§23.3. THE PROPORTIONALITY RULE
In the example of the proportionality rule given at the beginning of §23.2 the use of the gun may be “necessary†to avoid the apprehended evil of being slapped, but it is disproportionate to that evil, and therefore unlawful. “For every assault it is not reasonable a man should be banged with a cudgel†(Holt CJ). The proportionality rule is based on the view that there are some insults and hurts that one must suffer rather than use extreme force, if the choice is between suffering the hurt and using the extreme force. The rule involves a community standard of reasonableness and is left to the consideration of the jury. It can bear hardly on the defender, but much depends on the way in which judges and juries administer it; and that, again, may depend on whether they happen to empathise with the frightened defender or with his injured (or dead) assailant. If the defendant’s reaction was disproportionate, the attack he feared or was resisting will go only in mitigation.
The previous examples of the proportionality rule are too trivial to be helpful. The real-life problem arises where a person is fiercely attacked by a bully whom he can resist only by the use of a lethal weapon. It is now so common for brutal men to kick their opponent about the head after he has been felled to the ground that anyone who is attacked may reasonably dread this possibility.
In order to give proper width to the right of self-defence an Australian court stated the law negatively: “Would a reasonable person in the defendant’s situation have regarded what he did as out of all proportion to the danger to be guarded against?†A somewhat different approach to the problem was adopted by the Court of Appeal in Shannon, basing itself on the following dictum of Lord Morris:
“A person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action. If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonable defensive action had been taken.â€
Approving this statement, the Court of Appeal quashed a conviction because the trial judge had not conveyed the point to the jury and had not directed them broadly in Lord Morris’s words. The real issue, the court thought, was: “Was this stabbing within the conception of necessary self-defence judged by the standards of common sense, bearing in mind the position of the defendant at the moment of stabbing, or was it a case of angry retaliation or pure aggression on his part?†In future, an instruction to the jury in these terms will evidently be necessary in many cases of self-defence.
The facts of Shannon were that the deceased, a heavily built man who had convictions for violence, had been making threats against Shannon for having (as he believed) “grassed†him. Shannon, who had no history of violence or aggression, must have been living in fear of an attack for some time. When the attack came he fought back, the fight (though evidently largely one-sided) being described by a bystander as “pretty frightening.†Shannon’s evidence was that he was being held very tightly by the neck and was being dragged down and “kneed;†he feared that if he fell while in the grip of his attacker he would have “got beat up by his feet.†He lashed out with a scissors and inflicted a fatal blow. On the issue of self-defence the judge left the case to the jury with the bald question: Did the defendant use more force than was necessary in the circumstances?†On this the jury, surprisingly, returned a conviction of manslaughter. The conviction was quashed, as already said, for inadequate direction to the jury; but the Court of Appeal expressed no other criticism of the verdict. We are left with the impression that if in a similar case the judge reads out Lord Morris’s dictum to the jury, who nevertheless convict, the conviction will stand.
On the dictum, it is not easy to see how “what the defendant thought†could be evidence of what it was reasonable for him to do. The usual opinion is that the question what is reasonable, in the multifarious applications of that word, is for the unaided vote of the jury, and is not a matter for “evidence†in the ordinary way. It looks very much as though the dictum is a way of escaping from the test of reasonableness without acknowledging the fact. This conclusion is strengthened by the above-quoted remark of the Court of Appeal, which (epitomising a lengthy statement of Lord Morris) distinguishes sharply between “necessary self-defence†on the one hand and “angry retaliation or pure aggression†on the other. The dichotomy allows no place in between for unnecessary but putative self-defence. All putative self-defence, it seems, falls into the category of “necessary self-defence.†In this part of the judgment, the idea that the defendant’s belief is merely evidence of reasonableness has suddenly vanished; indeed, the very word “reasonable†is dropped. It seems, therefore, that the decision makes a radical change in the law. At least where the defender fears death or serious injury, there is no proportionality rule any longer; and a good thing too—in view of the jury’s verdict in Shannon. German law, it seems, gets on without a proportionality rule, and so could we, where the facts are similar to those in Shannon. The reasoning in the decision is fudged, but that is the price one pays for a beneficial change in the law.
