R v Hichens [2011] EWCA Crim 1626

Hichens was staying with a woman whose boyfriend had previously threatened him. Police had attended earlier incidents. When the boyfriend returned, the woman wanted to admit him. Hichens tried to stop her and struck her when she would not agree. He relied on preventing crime, necessity and self-defence, arguing that admitting the boyfriend could lead to another confrontation. The appeal concerned the legal possibility of defensive force against an innocent third party and whether the particular blow could be justified on the circumstances described.

Could self-defence or prevention of crime extend to force against an innocent third party, and did the erroneous withdrawal of those defences require the conviction to be quashed?

The Court of Appeal held that self-defence and reasonable force in preventing crime could, in principle, extend to force against an innocent third party. The judge had wrongly withdrawn those defences from the jury: their considerable difficulties on the evidence were factual, rather than an absolute legal bar. The separate defence of necessity had properly been withdrawn.

Nevertheless, the conviction was safe and the appeal was dismissed. Even on the account most favourable to the defendant, the possible violence was remote and uncertain, the woman posed no threat, and he had ample opportunity to leave or call the police. A properly directed reasonable jury could not have acquitted him. His appeal against sentence was also dismissed.

Self-defence and reasonable force in preventing crime are not categorically limited to force against the anticipated aggressor. The particular response must be assessed under the relevant rules, including the defendant's belief about the circumstances. A direction wrongly excluding a defence does not necessarily make the resulting conviction unsafe.

Hichens links the law on protective force with appellate review of an erroneous direction. The jury should have been allowed to consider self-defence and prevention of crime, but the conviction survived because no reasonable jury properly directed could have acquitted on the evidence. The case also requires necessity to be analysed separately. In an examination answer, distinguish the defendant's account of the perceived danger from the assessment of whether the force used was reasonable.