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Date: Thu, 24 Apr 2008 01:23 From: Neil Foster Subject: House of Lords on self-defence and battery
Dear Colleagues The House of Lords' decision in Ashley v Chief Constable of Sussex Police [2008] UKHL 25 is now available here. The case involved (at this stage, at any rate) an action for battery against the police by the relatives of a suspect who had been shot in a police raid. (The earlier decision in the CA also discussed the availability of an action in misfeasance in public office, which is not discussed in the HL judgment.) The case was unusual in that the Chief Constable of Sussex had already conceded that the police were liable in negligence (to do with the planning of the raid), and had offered to pay both compensatory and even aggravated damages if established flowing from the negligence. But the family wanted to pursue the battery claim against the police, as vicariously liable for the actions of the officer who carried out the shooting. Main conclusions: (1) The first big issue was the definition of the defence of "self-defence" for the tort of battery. Recent UK criminal law holds that self-defence can be established for criminal purposes if there is an honest belief by the accused in facts which would justify it (usually, that the deceased was about to attack), even if the belief is unreasonable. All the members of the House here hold (upholding the detailed judgment of Sir Anthony Clarke MR in the CA) that for the purposes of the law of torts the defence would only be established where the belief of the defendant in an imminent attach was not only honest but "reasonable"- see e.g. Lord Scott at [18], Lord Rodger at [53]. There is an interesting split on some further points here, however. One option put forward but not adopted by the CA - "option 3" - is that the civil law should only provide a defence of this sort where in fact there were circumstances justifying it. Since the claimants here did not press this submission, the House did not adopt it. But there were strong hints from Lord Scott [20] that such a view might find favour with the House if it was presented for decision, at Lord Rodger [55] and Lord Neuberger [90] specifically also left open the possibility that this might be the law. (Lord Bingham [3] seems to reject it by saying he doesn't want to inject more uncertainty, and Lord Carswell [76] did not support it.) Even within the area of agreement that it should be a defence if a belief in imminent attack was "reasonable", however, there were some further qualifications. Lord Rodger [54] specifically left open whether a reasonable belief engendered by a third party should be available in the same way that a reasonable belief engendered by the claimant. Lord Neuberger discussed this issue at [91]-[93] but without offering very clear guidance. (2) The other major issue was whether the battery claim should be allowed to proceed where it would in the end have no financial benefit, since negligence had already been conceded. Here there were some very interesting comments on the overall purpose of tort law which will provide good material for further comment! The result on this issue was a 3-2 split- Lords Bingham, Scott and Rodger holding that the claim should be allowed to proceed, Lords Carswell and Neuberger (though for different reasons) concluding that it should not. I encourage colleagues to read the various judgments which make a number of interesting points. I liked Lord Scott at [18] as a simple and clear statement:
Lord Scott allows the matter to proceed with an emphasis on the "vindicatory" nature of the damages - vindicating the right of the claimant not to have been the victim of the battery. (To be distinguished from "exemplary" damages - see [22].) There are lots of good quotes about the difference between civil and criminal law, and how the acquittal here of the constable for murder did not in any sense preclude the further action for battery by the family - a good example for students if you get tired of referring to OJ Simpson! I also like the very clear discussion of alternative claims by Lord Rodger at [56]ff - as he points out, parallel claims covering the same damage are common, and the fact that a court may award damages in negligence does not mean that it cannot also award damages in battery (the final sum being adjusted, of course, to preclude double compensation.) It is important to note that Lord Neuberger specifically does not deny the possibility of the battery claim proceeding - see [112]. He just takes the view that the courts always retain a discretion, and here the discretion ought to have been exercised against the claimants.
Happy reading! Regards Neil Foster
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