• In the case of Hichens 2011 EWCA Crim 1626 it was held that self-defence and the defence of using reasonable force is capable of extending to the use of force against an innocent third party to prevent a crime being committed by someone else.

Facts of the Case

  • K had moved in with a friend (Y) and their boyfriend dislike this arrangement.
  • He had come to the flat twice and threatened K.
  • The police came on both occasions and warned the ex-boyfriend.
  • The ex-boyfriend came to the flat again and Y wanted to let him in. K urged her not to let him in and slapper her across the face when she would not listen.
  • He claimed that he had used reasonable force to prevent the commission of a crime, since if the ex-boyfriend had entered the flat there may have been an altercation between them.
  • He also relied on the defence of necessity and self-defence.
  • The judge in a response to a jury question stated that Y was not about to commit a crime and the possibility that the ex-boyfriend might do so was not sufficient to justify K’s actions in slapping her.
  • K submitted that the judge had erred in directing the jury that the defence of necessity, self-defence and the use of reasonable force were not available to him in accordance with the Criminal Law Act 1967 s3.

Issues in Hichens 2011 EWCA Crim 1626

  • Was the use of force appropriate in the circumstances
  • Could K rely on necessity

Held by Court of Appeal

  • Appeal dismissed

Gross LJ

  • It was held that the trial judge had not erred in his direction.
  • The defence of necessity was only recognised in very limited circumstances and traditionally the nature of the harm forestalled had to be death or serious injury.
  • “We have already indicated our view of the relevant law and outlined the salient facts. We remind ourselves of the subjective element in both the common law and statutory defences though it must not be forgotten that there is an objective element as well (see most recently R v Keane; R v McGrath [2011] Crim LR 393). Even so, we are wholly unable to contemplate a reasonable jury, properly directed, with a suitable and forceful emphasis on the question of remoteness, acquitting the appellant. Even on the most favourable view of the evidence for the appellant, we underline (i) Miss Brown was doing what she was perfectly entitled to do, whether wisely or not; (ii) there was no risk to the appellant from Miss Brown, the victim of the slapping; (iii) there was at the most, a possibility of a crime being committed by Oliver should he be admitted to the flat; (iv) at the time of the slapping no crime was being committed and Oliver was not in the flat; (v) the appellant had known that Oliver might be coming to the flat for some time before the incident; (vi) the appellant had obvious options including calling the police or leaving the flat and, in our judgment, ample time to exercise them. It follows that the appeal against conviction must be dismissed. We have no doubt that the conviction was safe.” [32]

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