Quizzes & Puzzles2 mins ago
Self Defence But Charged With Gbh
My friend was attacked with a glass bottle on a night out and retaliated by punching the guy to the ground and he did kick him. he's now been charged with GBH and been held in custody as he is on licence what is classed as self defence and how can this be he is charged when he was defending himself?
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I am not a legal expert, but as far as I understand it, self defence is using what is classed as 'reasonable force' in defending yourself or someone else.
Punching someone hard enough to knock them over is pushing the definition, and kicking him after that is basically not self-defence, it's assault.
His solicitor will be able to advise on his actual offence, and where he goes from here.
Punching someone hard enough to knock them over is pushing the definition, and kicking him after that is basically not self-defence, it's assault.
His solicitor will be able to advise on his actual offence, and where he goes from here.
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Yes and even a decent solicitor may have trouble stretching self-defence to include kicking somebody who is on the ground in most circumstances. The reason that your friend has been charged is because the law does not (and indeed cannot) determine whether or not legitimate “self-defence” is evident in every case. What prosecutors have to decide when making a charging decision is this:
• Was the use of force necessary in the circumstances, i.e. was there a need for any force at all?
and
• Was the force used reasonable in the circumstances?
From your description it seems the answer to part one is probably “yes”. However, part two is a little more difficult to determine but the CPS has obviously decided that there is sufficient evidence to put the matter before a court. I’ve cribbed this bit of guidance from the CPS website:
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The courts have indicated that both questions are to be answered on the basis of the facts as the accused honestly believed them to be (R v Williams (G) 78 Cr App R 276), (R. v Oatbridge, 94 Cr App R 367).
To that extent it is a subjective test. There is, however, an objective element to the test. The jury must then go on to ask themselves whether, on the basis of the facts as the accused believed them to be, a reasonable person would regard the force used as reasonable or excessive.
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So your friend will have to convince the court that he had an honestly held belief that the force he used was necessary in the circumstances and that a “reasonable person” would agree with that belief.
Clearly it is not always necessary to kick someone who is already on the ground in order to defend oneself. That is why a court (either a jury or a bench of Magistrates, depending where the case is heard) will have to decide whether the force your friend used was necessary and reasonable.
• Was the use of force necessary in the circumstances, i.e. was there a need for any force at all?
and
• Was the force used reasonable in the circumstances?
From your description it seems the answer to part one is probably “yes”. However, part two is a little more difficult to determine but the CPS has obviously decided that there is sufficient evidence to put the matter before a court. I’ve cribbed this bit of guidance from the CPS website:
-------------------------
The courts have indicated that both questions are to be answered on the basis of the facts as the accused honestly believed them to be (R v Williams (G) 78 Cr App R 276), (R. v Oatbridge, 94 Cr App R 367).
To that extent it is a subjective test. There is, however, an objective element to the test. The jury must then go on to ask themselves whether, on the basis of the facts as the accused believed them to be, a reasonable person would regard the force used as reasonable or excessive.
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So your friend will have to convince the court that he had an honestly held belief that the force he used was necessary in the circumstances and that a “reasonable person” would agree with that belief.
Clearly it is not always necessary to kick someone who is already on the ground in order to defend oneself. That is why a court (either a jury or a bench of Magistrates, depending where the case is heard) will have to decide whether the force your friend used was necessary and reasonable.
melv - //If someone attacked me with a glass bottle, I'd kick the crap out of him. This would make sure he wouldn't get up and have another go. //
That may sound fine in theory, but the law doesn't allow you to kick someone on the basis of what he might or might not do when and indeed if he stands up.
That may sound fine in theory, but the law doesn't allow you to kick someone on the basis of what he might or might not do when and indeed if he stands up.
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Your own post, Ako72, uses the word 'retaliated', which clearly indicates that more than 'self defence' was involved.
Further, unless there was an obvious reason why your friend couldn't simply run away after having knocked the other guy to the ground, it is extremely unlikely that then kicking him could be classed as 'self defence'.
However the law does accept that in moments of stress (as when being attacked by someone) a person hasn't always got the time to carefully consider exactly how far his defensive actions may go. Lord Morris (in Palmer v R, 1971) said: ""If there has been an attack so that self defence is reasonably necessary, it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his defensive action. If the jury thought that that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought necessary, that would be the most potent evidence that only reasonable defensive action had been taken ..."
I would rate your friend's chances of acquittal as very low but it's just possible that a really good barrister could (by reference to Lord Morris's words and to other relevant case law) persuade a court of his innocence.
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Further, unless there was an obvious reason why your friend couldn't simply run away after having knocked the other guy to the ground, it is extremely unlikely that then kicking him could be classed as 'self defence'.
However the law does accept that in moments of stress (as when being attacked by someone) a person hasn't always got the time to carefully consider exactly how far his defensive actions may go. Lord Morris (in Palmer v R, 1971) said: ""If there has been an attack so that self defence is reasonably necessary, it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his defensive action. If the jury thought that that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought necessary, that would be the most potent evidence that only reasonable defensive action had been taken ..."
I would rate your friend's chances of acquittal as very low but it's just possible that a really good barrister could (by reference to Lord Morris's words and to other relevant case law) persuade a court of his innocence.
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Further to the above:
A GBH charge can only be sustained if there is evidence of really serious bodily harm. It's not clear from your post how such harm occurred.
If, for example, your friend fractured the other guy's cheekbone with his punch but only bruised him with his kick then (as the punch might well be seen by the court as 'self-defence') only the bruising (which would be ABH, rather than GBH) could be considered to have resulted from an offence (as it was the only injury suffered from an action which went beyond 'self defence').
However if your friend fractured the other guy's skull with his kick (irrespective of what injury may, or may not, have been caused by the punch) the 'really serious harm' occurred because of an action which is unlikely to be regarded as 'self-defence'.
A GBH charge can only be sustained if there is evidence of really serious bodily harm. It's not clear from your post how such harm occurred.
If, for example, your friend fractured the other guy's cheekbone with his punch but only bruised him with his kick then (as the punch might well be seen by the court as 'self-defence') only the bruising (which would be ABH, rather than GBH) could be considered to have resulted from an offence (as it was the only injury suffered from an action which went beyond 'self defence').
However if your friend fractured the other guy's skull with his kick (irrespective of what injury may, or may not, have been caused by the punch) the 'really serious harm' occurred because of an action which is unlikely to be regarded as 'self-defence'.
divebuddy - // Andy, It's not as straightforward as that. If this goes to court and the facts are as described I wouldn't be at all surprised if this guy gets off. Rendering an armed attacker incapable of doing you harm, would seem reasonable to me - if I was on the jury. Ako didn't say he kicked the crap out of him, just that he kicked him. //
The law allows for reasonable force - that's the 'knocking down' part. That gives Ako's friend ample opportunity to put some distance between himself and his attacker.
To go on and kick him - even once, is an act of assault, as I said, you cannot kick someone on the ground on the basis of what you think they may do when they get up.
So actually, it does sound very straightforward, from the information we are all working with.
The law allows for reasonable force - that's the 'knocking down' part. That gives Ako's friend ample opportunity to put some distance between himself and his attacker.
To go on and kick him - even once, is an act of assault, as I said, you cannot kick someone on the ground on the basis of what you think they may do when they get up.
So actually, it does sound very straightforward, from the information we are all working with.
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divebuddy - //Andy, Obviously, you haven't read New Judge's post (last 2 paras), or Buenchico's 1st post( 3rd para). It is not a slam dunk conviction.//
Actually, I have read them, and I don't see that they contradict my point.
I referred to the OP as being straightforward - the interperetations in court may well be less so - but we are not in court, we are posting on the basis of what we read here.
Actually, I have read them, and I don't see that they contradict my point.
I referred to the OP as being straightforward - the interperetations in court may well be less so - but we are not in court, we are posting on the basis of what we read here.
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We need to know what the injuries were to justify GBH rather than ABH.
What injuries did the kick cause? This is going to be vital to the defence of your friend. Also what do you mean by 'on licence' is he released from a jail sentence on licence? If he is a prisoner who has been released on licence he can be sent straight back to prison just for being arrested.
Sorry but it is looking bad for your mate. If I am correct and he is just out of jail on licence, what is the offence he was sentenced for?
What injuries did the kick cause? This is going to be vital to the defence of your friend. Also what do you mean by 'on licence' is he released from a jail sentence on licence? If he is a prisoner who has been released on licence he can be sent straight back to prison just for being arrested.
Sorry but it is looking bad for your mate. If I am correct and he is just out of jail on licence, what is the offence he was sentenced for?
