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There are a range of defences available to those accused of any assault and their likelihood of success will vary depending on the circumstances of your case and the type of assault charged.
The first place to start when looking to defence any allegation is with the elements of the offence, by which we mean the things the prosecutor has to prove. If you can undermine one of those elements then the case against you will fail. This means looking at the reliability and credibility of prosecution witnesses, e.g. can a court rely on them? Do they have an axe to grind against you? Did they see the whole thing? Is their evidence contradicted by other evidence? If you can successfully undermine the prosecution case then it may be thrown out of court before the defence has to present it’s side. Where we have to put forward a defence case we would look at various defences as they may apply to your case.
Self defence allows you to do what is reasonably necessary to protect yourself and others. You do not need to wait until somebody hits you, you are entitled to get the first blow in if doing so is reasonably necessary. Nor is it a bar to self defence if you were the aggressor or if you failed to retreat or show a reluctance to fight.
The important question is, “what is reasonably necessary?” The answer to that will depend on the facts in each case. Clearly, if a small and physically weak pensioner were to attack a large, well built boxer then the boxer may not be justified in deploying a devastating upper cut that leaves the pensioner unconscious on the floor. In contrast though, if a man breaks into your home in the dead of night then a significant amount of force may be justified. It should be remembered that the force used must be sufficient to defend yourself and should not go over the top. So, if a man burgles your house in the dead of night you may be justified in using a weapon to defend yourself; however, if you continue hitting the burglar as he lays unconscious on the floor then you will not longer be acting in self defence. This was the problem for Tony Martin when he was burgled and used a shot gun to kill one of the burglars as he ran away – there was no longer a threat to Mr Martin and so he could not avail himself of self defence.
Where force is used in your home against a person who entered as a trespasser then there is a little more lee-way in that force will be reasonable unless it was grossly disproportionate in the circumstances.
Where self defence is raised, it is for the prosecution to negate the defence not for the defence to prove it.
Defending Your Property
You may use force to protect your property, which includes the right to prevent a trespasser from entering; however, you must first request the trespasser to depart.
The force used must be reasonable, although in the case of homeowners defending their homes the law will deem the force to be reasonable unless it was “grossly disproportionate”.
Having the consent of the victim to inflict injury is a powerful argument and may be decisive in many cases.
Where you are charged with common assault the prosecution must prove the absence of consent. Where the charge is actual or grievous bodily harm, the defence must show that even where the victim consented there was good reason for inflicting those injuries.
You will consent to some level of physical contact, and even injury, when travelling on public transport, engaging in contact sports or undergoing surgery. Rough and undisciplined play will also count as consensual provided there is no intention to inflict injury.
The press regularly reports on cases where injury, and even death, has resulted from rough sexual activity. In R v Brown, the court held that satisfying sado-masochistic desires did not constitute a good reason and thus the consent of those injured was irrelevant. In R v Wilson, the court held that a man branding his wife at her insistence involved no sad-masochistic element and thus consent of the wife was a defence. In Wilson, the court concluded that the branding caused no more physical harm than a tattoo would, which no doubt helped secure the acquittal.
The cases of Brown and Wilson are relevant to cases that do not involve sex. For example, in 2018, a tattoo artist and body piercer was convicted of section 18 GBH after performing body modifications on clients that included nipple removal, ear removal and splitting a customer’s tongue – all both with the consent and at the request of the paying customer. The tattooist argued that his customer’s have a right to personal autonomy, which means they should be permitted to modify their bodies how they liked. The court considered Brown and decided that the consent of his customer’s could not provide a defence in that case. It should be noted that the tattooist was not licensed to carry out surgical procedures. If he had been then the result may have been different.
It is a defence to common assault that the assault was inflicted by the child’s parents as a way of correcting the child’s behaviour. The chastisement must be moderate in manner, nature and extent.
Use Of Force In Schools
Chastisement is not a defence to ABH or GBH. Nor is it a defence that is open to teachers accused of assaulting their pupils, although they can argue that any force used was reasonable and necessary to prevent a pupil committing a criminal offence, causing personal injury, damaging property or doing something that prejudices discipline at the school.
Head teachers, and members of staff authorised by the head teacher, may use force that is both reasonable and necessary to search a pupil and their possessions for prohibited items that could be used to commit a crime, cause injury, or damage property. Such a search may be conducted anywhere the teacher has lawful control of the pupil.
To that extent, the use of force by a teacher will be a defence to an allegation of assault.
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