Pre-emptive strikes

[fogant]

Pre-emptive strikes
There is no rule in law to say that a person must wait to be struck first before they may defend themselves


so witch leeds me to ask how close or aggressive dose one need to be for you to ues a Pre-emptive

this is a question for everyone

no ones reply will be the same as we all take and feel things in are own way just be interesting to read the replys


if you have ever used one tell us about it

 

[operator144]

But it's the actions of a reasonable person, and the Mens rea behind it. Why not walk away? How can you say that the other person was going to attack you? There needs to be no other way for you to get out of the stuation, other than using the minimum force necessary.

If you use a pre-emptive strike I think that you will be in the Jobseekers Office the next day personally.

 

[Sabre]

I agree with op144 's first points. It should only be used as a last resort and when all other avenues have been exhausted, ie you have tried talking the person down, and you are unable to retreat to safety eg. You maybe surrounded by his mates. Only then should a pre emptive strike be considered if you fear you are about to be struck. Obviously the force used must be reasonable, excessive force will land you in trouble.
If you are in a situation where you have no choice but to strike first to defend yourself then I wouldn't worry about losing your license or being charged in Court, as long as you had no other option a pre emptive strike is legal.

 

[olks]

But it's the actions of a reasonable person, and the Mens rea behind it. Why not walk away? How can you say that the other person was going to attack you? There needs to be no other way for you to get out of the stuation, other than using the minimum force necessary.

If you use a pre-emptive strike I think that you will be in the Jobseekers Office the next day personally.

As long as you…..
A. Believe on reasonable grounds that there is an immediate threat,
B. Use reasonable force proportionate to the threat,

Then yes you have grounds for self defence. However the terms preemptive and Self Defence do not go together. If it were to go to court and a prosecutor can prove just a smidgen of preemption in your actions standing in line at the job office will be the least of your worries. Security is not like the Military where we are taught "The best defense is a good offense".

 

[ginge3746]

If you do strike first, never say it was pre-emted. I would be cautious of saying minimum force. "I was in genuine fear for my life so I hit him with minimum force" well you wasn't fearing for your life because you were thinking rationally.
Best bet is not to hit anyone! I did have a reputation for being violent and I haven't had to hit anyone in nearly three years.

 

[wingnut]

Pre emotive strikes have always been a sore point with people and the courts. If you premptively strike from the outside it may look like you are the aggressor, the law is all about perception, your perception of the threat and others perception of the incident. Premptive strikes have their place, however, in this days society they are best used rarely and cautiously. They are of course legal should you be in fear of imminent violence and it is the minimal amount of reasonable force you can apply to prevent such violence.

In practice and the real world, big hairy man approaches points his finger and says in a menacing voice "I am going to rip off our head", old lady stood 20. Meters away sees this and observes a man talking and pointing at you and the next min 'for no apparent reason you punch him'. And that is what she. Will tell a court because that's. her perception. The big hairy guy will also say he was just talking to you and you. Attacked him. Who is spending some time clutching to the soap in the shower, all down to perception?

The law really is an ass in these type. Of incidents and its often the misinterpretation of others from afar that condemns ou.

 

[littlewoman]

How close do they need to be? Close enough for you to hit them obviously Although in jest, I make an important point. They can be moving towards you in a threatening manner and they can move a significant distance in a second. So their distance is not much of an issue to when you decide you will have to use force. However, if you make a move towards them, its going to look a lot worse than if you stand your ground, dodge to the side or step backwards whilst delivering the strike.

The second point to make is that whilst the law requires that you show an unwillingness to fight, you have no obligation to withdraw or back down, this used to be the case, but it is no longer. The law now accepts that a person obeying the law should not have to allow themselves to have their lawful business curtailed by threat of violence. Most of us are in professions where it is our job to keep the peace in some form or another so we do have some obligation to stand up to thuggish behaviour.

People keep talking about using minimal force. In order to be able to judge the bare minimum of force you can use, you need to be able to make a precise judgement of the level of force needed and that is just not possible. Section 76 (7) of the Criminal Justice and Immigration Act 2008 outlines that it is not possible to accurately judge the amount of force needed.
“that a person acting for a legitimate purpose may not be able to weigh to a nicety the exact measure of any necessary action; and that evidence of a person's having only done what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken by that person for that purpose.”
The law says "reasonable force" for a reason, its just not possible to judge minimal force.

However, Wingnut makes a very important point. Its not just what actually happens, which is important but other's perception of what happened and what you can show in court. Bear in mind that in court they have to prove you were wrong. It may not be possible to prove every aspect of what happened some of it will rely on who the court believes. But it is useful to be trained in tactics less likely to get you in trouble.

When thinking about what techniques you might use, it is far better to use throws and locks than strikes. Better to use strikes to the legs or arms than the head or body, better to strike the body than the head. Better to use a flat hand or elbow than a punch.

It may also be useful to use verbal commands directed at the offender but to explain to the public what you're doing. Saying in a loud voice "stop struggling you're hurting yourself" is a good counter to them screaming that you're hurting them when you have them in a lock. If someone is being aggressive, holding your hands up (head height) with palms open shows that you are not aggressive and puts your hands in a good place to defend yourself or strike out.

You will (hopefully) defend yourself instinctively. The subconscious takes in far more information, quicker than the conscious. So when you come to write your statement later you won't be fully aware of all the reasons you did what you did. You need to replay it step by step in your head and think about what was said, how it was said (swearing, raised voices, sharp stressed words rather than relaxed and flowing), body language etc. and put that into any statement.

There's a new book out on Kindle by Mark Dawes called Understanding Reasonable Force. It explains all the legal ins and outs of using force and is worth a read for anyone in the security industry.

 

[wingnut]

Little woman, a very very good post that is sound advice, you are of course right minimal force is subjective, but the force has to be reasonable in the circumstance, purportinate and necessary. It should. Be the least amount of force you believe is needed at that time to archive your aim of safety. Worthy of note is that everyone's interpretation of force applied will be different, for example a police officer who is trained will approach the issue of force differently than a trolly collected at asda stopping a theft.

The use of force cases that have been to court are so varied that the case law from them continually contradicts itself. It is certainly worth receiving proper conflict resolution training that will teach you some good tactical comms and coping mechanisms. That in itself will not substitute becoming accustomed to the adrenaline surge and the self invoked stress.

 

[Scab]

However the terms preemptive and Self Defence do not go together.

What??!?

Beckford V R
A man about to be attacked does not have to wait for his assailant to strike the first blow or fire the first shot; circumstances may justify a pre-emptive strike

SPECIFICALLY in relation to self defence.


This is a good read:
Self Defence | Criminal Law Cases | Law Teacher

As is the CPS own guide to self defence and use of force (on their website).

 

[littlewoman]

Little woman, a very very good post that is sound advice, you are of course right minimal force is subjective, but the force has to be reasonable in the circumstance, purportinate and necessary. It should. Be the least amount of force you believe is needed at that time to archive your aim of safety. Worthy of note is that everyone's interpretation of force applied will be different, for example a police officer who is trained will approach the issue of force differently than a trolly collected at asda stopping a theft.

The use of force cases that have been to court are so varied that the case law from them continually contradicts itself. It is certainly worth receiving proper conflict resolution training that will teach you some good tactical comms and coping mechanisms. That in itself will not substitute becoming accustomed to the adrenaline surge and the self invoked stress.

Where, in law does it say you have to use the least amount of force you believe is needed?

Whilst it would be good, to do a good course in in conflict resolution, most of the courses available are focussed around selling techniques that don't hurt people as that is what the suits approve of. So most of the courses out there are more focussed on being nice to customers rather than defending yourself effectively within the law. Of course, its better if you can use tactics that diffuse the situation without having to use force, but once you throw alcohol or drugs into the situation that has far less chance of working. Many of the courses come from customer service skills courses designed to deal with sober and sane people making legitimate complaints about products and services and are not suited towards most of the situations security people find themselves in.

 

[rhea]

fogant,

Did you not do the Physical Intervention course as part of your DS licence?

I realise that most here consider it a joke and that it doesn't go far enough but I for one found it quite informative and clearly shows you certain actions you should take, where possible , in defending yourself and in trying to deescalate the situation. It also covers the legal implications of any action you take.

I do understand that a few hours training is no where near enough in real life but if your pre-emptive strike involves punching someone and you end up in court I can see you being asked why you did not follow your training.

 

[wingnut]

Where, in law does it say you have to use the least amount of force you believe is needed?

Whilst it would be good, to do a good course in in conflict resolution, most of the courses available are focussed around selling techniques that don't hurt people as that is what the suits approve of. So most of the courses out there are more focussed on being nice to customers rather than defending yourself effectively within the law. Of course, its better if you can use tactics that diffuse the situation without having to use force, but once you throw alcohol or drugs into the situation that has far less chance of working. Many of the courses come from customer service skills courses designed to deal with sober and sane people making legitimate complaints about products and services and are not suited towards most of the situations security people find themselves in.

Minimal force is what we talk about when arresting individuals, the same as reasonable force in essence. We teach using the minimal force to needed to gain compliance. There is no specific law to say it has to be minimal, it as the way in which we train people to apply force. This is not to say the force applied cannot be robust, just that punching someone in the face because they won't get out of your personal space, when pushing them will do. If you use the least force 'minimal' then you stand a far better chance of proving to a court that you acted reasonably.

Of course people will disagree with this, that's fine, but I have learnt from bitter experience that acting in the heat of the moment and not adequatly controlling one's self attracts far more complaints than necessary.

None of this effects your inherent right to defending yourself. I fully agree that what's reasonable in the circumstance is entirely subjective.

 

[wingnut]

Where, in law does it say you have to use the least amount of force you believe is needed?

Whilst it would be good, to do a good course in in conflict resolution, most of the courses available are focussed around selling techniques that don't hurt people as that is what the suits approve of. So most of the courses out there are more focussed on being nice to customers rather than defending yourself effectively within the law. Of course, its better if you can use tactics that diffuse the situation without having to use force, but once you throw alcohol or drugs into the situation that has far less chance of working. Many of the courses come from customer service skills courses designed to deal with sober and sane people making legitimate complaints about products and services and are not suited towards most of the situations security people find themselves in.

I fully agree that physical intervention training is probably inadequate, the ACPO course has continually been revamped to try and reflect the threat, but still is not all that practical in real life. But then these courses are not there to teach you how to deal with every situation, merely to give you a number of tools to assist you.

 

[rhea]

Good points on techniques especially the "active palms".

All covered on my Physical Intervention course. Punching some in the head has got to a last resort and can end up hurting you more than the idiot you are trying to stop.

Just a couple of points....

The second point to make is that whilst the law requires that you show an unwillingness to fight, you have no obligation to withdraw or back down, this used to be the case, but it is no longer.

When was this the case and when did it change?

Bear in mind that in court they have to prove you were wrong.

I thought the prosecution had to prove you were responsible for an assault and its up to the defendant to prove it was self defence.

 

[wingnut]

The law doesn't require you you to show an unwillingness to fight it does however, take t into mitigation. As below with an appeal.

R v Bird [1985] 1 WLR 816 - The defendant had been slapped and pushed by a man. She was holding a glass in her hand at the time and she had hit out at the man in self-defence without realising that she still held the glass. The trial judge directed the jury that self-defence was only available as a defence if the defendant had first shown an unwillingness to fight. The Court of Appeal quashed the defendant's conviction saying that it was unnecessary to show an unwillingness to fight and there were circumstances where a defendant might reasonably react immediately and without first retreating. It was up to a jury to decide on the facts of the case.

 

[littlewoman]

The duty to retreat was common law, I believe, and was reworded in Julien 1969, to having a duty to demonstrate and unwillingness to fight, to disengage and perhaps make some physical withdrawel. In Bird 1985 it was decided that the word duty was too strong. R v Bird

My understanding is that withdrawing will show that you were only acting in self-defence, however it isn't always necessary. I think this is particularly important for security professionals as it is our job to ensure people keep to certain rules and at time force may be the only option. Whilst other options of getting them to behave should be tried where possible, we can't let them do what they want just because the only way of getting them to behave (or removing them from the premises) would mean using force. We should also remember Lord Diplock in Albert v Lavin (1982)
“Every citizen in whose presence a breach of the peace is being, or reasonably appears to be about to be, committed has the right to take reasonable steps to make the person who is breaking or threatening to break the peace, refrain from doing so; and those reasonable steps in appropriate cases will include detaining him against his will. At common law this is not only the right of every citizen, it is also his duty…â€

Whether the prosecution has to prove only that you hit someone, and not that you were not justified in hitting someone is a very good question. One I asked years back and couldn't get a straight answer to. I'm taking it from Palmer v R (1971) "A jury will be told that the defence of self-defence, where the evidence makes its raising possible, will only fail if the prosecution show beyond doubt that what the accused did was not by way of self-defence......If the jury consider that an accused acted in self-defence or if the jury are in doubt as to this than they will acquit"

(The wonders of having a book in Kindle format is that I can search for all these references, I'm not a legal genius storing it all in my head.)

 

[Scab]

There is no duty to retreat.

I cannot agree with the use of the word 'minimal' in relation to use of force. The law says 'reasonable in the circumstances' reasonable being broken down into 'proportionate' and 'necessary'.

Pre emptive strikes utilised to defend ones self can fall into both proportionate and necessary. Utilising force pre-emptively to achieve another goal is also viable if it can be justified as both proportionate and necessary; where there would probably be a shade more scrutiny over the level of force used as in some circumstances it could be argued the person using force did have time to think about what they were doing and how.

The biggest point people need to realise comes from S.76 of the Criminal Justice and Immigration Act; which basically took Palmer V R (not having time to weigh to a nicety the level of force in defensive action) but crucially changed the wording away from 'defensive action' and made it the far wider scoped 'legitimate purpose' where 'legitimate purpose' covers any legally recognised right to utilise force.

Now, even if you have time to think about the level of force you are going to use, if you apply it and it goes tits up you still have the protections of Palmer V R.

Such as was one of the reasons behind that change and introduction of it into statute law - people defending their homes from intruders; self defence could not be argued where someone is advancing on an intruder.

 

[littlewoman]

If you are always trying to use minimal force, sooner or later you are going to get that judgement wrong and you're going to get hurt. Reasonable allows for a range of force which is legal, towards one end of "Reasonable" you're using force that is close to the edge as far as the law is concerned and that level may get you arrested. But towards the other end of "Reasonable" is force that may not be quite enough to keep you safe, it may end up with you getting hurt or killed. In the middle is the level of force which should be easily dependable in law and be adequate enough to give you a good margin of safety.

Picture it a bit like walking down the pavement. At one side there's a wall, lamp posts, shops signs etc that you'll bump into if you walk too much towards that side. At the other side is the kerb. If you keep trying to walk as close to the kerb as you can, sooner or later you'll get hit by a car or truck. So, where possible you try to walk down that safe area in the middle, occasionally you'll bump into someone or trip up, but its still the safest option.

 

[wingnut]

If you are always trying to use minimal force, sooner or later you are going to get that judgement wrong and you're going to get hurt. Reasonable allows for a range of force which is legal, towards one end of "Reasonable" you're using force that is close to the edge as far as the law is concerned and that level may get you arrested. But towards the other end of "Reasonable" is force that may not be quite enough to keep you safe, it may end up with you getting hurt or killed. In the middle is the level of force which should be easily dependable in law and be adequate enough to give you a good margin of safety.

Picture it a bit like walking down the pavement. At one side there's a wall, lamp posts, shops signs etc that you'll bump into if you walk too much towards that side. At the other side is the kerb. If you keep trying to walk as close to the kerb as you can, sooner or later you'll get hit by a car or truck. So, where possible you try to walk down that safe area in the middle, occasionally you'll bump into someone or trip up, but its still the safest option.

It's semantics on the wording, my comment was minimal force to achieve your aim, that aim ultimately could be death if you so wish. I do take on board your comments though. A sharp violent response quite often dissuades further confrontation, unfortunately that's not veiwed as a nice way of working in the UK.

Reasonable force leaves the same areas of possible threat as minimal and because the reasonableness of a timid individual trying to fend off an aggressive individual will be opposite ends of the spectrum it cannot be judged in words.

 

[Scab]

If you are always trying to use minimal force, sooner or later you are going to get that judgement wrong and you're going to get hurt. Reasonable allows for a range of force which is legal, towards one end of "Reasonable" you're using force that is close to the edge as far as the law is concerned and that level may get you arrested. But towards the other end of "Reasonable" is force that may not be quite enough to keep you safe, it may end up with you getting hurt or killed. In the middle is the level of force which should be easily dependable in law and be adequate enough to give you a good margin of safety.

It is not 'reasonable' force - it is 'reasonable in the circumstances'. Very important distinction.

Picture it a bit like walking down the pavement. At one side there's a wall, lamp posts, shops signs etc that you'll bump into if you walk too much towards that side. At the other side is the kerb. If you keep trying to walk as close to the kerb as you can, sooner or later you'll get hit by a car or truck. So, where possible you try to walk down that safe area in the middle, occasionally you'll bump into someone or trip up, but its still the safest option.

And that is exactly where Palmer V R and now S.76 CJIA come in. You are not expected by the law to get that balance right. The law offers protections from getting that balance wrong in common law (Palmer V R, Chisam V R) and now statute law in the CJIA.

The balance is less important than you might think.

It is only where people have gone grossly over the top that they may find themselves in trouble. All the big deals made about a VERY small number of cases in the media are testament to that. Tony Martin (give him a medal) shot the kid in the back. The Asian family who TIED UP AND BEAT a burglar...

If we look objectively at how many people get put through the system in our line of work; compare that OBJECTIVELY to those who may have gone a bit over the top (or were trained in martial systems that are a bit OTT for the security industry and that's all they know is to chin someone) and you might be pleasantly surprised.

Of course you'd have to look past all the guys who know guys who had a friend banged up etc...

How many people come on here for the purposes of appeals. Many right? How many come on hear because they are about to go down for battery, ABH or GBH?