When can you use self-defence during disorder or riots?

If you are accused of an offence such as assault or concerned in violence during protests or a riot, it is essential to consider self-defence. This is different to ordinary self-defence, which cannot be avoided.

You may reasonably defend yourself if you go to a lawful protest and encounter violence. If you observe disorder from an unsafe distance in a protest where there may or may not be a police presence and you then participate, claiming self-defence, it will be harder to argue self-defence. It would be easier to argue if the disorder came your way, such as on the way back from shops or work.

You will be required to justify your actions.

The police or security in a building should always be called first, but if they are overstretched and do not attend, it must always be reasonable for you to intervene. You should not intervene unless it cannot be avoided. Using higher levels of force and weapons will always be hard to justify.

Where self-defence arises in a case, and all its legal requirements are met, you will be found not guilty or avoid prosecution altogether.  Even if only some legal requirements are met, and you are convicted, you may still receive a lower sentence.

Knowing what counts as self-defence in law can be more complicated than you might imagine. 

Why is this important now?

On July 29, a mass stabbing occurred in Southport, in which three children were killed. Subsequently, riots have taken place in various locations across the United Kingdom, involving looting, racist attacks and arson. Many of these riots have been coordinated using social media, yet it is not some may find themselves caught up in protests unexpectedly in passing.  

What is a lawful protest?

In the UK, it is legal to protest. Your right to do so is protected under the European Convention of Human Rights. However, this legal right only extends to peaceful demonstrations and will not extend to any damage caused or any acts of violence or crime that occur during a protest. If violence occurs during a protest, it is illegal. Therefore, responding to violence you may be forced to use self-defence provided it can be justified as reasonable and proportionate

What is the law on self-defence?

The nature of self-defence was set out by the court in Palmer [1971] AC 814 and approved in McInnes, 55 Cr App R 551.  The court found,

• It is good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may only do what is reasonably necessary.
• The definition is also found in section 3 of the Criminal Law Act 1967: A person may use such force as is reasonable in the circumstances in the prevention of crime or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.

The two key points to understand, then, about self-defence are that:

• You must be acting to prevent a crime, e.g. to stop yourself or another being assaulted.
• The force you use must be considered ‘reasonable’.

When is self-defence legally allowed?

There are four basic situations where you may be legally entitled to use force against another person:

• Self-defence – protecting yourself from the potential for harm by another.
• Defence of another – protecting someone else from potential harm by another.
• Prevention of crime – preventing someone from committing a crime, e.g. burglary.
• Lawful arrest and apprehension of offenders – the use of force to restrain or otherwise facilitate an arrest or apprehension of an offender.

What is ‘reasonable force’ in self-defence?

There are two key points to determine reasonable force:

• Was the use of force necessary in the circumstances? (i.e. was there a need for any force at all?)
• Was the force used reasonable and proportionate in the circumstances?

Exactly what is considered ‘reasonable force’ will depend on the circumstances.  Importantly, it is to be decided by reference to the circumstances as the defendant believed them to be (section 76, Criminal Justice and Immigration Act 2008).

In other words, the level of force used must have been no more than what was needed to deal with a threat that you honestly and reasonably believed existed at the time of the alleged offence.  The reasonableness (or otherwise) of that belief is critical.

It is not enough to say, for example, when justifying your use of force, that you believed someone was intending to kill you or another. You must show that it was reasonable for you to presume that they intended to murder.  For instance, they may have used a weapon or threatened to kill you.

It is important to note that you do not need to prove that this was their intent but that you reasonably believed it was their intent.

Even if you were mistaken in your belief about the level of threat posed, the critical point is whether the mistake was a reasonable one to have made.  A key point is whether the belief you held was an honest one. The more unreasonable the belief, the less likely the court will accept it was honestly held.

A drunken or drug-induced mistake cannot be justified in law.

What is ‘excessive self-defence’?

Excessive self-defence is where the force used was beyond what was reasonable under the circumstances. If you are believed to have used excessive self-defence, the Crown Prosecution Service (CPS) may decide to prosecute you. This will depend on how far you exceeded the use of reasonable force.

If you are prosecuted for an offence related to the excessive use of force in self-defence, the fact you were trying to defend yourself can still be critical to your defence. It might, for example, significantly reduce any penalties imposed on conviction.

Excessive force in disorder may include:

• Using a weapon such as a knife or hammer in a fight
• Producing a firearm,bats or sticks
• Using corrosive substances or similar pepper sprays, homemade or otherwise
• Driving a vehicle or bicycle at someone or dangerously
• Kicks to the head or body when a person is on the ground
• Gratuitous use of abusive language
• Stopping people from recording video footage
• Strong or repeated blows, kicks or headbutts
• Choke holds
• Kneeing someone 
• Using roadside property as weapons such as fence panels
• Using force against the police or officials and security at protest

Do you have to be attacked first to claim self-defence in disorder?

Many people think that they must be attacked first to claim self-defence.  This is not always the case. Depending on the circumstances, you may be justified in making a ‘pre-emptive strike’ to prevent a crime from occurring or to protect yourself.  Crucially, there is no rule in law to say that a person must wait to be struck first before they may defend themselves (see Deana, 2 Cr App R 75).

Can you claim self-defence if you failed to retreat?

Failure to retreat when attacked and when it is possible and safe to do so is not conclusive evidence that a person was not acting in self-defence. Attending ongoing disorder without good reason could negate your self-defence when it is clearly safer to leave rather than use force.

Instead, failure to retreat is simply a factor to be considered when deciding whether the degree of force was reasonable in the circumstances (section 76(6) Criminal Justice and Immigration Act 2008).  There is no requirement for a person to show that they do not want to engage in physical violence by walking away first (R v Bird 81 Cr App R 110).

Can you claim self-defence if you went looking for the alleged victim?

Looking for the alleged victim does not necessarily rule out the use of self-defence if you were then attacked.  In Rashford [2005] EWCA Crim 3377, it was held that:

“The mere fact that a defendant went somewhere to exact revenge from the victim did not of itself rule out the possibility that in any violence that ensued, self-defence was necessarily unavailable as a defence”.

However, an aggressor cannot rely upon self-defence to render his aggression lawful. During a fight, blows will be struck, but an aggressor will also defend themselves by warding off blows from an opponent.  Anyone who starts a fight cannot rely on defensive actions taken within that fight to escape conviction.

It is wise only to intervene where you absolutely must do so to protect life or limb.

Even if you are innocent, you could face weeks or months of police investigation, arrest and prosecution before your name is cleared. If you require a clean DBS for work, you could be out of pocket. You could incur thousands of pounds if you have to pay fees to seek legal advice. You could also be filmed and end up out of a job if footage appears online.  

Is it worth it? Think twice.

All the CPS must show is that there is a realistic prospect of conviction to charge you and not that you will be found guilty beyond doubt. The prosecution must always prove you were not acting in self-defence but is it worth it? Think twice whenever force or violence is to be used and where greater harm is caused prosecution is very likely. 

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