. Basically you swap aggrivated assault for manslaughter, bigotry for disregard and you call it a day. Get an individual constitution, monarchy-mongers (hehe). Lord waffle-breath, geez. Talk about an empire that doesn't even give two hoots about its own laws. Yes, yes, it was all deigned by god and inherited by englishmen, we know already. Australia's probably worse. Parliament can't even keep a straight face in the presence of lawyers around here, I'm surprised they don't make farting noises.
