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In criminal law, the test of a reasonable person is often employed as a decisive factor for identifying the cognitive fault. This principle arises from the concern that individuals are susceptible to be subjected to legal proceedings, in case, they use force against an assailant leading to death or injury of the perpetrator. The law governing self-defense is very complicated. The law permits an individual who is attacked by another to use force against the latter but only to such extent as is reasonably necessary. An individual may require the protection of this legal defense, in case, he/ she has used force against another so as to protect his own self or somebody else or some property or for the purpose of preventing a crime. The concept of self-defense is prevalent under both common law and statute.
As far as common law is concerned, self-defense is not a new phenomenon and has existed since time immemorial. At common law, self-defense enables an individual to use reasonable amount of force to;
In United Kingdom, apart from the common law, Section 3(1) of the Criminal Law Act 1967 lays down that a person is entitled to use reasonable amount of force in order to prevent a crime. The section also permits the use of force for assisting the arrest of the perpetrators or suspected perpetrators or of individuals who are lawfully supposed to be behind the bars.
In Chisam (1963) 47 Cr App Rep 130, Lord Parker CJ has stated hat in case a violent and forcible felony is attempted on another, the person who is subject to such assault or any other person who is present in the vicinity has the right to resist such force with force and in case required may also kill the attacker.
Thus, we may state that self-defense allows one to use force not only to protect his self or property but also somebody else or the property belonging to somebody else. For instance, in the case of Rose the accused had murdered his father in order to protect his mother from being murdered by the father. The court acquitted the accused by applying the principle of self-defense.
In the case of Hussey, the court held that self-defense may be used for protecting property. In this case, while the landlady was attempting to evict the accused, the said accused fired a gun that caused injury to the landlady. The court acquitted the accused on the ground that he was protecting his property.
In order to avail self-defense, the amount of force used must have been necessary for the given circumstances. In this context, the case of Hussain v. Hussain may be cited. In this case, burglars were beat by the defendants. The court found that while the burglars were lying on the ground the defendants were not acting in self-defense or for the defense of anybody else as the burglary was over by then, and none was in danger. The purpose behind the use of force by the defendants was not self-defense but violence, and hence the court did not allow the defendants to take the protection of self-defense.
After the decision of this case, Sub-section 5A was introduced to Section 76 of the Criminal Justice and Immigration Act, 2008. In effect, this section provides that one must apply the force that is less than reasonable in householder cases.
The most important aspect of self-defense is that the use of force ought to be reasonable. In a given situation, the amount of force used is judged by applying the test of a reasonable man. If a reasonable man of ordinary prudence was placed in similar circumstance, then the test is the reaction of the reasonable man in such situation. If the accused can satisfy his actions as being conducive to that of a reasonable man in similar circumstance, then he / she is held entitled to self-defense.
In the case of Cross v. Kirkby, when Mr. Cross’s partner was being led away forcibly by Mr. Kirkby, he attacked Mr. Kirkby with a baseball bat. Mr. Krikby managed to get control over the bat and hit Mr. Cross forcibly leading to a skull fracture. The court awarded damages to Mr. Cross. In appeal, Mr. Kirkby argued that he had acted in self-defense. The appeal court held that although the amount of force used by Mr. Kirkby was more than average yet it is true that he was acting in self-defense.
In the case of Reed v. Wastie the court found that the use of a considerable amount of force amounted to reasonable and was completely justified in the given situation where the highway was being obstructed by an abusive and violent driver.
From these cases, we may deduce that the court might take time in deciding the reasonableness of the response of the accused, the accused is required to act instantaneously. In Oatridge the court held that the court is required to determine as to whether the response of the accused commemorates the amount of danger that arises from the attack.
In Cousins the court upheld that threat of force might be reasonable even if there is not the actual force.
Section 76(7) of the Criminal Justice and Immigration Act 2008 provides guidance as to whether an amount of force used in a given circumstance is reasonable or not. The Section provides as follows;
When a person acts for a lawful purpose, he/ she might not be able to determine the exact amount of necessary action and
Evidence to the fact that the said person has only done what the person thought to be necessary for achieving a legitimate purpose is enough to prove that the person concerned has taken reasonable action.
The Act of 2008 raises the issue of proportionality. Section 76(6) lays down that the amount of force used by an individual in a given circumstance might not be considered to be reasonable only by virtue of the fact that the said individual believed it to be reasonable if the said amount of force is found to be disproportionate in the said circumstances. However, Section 76(8) provides that the court might take into consideration while determining whether the use of force was reasonable or not.
In fact, as far as the use of the reasonable amount of force is concerned, the provisions of statutes and principles of the common law are almost the same, and there is hardly any difference.
In the case of Owino the accused was charged with assaulting his wife by way of infliction of actual bodily harm. The accused argued that he had only used a reasonable amount of force in order to defend himself. The judge observed that it is for the prosecution to prove to the satisfaction of the court that the accused did not believe that the force he was using was reasonable. The trial court found the accused guilty. The accused appealed on the ground that the trial court has not stated that the amount of force would qualify as being reasonable upon being assessed subjectively. The appeal was dismissed. The court held that an individual is permitted to use only that amount of force as is (objectively) reasonable in the given circumstances as the said individual (subjectively) believes them to be and is not permitted to use that amount of force that thinks as being reasonable.
This case has made it clear that the rule is that the court would judge the accused on the basis of the facts as the accused believed them to be, yet the courts would basically determine the reasonableness of the action of the accused. Thus, an individual is permitted to use that amount of force as he /she believes to be reasonable in the given circumstances.
Conclusion
From the above discussion we may conclude that reasonableness is an integral part of the doctrine of self-defense and the test of reasonableness depends upon a number of factors which vary from case to case and the provisions of the statute law as well as the common law provide enough criteria to determine the reasonableness of the amount of force used by an individual in a given situation so as to defend his own self or somebody else or any property.
The Harm Principle has been conceptualized by John Stuart Mill. Mill argues that this principle governs the dealings of the society with the individuals by way of control and compulsion. In essence, the principle states that in a civilized society power may be fairly exercised over the members against their will only for the purpose of preventing harm to other individuals. An individual is not permitted to cause harm in order to promote his own good, whether moral or physical. As far as criminalization is concerned, the harm principle provides a standard for classifying acts as a criminal. Mill invariably argues that the state is permitted to act coercively only in case the impugned act causes harm to others or has the potential to cause harm to others.
The term harm as used in the phrase harm principle means causing to harm to others. But the term harm has not been defined by Mill and causes a great deal of confusion. The question arises as to whether all types of harm can be brought under the purview of the harm principle? It is undoubtedly unjustified to criminalize actions, like, reading a book that others regard as offensive, name-calling, etc. Harm, per se, is a very broad term and may include to mean mental, economic or physical harm of any combination of these. By Harm Mill meant causing harm to others which means that harm caused to own self is not a criminal act. It might as well mean that the principle, in essence, does not allow the state to interfere in the private affairs of the individuals, in case, the harm is caused to oneself and not others.
There are various ways in which harm may be caused to others. The nature of harm may be either mild or severe. For instance, reading of a book that others find offensive is the harm of mild nature whereas killing somebody or causing grievous hurt are the harm of serious or severe nature. Now the question arises as how to distinguish criminal and non-criminal harms. The issue is whether reading of an offensive material leads to causing of harm to another? The definition of harm includes; causing of psychological or physical injury to another or committing an evil or wrongful act. The instance of reading offensive material falls under the second category. But harm per se does not mean criminal harm and thus it is not rational to criminalize such actions that do not lead to serious harm.
The first argument in this regard is that the said harm caused does not lead to the violation of the rights of the individuals, for instance, in the given instance the reading of material which is offensive to the Muslim community. In such an instance, the state must not use coercion.
The second argument against criminalization of such actions depends upon the seriousness of the harm caused which is determined by harm and culpability. Thus, harms that endanger well-being of an individual alone should be criminalized. Is it justified to criminalize all actions that are per se wrong, no matter, the punishments for the harms differ depending upon the degree of the wrongful act and the harm caused? Reading materials that are offensive to others or watching offensive content are more of bad manners rather than bad morals, and it is not the responsibility of the state to correct bad manners.
From the above discussion, we may deduce that in order to determine criminal harm we must look into the various types of offences individually. We must not generalize as it would lead to problems as it is not humanely possible to forecast and categorize all types of offences and formulation of a rule that covers all kinds of offences is next to impossible.
The harm principle only talk about the harm caused to others and is silent as regards harm caused to oneself. The question arises as to whether it is justified for the state to criminalize such acts where harm is caused by an individual to his/ her own self. For instance, criminalization of attempt to suicide restricts the right of an individual to cause harm to his/ her own self. Whether the application of the harm principle in such cases would result in failure that requires the causing of harm to other individuals? In order to answer this question we must consider that when people commit acts that prima facie harm them are not committed in a state of social vacuum and that such actions do affect the people who are related to such individuals. For instance, A commits suicide who is a single parent of a five years old child. In such a case, the action of committing suicide affects the physical, emotional and financial well-being of X’s son. Thus, the rationale underlying the harm principle that actions that lead to causing of harm to others must be restrained becomes applicable when a person causes harm to his own self because in such a case the person is causing harm to those who are related to him. However, when such acts are committed by homeless people or the ones who do not have a family, it becomes an exception and in such cases it is not just for the state to exercise coercion to prevent commission of such actions but such individuals.
The argument that does not support paternalism is that the sovereignty of an individual comes before safety when such act affects only the individual who performs it. For instance, many countries criminalize homosexuality in spite of the fact that the harm caused by such practices is not flagrant.
In this connection, we may cite the United Kingdom case of Pretty v. United Kingdom 29th April 2002. In this case, the European Court of Human Rights discussed the issue of voluntary euthanasia. Mrs. Pretty who happened to be the applicant in this case, was suffering from such a disease which had an adverse effect on the control of muscular activity which impaired the proper functioning of the basic organs of the human body. Mrs. Pretty with the intention of committing suicide required the Director of Public Prosecutions to give an undertaking that they would not prosecute he husband, in case, he assists her in committing suicide. When the authorities refused to give the undertaking, she filed a case before the European Court of Human Rights with the claim that the said refusal by the authorities has resulted in violation of her right to life that in the view of the applicant is inclusive of the right to end one’s life. However, the court rejected the application of Mrs. Pretty on the ground that in the instant case, there has not been any such violation.
An analysis of this case would reveal that a collision of two contrasting rights can be witnessed. These are; the right to human dignity and the right to life. In this case the issue as to whether a state can intervene in order to protect individuals from committing acts that are self-harming. Paternalism may be defined to be the coercive intervention for the purpose of protecting an individual from acts that would cause harm to such individual. The rejection of the application of Mrs. Pretty, in this case, seems to be an example of paternalism.
In this context, we may discuss the provisions of the Criminal Justice and Immigration Act, 2008. This Act recognized a new offence; possession of an extreme pornographic image under Section 63. Under this section, possession of extreme pornographic image has been made a criminal offence. The harm principle is applicable in this case. In this case, actual bodily harm might not be inflicted by virtue of possession of pornographic images yet such images have the potential to stimulate actual bodily harm on individuals in the offline world. The internet has made it possible to possess as much pornographic images as possible which might lead to obsession and consequential commission of offences in the real world against real persons. Thus, harm principle justifies the extension of the premises of the criminal law.
Conclusion
From the above discussion we may deduce that the criminal law must only make provisions for protection of the individuals against harms and such matters that are concerns of private morality should not be attempted to be enforced by virtue of criminal law. Coercion may be exercised against individuals of the society only to prevent such actions that do or might lead to the infliction of harm to others and not for any other purpose. The harm principle is a significant justification behind the imposition of punishments on individuals for the commission of offences.
References
Baker D, The Right Not To Be Criminalized (Ashgate 2011)
Chatterjee D, Encyclopedia Of Global Justice (Springer 2011)
Dworkin G, ‘HARM AND THE VOLENTI PRINCIPLE’ (2011) 29 Social Philosophy and Policy
Hahn R, Conduct And Constraints (Simon & Schuster 1998)
Hodson J, The Ethics Of Legal Coercion (D Reidel Pub Co 1983)
Knowles D, ‘A Reformulation Of The Harm Principle’ (1978) 6 Political Theory
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McLean S, First Do No Harm (Ashgate 2006)
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PersÌŒak N, Criminalising Harmful Conduct (Springer 2007)
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POWELL K, ‘A Parent’s Refusal And The Harm Principle’ (2011) 45 Pediatric News
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Cross v Kirkby
Hussain v Hussain 2010 EWCA Crim 94 [2010] EWCA Crim
Hussey (1924) 18 Cr App Rep
Oatridge (1991) 94 Cr App Rep
Owino (1996) 2 Cr App Rep
Reed v Wastie [1972] Crim LR
Rose (1883) 15 Cox CC
Rose (1883) 15 Cox CC.
Hussey (1924) 18 Cr App Rep.
Hussain v Hussain 2010 EWCA Crim 94 [2010] EWCA Crim.
Cross v Kirkby.
Reed v Wastie [1972] Crim LR.
Oatridge (1991) 94 Cr App Rep.
Cousins [1982] QB.
Alan G Soble, Legal Paternalism (1976).
Owino (1996) 2 Cr App Rep.
A. P Simester and Andrew Von Hirsch, Crimes, Harms, And Wrongs (Hart Pub 2011).
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Iwona Seredyska, Insider Dealing And Criminal Law (Springer 2011).
Dennis J Baker, The Right Not To Be Criminalized (Ashgate 2011).
Gerald Dworkin, ‘HARM AND THE VOLENTI PRINCIPLE’ (2011) 29 Social Philosophy and Policy.
Deen K Chatterjee, Encyclopedia Of Global Justice (Springer 2011).
Robert Hahn, Conduct And Constraints (Simon & Schuster 1998).
John D Hodson, The Ethics Of Legal Coercion (D Reidel Pub Co 1983).
KEVIN T. POWELL, ‘A Parent’s Refusal And The Harm Principle’ (2011) 45 Pediatric News.
A. P Simester and A. T. H Smith, Harm And Culpability (Clarendon Press 1995).
Nina PersÌŒak, Criminalising Harmful Conduct (Springer 2007).
D. R. Knowles, ‘A Reformulation Of The Harm Principle’ (1978) 6 Political Theory.
Huodong Li, Mill’s Harm Principle As Social Justice (2004).
William E. O’Brian, ‘Distributive Justice And The Harm Principle’ SSRN Electronic Journal.
Thomas Søbirk Petersen, ‘Being Worse Off: But In Comparison With What? On The Baseline Problem Of Harm And The Harm Principle’ (2014) 20 Res Publica.
Sheila McLean, First Do No Harm (Ashgate 2006).
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