Ashley and others v Chief Constable of Sussex Police [2008] UKHL 25, [2008] All ER (D) 326 (Apr)
House of Lords
Lord Bingham, Lord Scott, Lord Rodger, Lord Carswell and Lord Neuberger
22 April 2008
For civil law purposes, an excuse of self-defence based on non-existent facts that were honestly but unreasonably believed to exist has to fail; the belief has to have been reasonably held, and it may be that even that will not suffice to establish the defence.
Keir Starmer QC and Richard Hermer (instructed by Deighton Guedalla) for the claimants.
Edward Faulks QC and Paul Stagg (instructed by Weightmans LLP) for the chief constable.
In 1998, armed police shot and killed the deceased during a raid on a house. It was admitted that the deceased had been unarmed. The responsible officer was charged with murder and manslaughter but acquitted following a submission of no case to answer. No other criminal proceedings were instigated. A coroner’s inquest was adjourned pending the criminal action and not resumed thereafter.
The deceased’s father and son brought a civil action under the Fatal Accidents Act 1976 as dependants of the deceased. The causes of action included assault and battery, or alternatively negligence, by the officer who had done the shooting, and negligence regarding preparation for the raid and the post-shooting conduct of the police. None of the individual police officers was named as the defendant, and the potential liability of the chief constable was vicarious only. The chief constable admitted negligence and false imprisonment, and the judge accordingly gave judgment for the claimants on those claims, with damages to be assessed.
The chief constable denied battery on the ground that the officer had been acting in self-defence when he shot the deceased. The judge gave summary judgment for the chief constable under CPR 24 in respect of the claim for battery. The claimants appealed. The Court of Appeal ruled that in civil proceedings, the burden of proving self-defence lay upon the defendant; and a defendant who had mistakenly but honestly thought it was necessary to defend himself against an imminent risk of attack could not rely on self-defence if his mistaken belief had not been reasonable. The chief constable appealed.
LORD SCOTT:
It was held in R v Williams (Gladstone) [1987] 3 All ER 411 and was now accepted that, for the purposes of the criminal law:
“Even if the jury come 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 on it.”
The chief constable submitted that that the criteria for self-defence in civil law should be the same as in criminal law. In his lordship’s opinion, however, the ends to be served by civil and criminal law were very different. One of the main functions of the criminal law was to identify, and provide punitive sanctions for, behaviour that was categorised as criminal because it was damaging to the good order of society. It was fundamental to criminal law and procedure that everyone charged with criminal behaviour should be presumed innocent until proven guilty and that, as a general rule, no one should be punished for a crime that he or she did not intend to commit or be punished for the consequences of an honest mistake. There were of course exceptions but that explained why a person who honestly believed that he was in danger of an imminent deadly attack and responded violently in order to protect himself from that attack should be able to plead self-defence as an answer to a criminal charge of assault, or indeed murder, whether or not he had been mistaken in his belief and whether or not his mistake had been, objectively speaking, a reasonable one for him to have made. The greater the unreasonableness of the belief, however, the more unlikely it might be that the belief was honestly held.
Conflicting rights
The function of the civil law of tort was different. Its main function was to identify and protect the rights that every person was entitled to assert against, and required to be respected by, others. The rights of one person, however, often ran counter to the rights of others and the civil law, in particular the law of tort, had to strike a balance between the conflicting rights. Thus, for instance, the right of freedom of expression might conflict with the right of others not to be defamed. As to assault and battery and self-defence, every person had the right in principle not to be subjected to physical harm by the intentional actions of another person. But every person also had the right to protect himself by using reasonable force to repel an attack or to prevent an imminent attack.
The rules and principles defining what did constitute legitimate self-defence had to strike the balance between these conflicting rights. The balance struck was serving a quite different purpose from that served by the criminal law when answering the question whether or not the infliction of physical injury on another in consequence of a mistaken belief by the assailant of a need for self-defence should be categorised as a criminal offence and attract penal sanctions.
To hold, in a civil case, that a mistaken and unreasonably held belief by A, that he was about to be attacked by B justified a pre-emptive attack in believed self-defence by A on B, would constitute a wholly unacceptable striking of the balance. It was one thing to say that if A’s mistaken belief was honestly held he should not be punished by the criminal law. It would be quite another to say that A’s unreasonably held mistaken belief would be sufficient to justify the law in setting aside B’s right not to be subjected to physical violence by A. For civil law purposes an excuse of self-defence based on non existent facts that were honestly but unreasonably believed to exist had to fail.
His lordship dealt with the remainder of the appeal on the facts and held that it would be dismissed.
Lord Bingham and Lord Rodger delivered concurring opinions. Lord Carswell and Lord Neuberger agreed with respect to self defence though not to other aspects of the appeal.
