The law allows you – to a certain extent – to use force to defend yourself (or a third party) against attack (or the threat of attack) from another. This is known as self-defence (or defence of another).
Self-defence is a special and complete defence to charges alleging illegal use of force (e.g. assault / murder). This means that, if it is found that the accused was acting in self-defence, they will be acquitted of the relevant charge(s). It also means that advance notice needs to be given to the prosecutor (and any co-accused), in accordance with s149B of the Criminal Procedure (Scotland) Act 1995 for summary proceedings, and s78 of the 1995 Act for solemn proceedings.
Unsurprisingly, there are fairly strict conditions for a defence of self-defence to succeed. The relevant case that sets them out is:
HMA v Doherty (1954 JC 1)
- Doherty had been attacked by a man with a hammer. One of his friends handed him a bayonet, which he used to stab the man attacking him, which killed him.
- Doherty argued that his actions were in self-defence, but this was rejected, and he was convicted.
- In this case, there had been a means of escape available to Doherty, so he ought to have escaped rather than stabbed his attacker.
Here are the three requirements for self-defence in Scots law, as set out in the case above:
1. “There must be imminent danger to the life or limb of the accused”
2. “The retaliation that he uses in the face of this danger must be necessary for his own safety”
3. “If the person assaulted has means of escape or retreat, he is bound to use them”
In other words, threat + no escape + proportionate response = self-defence
Let’s look at them in a bit more detail.
Imminent danger means just that – if someone threatens to batter you tomorrow, you don’t have the right to hit them today.
You don’t have to wait to be hit, though. If someone is advancing towards you with their fists up / holding a weapon / in some other way that causes you to conclude that you’re about to be attacked, hitting them first is consistent with self-defence.
The law expects you to retreat – or, at least, put some sort of obstacle between you and your attacker – if you can. That might mean closing a door, driving or running away.
This duty to retreat does not, however, require you to place yourself in danger by doing so. For example, if your only means of retreat involved running across a busy road, it may well be reasonable to stand your ground in those circumstances.
Your response to attack should be proportionate to the danger that you are in. For example, if somebody is attacking you by flicking your nose repeatedly, it would be disproportionate (albeit effective) to stab them with a knife to make them stop.
McCluskey v HMA (1959 JC 39)
Lord Strachan: “Speaking generally, homicide will not be justified by self-defence unless it is committed of necessity on the just apprehension of the killer that he cannot otherwise save his life.”
There is no hard and fast rule as to what constitutes a proportionate response in any given scenario; it is a matter for the judge or jury. Fortunately, the law appears to recognise that it is a difficult matter for the individual to judge in what tend to be moments of extreme stress.
In the above-mentioned HMA v Doherty, Lord Keith instructed the jury that “you do not need an exact proportion of injury and retaliation; it is not a matter that you weight in too fine scales…some allowance must be made for the excitement or the state of fear or the heat of blood at the moment of the man who is attacked”.
Potential factors to take into account could be:
- the nature and seriousness of the initial attack
- whether the attacker persisted with the attack after an attempt to repel them had no effect
- whether a means of escape became available during the attack
- whether the attacker had already been disabled by the accused
If the attacker has been knocked down, it is unlikely to be proportionate to kick them repeatedly.
Responses that were initially proportionate can become disproportionate (and therefore criminal) quite quickly. You may then have to rely on the partial defence of provocation.