Kichens, R. v

Self-defence and the statutory defence of reasonable force to prevent crime can, in principle, extend to force used against an innocent third party to prevent a crime by another. Whether either defence succeeds depends on the facts. Its realistic scope diminishes where the anticipated crime is less likely or less immediate.

A judge should leave such a defence to the jury where the evidential difficulties are factual rather than legal. A wrongful withdrawal will not make a conviction unsafe if a properly directed reasonable jury could not have acquitted. Necessity remains confined to very limited circumstances, traditionally involving death or serious injury.

The appellant was tried in the Crown Court at Maidstone. He was acquitted of assault occasioning actual bodily harm but convicted of the alternative offence of common assault and sentenced to six months’ imprisonment.

He admitted slapping the complainant, who was trying to admit another man to her flat. He contended that the force was lawful because it was used to prevent a possible assault or breach of the peace if that man entered. The trial judge withdrew self-defence and prevention of crime from the jury after a jury question, while leaving the jury to decide the alternative assault count.

The appellant appealed against conviction and sentence. The central issue was whether reasonable force could lawfully be used against an innocent third party to prevent a possible crime by someone else, and whether any error in withdrawing the defences rendered the conviction unsafe.

1. Both appeals were dismissed. The judge did not direct the jury to convict. The Court rejected the unpressed contention that the directions contravened R v Wang [2005] UKHL 9.

2. The judge correctly withdrew necessity. English law recognises that defence only in very limited circumstances, traditionally where the harm avoided is death or serious injury. Neither such harm nor a necessity to act was realistically present.

3. Common-law self-defence and the defence under section 3 of the Criminal Law Act 1967, read with section 76 of the Criminal Justice and Immigration Act 2008, were materially indistinguishable for this purpose. There was no rule that force against an innocent third party must always be unlawful. The defences could in principle apply where reasonable force against that person was used to prevent another person committing a crime.

4. The likelihood and immediacy of the anticipated crime were nevertheless central. A defence has greater scope where a crime is certain or nearly certain to occur immediately without intervention. Its scope reduces as the risk becomes less likely and more remote in time. Those matters were factual difficulties which the judge should have left to the jury.

5. That error did not make the conviction unsafe. The complainant was entitled to admit a visitor to her own home. No crime was occurring when she was slapped, and any later crime was only possible. The appellant had known for some time that the visitor might attend and had alternatives, including leaving or calling the police. No properly directed reasonable jury could have acquitted him.

6. The maximum sentence for common assault was not manifestly excessive. The sentencing judge was entitled to consider the appellant’s attempt to control the complainant in her own home and his relevant history of violence.

• Court of Appeal (Criminal Division) Dismissed the appeals against conviction for common assault and a six-month sentence.
• Crown Court at Maidstone On 6 April 2011, acquitted the appellant of assault occasioning actual bodily harm, convicted him of common assault, and imposed six months’ imprisonment.