Judgement and judgment ... a lawyer's dilemma and self-defence

When a lawyer writes about a judicial decision, he writes about a 'judgment' (note no 'e'); when he writes about the judgement in a non judicial sense he adds the missing 'e'. This is traditional, but it also says something about the difference the lawyer will discern between a legal judgment and, for example, the judgement that we all exercise when reading the newspaper reports.

Cases turn on questions of law and questions of fact. Criminal cases rarely, as I understand it, involve detailed argument about the law and so the principal decisions that the court will take concerns the facts - that is what the lay jury is for in our Crown courts. Argument about law are for the Judge to decide in Crown Courts - and he will 'direct' the jury on that law.

At present, we have a law of self defence that says that any person attacked by another may use reasonable force to defend themselves. As I understand it, once self-defence is pleaded, the prosecution must prove beyond reasonable doubt that the force used in such cases is unreasonable - and the jury is exhorted not to exercise too fine a judgment in considering the matter and that the person seeking to defend themselves must have acted reasonably in all the circumstances - in the words of one judge, Lord Morris, "a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action".

So as it currently stands it is possible to say that it would be legal to apply even lethal force if that was proportionate to the threat and reasonable in all the circumtances.

But this is an area that attracts controversy, often fuelled by ignorant and incomplete reporting by journalists - the Tony Martin case is interesting as is the recent case concerning Munir Hussain. I am not going to comment on these individual cases, as the legal adage that 'difficult cases make bad law' is, in my view, apposite.

The Law Reform Commission in Ireland has reacted to public outcry in another difficult case and recommended that there be an additional defence for those charged with murder in certain circumstances - namely where they are defending themselves, their family or their home - and that the defence, to be known as 'legitimate defence' replace in part the Irish law of self-defence. It appears that the recommendation is that the action should be both necessary and proportionate.

If we were to adopt that approach - that said that the defence should be both 'necessary and proportionate' - I think that it would be harder for a person to establish than our existing law of 'reasonable force' as understood by the law.

The Conservative proposal that householders be protected from prosecution unless they use 'grossly disproportionate force' is interesting ... but even Chris Grayling who has used the term has not set out what he means by it. It could be said to make no real difference to the direction that jurors should not 'weigh the nicety' of what was done - it would perhaps add clarity about the position that the person accused was under at the time they reacted.

Alternatively, it could be said to set a considerably higher bar - and that only where the victim of the assault goes considerably further than a reasonable and proportionate response should he be convicted - if the victim acts unreasonably but not disproportionately, he should be acquitted - if this is the approach being proposed, then I am sorry to say that I disagree.

The laws on self-defence in England and Wales come from the Common law - and are probably ancient in origin - or from the 1967 Criminal Law Act. They extend to the defence of self, of property, of others and to the prevention of crime. It may be that greater clarity and understanding is required - and that can justify law reform - but I do not want people to think that it is OK to defend their home by shooting first and asking questions afterwards - I do not believe that we will be more 'civilised' for such a reform.

A war zone?

This morning, Basingstoke was described as a being 'something like a war zone'.

I know that things were bad in Basingstoke overnight with people having real problems as a result of the snow and ice and as a result of other people getting into scrapes and crashing, but ... it was snowy, it was icy, it was ... well ... not a war zone or anything like it.

Sometimes, people do stupid things, like this policeman in America ... and the people who appear to antagonise him ...



and that could turn a snowball fight into a war zone if things got out of control ...

But that is the exception ... difficulties with the weather can turn into disasters, even national disasters, but people don't try to kill other people in such circumstances.