Understanding Self Defence from a Legal Standpoint

Self defence is a complete defence of justification in cases involving all levels of assault. At common law the defence off self-defence operates in three spheres. It allows a person to use reasonable force to:

(a) Defend himself from an attack
(b) Prevent an attack on another person,
(c) Defend his property

Right to defend yourself

Section 23 of The Firearms Act clearly permits the holder of a licensed firearm to discharge said firearm within or about a public place, not only in the lawful protection of his own person or property, but also in the lawful protection of the person or property of others.

It is instructive to note, however, that the protection of life or property has to be lawful. The case law appreciates that the licensed firearm holder who discharges his firearm to protect life or property may not have had time to make entirely rational decisions, given all the circumstances of the particular case; however, even allowing for mistakes made in a crisis, the amount of force must be proportionate and reasonable.

The general principle is that the law allows only reasonable force to be used in the circumstances and, what is reasonable is to be judged in the light of the circumstances as the accused believed them to be (whether reasonable or not).

It is important to note:

                      a) A person who is being attacked should not be expected to 
                   "weigh to a nicety the exact measure of his necessary 
                    defensive action".

b) If the jury thought that in the heat of the moment the defendant did what he honestly and instinctively thought was necessary then that would be strong evidence that only reasonable defensive action had been taken.

c)A jury will be told that the defence of self-defence will only fail if the prosecution show beyond reasonable doubt that what the accused did was not by way of self-defence.

Excessive force

The issue of a mistake as to the amount of force necessary was considered by the courts  and the law is:"They ought not to convict him unless they are satisfied that the degree of force used was plainly more than was called for by the circumstances as he believed them to be and, provided he believed the circumstances called for the degree of force used, he was not to be convicted even if his belief was unreasonable."

No duty to retreat

There is no rule of law that a person attacked is bound to run away if he can. A demonstration by the defendant that at the time he did not want to fight is no doubt, the best evidence that he was acting reasonably and in good faith in self-defence; but it is no more than that. A person may in some circumstances act without temporising, disengaging or withdrawing; and he should have a good defence

It is therefore, a matter for the jury to decide as to whether the defendant acted reasonably in standing his ground to defend himself, or whether the reasonable man would have taken the opportunity to run away.

It is not absolutely necessary that the defendant be attacked first. As Lord Griffith said in Beckford v R [1988] AC 130: "A man about to be attacked does not have to wait for his assailant to strike the first blow or fire the first shot; circumstances may justify a pre-emptive strike."

Mistake as to Self- Defence

It is possible that a defendant might mistakenly believe himself to be threatened or might mistakenly believe that an offence is being committed by another person, it would appear that such a defendant would be entitled to be judged on the facts as he honestly believed them to be, and hence would be permitted to use a degree of force that was reasonable in the context of what he perceived to be happening.

In a case of self-defence, where self-defence or the prevention of crime is concerned, if the jury came to the conclusion that the defendant believed, or may have believed, that he was being attacked or that a crime was being committed, and that force was necessary to protect himself or to prevent the crime, then the prosecution have not proved their case.

If however the defendant's alleged belief was mistaken and if the mistake was an unreasonable one, that may be a powerful reason for coming to the conclusion that the belief was not honestly held and should be rejected.

Even if the jury came to the conclusion that the mistake was an unreasonable one, if the defendant may genuinely have been labouring under it, he is entitled to rely upon it.

The reality of self -defence in a murder charge

1) It is very difficult for juries to accept this defence in cases where the person who is harmed/killed does not have a weapon or is not armed.

2) The option of manslaughter is often left to the jury which states that the accused did not have the intent to take a life or cause greivous bodily harm (no malice aforethought) but the killing was unlawful.

2) Licensed firearm holders are not automatically protected from murder or manslaughter charges as using a weapon may appear as using excessive force and will be interpreted as being unlawful by the jury.

3) Licensed firearm holders have a great responsibility, and should think twice about discharging their weapon, if under threat, even though the law makes provision for their subjective mind or what they perceive.

June 3, 2016

Stemming the Tide of Murder-Suicides in the Jamaican Constabulary Force

 By: Kymberli Whittaker

"He was a hardworking officer, we never saw it coming"...."How could he do this to his family?"...."What could lead him to this point to kill himself?".... "Could I have done more to help?"...Heart wrenching musings of persons who battle with knowing the perpetrator of a murder-suicide".

Murder-suicide, refers to an incident where a homicide/ killing is committed followed by the perpetrator's suicide almost immediately or within 24 hours after the homicide. Murder is a crime which has to some extent become desensitized  in our society as a result of the steady and unabating occurrence in Jamaica which is captured in explicit detail by our media houses.  We simply ignore  crimes until we or our loved ones are  the ones affected.

Murder-suicides however  in relation to other crimes are relatively uncommon but are increasing at an alarming rate in one particular sector in Jamaica; the sector where the persons vow  “To Protect and Serve”: The Jamaican Constabulary Force.

There are no statistics detailing the frequency of the occurrence of this phenomenon in Jamaica, however reading our nations newspapers or watching our daily news, it has become evident that occurrence is increasing in regularity to the demise of our nation.

We are quick to condemn family members, spouses or affiliates of gunmen who end up  losing their lives or being hurt at the hands of those criminals, yet we as a nation are not removing the veils from our eyes to see that the carrying of a firearm even though legal, puts the family, friends and affiliates of the legal firearm holder at risk. At any time, given the state of mind of the holder anyone can die. It is a sad fact that being a Police Officer does not preclude them from committing a crime and we need to step up to the plate and be able to identify warning signs in the otherwise “law-abiding” citizen, to protect ourselves as it is not guaranteed that we can trust them to protect us.

I categorically state that there is a dilemma in our Police Force.  It is evident that needs are not being effectively met, police officers are slipping through the cracks and they are killing others and themselves. I am not able to speak to the Jamaica Defence Force as even though charged with similar duties, the transgressions of that group are not splattered across our headlines, however the legal gun touters in the JCF are committing crimes not only against themselves but against the wider populace.

It would appear based on the news reports that in Jamaica, Most murder-suicides are spousal/consortial, involving a man killing his wife, girlfriend, ex-wife, or ex-girlfriend, and it is safe to say that most if not all are committed by men. Where the public has to worry about crime perpetuated by stranger, family members and intimate partners of the officers in the police force have a lot to be worried  about and they may be in a real danger which may be concealed from the not so observant onlooker.

Pressure

When the pressure erupts in the life of an officer, anyone in their life may be at risk .I will not in any way seek to down-play the role of Post Traumatic Stress Disorder in the life of an officer, as the work which they undertake on a daily basis may be quite stressful…working long hours to protect citizens in a system which sees them as “Babylon”..they are disrespected by many citizens and to add to this, their pay is not commensurate with the daily risks which they take. All of these factors compounded with the taking of a life in the course of duty which  has psychological repercussions may not be addressed adequately in training and throughout their lifetime of service

Police are expected to take command of all situations, they are who we turn to when we are in need of help. Who are they to turn to? Men especially in Jamaica are not bred or socialized to show weaknesses and thus internalize any signs which would deem them as being weak which is synonymous with being incapable. Police officers are not only men, but they are seen as the “Law” or “Enforcers of the Law”. Yes there is the Chaplaincy Unit or Counselling unit of the JCF which is an avenue for Officers who are not coping to get assistance, but how many Officers will in a emasculating move accept that they are buckling under the pressures of service: I assure you- not many.

Power of the gun

Many underestimate the power of the gun- the feel of an instrument which guarantees you automatic fear or respect from others. Handling one daily may give the holder a feeling of being untouchable as they are the ones in control, but yet off the job they have to contend with personal relationships which may not be going in their way. They control their world while on the clock, but while off the clock, what do they have to do to maintain the respect in their family lives? Some officers resort to violence, they are not bred to talk and reason, instead they are bred to use actions instead of words. When this switch cannot be turned off while in the home arena, problems arise, ranging from verbal disagreements to domestic violence and sadly ultimately to death.This is exacerbated by financial distress, substance abuse or being investigated, internally or by IINDECOM. 

Police Officers face unique stresses , however they are less likely to ask for help. We cannot assume that they have their lives together, more needs to be done, or else these spate of murder-suicides will continue. Periodic mental evaluation of officers is key as our officers are at risk of losing perspective and becoming lethally broken

The signs are there

I cannot accept that no-one saw the changes coming in the officer to result in a murder-suicide . The signs no matter how minute are  there The duty rests on everyone to protect themselves and speak up to assist their loved ones. Report any disturbing behaviour to save not only yourselves but also them, because at the end of the day, the “I should have” or “I wish I had” will not turn back the hands of time and save lives.