The Uplifted Knife: Exploring the Boundaries of Self-defence Ffion Haf Llewelyn Adran y Gyfraith a Throseddeg / Department of Law and Criminology Prifysgol Aberystwyth University This thesis is submitted for the degree of Doctor of Philosophy 2016 1 Word Count of thesis: 99, 417 DECLARATION This work has not previously been accepted in substance for any degree and is not being concurrently submitted in candidature for any degree. Signed ...................................................................... (candidate) Date ........................................................................ STATEMENT 1 This thesis is the result of my own investigations, except where otherwise stated. Where *correction services have been used, the extent and nature of the correction is clearly marked in a footnote(s). Other sources are acknowledged by footnotes giving explicit references. A bibliography is appended. Signed ..................................................................... (candidate) Date ........................................................................ [*this refers to the extent to which the text has been corrected by others] STATEMENT 2 I hereby give consent for my thesis, if accepted, to be available for photocopying and for inter-library loan, and for the title and summary to be made available to outside organisations. Signed ..................................................................... (candidate) Date ........................................................................ NB: Candidates on whose behalf a bar on access (hard copy) has been approved by the University should use the following version of Statement 2: I hereby give consent for my thesis, if accepted, to be available for photocopying and for inter-library loans after expiry of a bar on access approved by Aberystwyth University. Signed ..................................................................... (candidate) Date ………………………………………………….. 2 This summary sheet should be completed after you have read the guidance notes. The completed sheet should be submitted by you to your Department/School/Institute at the time of submission of your work and the supporting documentation. Candidate’s Surname/Family Name Llewelyn Candidate’s Forenames Ffion Haf Candidate for the Degree of PhD (PhD, MPhil, LLM(Res) etc.) Academic year the work submitted for examination 2015 Full title of thesis The Uplifted Knife: Exploring the Boundaries of Self- defence Summary: This thesis provides a critique on the law of self-defence in England and Wales. It demonstrates the general justifiability of the defence, while challenging recent legislative amendments that expand its scope for householders. Location has developed as a key variable in cases of self-defence, with greater rights of protection ascribed to householders defending against intruders than is permitted in other situations. The reasons behind this increased protection are criticised, and it is argued that it is more appropriate to apply the same standard of self-defence regardless of the location of the attack. The research also explores the complex relationship existing between the criminal law defence of self-defence and crimes involving offensive weapons in the law of England and Wales. It demonstrates that the law has developed in a contradictory and confusing manner. While self-defence may provide a defence to the infliction of injury to an aggressor, it is unlikely to justify the initial criminal act of carrying an offensive weapon or bladed article in a public place. The reasons for carrying weapons are examined, and it is submitted that in addition to legal attempts to deter and punish possession, proactive initiatives targeted at the community level are required. This is a matter of balancing competing harms, namely, harms to the individual against a risk of harm to society. It is argued that the law has developed appropriate methods for addressing the harms involved in self-defence through application of the reasonable force test. The thesis also highlights the role of the media in shaping public perception of the defence and offences discussed. It also demonstrates the relevance of emotions, primarily fear, and argues for an increased consideration of the power of fear to influence an individual’s defensive force, and decision to carry a weapon for protection where appropriate. 3 Acknowledgements I would like to take this opportunity to thank everyone who has helped me along my journey in writing this thesis. The path has been much like Welsh country roads, long, full of twists and turns, and with several potholes to navigate. There are many people without whom it simply would not have been possible for me to persevere. I would like to thank my supervisors, Dr Glenys Williams and Dr Anèl Marais for their support, feedback, advice, honesty, and generosity with their time. Special thanks is owed to Dr Glenys Williams for asking me in my final year of undergraduate study whether I had ever considered studying for a PhD. I had not, and had she not opened the door to me, I might never have undertaken this research. I was recently told that a PhD supervisor is known as ‘Doktormutter’ in German, meaning ‘doctor mother’ - a better term could not be found for the tremendous guidance she has shown me. Diolch yn fawr. I am also very grateful to my funders, the Coleg Cymraeg Cenedlaethol for making it possible for me to pursue this research. The Coleg and its passionate staff have offered far more than financial support; they have provided valuable training opportunities, forums for discussion and exchanging ideas, and created a vibrant Welsh medium research community across Wales. I am proud to be a part of the Coleg’s vision and programme to enhance the provision of Welsh medium higher education, and feel privileged to have received one of their postgraduate scholarships and lecturing posts. I would also like to thank all my colleagues at the Department of Law and Criminology, Aberystwyth University, for their lively discussions on my research during staff research seminars, and their general collegiality and approachability. I would also like to thank my closest friends who have been very understanding of my work related antisocial behaviour. A lifetime worth of thanks goes to my family. They have supported my aspirations, believed in me, and pushed me to strive for higher goals throughout my life. I would not have been able to reach where I am today without my parents, sister, grandparents, auntie, my beautiful nieces, and not to forget Alffi the dog. Words alone are not enough to express my gratitude for all that they have done for me, and for all their encouragement and assistance while writing this thesis. Diolch o waelod calon. And last, but certainly not least, my boyfriend and best friend, Udara. Thank you for your patience – I know I have not been an easy person to live with! Thank you for your constant support, and for driving me onwards when the path was uncertain, and for pointing me back in the right direction when I was losing my way. Thank you for being there and for sharing this journey with me. 4 TABLE OF CONTENTS Title 1 Declarations 2 Summary 3 Acknowledgements 4 Table of Contents 5 CHAPTER 1: INTRODUCTION 9 1. Introduction 9 1.1 The aims of the research and the original contribution 11 1.2 The essence and scope of the research 14 1.3 Methodology 17 1.4 Preliminary explanations 22 1.4.1 Death as the ultimate harm and lesser harms 22 1.4.2 Justification and Excuse 25 1.5 The structure of the thesis and outline of chapters 29 CHAPTER 2: SELF-DEFENCE – THE ‘GENERAL’ POSITION 32 2. Introduction 32 2.1 The law of self-defence 33 2.1.1 The criteria to be met in cases of self-defence 38 2.1.1(a) Necessity – Imminence 39 2.1.1(b) Necessity – Retreat 47 2.1.1(b)(i) Mistake 52 2.1.1(b)(ii) Lawful Purpose 54 2.1.1(c) Proportionality - Reasonable Force 56 2.2 Theories that Justify Self-defence 60 2.2.1 Rights and forfeiture theory 62 2.2.2 Natural Law 71 2.2.3 Consequentialism 78 2.2.4 Forced Choice 82 2.2.5 Double Effect 85 2.2.6 Autonomy 87 2.2.7 Which theory? 90 2.3 Reasonable person test and individual characteristics 91 2.4 The distinction between culpable and innocent aggressors 97 2.5 Conclusion 100 CHAPTER 3: OFFENSIVE WEAPONS AND BLADED ARTICLES 102 3. Introduction 102 3.1 The research context 103 3.1.1 The situation according to the statistics 107 5 3.1.2 The problematic case of identifying weapons offences 112 3.2 The Law - prohibited weapons 116 3.2.1 The Prevention of Crime Act 1953 119 3.2.2 The Criminal Justice Act 1988 121 3.2.3 Emphasising the objectives of the legislation 123 3.2.4 Harm and offensive weapons 126 3.3 The Nature of the weapon 130 3.4 Statutory defences – ‘reasonable excuse’ and ‘good reason’ 134 3.4.1 Imminence and the importance of the circumstances 136 3.4.2 The relevance of self-defence to the statutory defences 144 3.5 Offensive weapons, bladed articles and self-defence 147 3.5.1 Self-generated self-defence 153 3.6 Legal and non-legal proposals 156 3.6.1 The legal proposal 156 3.6.2 The non-legal proposal 158 3.7 Initiatives directed at preventing and restricting the carrying 158 of offensive weapons 3.8 Conclusion 164 CHAPTER 4: SELF-DEFENCE – THE ‘HOUSEHOLDER’ POSITION 169 4. Introduction 169 4.1 The current position of the law 170 4.1.1 The application and scope of the new test for 171 self-defence in the home 4.1.2 Tracing the road to law reform 179 4.2 The debate on the Crime and Courts Bill 180 4.2.1 Arguments supporting the change to the 187