Keane & Anor, R. v

Facts

In each case the appellant was involved in a violent confrontation in which there was evidence that he had started or provoked the violence. Each relied on self-defence at trial, and each trial judge directed the jury on the limits of self-defence for a person who starts or provokes the fight.

History

Both appellants were convicted in the Crown Court and appealed, contending that the directions on self-defence were wrong.

Issue

Whether, and when, a defendant who initiated or provoked the violence can rely on self-defence against the response he provoked.

Held

Both appeals dismissed; the directions given were not shown to be wrong and the convictions were safe.

Ratio

• Self-defence is not available to a person who deliberately provokes violence in order to have an excuse to retaliate; an initial aggressor can rely on self-defence only where the victim's response is so out of proportion to the original aggression that the roles are in effect reversed, so that the aggressor becomes the person needing to defend himself.

The judgments

Key reasoning

• Self-defence is a defence to the use of force reasonably necessary to defend oneself; it is not a licence to fight, and the law does not treat retaliation as defence.
• Rashford [2005] EWCA Crim 3377 had held that the fact that a defendant went somewhere intending to use violence does not necessarily deprive him of self-defence if the victim's response is wholly out of proportion; the court reaffirmed that this exception is narrow.
• The reasonableness of the force is judged on the facts as the defendant believed them, but where he has provoked an attack in order to respond, his response is not defence at all.

Where it fits in the module

In the general defences topic the case shows that self-defence is a justification bounded by moral responsibility for the situation: the person who creates the danger cannot generally claim the protection. It invites comparison with prior fault rules elsewhere, such as self-induced duress (Hasan) and intoxication, and with the codified test in s.76 of the 2008 Act.

Criticisms

• The role-reversal test is imprecise, leaving the jury to judge when a response becomes so disproportionate that it switches the parties, with risk of inconsistent verdicts.
• Denying self-defence to the provoker may leave a person who faces lethal force without a defence, even though at that moment his use of force is necessary to save his life.
• It can be argued that the provoker's prior fault would be better reflected by liability for the initial aggression and at sentence, rather than by stripping a later justified response of its defence.