Marsh v Director of Public Prosecutions

Self-defence may arise even where the court cannot identify the initial aggressor, or where the defendant may have been the aggressor. The court must focus on the wrongful act charged and ask whether the force used was reasonable in the circumstances as honestly believed by the defendant. Once self-defence is raised, the prosecution bears the burden of proving beyond reasonable doubt that the defendant used force out of all proportion to the anticipated attack. The defendant’s alleged aggression does not automatically exclude the defence.

The appellant appealed by way of case stated against his conviction by South Essex Justices for assault by beating, contrary to section 39 of the Criminal Justice Act 1988. During an altercation, he headbutted the complainant. The justices could not determine who was the initial aggressor, but found that the appellant honestly believed force was necessary and that his response was disproportionate. The questions were whether the justices could assess the reasonableness of the force without identifying the aggressor, and where the prosecution case was that the appellant was the aggressor.

1. The appeal was dismissed. Both questions posed by the justices were answered in the affirmative.
2. There was no requirement to identify the initial aggressor before considering self-defence. The proper approach was to focus on the wrongful act charged, namely the headbutt, and determine whether it was done in self-defence.
3. The availability of self-defence is not automatically excluded because the defendant went to the incident for revenge or was the aggressor. The issue depends on the circumstances, including whether the force used was no more than reasonably necessary to protect the defendant from the anticipated danger. The court applied the approach stated in R v Rashford, [2005] EWCA Crim 3377.
4. Once self-defence was raised, the prosecution retained the burden of proving beyond reasonable doubt that the appellant had gone over the top and used force out of all proportion to the anticipated attack. The justices had adopted the correct burden and approach.
5. The respondent was awarded costs of £1,152.

The judgment does not state the outcome of any earlier appellate stage. The appeal by way of case stated was dismissed by the High Court (Administrative Court).