Buckley, R (on the application of) v Director of Public Prosecutions

In assessing self-defence, the court must consider whether the force used was reasonable in the circumstances as honestly believed by the defendant. A person defending himself or another cannot measure defensive action with exact precision, but that principle does not make every use of force reasonable. Fact-finders may consider the nature and degree of the force, the parties’ relative size and gender, the injuries caused, the level of risk, and whether less forceful protective measures were available. An appellate court should not substitute its own assessment for that of the fact-finding tribunal. It may interfere only where the conclusion was unavailable on the evidence, involved an error of law, or was irrational.

The claimant was convicted by magistrates of common assault, contrary to section 39 of the Criminal Justice Act 1988. The magistrates found that he had acted to protect his girlfriend when an arm was raised towards her while she was surrounded by an abusive group. They rejected evidence that he had punched the complainant and found instead that he had pushed her once with an open hand. The push caused slight bruising and mild whiplash.

The magistrates concluded that the force was unreasonable and convicted the claimant. On an appeal by way of case stated, the issue was whether they were entitled to reach that conclusion despite accepting that the claimant was acting in self-defence or defence of another.

1. Appeal dismissed. The magistrates’ conviction was upheld. The court would not substitute its own view for that of the fact-finding tribunal, which had heard the evidence and seen the witnesses. Intervention was justified only if the decision was not open to the magistrates, involved an error of law, or was irrational.
2. The magistrates had properly directed themselves by reference to the principle in Palmer v R [1971] 55 Cr App Rep 223: a person defending himself cannot weigh to a nicety the precise measure of defensive action required. That principle did not prevent the magistrates from finding that the force used exceeded reasonable self-defence.
3. The magistrates were entitled to treat the push as significant notwithstanding that it was delivered with an open hand rather than a clenched fist. Relevant considerations included the parties’ relative size and gender, the degree of force, and the injuries caused.
4. The finding that the force was unreasonable was available on the facts. The magistrates were also entitled to consider whether less forceful measures, including placing an arm between the parties or leading the girlfriend away, could have protected her from the perceived threat.
5. No order for costs was made. The claimant’s costs were to be subject to detailed assessment.

• High Court (Administrative Court): On an appeal by way of case stated, the court dismissed the appeal and upheld the magistrates’ conviction.
• Magistrates’ court: The claimant was convicted on 23 January 2004 of common assault and fined £100, with £100 costs.