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DWx
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PostPosted: Mon Dec 01, 2014 12:52 pm    Post subject: Reply with quote

This is a pretty good breakdown of the law in the UK: http://www.cps.gov.uk/legal/s_to_u/self_defence/

The key idea the UK law is based is whether or not "reasonable force" was used

Quote:
*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?


Some interesting points raised:

Quote:
There is no rule in law to say that a person must wait to be struck first before they may defend themselves (see R v Deana, 2 Cr App R 75).


Quote:
Failure to retreat when attacked and when it is possible and safe to do so, is not conclusive evidence that a person was not acting in self defence. It is simply a factor to be taken into account rather than as giving rise to a duty to retreat when deciding whether the degree of force was reasonable in the circumstances (section 76(6) Criminal Justice and Immigration Act 2008). It is not necessary that the defendant demonstrates by walking away that he does not want to engage in physical violence: (R v Bird 81 Cr App R 110).


Quote:
The burden of proof remains with the prosecution when the issue of self-defence is raised.

The prosecution must adduce sufficient evidence to satisfy a jury beyond reasonable doubt that the defendant was either:

not acting to defend himself/herself or another; or
not acting to defend property; ornot acting to prevent a crime or to apprehend an offender; or
if he was so acting, the force used was excessive.


So maybe there was more to your story Gareth to explain why the old man was charged?
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Harkon72
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Joined: 27 Aug 2012
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Styles: Okinawan Karate, Aikido, Ninpo.

PostPosted: Mon Dec 01, 2014 1:43 pm    Post subject: Reply with quote

The truthful answer is that there was controversy because of the fatality. What the prosecutors were pushing for was a charge of unlawful killing.
Their point was that the gentleman concerned had more options at hand than killing the young man; that killing him was a choice that he had made. How they could argue this point against the situation of real split second response to a deadly attack, I will never know. It is obvious to me that some members of the law profession have no idea of what a fight situation is, let alone one in the dark against multiple determined attackers.
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DWx
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PostPosted: Mon Dec 01, 2014 4:32 pm    Post subject: Reply with quote

^ I guess the argument they probably made then was that he needn't have stabbed the aggressor in the heart. There is only one way such a thing will end and especially being trained in combat maybe they thought he should have been aware of the consequences of his actions. Perhaps they thought he should have stabbed elsewhere and that the heart was not his only option?

Whether or not the law profession knows what a fight situation is is kind of a moot point when it comes to the law. You must make the choice to play by the rules or not and accept the consequences. Without knowing the exact details, whatever the prosecution argued must have been believable enough that a jury of his peers were completely convinced.
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bushido_man96
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PostPosted: Mon Dec 01, 2014 5:14 pm    Post subject: Reply with quote

Harkon72 wrote:
The truthful answer is that there was controversy because of the fatality. What the prosecutors were pushing for was a charge of unlawful killing.
Their point was that the gentleman concerned had more options at hand than killing the young man; that killing him was a choice that he had made. How they could argue this point against the situation of real split second response to a deadly attack, I will never know. It is obvious to me that some members of the law profession have no idea of what a fight situation is, let alone one in the dark against multiple determined attackers.


This happens all the time, after the fact. People start Monday morning quarterbacking things, and take out of the equation the fact that these decisions are made in a split-second of action.

I think this guy got hosed.
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Harkon72
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PostPosted: Mon Dec 01, 2014 6:13 pm    Post subject: Reply with quote

Not knowing or even understanding a situation is usual in most lawyer's minds. They see the letter of the law, nothing else. If that law can be interpreted one way or another, then it depends on your argument whether you are found guilty or not, regardless of real blame. That is the nature of trial by jury. My wife's father is a judge, he always sees both sides of an argument, bless him.
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Spartacus Maximus
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PostPosted: Mon Dec 01, 2014 10:52 pm    Post subject: Reply with quote

I train in a place where physical violence between ordinary citizens is relatively rare and laws are very strict regarding self defense or defense of others. From reading about many scenarios it obvious that judging what is reasonable force in the heat of the instant is very difficult or nearly impossible to do through the rush of adrenalin and chaos of emotions.

The simplest advice I ever heard was from my sensei, a karateka who has lived in some of the most violent places and times.

Reasonable force is whatever allows you to ESCAPE from the altercation with as little injury to yourself as possible. If you stay or do anything more than that, someone somewhere in the aftermath will interpret that against your favour. This applies in double when the person defending has training and especially if the defender would be considered an expert.

It may not always make perfect sense in all cases and even seem unfair, but that is the way the laws are applied in civilized nations. In more chaotic and harsh ones, a quick escape will prevent further violence.

If knocking the breath out of your attacker creates the chance to escape, nothing else is needed. There is no need to inflict more serious injury or stand there waiting for his next move because it will be irrelevant if you are gone before he can catch his breath again.

If you stay one second longer than necessary, any possible witness will see it as a fight. A fight is not self defense and fights are always punishable by law.The first thought in your head when attacked should not be how to "win". It should be what to do to escape.

Run through, run over, run under but RUN. If there is no opening to run, create one and then RUN. It will be impossible to conclude anything except self defense if your attitude was defensive and if you ran after one or two quick strikes.
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Harkon72
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PostPosted: Mon Dec 01, 2014 11:12 pm    Post subject: Reply with quote

This is a very interesting topic. One of the guys I train with came up with an interesting point of view. "You put them down and run away; if you hurt them and the case goes to court, you could be in more trouble if you are a martial artist as many lay persons see us as dangerous nutters." So if my friend is right, some people might not see us as more responsible because of our training, but quite the opposite in fact.
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Spartacus Maximus
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PostPosted: Tue Dec 02, 2014 6:37 am    Post subject: Reply with quote

Your friend is correct, I'm afraid. That is why doing anything except trying to escape is something that will land you in trouble. Even if the other person or persons involved are the aggressor, they can and will try to get you in trouble because bad guys are sore losers. If your actions obviously show to even a casual witness that you are trying to escape the altercation from the onset, you will be safe. Whatever the case, it is best not to stand around and wait to see if the authorities will take your side or if the attacker has mates that show up to give you a boot party. Later on you can explain with full confidence to the authorities that you were trying your damnedest to escape and the attacker got hurt in the process. You can also say that you left the scene because you feared further aggression. Both of these claims will sound reasonable and true IF and only IF you used just enough force to escape. Usually this means no more than two or three techniques such as blocking/countering, knocking down the assailant and running like the wind while he's still hurting.
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bushido_man96
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PostPosted: Tue Dec 02, 2014 11:52 am    Post subject: Reply with quote

Spartacus Maximus wrote:
I train in a place where physical violence between ordinary citizens is relatively rare and laws are very strict regarding self defense or defense of others. From reading about many scenarios it obvious that judging what is reasonable force in the heat of the instant is very difficult or nearly impossible to do through the rush of adrenalin and chaos of emotions.

The simplest advice I ever heard was from my sensei, a karateka who has lived in some of the most violent places and times.

Reasonable force is whatever allows you to ESCAPE from the altercation with as little injury to yourself as possible. If you stay or do anything more than that, someone somewhere in the aftermath will interpret that against your favour. This applies in double when the person defending has training and especially if the defender would be considered an expert.

It may not always make perfect sense in all cases and even seem unfair, but that is the way the laws are applied in civilized nations. In more chaotic and harsh ones, a quick escape will prevent further violence.

If knocking the breath out of your attacker creates the chance to escape, nothing else is needed. There is no need to inflict more serious injury or stand there waiting for his next move because it will be irrelevant if you are gone before he can catch his breath again.

If you stay one second longer than necessary, any possible witness will see it as a fight. A fight is not self defense and fights are always punishable by law.The first thought in your head when attacked should not be how to "win". It should be what to do to escape.

Run through, run over, run under but RUN. If there is no opening to run, create one and then RUN. It will be impossible to conclude anything except self defense if your attitude was defensive and if you ran after one or two quick strikes.


These are all good points. And even by considering the scenario given earlier with these points, I don't see that the man should have been criminally charged.
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Spartacus Maximus
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PostPosted: Tue Dec 02, 2014 10:25 pm    Post subject: Reply with quote

In cases like that of the war veteran mentioned earlier, I would agree that the situation probably gave him few other recourse. He was old and he was outnumbered by younger perhaps stronger armed attackers. However, the fact that he was initially charged and taken before a magistrate proves the point that claiming self defense is very difficult to do. Courts can be costly and trials can have terrible consequences even if one wins.

The general public perception of people who are trained to inflict pain such as active/ex soldiers, martial artists etc is always a disadvantage in court cases where such persons are involved.

Escaping at the first opportunity is the best insurance because it clearly shows who is the defender if the parties end up in court. It also prevents the attack from escalating to a more serious conflict.
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