B e f o r e :
THE LORD CHIEF JUSTICE OF ENGLAND (Lord Lane)
MR. JUSTICE McCOWAN
and
MR. JUSTICE LEGGATT
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IN THE MATTER OF A REFERENCE BY HER MAJESTY'S ATTORNEY GENERAL |
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UNDER SECTION 36_OF THE CRIMINAL JUSTICE ACT 1972 |
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(Reference No. 2 of 1983) |
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(Transcript of the Shorthand Notes of Marten Walsh Cherer Ltd., 36-38 Whitefriars Street,
Fleet Street, London, EC4Y 8BH. Telephone Number: 01-583 7635.
Shorthand Writers to the Court. )
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MR. M. HILL, Q. C. and MR. N. PURNELL appeared on behalf of the Attorney General.
MR. A. SCRIVENER, Q. C. and MR. D. SEROTA appeared as Amicus Curiae.
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HTML VERSION OF JUDGMENT
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THE LORD CHIEF JUSTICE: The question referred by Her Majesty's Attorney General to this Court for consideration is as follows: "Whether the defence of self-defence is available to a defendant charged with offences under section 4 of the Explosive Substances Act 1883 and section 6k of the Offences Against the Person Act l86l.
The defendant appeared before the Crown Court on 13th October 1982 facing an indictment containing four counts. Counts 2 and 4 were withdrawn from the jury's consideration during the course of the trial and the jury returned verdicts of not guilty on counts 1 and 3.
Mr. Hill for the Attorney General concedes before this Court that he cannot succeed upon his contention with regard to section 64 of the Offences Against the Person Act l86l (count 3). Consequently the issues are confined to a consideration of the charge under section 4 of the Explosive Substances Act 1883 (the Act of 1883).
The charge laid under that section read as follows:
"(the defendant) on the 13th day of July 1981 made a certain explosive substance to wit, a petrol bomb in such circumstances as to give rise to a reasonable suspicion that he had not made it for a lawful object. "
The case arose in the following way. The defendant is a man of good character aged 40 at the material time. He owned a shop in an area where on two nights during July 1981 there was extensive rioting. Some 300 police officers had been engaged in trying with only limited success to restore order against a barrage of stones and petrol bombs. Shops were damaged and looted.
On the night of the 11th/12th July 1981, £600 worth of damage was done to the defendant's shop and £400 worth of his goods were looted. The defendant remained in his shop without sleep and in fear of attack from 1.30 a.m. on 12th July to the morning of 14th July. He was justifiably in fear that he and his property might be the subject of further attack. So much so, he had had his shop boarded up and protected by fire resistant paint. He had bought 22 fire extinguishers at a cost of some £200. On the 13th July he equipped himself with three containers of sulphuric acid (the subject of count 3) intending, if necessary, to spray any attacker therewith. On the same day he made ten petrol bombs and placed them on the upstairs landing of the shop. These bombs were conceded to be explosive substances. In the event the expected attack never materialised.
When questioned by the police some five months later, the defendant gave a full account of his actions, which he confirmed in evidence before the Crown Court. He described his state of mind and intentions as follows:
"My intentions were to use them purely to protect my premises should any rioters come to my shop. I thought I would be able to throw a petrol bomb from my office window onto the pavement to keep them away from my shop. I had no intention to injure anyone but to use purely as a last resort to keep them away from my shop. "
Later he said this:
"Such was my state of mind, at the height of the rioting, I even considered using acid which we keep on the premises for filling batteries, as a first line of defence... which I would have used to spray the acid in a fine spray which from personal experience causes irritation to the skin and smarting of the eyes, but would not cause any serious damage. "
There was very little, if any, dispute between the parties as to the facts of the case.
On the first day of the trial, counsel for the prosecution submitted that self-defence was not available as a defence to any of the counts in the indictment. The learned Judge ruled against that submission. With regard to count 1 the basis of his decision was that it must be open to a defendant to say "my lawful object is self-defence".
It is conceded by Mr. Hill that the learned Judge summed up the case to the jury in a clear and concise way. We would like to echo that concession and add that the direction to the jury was a model of simplicity, clarity and brevity. The learned Judge dealt correctly with the ingredients of each of the counts and gave to the jury an accurate and illustrated direction as to self-defence. Mr. Hill submits that the Judge erred in ruling that the defendant was entitled to rely upon self-defence.
Section 4(1) of the Act of 1883 provides that:
"Any person who makes or knowingly has in his possession or under his control any explosive substance, under such circumstances as to give rise to a reasonable suspicion that he is not making it or does not have it in his possession or under his control for a lawful object, shall, unless he can show that he made it or had it in his possession or under his control for a lawful object, be guilty of a felony.....".
Counsel for the Crown argued at trial that self-defence did not provide a valid defence to this defendant on this charge because such a plea is available only to justify actual violence by a defendant. Mr. Hill contends that it does not exist as a justification for preliminary and premeditated acts anticipatory of an act of violence by the defendant in the absence of any express statutory provision therefore.
It was common ground that by virtue of the Explosives Act 1875 (the Act of 1875) sections 3, 4 and 39, the manufacture and storage of other explosives, as well as gun powder, are prohibited except under licence. The petrol bombs which this defendant made were, as already mentioned, admitted for present purposes to constitute 'explosive substances' within the meaning of the Act of 1883.
Mr. Hill submits that to allow a man to justify in advance his own act of violence for which he has prepared runs wholly contrary to the principle and thinking behind legitimate self-defence and legitimate defence of property. Both are defences which the law allows to actual violence by a defendant, and both are based on the principle that a man may be justified in extremis in taking spontaneous steps to defend himself, others of his family and his property against actual or mistakenly perceived violent attack.
It was argued that if a plea of self-defence is allowed to section 4 of the Act of 1883, the effect would be that a man could write his own immunity for unlawful acts done in preparation for violence to be used by him in the future. Rather than that, goes on the argument, in these circumstances a man should protect himself by calling on the police or by barricading his premises or by guarding them alone or with others, but not with petrol bombs.
The researches of counsel have turned up only one case directly in point. In R. v. Fegan (1972) N. I. L. R. 80, the defendant was a Roman Catholic man married to a Protestant. On that account he had been subjected to threats and beatings. He had moved to a different area without avail and had thereupon equipped himself with a revolver and ammunition. He described how he bought the gun for his own protection and, if need be, for the protection of his house and family.
Having been charged and convicted under section 4 of the Act of 1883, he appealed to the Northern Ireland Court of Criminal Appeal on the ground that the trial Judge did not direct the jury that if the defendant showed on balance of probabilities that he had the weapon for a lawful object, he was entitled to be acquitted for the statutory offences of possessing a pistol without a firearm certificate and possessing ammunition.
The Court held that, assuming that the defendant could have shown that his possession of the revolver and ammunition was with a lawful object, the summing up was defective. The principal question of law for the Court was whether that assumption was sound.
Delivering the judgment of the Court Lord MacDermott, Chief Justice, said at page 87:
"Where, as here, a firearm is possessed without certificate, permit or other authority ..... the possession is unlawful and will usually constitute an offence. But does that mean that a firearm so possessed cannot at the same time be possessed for a lawful object? The absence of a certificate, permit or other authority may well be evidence relevant to the question of the existence or nonexistence of a lawful object, but we do not think such absence of authority is in law necessarily incompatible with the firearm concerned being possessed for a lawful object. "
The Court emphasised the need, in ascertaining whether an object is lawful, to distinguish between possession and purpose. Moreover, possession for a lawful object must be construed as meaning possession for a lawful object only without there being also an unlawful object.
There followed at page 87 the following passage, upon the correctness of which the present Reference turns:
"Possession of a firearm for the purpose of protecting the possessor or his wife or family from acts of violence, may be possession for a lawful object. But the lawfulness of such a purpose cannot be founded on a mere fancy, or on some aggressive motive. The threatened danger must be reasonably and genuinely anticipated, must appear reasonably imminent, and must be of a nature which could not reasonably be met by more pacific means. A lawful object in this particular field therefore falls within a strictly limited category and cannot be such as to justify going beyond what the law may allow in meeting the situation of danger which the possessor of the firearm reasonably and genuinely apprehends. "
The Court held that it was open to the jury to conclude "that the appellant genuinely and reasonably feared for the life and safety of himself or his family and held the pistol for use if necessary as a protection against this danger". The appeal was therefore allowed.
Mr. Hill did not seek to distinguish that case on the facts, and rightly so. He nevertheless submitted that possession of a firearm for purposes of self-defence is incompatible with possession for a lawful object. Pointing to the classic exposition of self-defence in Palmer v. R (1971) A. C. 8l4 at page 831 to 832, he argued that what lies behind the concept is spontaneous reaction, by contrast with anticipatory acts such as have exercised the courts in the context of the Prevention of Crime Act 1953, section 1(1). That subsection provides that:
"Any person who without lawful authority or reasonable excuse, the proof whereof shall lie on him, has with him in any public place any offensive weapon shall be guilty of an offence.....".
In this context the following cases are relevant: Evans v. Wright (1964) Cr. L. E. 466; Grieve v. Macleod (1967) S. C. (J) 32; and Evans v. Hughes (1972) 3 All E. R. 412. In the last of those cases, after referring to the first two, the Divisional Court said that, ".... it may be a reasonable excuse for the carrying of an offensive weapon that the carrier is in anticipation of imminent attack and is carrying it for his own personal defence... ", and stressed that, "the threat for which this defence is required must be an imminent particular threat affecting the particular circumstances in which the weapon was carried".
Mr. Hill contends that it was deemed necessary in the Act to provide a "reasonable excuse" defence which would not have been necessary if the approach to self-defence found in R. v. Fegan as anticipatory justification was good law. In aid of this argument he also invoked B. v. Cousins (1982) Q. B. 526, in which this Court held that the trial Judge had erred in failing to leave to the jury the question whether the defendant had "lawful excuse" for a threat to kill, within the meaning of section 16 of the Offences Against the Person Act l86l. According to Mr. Hill cases of this kind show the Court have had to grapple with the extent to which particular statutory answers are to be allowed to provide excuses for preparation to meet anticipated or feared violence. In his submission the concept of "lawful object" could not avail the defendant in the present case because he could not show his object to have been wholly and exclusively lawful.
In our judgment, approaching a priori the words "lawful object", it might well seem open to a defendant to say, "My lawful object is self-defence". The defendant in this case said that his intentions were to use the petrol bombs purely to protect his premises should any rioters come to his shop. It was accordingly open to the jury to find that the defendant had made them for the reasonable protection of himself and his property against this danger. The fact that in manufacturing and storing the petrol bombs the defendant committed offences under the Act of 1875 did not necessarily involve that when he made them his object in doing so was not lawful. The means by which he sought to fulfil that object were unlawful, but the fact that he could never without committing offences reach the point where he used them in self-defence did not render his object in making them for that purpose unlawful. The object or purpose or end for which the petrol bombs were made was not itself rendered unlawful by the fact that it could not be fulfilled except by unlawful means. The fact that the commission of other offences was unavoidable did not result in any of them becoming one of the defendant's objects.
The Court respectfully agrees with the conclusion of the Court of Criminal Appeal of Northern Ireland that "possession of a firearm for the purpose of protecting the possessor from acts of violence may be possession for a lawful object". Whether it is so or not must be determined in any given case by the jury in the light of directions such as the trial Judge here gave.
In the Judge's summing up the threatened danger was assumed, as was the defendant's anticipation of it. Also assumed, no doubt upon the basis of the evidence led, was the imminence of the danger. What the learned Judge upon the facts of the case before him left to the jury was the reasonableness of the means adopted for the repulsion of raiders. He did that in comprehensive and, as we have remarked, in well-illustrated terms.
Consonant with the decision in R. v. Fegan, though not cited to the Court in Northern Ireland, were the decisions of the Divisional Court in Evans v. Hughes (supra) and of the High Court of Justiciary in Grieve v. Macleod (supra). In a parallel series of cases (decided under the Prevention of Crime Act 1953), those Courts decided that the question of reasonableness of excuse for possession of an offensive weapon must be considered in relation to the "immediately prevailing circumstances". It may be a reasonable excuse that the carrier is in anticipation of imminent attack and is carrying the weapon for his own personal defence. Those cases point to a similar conclusion to the conclusion reached by the Court in R. v. Fegan.
In our judgment a defendant is not left in the paradoxical position of being able to justify acts carried out in self-defence but not acts immediately preparatory to it. There is no warrant for the submission on behalf of the Attorney General that acts of self-defence will only avail a defendant when they have been done spontaneously. There is no question of a person in danger of attack "writing his own immunity" for violent future acts of his. He is not confined for his remedy to calling in the police or boarding up his premises.
He may still arm himself for his own protection, if the exigency arises, although in so doing he may commit other offences. That he may be guilty of other offences will avoid the risk of anarchy contemplated by the Reference. It is also to be noted that although a person may "make" a petrol bomb with a lawful object, nevertheless, if he remains in possession of it after the threat has passed which made his object lawful, it may cease to be so. It will only be very rarely that circumstances will exist where the manufacture or possession of petrol bombs can be for a lawful object.
For these reasons the point of law referred by Her Majesty's Attorney General for the consideration of this Court is answered by saying: The defence of lawful object is available to a defendant against whom a charge under section 4 of the Act of 1883 has been preferred, if he can satisfy the jury on balance of probabilities that his object was to protect himself or his family or his property against imminent apprehended attack and to do so by means which he believed were no more than reasonably necessary to meet the force used by the attackers.
