Duffy v Chief Constable of Cleveland Police

Self-defence in an affray case requires consideration of the defendant’s perception of the circumstances, as well as the objective reasonableness and necessity of the force used. The absence of retreat is relevant but does not create a duty to retreat. Force may cease to be lawful when it continues beyond what is reasonably necessary, but that question must be assessed in the light of what the defendant honestly and instinctively believed. A decision-maker who applies only an objective test, without addressing the defendant’s account of why continued force was necessary, errs in law.

The claimant was convicted of affray contrary to section 3 of the Public Order Act 1986 after fighting with another man in a restaurant. He relied on self-defence, asserting that the other man struck the first blow. The Deputy District Judge concluded that both men could have stopped or taken avoiding action and that the claimant’s continued violence was no longer reasonable or necessary.

The claimant appealed by way of case stated. The central issue was whether the Deputy District Judge had applied a wholly objective test and failed to consider the claimant’s subjective perception of the need to continue using force.

1. Appeal allowed. The court held that the case stated disclosed a real possibility that the Deputy District Judge had applied a wholly objective approach to self-defence.
2. Self-defence is available to a person charged with affray because the offence requires the use or threat of unlawful violence. The governing principle, stated in Palmer v R [1971] AC 814 and approved and followed in McInnes 55 Cr.App.R 551, is that a person attacked may do what is reasonably necessary in the particular circumstances.
3. The court rejected any suggestion that the claimant had a legal duty to retreat while remaining under attack. The former rule requiring a person attacked to retreat as far as possible has disappeared. Whether the defendant retreated, and his ability or inclination to do so, remain relevant matters when deciding whether the force used was reasonable and necessary.
4. The test is not wholly objective. The court must consider the circumstances as the defendant honestly and instinctively perceived them. Continued force may become unlawful once it is no longer reasonably necessary, but the decision-maker must address the defendant’s account of why he believed that stopping would expose him to further attack.
5. The Deputy District Judge had not summarised or evaluated the claimant’s explanation that he continued to use violence because he believed the attack would continue if he desisted. The conviction was therefore set aside through allowing the appeal.

• Teesside Magistrates’ Court: The Deputy District Judge convicted the claimant of affray and imposed a community order.
• High Court (Administrative Court): On appeal by way of case stated, the court allowed the appeal.