THE POLICE ARE INNOCENT AS LONG AS THEY HONESTLY

THE

POLICE

ARE

INNOCENT

AS

LONG

AS

THEY

HONESTLY

BELIEVE:

THE

HUMAN

RIGHTS

PROBLEMS

WITH

ENGLISH

SELF-

DEFENSE

LAW

Clemency

Wang*

TABLE

OF

CONTENTS

Introduction.

............................................

374

I.

Background

.................................

..........

376

A.

Homicide

in

England

and

Wales

...................

.....

376

B.

Self-Defense:

A

General

Defense

to

Homicide

.......

......

378

C.

The

European

Convention

on

Human

Rights

and

the

European

Union

................

..........................

.....

380

1.

Article

2

of

the

European

Convention

.......

...........

381

2.

Human

Rights

Act

............................

.....

383

3.

European

Union

Charter

of

Fundamental

Rights

................

384

II.

Problems

..................................................

386

A.

"Honest

Belief'

and

Police

Brutality

.....................

386

B.

Unreasonable

Beliefs

and

Manslaughter......

...........

391

C.

An

Artificial

"Reasonableness"

Element

..................

394

D.

An

Obsolete

Basis

.......................................

399

III.

Potential

Solutions

..........................

.......

..........

400

A.

An

Honest

and

Reasonable

Belief

..........

.....

........

400

B.

Abolishing

Affirmative

Defense

to

Manslaughter

....

......

402

C.

Partial

Defense

of

Excessive

Self-Defense

.......

.........

402

D.

Inspiring

Reform:

The

European

Court

of

Human

Rights

......

404

1.

The

Importance

of

Positive

Obligations

in

the

ECHR..........407

*

J.D.

candidate,

Columbia

Law

School,

class

of

2018.

The

author

thanks

Professor

Harold

Edgar

(Columbia

Law

School)

and

Dr.

Jonathan

Rogers

(University

College

London).

COLUMBIA

HUMAN

RIGHTS

LAW

REVIEW

2.

The

Curious

Case

of

Armani

Da

Silva

in

2016

......

.....

410

Conclusion

.........................................

.....

413

INTRODUCTION

In

1999,

Henry

Stanley

was

carrying

a

broken

table

leg

in

a

plastic

bag

when

he

was

confronted

and

killed

by

a

police

officer

in

London,

who

genuinely

believed

he

was

in

possession

of

a

sawn-off

shotgun.'

The

police

officer

was

cleared

of

all

charges

in

the

Sharman

case

of

2005,

having

successfully

pled

self-defense,

despite

the

fact

that

such

a

belief

should

have been

found

unreasonable

by

a

vast

majority

of people.

2

In

Bennett,

a

similar

case

decided

in

2007,3

a

man

who

was

carrying

a

cigarette lighter

was

shot

dead

by

police

officers

who

thought

it

was

a

gun.

4

Self-defense is

one

of

the

oldest

affirmative

defenses

in

the

common

law,

with

roots

in

Roman

Law

principles.'

Yet,

due

to

its

uncertain

and

contentious

nature,

it

has

been

the target

of

many

attempts

at

reform

and

much

debate

over

the

past

few

decades,

especially

in

the

United

Kingdom.'

One

of

the

main

criticisms

of

the

law

of

self-defense in

the

United

Kingdom

is

that

it

takes

into

account

only

the

honest

belief

of

the

defendant

when

responding

to

a

perceived

threat,

without

regard

to

whether

such

a

perception

was

reasonable.

This

standard

was

originally

established

by

the

common

1.

R

(on

the

application

of

Sharman)

v.

HM

Coroner

for

Inner

North

London

[20051

EWCA

(Civ)

967

[1]-[9],

[2005]

Inquest

L.R.

168

(Eng.).

2.

Id.

3.

R

(on

the

application

of

Bennett)

v.

HM

Coroner

for

Inner

South

London

[2007]

EWCA

(Civ)

617

[351-[36],

[2007]

Inquest

L.R.

163

(Eng.).

4.

Id.

at

[101-[11].

5.

BRUCE

W.

FRIER

&

THOMAS

A.

MCGINN,

A

CASEBOOK

ON

ROMAN

FAMILY

LAW

193

(Joel

Lidov

ed.,

2004).

6.

See

generally

THE

LAW

COMMISSION, MURDER,

MANSLAUGHTER

AND

INFANTICIDE

128

(2006),

http://www.lawcom.gov.uk/wp-content/uploads/2015/03/

lc304_MurderManslaughter-and

InfanticideReport.pdf

[https://perma.cc/65K5-

PWKR]

(noting

the

debate about

the

"need

for

the

belief

[of

death

or

life-

threatening

harm]

to

be

reasonably

held");

Jonathan

Rogers,

Culpability

in

Self-

Defence

and

Crime

Prevention,

in

SEEKING SECURITY:

PRE-EMPTING

THE

COMMISSION

OF CRIMINAL

HARMS

265-92

(2012).

7.

Criminal

Justice

and

Immigration

Act

2008,

c.

4,

§

76

(Eng.);

R

v.

Williams

(Gladstone)

[19871

3

All

ER

411,

413

(Eng.).

[49.3:1

374

As

Long

as

They

Honestly

Believe

law

in

the

notable

case

of

Regina

v.

Gladstone

Williams,'

but

the

courts

have

been

demonstrably

unwilling

to

raise

the

bar

to

a

reasonable

belief

for

criminal

cases,

choosing

to

restrict

the

"honest

and

reasonable

belief'

standard

to

self-defense

within

intentional

torts

only.

9

Furthermore,

as

of

2008,

the

standard

of

honest

belief

has

been

codified

in

Parliamentary

legislation,

which

is

the

supreme

form

of

law

in

the

United

Kingdom

due

to

the

lack

of

a

formal

written

constitution

and

the

traditional

notion

that

Parliament,

as

the

highest

legislative

body,

is

sovereign.

0

This

legislation

demonstrates

further

the

United

Kingdom's

unwillingness

to

budge

from

this

position,

despite

the

seemingly

unfair

verdicts

in

which

it

has

resulted-especially

in

the

cases

of police

officers

killing

civilians

on

the

basis

of

unreasonable

beliefs,

as

seen

above.n

This

law

has

naturally

resulted

in

human

rights

concerns,

especially

given

that

the

United

Kingdom

is

party

to

the

European

Convention

on

Human

Rights

(ECHR).1

2

The

right

to

life

is

recognized

as

a

fundamental

right.'

3

The

ECHR

sets

out

this

right

in

Article

2

of

the

Convention,

which

not

only

requires

that

signatory

parties

ensure

that

the

state

and

its

agents

do

not

unnecessarily

deprive

individuals

of

life,

but

also

imposes

upon

signatory

parties

a

positive

obligation

to

effectively

protect

individuals

from

being

killed

by

third

parties."

This

includes

enforcing

legislation

and

setting

out

laws

that

sufficiently

and

effectively

penalize

people

for

the

unnecessary

deprivation

of

life."

With

that

in

mind,

this

Note

argues

that

the

current

U.K.

laws

that

permit

attackers,

especially

police

officers,

who

made

unreasonable

mistakes

about

the

victim

being

a

threat

to

argue

self-defense,

constitute

a

blatant

violation

of

Article

2

of

the

ECHR.

It

should

have

thus

resulted

in

a

ruling

of

the

European

8.

Williams

(Gladstone),

3

All

ER

at

411.

9.

Ashley

v.

Chief

Constable

of

Sussex

[2008]

UKHL

25,

[2008]

1

AC

962

(appeal

taken

from

Eng.).

10.

Criminal

Justice

and

Immigration

Act

2008,

c.

4,

§

76

(Eng.).

11.

R

(on

the

application

of

Sharman)

v.

HM

Coroner

for

Inner

North

London

[2005]

EWCA

(Civ) 967

[11-[91,

[2005]

Inquest

L.R.

168

(Eng.).

12.

European

Convention

for

the

Protection

of

Human

Rights

and

Fundamental

Freedoms,

opened

for

signature

Nov.

4,

1950,

Europ.

T.S.

No.

5,

213

U.N.T.S.

221

(entered

into

force

Sept.

3,

1953)

[hereinafter

European

Convention].

13.

See

Universal

Declaration

of

Human

Rights,

G.A.

Res.

217A

(III),

art.

3,

U.N.

GAOR,

3d

Sess.,

U.N.

Doc.

A/810,

at

2

(Dec.

10,

1948).

14.

ANDREW

ASHWORTH,

POSITIVE

OBLIGATIONS

IN

CRIMINAL

LAW

196

(2013)

[hereinafter

POSITIVE

OBLIGATIONS].

15.

ANDREW

ASHWORTH,

PRINCIPLES

OF

CRIMINAL

LAW

238

(6th

ed.,

2009)

[hereinafter

ASHWORTH].

2018]

375

COLUMBIA

HUMAN

RIGHTS

LAW

REVIEW

Court

of

Human

Rights

requiring

the

United

Kingdom

to

amend

its

laws of

self-defense

to

satisfy

its

positive

obligations

under

Article

2

when

prompted

to

do

so

in

2016

in

Armani

Da

Silva

v.

United

Kingdom.

Part

I

of

this

Note

will provide

an

overview

of

homicide

crimes

under

the

law

of

England

and

Wales

and the

defenses

that

are

available,

with

a

particular

focus

on

self-defense

as

an

affirmative

defense

that

has

oddly

lenient requirements

compared

to

other

defenses

to

homicide

under

English

law.

It

will

also

establish the

United

Kingdom's

human

rights

obligations

that

ensure

that

the

right

to

life

of

individuals within

its

borders

be

protected

by

laws

that

effectively

punish

unjustified

homicide.

Part

II

will

identify

the

problems

that

currently

exist with

the

United

Kingdom's homicide

laws

and

argue

that

the

law

of

self-defense is

unjust

and

does

not

effectively fulfill

their

ECHR

obligation

to

protect

the

fundamental

right

to

life.

Part

III

will

analyze

potential

solutions

that

can

resolve

this

inconsistency

and

the

likelihood

of

the

adoption

of

these

solutions

in

light

of

the

existing

legal

and

political

climate

in

Europe.

I.

BACKGROUND

A.

Homicide

in

England

and

Wales

In England

and

Wales, homicide

is

mainly

separated

into

two

distinct

groups:

murder

and

manslaughter."

Murder

is defined

as

unlawfully

causing

death,

without

justification

or excuse,

with

"malice

aforethought,"

under

the

King's

peace."

"Malice

aforethought"

refers

to

the intention

to

cause

either death

or

grievous

bodily

harm

under

U.K.

case

law."

"Unlawfully"

here

refers

to

a

lack

of

justification

or excuse,

as

a

successful

demonstration

of

any

defense

will

either

reduce

a

conviction

of

murder

to

one of

manslaughter

(in

the

case

of

a

partial

defense,

such as

diminished

responsibility

or

loss of

control),

or

quash

it

altogether

(in

the

case

of

a

general

defense,

such

as self-defense).

19

A

conviction

for

murder

16.

Id.

at

237-38.

17.

SIR

EDWARD

COKE,

THE

THIRD

PART

OF

THE

INSTITUTES

OF

THE

LAWES

OF

ENGLAND:

CONCERNING

HIGH

TREASON,

AND

OTHER

PLEAS

OF

THE

CROWN,

AND

CRIMINAL

CAUSES

47

(1644).

18.

R

v.

Cunningham

[1982]

AC

566,

574

(Eng.)

(defining

grievous

bodily

harm).

19.

JAMES

RICHARDSON,

QC,

ARCHBOLD CRIMINAL

PLEADING,

EVIDENCE

AND

PRACTICE

(P.J.

Richardson

et

al.

eds.,

2009).

376

[49.3:1

As

Long

as

They

Honestly

Believe

carries

with

it

a

mandatory

life

sentence,

which

is

now

the

most

severe

sentence

that

English

criminal

law

can

impose

on

an

individual

following

the

1965

abolition

of

the

death penalty.

20

Manslaughter,

on

the

other

hand,

covers

a

large

range

of

different

crimes

of

varying

culpability.

21

There

are

several different

ways

an

individual

can

be

found

guilty

of

manslaughter

under

English

law,

but

for

the

purposes

of

the

upcoming

discussion,

this

Note

will

separate

these

groups

into

three

distinct

types:

manslaughter

by

way

of

a

partial

defense

to

murder;

manslaughter

by

unlawful

and

dangerous

act;

and

manslaughter

by

gross

negligence.

2 2

The

first

is

commonly

referred

to

as

"voluntary

manslaughter,"

while

the

latter

two

are

termed

"involuntary

manslaughter."

Considering

the

different

levels

of

culpability

involved

in

these

distinct

fact

patterns,

judges

are

given

significant

discretion

in

sentencing.

2

3

Manslaughter

by

unlawful

and

dangerous

act

is

also

referred

to

as constructive

manslaughter.

24

It

refers

to

death

that

is

caused

by

the

commission

of

any

crime

that

can

be

considered

"dangerous."

25

The

unlawful

and

dangerous

act

in

question

must

be one

that

merits

criminal,

not

civil,

liability.

26

However,

there

is

no

requirement

that

the

unlawful

and

dangerous

act

be

directed

at

a

person

or

persons.

27

An

act

is

considered

dangerous

if it

is

one

that

all

sober

and

reasonable

people

would

inevitably

recognize

must

subject

the

other

person

to

at

least

the

risk

of

some

harm.

28

This

manslaughter

charge

is

one

that

is

heavily

based

on

constructive

liability-referring

to

when

a crime

has

a

mens

rea

that

only

partially

corresponds

to

the

actus

reus.

This

means

that

a

person

may

be

liable

for

any

death

that

20.

ASHWORTH,

supra

note

15,

at

241,

250;

Murder

(Abolition

of

Death

Penalty)

Act

1965,

c.71,

§

1

(Eng.).

21.

METRO.

POLICE

SENTENCING

COUNCIL,

SENTENCING

FOR

MANSLAUGHTER

1

(n.d.),

https://www.sentencingcouncil.org.uk/wp-content/

uploads/FINAL-Manslaughter-sentencing-leaflet-for-webl.pdf

[https://perma.cc/

W9KB-WYMB].

22.

ASHWORTH,

supra

note

15,

at

273-79.

23. METRO.

POLICE

SENTENCING

COUNCIL,

supra

note

21,

at

1-2.

24.

"Constructive

manslaughter"

is

the

phrase

used

in

DPP

v.

Newbury

(1977)

AC

500,

502-03

(Eng.);

Mitchell

C.

Davies,

Constructive

Manslaughter-A

Not

So

Basic,

Basic

Intent

Crime,

58

J.

CRIM.

L.

398,

398-402

(1994).

25.

With

the

exception

of

strict

liability

crimes;

see

Andrews

v.

Dir.

of

Pub.

Prosecutions

(1937)

AC

576

(Eng.).

26.

R

v.

Franklin

(1883)

15

Cox

CC

163

at

165

(Eng.).

27.

R

v.

Goodfellow

(1986)

83

Crim.

App.

23

at

27

(Eng.).

28.

R

v.

Church

(1966)

1

QB

59

at

60

(Eng.).

2018]

377

COLUMBIA

HUMAN

RIGHTS

LAW

REVIEW

results

from

the

commission

of a

criminal

act,

provided

that

it

is

objectively

dangerous,

even

if

the

person

does

not

foresee

that

any

serious

harm

would

occur.

Academics

have suggested

that

the

rationale

behind

this apparent harshness

is

that

if

a

person

commits

an aggressive

act, she

should

be

fully

liable

for

the

consequences,

as

an

"irrevocable

evil"

has

occurred

if

her

aggressive

act

caused

death.

29

Murder

by

gross

negligence

is

a

variety

of

manslaughter

established

in

the

nineteenth

century

that

is

rather

exceptional

in

that

it

criminalizes

the

causation

of

death

by

an

action

or

omission

that

grossly

fails

to

reach

the

standard

of

a

reasonable

person,

regardless

of

whether

the

individual

in question

is capable

of

reaching

such

a

standard."o

The

elements

for

gross

negligence

manslaughter

are:

(1)

the

defendant

breached

her

of

duty

of

care

towards

the

victim,

(2)

the

breach

of

duty

caused

the death

of

the

victim,

and

(3)

this

breach

of

duty

was

so

"gross"

as

to

merit

criminal

liability.

3 1

The

last

element

is

largely

left

to

the

jury,

but

the

Corporate

Manslaughter

and Corporate

Homicide

Act

of

2007

offers

a

loose

guideline,

defining

it

as

behavior

which falls

"far

below"

what

could

reasonably

be

expected

in

the

circumstances.

3 2

This charge

is

particularly

unique

as

it

can be

satisfied

with

a

mens rea

that

does

address

the

subjective

intention

or

recklessness

of

the

defendant,

but

simply

whether

the

defendant

acted

in

a

way

that

was

reasonable.

33

B.

Self-Defense:

A

General

Defense

to

Homicide

The

doctrine

of

self-defense

at

common

law in

England

and

Wales

removes

the

culpability

of

a person

who

has

to

use

otherwise

criminal

force

either

to

defend

himself

from

an

attack

or

to

prevent

the

commission

of

another

crime.

34

The

defense

is

also

available

to

a

29.

JONATHAN

HERRING,

CRIMINAL

LAW:

TEXTS,

CASES

AND

MATERIALS

292

(6th

ed. 2014).

30.

ASHWORTH,

supra

note

15,

at

273-79;

R

v.

Adomako

et

al. (1995)

1

AC

171,

171

(Eng.);

see

also

R

v.

Finney

(1874)

12

Cox

CC

625, 625

(using

a

test

of

gross

negligence where

an

attendant

at

a

mental

hospital

caused

the

death

of

a

patient

by

releasing

a

flow

of

boiling

water

into

a

bath);

R

v.

Bateman

(1925)

19

Cr

App

R

8,

8

(doctor's

causing

the

death

of

a

woman

was

assessed

to

the

standard

involving

"such

disregard

for

the

life

and

safety

of

others").

31.

POSITIVE

OBLIGATIONS,

supra

note

14,

at

277.

32.

THE

UNION

FOR

PEOPLE

IN

TRANSPORT

AND

TRAVEL,

GROSS

NEGLIGENCE

MANSLAUGHTER

2

(2013),

https://www.tssa.org.uk/download.cfm?

docid=6ED401FA-A5AE-4795-8EF637E78CAEE204

[https://perma.cc/V48S-

MCE31.

33.

R

v.

Adomako

et

al.

(1995)

1

AC

171,

175

(Eng.).

34. R

v.

Williams (Gladstone)

[1987]

3

All

ER

411,

411

(Eng.).

378

[49.3:1

As

Long

as

They

Honestly

Believe

defendant

who

mistakenly

believes

that

he

is

under

attack

or

is

acting

to

prevent

a

crime."

This

mistake

does

not

have

to

be

reasonable,

provided

that

the

defendant

honestly

believed

that

the

circumstances

constituted

a

threat."

The

only

exception

arises

where

the

mistaken

belief

arose

as

a

result

of

voluntary

intoxication.

This

"honest

belief'

doctrine

was

first

established

in

Regina

v.

Gladstone

Williams,

in

which

Lord

Lane

stated

that

the

reasonableness

of

the

defendant's

belief

is

only

"material

to

the

question

of

whether

the

belief

was

held

by

the

defendant

at

all,"

but

"irrelevant"

as

to

the

defendant's

guilt

or

innocence

if

it

was

in

fact

held.

3

'

This

doctrine

of

self-defense,

originally

formed

by

judge-made

common

law,

was

subsequently

codified

in

Parliamentary

legislation

through

the

Criminal

Justice

and Immigration

Act

of

2008."

Once

the

jury

determines

that

a

defendant

did

hold

an

honest

belief,

he

is

to

be

judged

on

the

facts

as

he

believed

them

to

be,

notwithstanding

that

the

belief

may

be

mistaken

and

regardless

of

the

fact

that

the

mistake

may

not

have

been

reasonable.

With

that

said,

when

a

person

uses

otherwise

criminal

force,

the

force

itself

must

be

deemed

reasonable

and

proportionate

in

light

of

the

threat

that

the

defendant

believed

that

he

faced,

and

the

assessment

of

this

force

is

made

objectively.

4 0

However,

the

Act

also

states

that

if

the

jury

determines

that

the

force

was

used

"honestly

and

instinctively,"

it

constitutes

strong

evidence

that

the

act

was

reasonable.

4 1

Unlike

many

jurisdictions

in

the

United

States,

there

is

currently

no

partial

defense

of

imperfect

self-defense

in

the

United

Kingdom.

42

This

means

that

self-defense

under

English

law

can

only

ever

act

as

a

full

defense

to

all

charges-if

any

requirement

of

the

defense

is

demonstrated

not

to

have

been

met,

the

defense

is

not

available

at

all.

4

3

The

burden

of

proof,

however,

lies

on

the

prosecution

to

adduce

35.

Id.

36.

Id.

37.

Criminal

Justice

and

Immigration

Act

2008,

c.

4,

§

76(5)

(Eng.).

38.

R

v.

Williams

(Gladstone)

[1987]

3

All

ER

411,

415

(Eng.).

39.

Criminal

Justice

and

Immigration

Act

2008,

c.

4,

§

76(5)

(Eng.).

40.

See

POSITIVE

OBLIGATIONS,

supra

note

14,

at

117;

R

v.

Jones

and

Milling

et

al.

[2006]

UKHL

16,

[241,

[2007]

1

AC

136

(appeal

taken

from

Eng.).

41.

Criminal

Justice

and

Immigration

Act

2008,

c.

4,

§

76(7)(b)

(Eng.).

42.

U.S.

jurisdictions

with

imperfect

self-defense

are

California

and

Maryland.

See

People

v.

Humphrey,

921

P.2d

1,

6

(Cal.

1996);

State

v.

Faulkner,

483

A.2d

759,

769

(Md.

1984).

See

also

infra

note

163

(citing

Humphrey

and

Faulkner).

43.

Partial

self-defense

was

discussed

by

the

Law

Commission

in

2004.

See

LAW

COMM'N,

PARTIAL DEFENCES

TO

MURDER:

FINAL

REPORT

(2004),

379

2018]

COLUMBIA

HUMAN

RIGHTS

LAW

REVIEW

sufficient

evidence

to

satisfy

a

twelve-person

jury

beyond

a

reasonable

doubt

that

the

defendant

was

not

acting

in

self-defense.4

The

large amount

of

leeway

given

in

self-defense

doctrine

is

in

stark

contrast

to

the

similar

defense

of

duress

by

threat

or

circumstances.

4

1

When

a

person

commits

a crime

under

duress-such

that

the

person reasonably

anticipates death

or

grievous

bodily

harm

and

takes

a

reasonable

and proportional

action

in

response

to

that

threat-they

may

be

excused

of

the

crime.

4 6

In

contrast

to

Self-

defense, which

only

requires

an

honest

belief,

the

doctrine

of

duress

insists

that

the

belief

must

be

reasonable,

the

action

taken

must

be

reasonable and

proportional,

and,

most

importantly,

a

hypothetical

person

"of

reasonable

firmness"

who

would

have

acted

in

the

same

way

as

the

defendant.

47

Furthermore,

the

courts

have

made

it

clear

in

several

cases

that

the

defense

of

duress

is

not

available

for

murder,

not even

as

a

partial

defense.

48

It

is

also

not

available

to

accomplices

to

murder,

as

seen

in

the

unanimous

House

of

Lords

decision

in

Regina

v.

Howe.

49

Part

II

will

discuss

why

this

distinction

is

unsatisfactory

and

highlights

a

doctrinal

problem

in

self-defense.

C.

The

European

Convention

on

Human

Rights

and

the

European

Union

The

European

Convention

on

Human

Rights is

an

international

treaty

that

came

into

force

in

1953

to

protect

human

rights

and

fundamental

freedoms

in

Europe."

It

established

the

European

Court

of

Human

Rights

in

Strasbourg

(hereafter

referred

to

as

Strasbourg

or

the

Strasbourg

Court),

which

is

the

international

http://www.lawcom.gov.uk/wp-content/uploads/2015/03/1c290_PartialDefences-

toMurder.pdf

[https://perma.ce/4EVF-M39Z].

44.

Self-Defence:

Legal

Guidance,

CROWN

PROSECUTION

SERV.,

https://www.cps.gov.uk/legal/s-tou/self

defence/

[https://perma.cc/9TKZ-CDV8].

45.

See

R

v.

Hasan

(Aytach)

[20051

UKHL

22,

[2005]

2

AC

467

(appeal

taken

from

UK).

46.

See

id.

47.

R

v.

Graham

[1982]

1

W.L.R.

294

(UK);

R

v.

Bowen

[1997]

1

W.L.R.

372,

[1996]

4 All

E.R.

837

(UK).

48.

See

R

v.

Dudley

and Stephens

[18841

14

Q.B.D.

273

(UK);

R

v.

Howe

[1987]

1

AC

417

(UK).

49. R

v.

Howe

[19861

UKHL 4

(UK);

R

v.

Howe

[1987]

1

AC

417

(appeal

taken

from

UK).

50.

Note

that

the

European

Convention

has

no

formal links

to

the

European

Union.

380

[49.3:1

As

Long

as

They

Honestly

Believe

court

responsible

for

ruling

on

cases involving

Convention

rights."

When

an

individual

believes

that

her

Convention

rights

are

violated,

she can

submit

an

application

against

the state

responsible

for

the

violation

to

the

Strasbourg

Court,

although

only

after

exhausting

all

possible

alternative

remedies

within

domestic

courts

and

tribunals.

5 2

The

Strasbourg

Court

will

determine

whether

the

right

has

been

breached

and,

if

so,

the

judgment

runs

against

the

state

itself,

as

the

.ECHR

is

meant

to

bind

the

signatory

parties

and

to confer

rights

to

individuals."

The

remedies

that

the

Strasbourg

Court

usually

employs

are

to

require

the

defendant

state

to

pay

compensation

(also

known

as

"just

satisfaction"),

to

adopt

general

measures

such

as

amendments

to

existing

domestic

legislation,

and

to

adopt

individual

measures

such

as

restitution

or

the

reopening

of

the

proceedings."

1.

Article

2

of

the

European

Convention

Article

2

of

the

European

Convention

protects

the

"right

to

life.""

Its

position

as

the

first

right

guaranteed

by

law

demonstrates

its

importance

as

one

of

the

most

fundamental

provisions

in

the

Convention.

The

crucial

nature

of

this

obligation

has

been

reiterated

several

times

in

cases

brought

before

the

Strasbourg

Court.

56

Article

2

establishes

that

every

natural

person's

right

to

life

shall

be

protected

by

law

and

that

no

one

shall

intentionally

be

deprived

of

life."

There are

only

two

exceptions

to

this

law:

first,

the

deprivation

of

life

as a

result

of

a

capital

sentence

after

conviction

of

a

crime

(Article

2(1)),

and,

second,

the deprivation

of

life

caused

by

the

"use

of

force

which

is

no

more

than

absolutely

necessary"

in

defense

of

a

person

from

unlawful

violence,

to

effect

lawful

arrest

or

to

prevent

the

escape

of

a

person

lawfully

detained,

and

under

lawful

action

for

the

purpose

of

quelling

a

riot

or

insurrection

(Article

2(2)).

51.

McCann

v.

United

Kingdom,

21

Eur.

Ct.

H.R.

97 (1995);

Pretty

v.

United

Kingdom,

2002-III

Eur.

Ct.

H.R.

155.

52.

EUROPEAN

COURT

OF

HUmAN

RIGHTS,

THE

LIFE

OF

AN

APPLICATION,

http://www.echr.coe.int/Documents/Case-processing-ENG.pdf

[https://perma.cc/

Y5YF-WSL5].

53.

COUNCIL

OF EUROPE,

FACTSHEET

XV:

RIGHT

OF

INDIVIDUAL

APPLICATION

TO

THE

EUROPEAN

COURT

OF

HUMAN

RIGHTS

(2017),

https://www.coe.int/en/web/echr-toolkit/le-droit-de-requete-individuelle

[https://perma.cc/CYK8-387N].

54.

Id.

55.

European

Convention,

supra

note

12,

art.

2.

56.

McCann

v.

United

Kingdom,

21

Eur.

Ct.

H.R. 97

(1995);

Hugh

Jordan

v.

United

Kingdom,

1998-III

Eur.

Ct.

H.R.

323.

57.

European

Convention,

supra

note

12,

art.

2.

2018]

381

COLUMBIA

HUMAN

RIGHTS

LAW

REVIEW

Beyond

merely

prohibiting

state

agents

from

intentionally

and

unlawfully

depriving

a

person

of

life,

Article

2

also

requires

states

to

take an

active

stance

in

preventing

deprivations

by

private

persons-also

known

as

positive

obligations.

This

means

that

national

governments

are

required

under

the

Convention

to

protect

the

lives

of

individuals

against

the

acts

of

third

parties

in

an

effective

manner.s"

Essentially,

Article

2

imposes

an

obligation

on

contracting

states,

including

the United

Kingdom,

to

protect

the

lives of

the

people

present

within

its

jurisdiction.

9

The

Convention

imposes

other

positive

obligations

in

the

criminal

law

field,

such

as

an

obligation

to

criminalize

genocide."

Hence,

Article

2

requires

national

legislation

to

impose

a

ban

on

murder

and

require

criminal

sanctions

upon

conviction

thereof."

Since

the

ECHR

chiefly

imposes

negative

obligations,

which

forbid

states

from

undertaking

a

direct

action in

violation

of

human

rights

obligations,

the

doctrine

of

positive

obligations

is

significant

as

it

can

instead

require the

state

to

pass

or

amend

legislation

such

that

human

rights

are

protected.

62

This

can

include

requiring

the

state

to

criminalize

certain

actions

or

omissions

or

to

exclude

certain

defenses,

in

order

to

comply

with

human

rights

obligations."

One

of

the

most

famous

cases

where

the

Strasbourg

Court

ruled

that

the

United

Kingdom

was

in breach

of

its

positive

obligations

to

protect

life

is

McCann

v.

United

Kingdom.

6 4

A

team

of

Special

Air

Service

(SAS)

soldiers,

acting

on

instructions

by

the

United

Kingdom,

shot and

killed

a

group

of

suspected

Provisional

Irish

Republican

Army

(PIRA)

bombers."

The

families

of

the

deceased

sought

compensation

for

their

deaths

by

appealing

to

Strasbourg

after

being

denied

a

remedy

by

the

courts

in

Northern

58.

C.

H.

BECK,

ET.

AL.,

EUROPEAN

CONVENTION

ON

HUMAN

RIGHTS:

COMMENTARY

21

(2014).

59.

L.C.B.

v

United

Kingdom,

1998-III

Eur.

Ct.

H.R.

49;

BECK,

supra

note

58,

at

13.

60.

See

Convention

on

the

Prevention

and

Punishment

of

the

Crime

of

Genocide

art.

5,

Dec.

9,

1948,

78 U.N.T.S.

277,

implemented

in

English

law

by

the

Genocide

Act

1969

and subsequently

the

International

Court

Act

2001;

ASHWORTH,

supra

note

15,

at

196.

61.

BECK,

supra

note

58,

at

13.

62.

The

ECHR

chiefly

imposes

positive

obligations

to

forbid

states

from

passing

certain

laws

or

undertaking

certain

actions

that

would

be

in

violation

of

their

human

rights

obligations.

POSITIVE

OBLIGATIONS,

supra

note

14,

at

196-97.

63.

Id.

64.

McCann

v.

United

Kingdom,

21

Eur.

Ct.

H.R.

97

(1995).

65.

Id.

1

141.

382

[49.3:1

As

Long

as

They

Honestly

Believe

Ireland.

The

Court

ruled,

by

a

split

vote

of

ten

to

nine,

that

the

United

Kingdom

fell

short

in its

control

and

organization

of

the

operation

and

was

thus

required

to

pay

compensation

to

the

estates

of

the

deceased."

In

this

case,

the

Strasbourg

court

ruled

that

a

state

and

its

agents

do

not breach

Article

2

if

otherwise

criminal

force

was

made

in

self-defense

out

of

an

honest

belief,

though

that

belief

must

be

one

that

is borne

of

"good

reason.""

Subsequently,

the Strasbourg

Court

ruled

in

the

2016

case

of

Armani

Da

Silva

v.

United

Kingdom

that

the

existence

of

"good

reasons"

for

the

purpose

of

determining

if

self-defense

can

be

granted

as

an

affirmative

defense

should

be

determined purely

by

assessing

the

subjective

belief

of

the defendant.

6

'

This

case,

where

police

officers

who

shot

an

innocent

man

after

mistaking

him

for

a

suspected

terrorist

even

though

he

did

not

resist

orders,

appears

to

be

a

regression

of

the

McCann

determination."

The

Strasbourg

Court

did

not

recognize

it

as

such

and

simply

referred

to

it

as

an

application

of

the

objective

McCann

test.

Strasbourg

subsequently

concluded

that

there

was

no

violation

of

Article

2,

as

the

officers

had

fulfilled

the

self-defense

requirements

in

U.K.

domestic

law.

However,

Strasbourg

did

not

consider

whether

the

U.K.

domestic

law

was

deficient

in protecting

the

right

to

life,

in

breach

of

the

United

Kingdom's

positive

obligations

to

adopt

a

more

rigorous

set

of

self-

defense

laws

that

sufficiently

and

efficiently

protects

the

right

to

life

of

innocent

victims

of

fatal

attacks

by

perpetrators

who

honestly

and

unreasonably

believed

that

they

were

facing

a

threat

to

their

person.

This

decision

will

be

analyzed

further

in

Part

III.

2.

Human

Rights

Act

As

seen

in

the

an

application

may

be

brought

to

the

Strasbourg

Court.

The

United

Kingdom,

however,

has

another

method

for

an

individual

to

assert

their

Convention

rights

before

a court.

The

Human

Rights

Act,

an

Act

of

Parliament

passed

in

66.

Id.

1

55-56.

67.

ASHWORTH,

supra

note

15,

at

125;

McCann

v.

United

Kingdom,

21

Eur.

Ct. H.R.

97,

1

200

(1995).

68.

Jan

Hessbruegge,

ECtHR

Armani

Da

Silva

v

UK:

Unreasonable

Police

Killings

in

Putative

Self-Defence?,

EJIL:TALK!

(Apr.

14,

2016),

http://www.ejiltalk.org/ecthr-armani-da-silva-v-uk-unreasonable-police-killings-

in-putative-self-defence

[https://perma.cc/C38A-JVGG1

(last

visited

Feb.

26,

2018).

69.

Armani

Da

Silva

v.

United

Kingdom,

App.

No.

5878/08,

¶

248

(Eur.

Ct.

H.R.

Mar.

30,

2016),

available

at

https://www.echr.coe.int.

70.

Id.

2018]

383

COLUMBIA

HUMAN

RIGHTS

LAW

REVIEW

1998,

incorporates

the

ECHR

into

U.K.

law

and

permits

individuals

to

obtain

remedies

from

public

bodies

for

the

breach

of

Convention

rights."

Therefore,

the

Act

brings

into

domestic

legislation

the rights

and

fundamental

freedoms

set

out

in

Articles

2

to

12

and

14

of

the

Convention,

as

well

as

other

protocols

to

the

Convention

ratified

by

the

United

Kingdom.

72

It

obliges

domestic

courts

to

interpret

Convention

rights

in

light

of

the interpretations

that

Strasbourg

has

announced,

and

to

interpret

all

primary

and

secondary legislation

in

a

way

that

is

compatible

with

Convention

rights."

However,

if

and

where

primary

legislation,

which

refers

solely to

an

Act

of

Parliament,

conflicts

with

Convention

rights

so

extensively

that

the

two

cannot

be

reconciled,

domestic

courts

are

required

to

enforce

the

conflicting

primary

legislation

instead,

on

the

principle

of

Parliamentary

sovereignty

that

an

Act

of

Parliament

is

the

highest

form

of

law

in

England

and

Wales.

4

In

such

a

situation,

domestic

courts

still

have

the

power

to

issue

a

declaration

of

incompatibility

to

announce

that

such

a

conflict

has

been

found."

Although

this

Declaration

has

no

legally

binding

power,

it

can

serve as a

strong

political

motivation

for

Parliament

to

resolve

that

incompatibility."

The

Act

also

states

that

the

acts

of

public

authorities

are

to

be

constituted

as

unlawful

if

they

were

performed

in

a

manner

incompatible

with

a

Convention

right.

There

are

two

exceptions,

however:

If

there

is

primary

legislation

which

is

incompatible

with

Convention

rights

that

commands

the authority

to

act

in

a

way

that

violates

that

right,

or

if

there

is

no

other

way

to

enforce

a

provision

of

primary

legislation

that

does

not

violate

Convention

rights,

the

authority's

action

will

not

be

constituted

as

unlawful

under

the

Human

Rights

Act."

3.

European

Union

Charter

of

Fundamental

Rights

The

United

Kingdom,

as

a

Member

State

of

the

European

Union

(EU),

is

ipso

facto

party

to

the

EU

Charter

of

Fundamental

71.

DEP'T

FOR

CONST.

AFF.,

A

Guide

to

the

Human

Rights

Act

1998:

Questions

and

Answers,

5

(Oct.

2006),

http://webarchive.nationalarchives.gov.uk/

+/http:/www.dca.gov.uk/peoples-rights/human-rights/pdflact-studyguide.pdf

[https://perma.cc/8GDG-UL53]

(last

visited

Feb.

26, 2018).

72.

Human

Rights

Act

1998,

c.

42,

§

1(1)(a)

(UK).

73.

Id.

§§

2-3.

74.

Id.

§

3(2).

75.

Id.

§

4.

76.

Id.

77.

Id.

§

6.

384

[49.3:1

As

Long

as

They

Honestly

Believe

Rights

(EU

Charter)."

The

EU

Charter

became

binding

on

all

EU

institutions

and

member

states

in

2009,

and

includes

all

the

rights

and

freedoms

enshrined

in

the

ECHR,

rights

found

in

the

case

law

of

the

Court

of

Justice

of

the

European

Union,

and

other

rights

and

principles

arising

from

the

common

constitutional

traditions

of

EU

member

states.

9

While

the

rights

included

in

the

EU

Charter

are

consistent

with those

in the

ECHR

and

are

of

equivalent

scale

and

scope,

the

EU

Charter

applies

only

when

EU

member

states

adopt

national

law

for

the

purpose

of

implementing

an

EU

directive,

or

when

national

authorities

apply

an

EU

regulation

directly.o

Therefore,

as

current

U.K.

self-defense

law

is

based

entirely

on

the

common

law

and

Parliamentary

legislation

that

is

unrelated

to

any

EU

regulation

or

directive,

the

Charter

should

not

apply."

However,

while

the

European

Union cannot

adopt

a

general

criminal

code

that

applies

throughout

the

Union,

it

is

possible

for

the

European

Union

to

adopt

a

directive

requiring

member

states

to

adopt

a

minimum

standard

on

the

definition

of

criminal

offences.

82

In

such

a

case,

if

the

member

state

fails

to

implement

the

directive

or

implements

it

insufficiently,

it

can

face

liability

in

suits brought

by

the

European

Union

itself."

Individuals

who

have

suffered

a

loss

or

whose

rights

have been

infringed

by

the

failure

to

implement

the

directive can

also

bring

suit

through the

principle

of

state

liability

established

in

Francovich

v.

Italy,

as

long

as the

individual

can

prove

that

the

directive

conferred

specific

rights

upon

individuals

and

that

there

is

a

causal

link

between

the

state's

failure

to

implement

the

directive

and the

loss

suffered.

84

In

light

of

the

results

of

the

EU

Referendum

in

2016,

where

the

popular

vote

reflected

the

majority's

desire

for

the

United

Kingdom to

leave

the

European

Union,

the

United

Kingdom's

78.

EU

member

countries

in

brief,

EUROPA,

https://europa.eu/european-

union/about-eu/countries/member-countries-en

[https://perma.cc/YPD5-HRD9}

(last

visited

Feb.

3,

2018).

79.

Charter

of

Fundamental

Rights

of

the

European

Union,

Oct.

26,

2012,

2012

O.J.

(C

326),

http://eur-lex.europa.eullegal-content/EN/TXT/?uri=

CELEX:12012P/TXT

[https://perma.cc/ZM7F-9SAN]

[hereinafter

Charter

of

Fundamental

Rights].

80.

Id.

at

tit.

VII.

81.

Id.

82.

Id.

83.

EU

Acts

Against

Member

States

for

Failure

to

Implement

Directives,

OUT-LAW.COM

(Jan.

7,

2003),

http://www.out-law.com/page-3218

[https://perma.cc/

74S3-K89Y];

Case

C-6/90,

Francovich

v.

Italy,

1991

E.C.R.

1-5375.

84.

Case

C-6/90,

Francovich

v.

Italy,

1991

E.C.R.

1-5375.

2018]1

385

COLUMBIA

HUMAN

RIGHTS

LAW

REVIEW

departure

from

the

European

Union

appears

to

be

inevitable."

Thus,

the

EU

Charter

can

no

longer

be

a

valid method

of

influencing

changes

in

English

self-defense

laws.

Despite

that,

the

European

Union's

recognition

and

incorporation

of

ECHR

standards

does

in

fact

demonstrate

European

countries'

general

respect

for ECHR

rights.

II.

PROBLEMS

The

current

doctrine

of

English

self-defense

law

is

problematic

for

several

reasons,

particularly

in

that

its

requirement

of

"honest belief'

has

left

many

cases

of

police

brutality,

sometimes

even

resulting

in

fatalities,

unprosecuted

and

unchecked.

On

a

doctrinal

level,

this

Note

finds

the

current

law

to

be

lacking

in

legal

certainty

and

fairness.

It

is also

arguably

contrary

to

the

United

Kingdom's obligations

under

the

ECHR,

though

the

Strasbourg

Court

has

so

far

failed

to

require

any

change

in

English

law.

A.

"Honest

Belief' and

Police

Brutality

The

cases

of

Sharman

and

Bennett

described

in

the

introduction

are far

from

the

only

cases

in

which

police

officers

escaped

criminal liability

for

acts

of

violence

against

innocent

citizens

on

the

basis

of self-defense.

86

The

fact

that

English

law

does

not

require

an examination

of

the

reasonableness

of

an

officer's

belief,

as

long

as

it

is

"honest,"

has

also

left

many

cases

of

police

brutality

to

be

unprosecuted.

In

2005,

Jean

Charles

de

Menezes

was

fatally shot

in

the

London

Underground

when

the

police

mistook

him

for

a

suspected

suicide

bomber."

The

Crown

Prosecution

Service

did

not

prosecute

the

officers

even

though

the

Independent

Police

Complaints

Commission

(IPCC) recognized

that

the

mistake

made

was

arguably

unreasonable,

as

the

standard

of

"reasonable

force"

is

assessed

in

85.

Alex

Hunt

&

Brian

Wheeler,

Brexit:

All

you

need

to

know

about

the

UK

leaving

the

EU,

BBC

NEWS

(Jan..30,

2018),

http://www.bbc.com/news/uk-politics-

32810887

[https://perma.cc/2VVS-U9GK].

86.

See

R

(on

the

application

of

Sharman)

v.

HM

Coroner

for

Inner

North

London

[2005]

EWCA

(Civ) 967

[1]-[9],

[20051

Inquest

L.R.

168

(Eng.);

R

(on

the

application

of

Bennett)

v.

HM

Coroner

for

Inner

South

London

[20071

EWCA

(Civ)

617

[351-[36],

[2007]

Inquest

L.R. 163

(Eng.).

87.

JOHANNES

KEILER

&

DAVID

ROEF,

COMPARATIVE

CONCEPTS OF

CRIMINAL

LAW

146 (2015)

[hereinafter

COMPARATIVE

CONCEPTS].

386

[49.3:1

As

Long

as

They

Honestly

Believe

accordance

with

the

"honest

belief'

of

the

defendant,

regardless

of

how

unreasonable

that

belief

may

be."

The

"honest

belief'

doctrine

in

the

United

Kingdom

is

exceptional.

Many

other

states

with

long-established

criminal

legal

systems,

including

those

that

were

colonies

and

whose

laws

derived

significant

inspiration

from

the

English

law,

require

that

a

mistaken

belief

must

be

reasonable

for

the

purposes

of

self-defense.

For

instance,

the

general

rule

in

the

United

States

is

that

a

person

is only

entitled

to

use

force

for

the

purpose

of

self-

defense

if

it

reasonably

appears

necessary

to

defend

herself

against

an

unlawful

and

immediate

threat

of

violence."

When

the

use

of

force

is

fatal,

the

law

more

strictly

requires

a

reasonable

belief

that

force

is

required

to

prevent

the

infliction

of

grievous

bodily

harm

or

death."

Similarly,

Singaporean

law

requires

that

one

must

reasonably

apprehend

death

or

grievous

hurt

in

an

assault

to

justify

the

use

of

deadly

force

in

self-defense."

Many

other

countries

in

Europe

also

require

a

standard

of

reasonable

belief.

For

example,

French

law

requires

the

defendant

to

have

an

honest

and

reasonable

belief

that

an

imminent

threat

exists.

9 2

The

Strasbourg

Court,

through

the

case

of

McCann,

has

also

ruled

that

police

officers

may

only

open

fire

against

a

person

if

they

have

reasonable

grounds

for

believing

that

he

or

she

is

committing

or

about

to

commit

an

act

which

would

endanger

their

lives

or

the

lives

of

innocents

and

that

the

use

of

force

is

absolutely

necessary."

German

law

is

slightly

less

certain:

A

strict

textual

interpretation

of

the

German

Criminal

Code

section

32,

which

states

that

self-defense

88.

Criminal

Justice

and

Immigration

Act

2008,

c.

4,

§

76

(Eng.);

COMPARATIVE

CONCEPTS,

supra

note

87,

at

146;

Armani

Da

Silva

v. U.K.,

App.

No.

5878/08,

1

251

(Eur.

Ct.

H.R.

Mar.

30,

2016),

available

at

https://www.echr.coe.int.

89.

GEORGE

E.

DIX, GILBERT

LAW

SUMMARIES:

CRIMINAL

LAW

XXXIII

(18th

ed.

2010);

see

generally

DAVID

C.

BRODY

&

JAMES

R.

ACKER,

CRIMINAL

LAW

(2014)

(outlining

the

general

approach

to

the

self-defense

defense

in

the

United

States).

90.

RANETA

LAWSON

MACK,

A

LAYPERSON'S

GUIDE

TO

CRIMINAL

LAW

141

(1999).

91.

What

Can

I

do

to

Protect

Myself

in

Self-Defence

in

Singapore?,

SING.

LEGAL

ADVICE,

https://singaporelegaladvice.com/1aw-articles/what-can-i-do-to-

protect-myself-in-self-defence-in-singapore/

[https://perma.cc/5BTZ-APC9]

(last

visited

Feb.

3,

2018);

see

also

SING.

PEN.

CODE

§§

96-106

(providing

Singapore's

statutory

provisions

concerning

the

"[r]ight

of

private

defence").

92.

See

Kenneth

W.

Simons,

Self

Defense:

Reasonable

Beliefs

or

Reasonable

Self-Control?,

11

NEW

CRIM.

L.

REV.

51, 53

n.2.

93.

McCann

v.

United

Kingdom,

21

Eur.

Ct. H.R.

97

(1995).

387

2018]

COLUMBIA

HUMAN

RIGHTS

LAW

REVIEW

"means

any

defensive

action

that

is

necessary

to

avert

an

imminent

unlawful

attack,"

would

mean

that

the

threat

must

be

genuine

and

no

mistaken

belief,

even

a

reasonable

one,

will

avail

the

private

defense.

94

However,

German

self-defense

law

is

known

to

be

lenient

when

it

comes

to

the

force

used in response

to

the threat,

and

the

force

used

in

self-defense is

only

unjustifiable

when

it

is

grossly

disproportionate

to

the

threat.

9 5

It

is

still

unclear whether

German

law

would accept

a

mistaken

belief

as sufficient

grounds

for

self-

defense."

Though,

given

the

explicit

distinction

between

justifications

and

excuses

in

German

law,

mistaken

belief

would

likely

be

categorized

as

the

latter.

97

Nonetheless,

it

appears

that

the

English

position

of accepting

mistaken

beliefs

as

long

as

they

are

honestly

perceived

is

an

exceptional

one.

Arguably

English

law

has

been

reluctant

to

extend

the

requirement

of

reasonable

belief

for self-defense

beyond

the

realm

of

civil

lawsuits

as

it

recognizes

a

need

to

separate

criminal

culpability

from

civil

liability.

98

Civil

liability

is

frequently

grounded

in

negligence,

whereas

it

is

much

less

common

for

negligence,

no

matter

how

extensive,

to

form

the

basis

of

criminal

liability."

For

one

to

be

culpable

of

a criminal

offense,

there

is

the

notion

that

one

must

have

performed

a

"morally

undesirable"

act,

and

that

the

defendant

performing

that

act,

not

just

the

act itself,

is especially

blameworthy.o

In English

law,

the

idea

of

criminal

culpability

as

a

form

of

moral

assessment

is

particularly

prevalent;

culpability

thus

requires

that

the

defendant,

in performing

an

act,

disclose

some

"shortfall

of

character"

or

"deficiency

of

virtue.""

0

'

Hence,

a

person's

actions

may

be

undesirable

to

others

or

to

society

as

a

whole,

but

that

does

not

mean

a person

is

necessarily

culpable

where

the

action

taken

does

not

reflect

poor

moral

character

on

his

part.

10

2

However,

the

person

may

still

be

liable

in a

civil

case

out

of

the

simple

reason

that

94.

COMPARATIVE

CONCEPTS,

supra

note

87,

at

136.

95.

Simons,

supra

note

92,

at

53.

96.

Id.

97.

Miriam

Gur-Arye,

Should

a

Criminal

Code

Distinguish

Between

Justification and

Excuse?,

5

CAN.

J.L.

&

JURIS.

215,

215

(1992).

98.

For

a

discussion

of

culpability,

see

DENNIs

J.

BAKER

&

JEREMY

HORDER,

SANCTITY

OF

LIFE

AND

THE CRIMINAL

LAW:

THE

LEGACY OF GLANVILLE

WILLIAMS

178

(2015)

[hereinafter

SANCTITY

OF

LIFE].

99.

GLANVILLE

WILLIAMS, TEXTBOOK

CRIMINAL

LAW

91

(London:

Stevens

&

Son.

ed.,

2d

ed. 1983).

100.

SANCTITY

OF

LIFE,

supra

note

98,

at

179.

101.

Id.

at

180.

102.

Id.

388

[49.3:1

As

Long

as

They

Honestly

Believe

her

actions

are

undesirable.

In

the

case

of

English

self-defense

law,

the

difference

is

drawn

in

that

a

person

is

civilly

liable

in

tort

if

he

makes

an

honest

but

unreasonable

mistake

and

uses

force

upon

another

as

a

result

of

it

(as

seen in

Ashley

v.

Chief

Constable),

but

he

is

not

criminally

culpable.'o

His act

of

unreasonably

harming

another

person

is

not

blameworthy,

but

it

is

socially

undesirable.

A

discussion

of

the

doctrinal

bases

of

drawing

such

a

difference

can

be

found

in

Ashley

v.

Chief

Constable.

10

4

In

Ashley,

the

House

of

Lords

held

that

self-defense

to

a civil

claim

for

tortious

assault

and

battery,

where

the

assailant

had

acted

in

the

mistaken

belief

that

he

was

in

imminent

danger

of

being

attacked,

required

that

such a

mistaken

belief

must

be

honestly

and

reasonably

held.

Lord

Scott,

speaking

for

the

majority,

stated

that

as

the

function

of

the

civil

law

of

tort

is

different

from

that

of

the

criminal

law,

the

standard

for

one's

state

of

mind

in

self-defense

should

differ.'

0 5

Where

the

main

function

of

criminal

law

is

to

"identify,

and

provide

punitive

sanctions

for"

behavior

that

is

categorized

as

criminal

because

it

is

"damaging

to

the

good

order

of society,"

the

function

of

tort

law

is

to

"identify

and

protect

the

rights"

of

people,

and

to

balance

between

these

rights.'o

According

to

Lord

Scott

in

Ashley,

this

distinction

explains

the

difference

in

the

elements

of

self-defense

in

criminal

and

tort

law.

This

Note,

however,

finds

flaws

with

this

explanation.

While

it

is

understandable

that

the English

courts

would

want

draw

such

a

distinction,

it

is

still

problematic

for

many

reasons.

For

one,

the

doctrinal

basis

of

drawing

such

a

formalistic

distinction

between

self-defense

in

criminal

law

and

self-defense

in

tort

law

based

on

an

almost

artificial

notion

is

regrettable.

While

such

a

difference

does

exist,

it

is

merely

a

guideline

and

should

not

be

formed

in

absolutes.

As

a

matter

of

fact,

Lord

Scott's

explanation

is

not

consistent

with

many

English

legal

doctrines.

Many

doctrines

in

English

criminal

law

are

in fact

meant

to

"identify

and protect

the

rights"

of

people

through

a

deterrent

effect.o'

One

such example

103.

Ashley

v.

Chief

Constable

of

Sussex

Police

[20081

UKHL

25

(appeal

taken

from

Eng.).

104.

Id.

at

96.

105.

Id.

106.

Id.

107.

Id.

(arguing

that

the

main

function

of

the

civil

law

of

tort

"is

to

identify

and

protect

the

rights

that

every

person

is

entitled

to

assert

against,

and

require

to

be

respected

by,

others.

The

rights

of

one

person,

however,

often

run

counter

to

the

rights

of

others

and

.

. .

the

law

of

tort[]

must

then

strike

a

balance

between

the

conflicting

rights.").

389

2018]

COLUMBIA

HUMAN

RIGHTS

LAW

REVIEW

would

be

the

doctrine

of gross

negligence

manslaughter,

which

brings

the

ordinarily

tortious

concept-

breach

of

one's

duty

of

care-into

the

criminal

sphere

for

the

policy-based

purpose

of

upholding individuals'

responsibility

for

the

health

and

safety

of

others.

108

The

purpose

of

protecting individual

rights

is

not

exclusive

to

civil

law.

The

existence of gross

negligence

manslaughter

shows

that

English

law

does

recognize

that

the

criminalization

of

certain

forms

of

unreasonable

conduct

is

crucial

to

protect individual rights.

The

influential

criminal

law

scholar,

Glanville

Williams,

also

acknowledged

in

1983

that

even

though

there

is

significant

moral

difficulty

in

punishing

people

for

what

they

cannot

help,

negligence

is

still

an

appropriate

ground

of

moral

reproach.'

In

fact,

criminal

defenses

especially

are

inextricably

concerned

with

a

balancing

of

rights

between

the

perpetrator

and the

victim,

and

English

judges

have

also recognized

this

concern in

self-defense

cases

involving

mistaken

beliefs

arising

from

voluntary

intoxication.`

0

Therefore,

this

artificial distinction

is

neither

explainable

nor desirable.

Lord

Scott's

reasoning

also

appears

weak as

a

matter

of

principle.

Lord

Scott

has

recognized

it

himself,

in

Ashley,

that

the

purpose

of

criminal

law

is

to

punish

actions

that

are

"damaging

to

the

good

order

of

society.""'

In

stating

so,

he

separates

the

purpose

of

criminal

law

from

the

civil

law

of

tort,

which is

meant

to

balance

between

the

rights

of individuals.

11 2

However,

there

is

little

explanation

as

to

how

acting

on

a

grossly

unreasonable

belief in

attacking

an

innocent

and

not

facing

a

criminal

penalty

is not

"damaging

to

the

good

order

of

society."

There

is

simply

no

explanation

as

to

why

English

courts,

and the

legislature,

are

so

unwilling

to

assess the reasonableness

of a

defendant's

belief

at

all

in

the

defendant's

use

of

force

against

another

person,

when

such

a

belief

can

constitute

an

incredibly

significant

aspect

of

the

defendant's justification

or

excuse

in a

case

where

he

has

mistakenly

thought

he

was

under

an imminent

threat.

As

a

result,

as

has

already

been

asserted,

many cases

of

police

officers

using

deadly

force

against

innocents

are

simply

not

prosecuted,

or

summarily

dismissed,

with

little

examination

into

the

reasonableness

of

the

police

officer's

beliefs.

108.

THE

UNION

FOR

PEOPLE

IN

TRANSPORT

AND

TRAVEL,

supra

note

32,

at

3.

109.

WILLIAMS,

supra

note

99.

110.

Regina

v.

O'Connor

[1991]

Crim.

L.R.

135

(Eng.).

111.

[2008]

1

AC

962,

[17].

112.

Ashley

v.

Chief

Constable

of

Sussex

Police

[2008]

UKHL

25

(Eng.).

390

[49.3:1

As

Long

as

They

Honestly

Believe

This

is

concerning

as

police

officers

are

by

nature

capable

of

wielding

a

drastic

amount

of

force

against

civilians.

It

is

thus

crucial

that

this

amount

of

capacity

be

justified.

Police

brutality

on

the

basis

of

racial

bias

is

especially

concerning,

and

there

is

a

disturbing

trend

of

law

enforcement

officers

viewing

black

citizens

in

particular

as

inherently

threatening.

1

More

black

people

are

jailed

in

England

and

Wales

proportionally

than

in

the

United

States

as

of

2010.114

Black

people

make

up

fifteen

percent

of

the

prison

population

in

the

United

Kingdom,

even

though

they

constitute

only

2.2

percent

of

the

general

population.

1 5

Police

discrimination

and

violence

against

black

people

are

also

common

in

the United

Kingdom.

1

There

is

an

immense

amount

of

evidence

demonstrating

that

police

racism

commonly

results

in

deaths

of

innocent black

men

and

women

who

were

seen

as

threatening

simply

by

virtue

of

their

race,

though

such

incidents

are

more

commonly

reported

in

the

United

States

than

the

United Kingdom."'

Arguably,

the

only

way

to

work

to

overcome

this

is

to

insist

that

unreasonable

beliefs

should

no

longer

be

tolerated

as

an

excuse

that

avails

an

attacker,

who

intentionally

harmed

or

even

killed

an innocent

person

on

the

basis

of

a

racist

belief,

to

a

defense

that

rids

him

completely

of

any

culpability.

B.

Unreasonable

Beliefs

and

Manslaughter

Another

major

problem

in

English

self-defense

law,

in

cases

where

a

mistaken

but

genuine belief

has

resulted

in

the

defendant's

use

of

fatal

force

against

the

victim,

arises

from

the

fact

that

self-

defense is

available

in

its

current

form

to

all

forms

of

homicide

in

a

way

that

subverts

the

purpose

of

some

homicide

laws

in

the

first

113.

Randeep Ramesh,

More

Black

People

Jailed

in

England

and

Wales

Proportionally

than

in

US,

GUARDIAN

(Oct.

10,

2010),

https://www.theguardian.com/society/2010/oct/11/black-prison-population-

increase-england

[https://perma.cc/6GWJ-JZV5].

114.

Id.

115.

Id.

116.

Siana

Bangura,

We

Need

to

Talk

About

Police

Brutality

in

the

U.K.,

FADER

(Mar.

29,

2016),

http://www.thefader.com/2016/03/29/police-brutality-uk-

essay

[https://perma.cc/CB2M-P933].

117.

Id.

("The

U.K.

has

a

long

history

of

state

violence,

however,

compared

to

the

U.S.

there

is

much

less

visibility

of

this

in

mainstream

media.").

See

generally

Daniel

Funke

&

Tina

Susman,

From

Ferguson

to

Baton

Rouge:

Deaths

of

Black

Men

and

Women

at

the

Hands

of

Police,

L.A.

TIMES

(July

12,

2016),

http://www.latimes.comination/la-na-police-deaths-20160707-snap-htmlstory.html

(on

file

with

the Columbia

Human

Rights

Law

Review)

(cataloguing

murders

of

black

men

and

women

by

police

officers).

2018]

391

COLUMBIA

HUMAN

RIGHTS

LAW

REVIEW

place. Specifically,

the

"honest

belief'

doctrine

and

its

availability

to

defendants

charged

with.

manslaughter

by

gross

negligence

is

completely

contrary

to

the

theoretical

and practical

purposes

of

this

particular

crime.

As

stated

in

Part

I,

the

crime

of

manslaughter

by

gross

negligence

is

unique

in

that

it

punishes

defendants

for

actions

or

omissions

which

caused

death

that

were

so

unreasonable

that

they

warrant

criminal

conviction."'

8

It

is

a

conviction

that

considers,

on

a

purely

objective

basis,

the

reasonableness

of

the

defendant's

course

of

conduct

rather

than

any

subjective

intention

or

recklessness.'

19

This

objective

approach

to

mens

rea

in

manslaughter

by

gross

negligence

is

applied

so

strictly

that

English

courts

will

not

even consider,

for

the

purposes

of

finding

liability,

any

characteristics

of

the

defendant

that

would

cause

them

to be

incapable

of

operating

at

the

level

of

a

reasonable

person.

12 0

Defendants

who

were

of

low

intelligence,

blind,

and

partially

deaf

have

been

convicted

on

the

basis

that

their

course

of

conduct

was

grossly

negligent

by

the

standard

of

a

reasonable

person,

such

as

in

Regina

v.

Stone

&

Dobinson.

12

'

Stone

&

Dobinson

involved

an

elderly

couple-a

widower

John

Edward

Stone,

who

was

blind,

partially

deaf,

had

no

appreciable

sense

of smell,

and

was

of

low

intelligence,

and

his

mistress

Gwendoline

Dobinson,

who

was

described

as

"ineffectual

and

inadequate"

in

her

daily

operations.'

22

John

Edward

Stone's

younger

sister,

Fanny

Stone,

who

suffered

from

anorexia

nervosa,

came

to

live

with

them

and

occupied

a

small

room.

When

she

began

to

spend

days

at

a

time

confined

to

her

room

and

did

not

leave

her

bed,

the

defendant

couple

continued

to

try

to

take

care

of

her

by

washing

her,

but

failed

to

find

a doctor

for

her.

Fanny

Stone

subsequently

died

from

toxemia.

The

couple

was

convicted

on

the

basis

that

any

reasonable

person

would

be

expected

to

summon

help,

and

they

owed

her

a

duty

of

care

as she

lived

under

their

roof.

It

did

not

matter,

as

far

as

gross

negligence

manslaughter

was

concerned,

that

the

couple

was

not

capable

of

operating

at

the

level

of

a

reasonable

person.'

2 3

While

this

Note

will

not debate

the

merits

of

the

existence

of

gross

negligence

manslaughter,

it

is

important

to recognize

the

existence

of

this

crime

that

obliges

people

not

to

act

in

a

way

so

118.

R

v.

Adomako

et.

al.

[1995]

1

AC

171, 171

(Eng.).

119.

Id.

at

175.

120.

Id.

at

176.

121.

R

v.

Stone

&

Dobinson

[1977]

2

W.L.R.

169, 169

(Eng.).

122.

Id.

123.

Id.

at

170.

392

[49.3:1

As

Long

as

They

Honestly

Believe

contrary

to

the

standard

of

a

reasonable

person

that

it results

in

the

death

of

another

person.

Manslaughter

by

gross

negligence

is

predicated

on

the

idea

that

the

defendant's

course

of

conduct

was

grossly

unreasonable,

caused

death,

and

she

should

hence

be

culpable

for

it.

With

that

in

mind,

it

is

very

odd

that

English

self-defense

can

excuse

this

type

of

manslaughter,

meaning

that

a

defendant

can

be

fully

acquitted

of

gross

negligence

manslaughter

when

his

grossly

unreasonable-but

genuine-belief

had

caused

death.

This

leads

to

the absurd

result

that

the

elements

that

could

prove

a

conviction

of

gross

negligence

manslaughter

would

instead

prove

the

existence

of

self-defense

acquitting

a

defendant

of

gross

negligence

manslaughter.

It

cannot

be

explained

why

a crime

that

specifically

punishes

a

person

for

taking

a completely

unreasonable

action can

allow

a

full

defense

that

is

based

on

a

completely

unreasonable

action.

It

bars

the

ability

of

the

court

to

assess

the

reasonableness

of

the

very

basis

of

a

potentially

unjustified

action

that

a

person

has

taken

which

has

caused

the

death

of

another.

As

an

illustration,

we

can

examine

the

case

of

Regina

v.

Adomako

in

comparison

with

the

cases

of

police

brutality

previously

mentioned.

In

Adomako,

an

anesthetist's

conviction

of

manslaughter

by

gross

negligence

was

upheld

on

the

basis

that

he

had

caused

a

patient's

death

by

failing

to

notice

a disconnection

in

his

oxygen

pipe,

which

was

a

gross

breach

of

duty

as

it

fell

far

below

the

standard

of

a

reasonable

doctor-which

was

a

much

higher

standard

than

that

of

a

reasonable person.

1 2 4

In

contrast,

the

police

officer

in

Sharman

who

fatally

shot Stanley

on

the

mistaken

belief

that

the

table

leg

he

was

carrying

was

a

shotgun

was

not

even

held

to

the

standard

of

a

reasonable

person,

let

alone

that

of

a

reasonable

trained

police

officer,

in

the

formation

of

that

belief

because

of

the

nature

of

English

self-

defense

law.'

25

Therefore,

even

though

he

had

caused

death

with

an

action

taken

in

what

was

arguably

a

gross

breach

of

his

duty

of

care,

he

cannot

be

convicted

of

gross

negligence

manslaughter,

or

any

other

form

of

homicide.

English

self-defense

law

thus

undermines

the

124.

R

v.

Adomako et.

al.

[1995]

1

A.C.

171

at

188

(Eng.);

Ying

Hui

Tan,

Law

Report:

Anaesthetist's

conviction for

manslaughter

upheld:

Regina

v

Adomako

-

House

of

Lords,

INDEPENDENT

(June

30,

1994),

http://www.independent.co.uk/news/uk/law-report-anaesthetists-conviction-for-

manslaughter-upheld-regina-v-adomako-house-of-lords-lord-1410881.html

[https://perma.cc/AVN7-UVK6].

125.

R

(on

the

application

of

Sharman)

v.

HM

Coroner

for

Inner

North

London

[2005] EWCA

(Civ)

967

[1]-[9],

[20051

Inquest

L.R. 168

(Eng.).

393

2018]

COLUMBIA

HUMAN

RIGHTS

LAW

REVIEW

purpose

of

gross

negligence

manslaughter

entirely,

and generates

results

that

are

noticeably

unfair.

C.

An

Artificial

"Reasonableness"

Element

On

the

discussion

of

the

"honest

belief'

doctrine,

we

must

still

note

that

English

courts

have

not,

in

fact,

completely

dismissed all

honest

beliefs

as

justified.

While

there

is

no

reasonableness

element

in

assessing

whether an

honest

belief

is

justified,

legislation

and

past

case

law

has

established

that

there

is

one

type

of

mistaken

belief

that

cannot

be

justified

as

an

"honest

belief'

that

can

avail

the

defendant

of

the

justification

of

self-defense.

12 6

The

only

situation

in

which

the

"honest

belief'

doctrine

does

not

apply

on

its

face

is

if

the

mistaken

belief

was caused

by

the

intoxication

of

the

defendant

at

the

time

of

the

act,

even

if

that

belief

could

be

considered

reasonable,

provided

that

the

defendant

would

not have

had

that

belief

if

he

were

sober.

127

This

rule

was

codified

in

the

Criminal

Justice

and Immigration

Act

in

2008,

but

its

history

dates

much

longer

than

that.

1

28

While

self-

defense

was

still

a common-law

defense,

several

Court

of

Appeal

cases

have

firmly

held

that

a

defendant's

drunken

belief

can

never

be

relied

on

for

the

purpose

of

self-defense.1

29

In

Regina

v.

O'Grady,

a

case

decided

about

30

years

before

legislative

codification

of

this

doctrine,

Lord

Chief

Justice

Lane

stated

that

the rationale

for

barring

drunken

beliefs

was

to

balance

between

the

"competing

interests"

of

the

defendant

and

the

victim.

He

thus

concluded

that

the

defendant

deserves

a

conviction,

because

the

fault

in

such

a

case

would

lie

mainly

on

the

defendant,

rather

than

the

victim

who

suffered

"through

no

fault

of

his

own"

as

a

result

of

the

defendant's

"drunken

mistake."

13

o

Interestingly

enough,

this

statement

essentially

rejects

the

opinion

of

Lord

Scott

more

than

30

years

later

in

Ashley,

that

the

courts

should

only

balance

interests

between

individuals

when

in

the

realm

of

tort

law.

3

1

Apart

from

the

exclusion

of

situations

involving

voluntary

intoxication,

which

has

been

rooted

in

the

common

law

for

decades

126.

Director

of

Public

Prosecutions

v.

Majewski

[1977]

AC

443,

[1976]

UKHL

2

(appeal

taken

from

Eng.).

127.

Criminal

Justice

and Immigration

Act

2008

c.4,

§

76

(Eng.).

128.

Id.

129.

R

v.

O'Grady

[1987]

1

QB

995

(Eng.);

R

v.

O'Connor

[19911

Crim

LR

135

(Eng.);

R

v.

Hatton

[20061

1

Cr.

App.

R

16

(Eng.).

130.

R

v.

O'Grady

[1987]

1

QB

995

(Eng.).

131.

Ashley

v.

Chief

Constable

of

Sussex

Police

[2008]

UKHL

25,

[18]

(appeal

taken

from Eng.).

394

[49.3:1

As

Long

as

They

Honestly

Believe

and subsequently

expressly

codified

by

legislation,

the

courts

have

recently

also

excluded

beliefs

that

arise

from

a

delusional

state

of

mind.

In

the

2013

case

of

Regina

v.

Oye,

the

defendant

mistakenly

thought,

while

in

a

delusional

state

of

mind,

that

he

was

under

threat

of

attack

by

police

officers.

132

He

perceived

the

officers

as

evil

spirits

and

spontaneously

assaulted

them.as

At

trial, the

Crown

found

that

since

his

belief

was

a

genuine

one

that

did

not

arise

from

voluntary

intoxication

(the

"honest

belief'

requirement

in

§76(4)),

and

the

use

of

force

was

reasonable

in

the

circumstances

as

he

mistakenly

perceived

them

to

be

(the

"reasonable

force"

requirement

in

§76(6)),

he

should

be

acquitted

on

the

basis

of

self-defense.

13 4

The

Court

of

Appeal

reversed

the

decision

on

the

basis

that

an

insane

person

cannot

set

the

standard

of

reasonableness

as

to

the

degree

of

force

used

by

reference

to

his

own

insanity.'

It

added

that

it

would

make

"little

sense"

for

the

jury

to

put

themselves

into

the

shoes

of

a

"reasonable

lunatic."

1

3 6

Therefore,

the

force

used

cannot

possibly

be

"reasonable"

for

the

purposes

of

the

objective

requirement

of

reasonable

force.

In

deciding

the

ruling,

Lord

Justice

Davis

pointed

out

that

the

trial

court's

holding

was

concerning

because

allowing

the

defense

would

mean

"the

more

insanely

deluded

a

person

may

be

in

using

violence

in

purported

self-defence

the

more

likely

that

an

entire

acquittal

may

result."

1 37

This

statement

demonstrates

the

policy

decisions

behind

this

ruling

and

the

idea

that

English

courts

are

still,

to

some

extent,

willing

to

bar

the

defense

to

honest

but

delusional

beliefs,

even

though

it

is

not

stated

in legislation.

138

Furthermore,

while

English

law

employs

a

subjective

test

for

the

defendant's

belief

in

the

existence

of

an

imminent

threat,

it

applies

an

objective

test

for

whether

or

not

the

defendant's

use

of

force

is

reasonable

given

the

belief

that

the

defendant

has

in mind.

139

This

demonstrates

a

certain

awareness

on

part

of

the

legislature

and

judiciary

to

impose

some

form

of

a

reasonableness

element

to

prevent

self-defense

from

being

used

to

completely

absolve

someone

of

culpability

when

he

has

acted

with

grossly

disproportionate

force.

132.

R

v.

Oye

[20131

EWCA

Crim

1725,

[20141

1

W.L.R.

3354,

[2]

(Eng.).

133.

Id.

at

[19].

134.

Id.

at

[46]-[481.

135.

Id.

at

[47].

136.

Id.

137.

Id.

at

[451.

138.

R

v.

Oye

[2013]

EWCA

Crim

1725,

[2014]

1

W.L.R.

3354,

[56]

(Eng.).

139.

Criminal

Justice

and

Immigration

Act

2008,

c.4,

§

76(4)(b)

(Eng.).

395

2018]1

COLUMBIA

HUMAN

RIGHTS

LAW

REVIEW

However,

while

it

is

respectable

that

the

English

law

has

accepted

that

there

ought

to

be

certain

"honest

beliefs" which

are

so

unreasonable

or

unjustified

that

they

cannot

be

relied

on

by

defendants

who

seek

to

plead

self-defense,

and

does

attempt

to

add

a

layer

of

reasonableness

through

the

requirement

"reasonable

force,"

this

Note

finds

that

the

rigid

nature

and

legal

uncertainty

of

these

rules

have

generated

further

problems

for

English

self-defense law.

First,

the

rigid

nature

of

the

two

blanket

exclusions is

unfair

and

neglects

underlying

problems.

These

attempts

to

narrow

the

excessively

broad

nature

of

the

"honest

belief'

doctrine

result

in

the

exclusion

of

drunken

and

deluded

beliefs

on

the basis

that

they

are

automatically

unjustifiable

or

unreasonable.

This

is

simultaneously

over-inclusive

and

under-inclusive.

It

is

under-inclusive

as

it

does

not

include

other

forms

of

unreasonable

beliefs

such

as

racist

beliefs,

or

unreasonable

police

brutality.

It

is over-inclusive

as

it

presumes

that

all

intoxicated

beliefs

are

per

se

unreasonable-for

example,

as

pointed

out

by

Dr.

Jonathan

Rogers,

an

intoxicated

woman

who

is

walking

home

at

night

would

not

be

able

to

plead

self-defense

to

instinctively

pepper-spraying

a

person

whom

she

mistakenly

believed

was

following

her.

14 0

If

we

consider

the

purpose

of

criminal

law

to

deter

the

commission

of

societally

undesirable

acts,

and

also

as

a

method

of

ascribing

moral blame

to someone,

both

are

left

unsatisfied.

It

is

first

unclear,

from

a

Benthamite

perspective

of

criminal

law

as

influencing

societal

behavior,

what

this

is

meant

to

deter.

While one could

say

that

it

is

meant

to

deter

people

from

walking

home

alone

at

night

while

drinking

(which

is

absurd),

or

to

prevent

people

from

acting

on

their

honest

and

instinctive

impulses

to

defend

themselves

against

perceived

threats

when

drunk

(which

negates

the

purpose

of

self-defense

in

the first

place

and

can

cost

people

their

lives),

neither

make

much sense

as a

policy

measure.

There

is also

much

less

moral

blame

we

can

ascribe

to

a

person

who

acts

on

her

impulses

to

defend

herself

when

intoxicated,

compared

to

one

who

makes

automatically

racist

beliefs

when

sober,

but

the

latter

will be

allowed

the

full

defense

and

the

former

nothing.

The

simultaneously

over-inclusive

and under-inclusive

nature

of

the

current

law

results

in a

situation

wherein

an

intoxicated

woman

walking

home would

not

have a

defense

when

she

instinctively

pepper-sprays

a person

whom

she

thought

was

following

her-

whereas

a

person

who

is

naturally

racist

would

get

off

scot-free

as

140.

Jonathan

Rogers,

Let

the

drunkard

lie!,

1555(7204)

NEW

L.J.

1892,

1892-93

(2005).

396

[49.3:1

As

Long

as

They

Honestly

Believe

long

as

he

was

sober,

or

even

if

he

was

drunk

but

would

have

made

the

same

mistake

if

he

were

sober."'

A

greater

concern

arises

where

mistaken

beliefs

are

created

with

little regard

as

to

whether

they

are

true.

Many cases

involving

police

officers

who

have

become

used

to

the

violence

possibly

inherent

in

their

line

of

duty

do

in

fact

create

beliefs

that

individuals

are

about

to

use

violence

against

them

or

others

as well,

with

mostly

indifference

as

to

whether

these

beliefs

are

true.

In

Lindley

v.

Rutter,

a

policewoman

was

not

prosecuted

after

forcibly

searching

a

female

prisoner

and

removing

her brassiere,

although

there

was

no

reason

to

believe

that

the

prisoner

was

at

risk

of

committing

suicide.

1

42

The

action

appeared

to

have

been performed

mostly

out

of

routine

and

with

little

to

no

effort

taken

to

ascertain

the

truth

of

that

belief.

43

It

is

concerning

that

many

state

agents

do

in

fact

demonstrate

such

an

attitude

of

indifference

in

forming

such

beliefs,

possibly

deriving

from

the

thought

that

they

are

effectively

immune

from

investigation

as

long

as

they

can

say

that

their

beliefs

are

honest.1

44

The

artificial

cognitive

separation

of

"belief'

and

"force,"

with

English

law

ascribing

a reasonableness

element

only

to

the

latter

and

not

the

former,

is

also

undesirable.

First,

it

is

unclear

why

a

person

who

acts

on

an

unreasonably

mistaken

belief

with

reasonable

force

would

be

allowed

a full

defense

while

a

person

who

acts

on

a

correct

factual

belief

with

excessive

force

would

be

granted

no

defense

whatsoever.

Second,

the

human

cognitive

thought

process

simply

cannot

be

categorized

in

such

a

manner,

and

the existing

legislation

has

caused

much

confusion

and

uncertainty.

A

person,

when

acting

in

self-defense,

can

have

a

range

of

beliefs

that

he

is

considering

before

acting-for

example,

the

woman

who

suspects

she

is

being

followed

in

the

example

above

may

have

a

variety

of

likely

threats

she

is

considering

in

her

head

before

she

chooses

to

make

a

pre-emptive

strike

to

guarantee

her

own

safety.

It

is hence

unclear

which

"belief'

the

courts

will

find

to

be

genuine

and

use

as

the

basis

for

assessing

reasonable

force,

and

has

led

to

much

judicial

uncertainty.

This

problem

subtly

arose

in

the

Oye

case

mentioned

above,

in

which

it

was

so

difficult

to

specifically

pinpoint

what

the

exact

"threat"

the

defendant

perceived

himself

to

be

facing

was,

that

the

141.

SEEKING

SECURITY,

supra

note

6,

at

273.

142.

Lindley

v.

Rutter

[1981]

QB

128

(Eng.);

SEEKING

SECURITY,

supra

note

6,

at

290.

143.

SEEKING

SECURITY,

supra

note

6,

at

290.

144.

Id.

at

289.

2018]

397

COLUMBIA

HUMAN

RIGHTS

LAW

REVIEW

court

simply

held

that

the

standards

of

reasonableness

could

not

be

set

and

disallowed

the

defense.

While

the

ruling

was

understandable,

it

generates

much

legal

uncertainty,

as

the

way

the

judges

made

the

ruling

in

Oye

was

through

a

convoluted

reinterpretation

of

legislation

that

was

clearly

contrary

to

its

wording.

145

A

similar

problem

arose in

R

v.

Martin,

in

which

a

man,

suffering

from

paranoid

personality

disorder

and

believing

two

burglars

were

going

to

attack

him,

shot

one

of

the

burglars

and

was

found

to

have used

unreasonable

force.

The

court

failed

to

take

into

account

his

increased

perception

of

risk

as

a

result

of

his

disorder,

likely due

to

the

vague

nature

of

"risk"

in

ascertaining

a

particular

belief.146

Hence,

if

the

purpose

of

the

current

law

is

to

increase

legal

certainty,

it

has

clearly failed

to

do

so

as

the

cognitive

compartmentalization

of

"belief'

and

"force"

into

separate

categories

and

ascribing

the

stringent

requirement

of

reasonableness

only to

the

latter.

A

major

problem

with

English

self-defense

law

is

that

it

operates

in

an

"all-or-nothing"

manner-a

defendant

is

either

402

[49.3:1

As

Long

as

They

Honestly

Believe

absolved

of

all

liability,

or

is

convicted

with

full

culpability.

In

cases

of

self-defense,

this

means

that

where

the

defendant

acted

on

a

grossly

unreasonable

mistaken

belief

with

what

might

be

considered

"reasonable

force"

in

light

of

that

mistaken

belief,

causing

death,

he

will

be

allowed

to

plead

a

full

defense,

whereas

a

defendant

who

acted

on

a correct

belief

but

used

excessive

force

given

that

belief,

causing

death,

will

be

convicted

of

murder.

There

is,

again,

little

reason

why

this

is

the

case,

and

this

once

again

demonstrates

the

undesirably

absolute

and

formalistic

distinctions

prevalent

in

English

criminal

law.

Imperfect

self-defense

exists

as a

partial

defense

in

many

sophisticated

jurisdictions

around

the

world,

including

Commonwealth

countries

which

have

based

their

self-defense

laws

on

English

law

yet

departed

since.

Many

states

of

the

United

States,

such

as

California

and

Maryland,

recognize

the

doctrine

of

imperfect

self-defense

at

common

law.'

63

Two

European

countries

also recognize

self-defense

through

the

use

of

excessive

force

as

a

defense

in

itself.

The

German

Criminal

Code

provides

in

§

33

that

if

a

defendant

uses

more

force

than

necessary

out

of

"confusion,

fear

or

fright",

a

full

defense

of

"self-defense-excess"

is

still

available.'

64

In

the Netherlands,

the

Dutch

Criminal

Code

also

excuses

excessive

force

if

the

force

arose

as

the

result

of

a

"strong

emotion

brought

about

by

the

attack."'

Australia

recognizes,

in

statutory

form,

a

partial

defense

to

murder

that

reduces

the

offence

to

manslaughter

if

the

defendant

used

disproportionate

force

that

resulted

in

death.

6

It

is

potentially

arguable

that

such

a

partial

defense

has

already

been

covered

by

the

now

statutory

defense

of

"loss

of

control"

in

English criminal

legislation.1

67

The Coroners

and

Justice

Act

2009

allows

a

partial

defense

to

a

person

who

kills

another

to

have

their

conviction

reduced

to

one

of

manslaughter

provided

that

the

crime

was

committed

in

loss

of

self-control,

with

a

"qualifying

trigger,"

and

with

a

"normal

degree

of

tolerance

and

self-restraint."

6

A

"qualifying

trigger"

is

defined

as

either

a

fear

of

"serious

violence"

(which

overlaps

with

self-defense),

or

anything

done

or

said

that

constituted

circumstances

of

"an extremely

grave

character"

that

caused

the

163.

State

v.

Humphrey,

921

P.2d

1

(Cal.

1996);

State

v.

Faulkner,

483

A.2d 759,

769

(Md.

1984).

164.

COMPARATIVE

CONCEPTS,

supra

note

87,

at

147.

165.

Id.

166.

Criminal

Law

Consolidation

Act

1935

(SA) s

15

(Austl.).

167.

Coroners

and

Justice

Act

2009,

c.

25,

§

54(1)

(Eng.).

168.

Id.

2018]

403

COLUMBIA

HUMAN

RIGHTS

LAW

REVIEW

defendant

to

have

"a

justifiable

sense

of being

seriously

wronged."

69

However,

such

a defense

is

insufficient

as

it

still

subjects

the

use

of

force

by

the

defendant

to

a

reasonableness

requirement

that

is

not

explicitly

stated

to

be one.

By

holding

the

defendant

to

the

standard

of

a person

with

a

"normal

degree

of

tolerance

and

self-restraint,"

the

court

has barred

the

defense

from people

who

fail

to

reach such

a

standard.

While

it

may

be

understandable

for

courts

to

be

reluctant

to

extend

a

partial

defense

to

someone

who

knowingly

killed

another

after

being

provoked

when

no

reasonable

person

would,

it

is

less

understandable

why

a

full

defense

can

be

granted

where

the

unreasonableness

was

in

the

mistaken

belief

rather

than

the

force

used.

The

best

way

to

smooth

out

this

undesirable

cognitive

distinction

would

be

to

include

a

reasonableness

requirement

for

both

the

"belief'

and

"force"

assessments,

and

include

a

partial

defense

if

either

requirement

fails

to

reach

the

"reasonableness"

threshold.

A

concern

about

having

a

partial

defense

was

raised

in

Australia

in

Zecevic

v.

Director

of Public

Prosecutions,

a

case

that

abolished

the

defense

at

common

law,

though

it

was

subsequently

implemented

statutorily.

The concern

was

that

it

would

confuse

juries

to

be

asked

to

consider

both

questions

of

"full"

and

partial

self-defense

in a

way

that

might increase

the

risk

of

juries

agreeing

on

partial

self-defense

as

a compromise

verdict

when

in

fact

none

believed

in

it.

170

The

problem

of

compromise

verdicts

is

often

faced

in

many

criminal

charges

involving

several

crimes

of

varying

levels

of

severity-such

as

murder

and

manslaughter,

and

crimes

which

constitute

misdemeanors

and

felonies

in

the

United

States.

The

way

to

solve

this

problem, however,

is

through

better jury

instructions

rather

than

abolishing

the

principle

of

having

different

charges

and

defenses

for

different

situations.

D.

Inspiring

Reform:

The

European

Court

of

Human

Rights

Many

methods

of

reform

in

English

self-defense

law

have

been

debated

and

discussed

in

the past,

but

this

has

yet

to

lead

to

any

changes

in

English

self-defense

law

that

can

better

protect

the

rights

of

innocent

individuals

not

to

be

attacked

by

police

officers

or

other

civilians

who

have

unreasonably

or

indifferently

believed

that

they

were

threatening.

Now

that

the

doctrine

of self-defense

has

been

fully

set

out

in

Parliamentary

legislation

rather

than

just

the

common

law,

169.

Id.

§

55.

170.

Zecevic

v.

Director

of

Public

Prosecutions

[19871

HCA

26;

(1987)

162

CLR

645;

(1987)

71

ALR 641;

(1987)

61

ALJR

375

(Austl.).

404

[49.3:1

As

Long

as

They

Honestly

Believe

the

job

of

the

courts

to

amend

it

has

become

much

more

difficult.

Hence,

I

believe

that

currently

the

most

effective

way

to

stimulate

any

reform

in

self-defense

law

today

would

be

for

the

Strasbourg

Court

to

decide

that

English

law,

as

it

stands,

is

incompatible

with

the

ECHR

and

require

that

the

United

Kingdom

change

the

existing

laws

through

the

doctrine

of

positive

obligations.

Taking

into account

the

language

used

in

Article

2,

and

the

position

of

the

Strasbourg

Court in

McCann

v.

United

Kingdom

and

other

it

does

appear

that

English

law-which

in

its

current

state

fails

to

convict

police

officers

who

kill

innocents

with

reckless

indifference-is

a

violation

of

Article

2.

The

Article

states

that

deprivation

of

life

is

always

a

violation

unless

it

is

done

so

with

the

"use

of

force

which

is

no

more

than

absolutely

necessary."

17

1

In

McCann,

the

Strasbourg

Court

interpreted

that

provision

of

Article

2

to

mean

that

where

state

actors use

lethal

force

against

an

innocent

without

reasonable

belief

in

the

existence

of

a

threat,

such

action

constitutes

a

violation

of

the

state's

obligations

under

Article

2.

In

Angelova

and

Iliev

v.

Bulgaria,

the

Strasbourg

Court

stated

that

the

core

of

Article

2(1)

requires

states

to

put

into

place

"effective

criminal

law

provisions

to

deter the

commission

of

offences

against

the

person."

1

72

With

that

in mind,

the

fact

that

English

self-defense

law

allows

unreasonable

belief

to

justify

taking

the

life

of

another

insufficiently

protects

potential

victims-which

the

United

Kingdom

has

a

positive

obligation

to

do

under

Article

2-means

that

it

can

be

established

that

U.K.

law

does

not

sufficiently

deter

people

from

hurting

others

on

an unreasonable

belief

in

a

threat.

The

Strasbourg

Court

has

yet

to

make

such

a

judgment,

but

if

it

ever

rules

that

the

English

law

is

incompatible

with the

United

Kingdom's

positive

obligations

under

the

ECHR,

the United

Kingdom

will

be

obliged

under

international

law

to

abide

by

the

ruling

and

amend

its

laws.'

Similarly,

the

domestic

U.K.

courts

can

influence

Parliament

to

reform

existing

self-defense

laws

through

the

Human

Rights

Act

1998,

which

is

a

way

for

the

English

courts

to

enforce

human rights

law

of

the

ECHR.'

74

Given

the

specificity

of section

76

of

the

Criminal

Justice

and

Immigration

Act

and

the

principle

of

Parliamentary

sovereignty,

the

courts

do

not

have

the

power

to

interpret

a

171.

European

Convention,

supra

note

12,

art.

2.

172.

Angelova

and

Iliev

v.

Bulgaria,

App.

No.

55523/00,

1

93

(Eur.

Ct. H.R.

July

26,

2007),

available

at

http://www.echr.coe.int.

173.

European

Convention,

supra

note

12,

art.

2.

174.

Human

Rights

Act

1998,

c.

42

(UK).

405

2018]

COLUMBIA

HUMAN

RIGHTS

LAW

REVIEW

"reasonable

belief'

requirement

into

the

existing

law

of

self-defense

against

the

text

of

the

legislation,

as

this

power is

neither

inherent

in

the

courts

nor

conferred

upon

them

by

legislation."'

Nonetheless,

the

courts

can

still

issue

a

Declaration

of

Incompatibility under

section

4

of

the

Human

Rights

Act,

which

can politically

pressure

Parliament

into

amending

its

existing

legislation.

However,

this

is

more

easily

said

than

done.

The

relationship

between

the

United

Kingdom

and

the

Strasbourg

Court

has

been

noticeably

strained

in

the

past

decade,

resulting

in

a

situation

where

Strasbourg

has

refrained

from

putting

excessive

pressure

on

the

United

Kingdom.

There have been

increasing

accusations

within

the

United

Kingdom

of

the

Strasbourg

Court

acting

as

"mission

creep,"

meaning

that

Strasbourg

is

deliberately

creating

excessive

rights

that

infringe

upon

the

sovereignty

of

the

United

Kingdom

to

determine

its

own

standard

of

human rights

protection."'

As

a

result,

the

United

Kingdom

has

demonstrated

some

reluctance

in

enforcing

the

Strasbourg

Court's

judgments

that

it

deems

excessive,

such

as

in

the

case

of

Hirst

v.

United Kingdom,

where

Strasbourg

held

that

the

legislative

ban

in

the

United

Kingdom

against

allowing

convicted

prisoners

to

vote

was

a

violation

of

Article

3

of

Protocol

1

of

the

ECHR

(right

to

free

elections)."

1 7

It has

been

over

a

decade

since

that

judgment,

and

the United

Kingdom

has

still

not amended

its

laws

to

implement

the

ruling

in

Hirst.

The

Conservative

Party,

which

is

the

current

ruling

party,

has

also

threatened

(and

recently

committed)

to

replace

the

Human

Rights

Act

1998

with

a

"British

Bill

of

Rights"

of

an

undecided

character.

1 7 8

It

is

hence

likely

that

Strasbourg

is

concerned

that

further

attempts

to

pressure

the

United

Kingdom

would

result

in

the

United

Kingdom

withdrawing

from

the

ECHR

or

ignoring

Strasbourg

175.

For

more

information

on

the

doctrine

of

Parliamentary

sovereignty,

see

Parliamentary

Sovereignty,

UK

PARLIAMENT,

https://www.parliament.uk/

about/how/role/sovereignty/

[https://perma.cc/QXF4-NT3P].

176.

The

Conservative

Party,

Protecting

Human

Rights

in

the

UK:

The

Conservatives'

Proposals

for

Changing

Britain's

Human

Rights

Laws,

https://www.conservatives.com/-/media/files/downloadable%20files/human-rights.

pdf

[https://perma.ce/CZ7K-SD5W].

177.

Hirst

v.

United

Kingdom

(No.

2),

2005-IX

Eur.

Ct.

H.R.

187;

Ed

Bates,

The

Continued

Failure

to

Implement

Hirst

v

UK,

EJIL:

TALK!

(Dec.

15,

2015),

http://www.ejiltalk.org/the-continued-failure-to-implement-hirst-v-uk/

[https://perma.cc/F7KU-8JTB].

178.

Will

the

Human

Rights

Act

be

Scrapped?,

THE

WEEK

(Jan.

25,

2017),

http://www.theweek.co.uk/63635/will-the-human-rights-act-be-scrapped

[https://perma.cc/9YM8-WFPM].

406

[49.3:1

As

Long

as

They

Honestly

Believe

jurisprudence

entirely.

However,

even

if

the

United

Kingdom

does

repeal

the

Human

Rights

Act,

it

will

still

be

subject

to

Strasbourg

jurisprudence

as

long

as

it

remains

signatory

to

the

ECHR,

from

which

Prime

Minister

Theresa

May

has

pledged

that

it

will

not

withdraw."'

Additionally,

there

has

not

been

any

complaint

regarding

Strasbourg's

"mission

creep"

where

its

decisions

regarding

Article

2's

right

to life

is

concerned.

We

should

thus

proceed

on

the

basis

that

Strasbourg

still

does

and

will

continue

to

have

influence

in

enforcing

the

Articles

of

the

Convention

that

are

most

closely

English

self-defense

law-Articles

2

and

3.

1.

The

Importance

of

Positive

Obligations

in

the

ECHR

As

stated

in

Part

I,

the

"right

to

life"

under

the

ECHR

not

only

imposes

a

negative

obligation

upon

signatory

states

to

refrain

from

infringing

upon

individual

rights,

but

also

a

positive

obligation

to

enforce

laws

that

protect

the

rights

of

individuals

within

their

borders."so

This

means

that

when

police

officers,

who

are

state

agents,

act

in

their

course

of

duty

in

a

manner

that

unnecessarily

deprives

individuals

of

their

right

to

life,

there

are

two

different

ways

for

Strasbourg

to

assess

the

case

as a

violation

of

the

Convention.'

First,

the

Strasbourg

Court

can

assess

if

the

police

action

taken

was

in

breach

of

the

state's

negative

obligation

not

to

unnecessarily

deprive

a

person

of

their

right

to

life.

In

other

words,

this

would

be

an

examination

into

whether

the

state's

executive

action

was

a

violation

of

the

state's

negative

obligation.

This

was

the

assessment

made

in

McCann

and

in

most

cases

involving

actions

involving

police

brutality

that

were

brought

before

Strasbourg.

1 8

2

However,

it

is also

possible

for

Strasbourg

to

assess

the

state's

potential

violation

of

its

positive

obligations

in

terms

of

either

a

failure

to

prosecute

the

crime,

or

the

failure

to

implement

a

sufficiently

rigorous

set

of

laws

that

would

prevent

or

deter

the

unnecessary

deprivation

of

human

life.

In

Makaratzis

v.

Greece,

the

Grand

Chamber

of

Strasbourg

ruled

that

signatory

states

have

a

positive

duty

to

incorporate

an

appropriate

legal

framework

defining

179.

Adam Wagner,

BREAKING:

Theresa

May

Will

NOT

Try

to

Take

UK

Out

Of

European

Convention

on

Human

Rights,

RIGHTSINFO

(June

30,

2016),

http://rightsinfo.org/breaking-theresa-may-will-not-try-leave-european-

convention-human-rights/

[https://perma.cc/2CPF-B68D].

180.

POSITIVE

OBLIGATIONS,

supra

note

14,

at

203.

181.

European

Convention,

supra

note

12,

art.

10.

182.

See

Bubbins

v.

United

Kingdom,

2005-Il

(extracts)

Eur.

Ct.

H.R.

171.

407

2018]

COLUMBIA

HUMAN

RIGHTS

LAW

REVIEW

clearly

the

limited

circumstances

in which

the

police

and

other

law

enforcement

officers

may

use

firearms."s'

In

the

case

of

self-defense,

I

find

that

it

is

particularly

important

for

Strasbourg

to

assess

the

laws

of

signatory

states

in

line

with

the

positive

obligations

enshrined

in

Article

2,

simply because

self-defense is

a

private

defense

available

to

all

individuals,

not

just

police

officers

acting

on

behalf

of

the

state.

The

problem

with the

subjective

test

in

English

law

far

exceeds

cases

of

violence

used

by

state

parties,

but

also

encompasses

the

use

of

force

by

private

persons.

18 4

If

Strasbourg

only

assesses

individual

cases

of

state

party

action

through the

view

of

negative

obligations,

it

cannot

influence

any

change

in

U.K.

domestic

legislation

that

can

protect

the

lives

of

individuals

from

the

use

of

violence

by

private

persons.

In

many

cases,

Strasbourg

has

shown a

demonstrated

assertiveness

in

enforcing

the

notion

of

positive

obligations

to

implement

adequate

criminal

laws

on

signatory

states.

Apart

from

the

Makaratzis

case

mentioned

above,

Strasbourg

held

in

the

notable

case

of

M.C.

v.

Bulgaria

that

states

have

a

positive

obligation

to

protect

victims

of

rape

by

extending

criminal

liability

to

defendants

in

cases

where

the

victim did

not

face

direct

physical

force

but

coercion

or

threats

of

a

different

kind.

8

"

Strasbourg

hence

found

that

Bulgaria's

failure

to

prosecute

was

a

violation

of

Article

8

of

the

ECHR

(right

to

private

and

family

life),

on

the

basis

that

Article

8

imposes

a

positive obligation

upon

states

to

deter

"grave

acts

such

as

rape,

where

fundamental

values

and

essential

aspects

of

private

life

are

at

stake".186

It

is

therefore

regrettable

that

Strasbourg has

constantly

demonstrated

confusion

and

avoidance

around the

issue

of

whether

the

subjective

test

in

English

self-defense

law

is

a

violation

of

positive

obligations.

The

Strasbourg

court

has

very

rarely

assessed

self-

defense

laws

from

the

perspective

of

positive

obligations,

and

has

never addressed the

doctrine

of

"honest

belief'

in

self-defense

laws.

One

of

the

most

notable

examples

of

Strasbourg

intervention

in

cases

183.

Makaratzis

v.

Greece,

2004-XI

Eur.

Ct.

H.R.

195;

POSITIVE

OBLIGATIONS,

supra

note

14,

at

204.

184.

POSITIVE

OBLIGATIONS,

supra

note

14,

at

206.

.185.

M.C.

v.

Bulgaria,

2003-XII

Eur.

Ct.

H.R.

1[

180-87.

186.

European

Convention,

supra

note

12,

art.

8;

M.C. v.

Bulgaria,

2003-

XII

Eur.

Ct.

H.R.

1

150;

Jonathan

Rogers,

Fundamentally

Objectionable,

NEW

L.J.

(Sept.

14,

2007),

https://www.newlawjournal.co.uk/content/fundamentally-

objectionable

[https://perma.cc/DH6Y-BJ4L];

POSITIVE

OBLIGATIONS,

supra

note

14,

at

206.

408

[49.3:1

As

Long

as

They

Honestly

Believe

of

self-defense

in

relation

to

positive

obligations

is

Gramadd

v.

Romania,

wherein

Romania's

failure

to

sufficiently

investigate

the

circumstances

of

an

excessive

but

non-fatal

police

shooting

and

the

domestic

courts'

subsequent

acquittal

of

the

police

officer

on

the

basis

of

self-defense

was

a

violation

of

Article

3

of

the

ECHR

(prohibition

of

inhuman

or

degrading

treatment)."'

However,

it

was

unclear

in

the

judgment

whether,

had

there

been

an

adequate

investigation

and the

defendant

still

acquitted,

Strasbourg

would

still

find

a

violation

of

Article

3.

It

is

also

unclear

whether

the

violation

of

the

positive

obligations

in

Article

3

was

a

result

of

a

failure

to

investigate,

or

the

potentially

excessive

nature

of

Romanian

law's

definition

of

self-

defense

that

may

fail

to

adequately

protect

the

rights

of

victims.

Hence,

Strasbourg's

decision

in

Grdmadd

once

again

skirted

a full

assessment

of

the

adequacy

of

domestic

self-defense

law

itself.

In

R

(Collins)

v.

Secretary

of State

for

Justice,

the

domestic

High

Court

of

the

United

Kingdom

was

tasked

to

consider

whether

U.K.

self-defense

law,

which

allowed

householders

to

employ

excessive

force

against

an

intruder,

was

a

violation

of

Article

2

of

the

ECHR.'as

While

this

was

not

a

Strasbourg

case,

the

domestic

courts

of

the

United

Kingdom

had

the

power,

through

the

Human

Rights

Act

1998,

to

issue

a

declaration

of

incompatibility

if

it

found

that

the

current

law

as

it

stood

constituted

a violation.

The

High

Court

held

that

section

43

of

the

Crime

and

Courts

Act

of

2013,

which

inserted

a

provision

within

section

76

of

the

Criminal

Justice

and

Immigration

Act

that

householders

are

allowed

to

use

excessive

force

provided

that

it

is

not

"grossly

disproportionate,"

is

not

incompatible

with

Article

2.

Section

2

of

the

Human

Rights

Act

provides

that

where

domestic

courts

are

determining

a

question

the

ECHR,

they

must

"take

into

account"

any

relevant Strasbourg

jurisprudence

and

case

law.

8 9

The

High

Court

thus

took

into account

Strasbourg

jurisprudence,

such

as

Angelova

and

Iliev

v.

Bulgaria

(where

Strasbourg

stated

that

states

must

comply

with

Article

2

by

putting

in

place

measures

that

"effectively

deter"

the

commission

of

offences

against

the

person),

and

concluded

that

domestic

criminal

law

does

187.

GrAmada

v.

Romania,

App.

No.

14974/09,

¶¶

73-75

(Eur.

Ct.

H.R.

May

11,

2014),

available

at

http://www.echr.coe.int.

188.

R

(on

the

application

of

Collins)

v.

Secretary

of

State

for

Justice

[2016]

EWHC

(Admin)

33

(Eng.).

189.

Human

Rights

Act

1998,

c.

42,

§2

(UK);

Helen

Fenwick,

What's

Wrong

with

S.2

of

the

Human

Rights

Act?,

UK

CONST.

L.

BLOG

(Oct.

9,

2012),

https://ukconstitutionallaw.org/2012/10/09/helen-fenwick-whats-wrong-with-s-2-

of-the-human-rights-act/

https://perma.cc/6EYF-Q5EL].

20181

409

COLUMBIA

HUMAN

RIGHTS

LAW

REVIEW

"effectively

deter"

the

commission

of

offences

against

the

person-in

this

case,

murder

and

manslaughter.

As

this

decision

reflects,

current

law

still

does

punish

householders

for

using

grossly

disproportionate

force,

but juries

have

leeway

in

deciding

whether

disproportionate

force

was

reasonable

in

a

householder

case.

Despite

the

fact

that

neither

Grdmadd

nor Collins

resulted

in

a

judgment

declaring

that

domestic

laws were incompatible

with the

ECHR,

these

cases

still

inspire

optimism

as

they

signal

that

both

Strasbourg

and

the

U.K.

courts

(while

the Human

Rights

Act

remains

in

existence)

are

in

fact

willing

to

discuss

whether

domestic

self-

defense laws

satisfy

the

positive

obligations

of

states

to

protect

human

rights. Strasbourg

jurisprudence

is

nevertheless

more

important-if

Strasbourg

does

not assess

the

adequacy

of

English

self-defense

law,

the

domestic

courts

will

not

be

able

to

do

so

either.

Apart

from

the

fact

that

the

Human

Rights

Act

is facing

imminent

repeal,

the English

courts

have

also

determined

through

Lord

Bingham's

principle

in

R

(Ullah)

v.

Special

Adjudicator

that

the

duty

of

national

courts

is

to

keep

pace

with Strasbourg

jurisprudence

as

it

evolves

over

time:

no

more,

but

certainly

no

less.

1

"o

In

the

2016

case

of

Armani

Da

Silva

v.

United

Kingdom,

Strasbourg

was

finally

presented

with

the question

of

whether

U.K.

law

is

adequate

to

protect

individuals'

right

to

life

under

Article

2.

The

Curious

Case

of

Armani

Da

Silva

in

2016

In

Armani

Da Silva,

mentioned

briefly

in

Part

I

and

II,

a

Brazilian

national

named

Jean

Charles

de

Menezes

was

shot

dead

in

a

London

Underground

station

by

two

special

firearms

officers

after

being

mistakenly

thought

to

be

a

suicide

bomber.19

The

facts

of

the

case

are

as

follows:

On

July

21, 2005,

four

explosive

devices

were

found

in

rucksacks

on

the

London

transport

network,

two

weeks

after

four

suicide

bombers

detonated

explosions

in

a

separate

incident

that

resulted

in

increased

police

vigilance.

The

United

Kingdom

launched

a

police

manhunt

for

the

failed

bombers,

and

the

police

were

informed

by

intelligence

that

a

man

named

Hussain

Osman

who

lived

at

21

Scotia

Road,

London,

was

a

suspect.

Jean

Charles

de

Menezes

lived

at

17

Scotia

Road.

On

July

22,

2005,

190.

R

(ex

parte

Ullah)

v.

Special

Adjudicator

[2004]

UKHL

26, [2004]

2

A.C.

323

(appeal

taken

from

UK).

191.

Armani

Da

Silva

v.

United

Kingdom,

App.

No.

5878/08,

1

248

(Eur.

Ct.

H.R.

Mar.

30,

2016),

available

at

https://www.echr.coe.int.

410

[49.3:1

As

Long

as

They

Honestly

Believe

police

officers

stationed

around

the

road

identified

de

Menezes

as a

person

who

had

a

"good

possible

likeness"

to

Osman.

Several

police

officers

followed

him

to

Stockwell

London

Underground

station.

At

this

point,

there

were

conflicting

accounts

on

whether

they

had

made

a

positive

identification,

with

some officers

stating

that

he

was

not

identical

to

Osman,

while

on

the

other

hand

another

officer

said

that

"it

was

definitely

our

man,

and

that

he

was nervous

and

twitchy."1

92

At

this

point, eyewitness

accounts

of

what

happened

exactly

were

unclear,

but

the

IPCC Stockwell

One

Report

stated

that

de

Menezes

sat

down

in

one

of

the

coaches

of a

stationary

train.

One

of

the

surveillance

officers

then

shouted

to

the

other

police

officers

that

de

Menezes

was

there.

de

Menezes

then

stood

up,

arms

down,

and

was

pinned

down

by

two

officers.

According

to

one

witness,

de

Menezes

might

have

moved

his

hand

towards

the

left-hand

side

of

his

trouser

waistband,

and

two

police

officers

(known

for

the

purposes

of

the

operation

as

Charlie

2

and

Charlie

12)

immediately

shot

him in

the

head,

killing

him.'

93

After

this

tragic

incident,

the

Independent

Police

Complaints

Commission

(IPCC)

stated

in

its

"Stockwell

Two"

report

that

Mr.

de

Menezes

"did

not refuse

to

obey

a

challenge

and

was

not

wearing

any

clothing

that

could

be

classed

as

suspicious."

19 4

The

IPCC

Stockwell

One

report

also

admitted

that

the

briefings

made

to

the

officers

were

faulty,

as

they

did

not

state

that

they

must

not

confront

the

suspect

until

they

were

sure

the

suspect's

identity

was

Osman.

After

this

unfortunate

shooting

occurred

in

2005,

the

IPCC

concluded

that

the

unfortunate

killing

was

a

result

of

mistakes

that

could

and

should

have

been

avoided."'

The

report

also

identified

a

number

of

potential

offences

that

Charlie

2

and Charlie

12,

as

well

as

the

other

officers

involved,

might

have

committed,

including

murder

and

gross

negligence

manslaughter.'

9 6

However,

the

Crown

Prosecution

Service

did

not

prosecute,

on

the

basis

that

there

was

no

realistic

prospect

of

a

conviction,

as

it

would

be

difficult

to

prove

beyond

reasonable

doubt

that

the

police officers

did

not

genuinely

believe

they

were

facing

a

192.

Richard

Edwards,

Jean

Charles

De

Menezes

Inquest:

Timeline,

TELEGRAPH

(Sept.

22,

2008),

http://www.telegraph.co.uk/news/3046015/Jean-

Charles-De-Menezes-inquest-Timeline.html

(on

file

with

the

Columbia

Human

Rights

Law

Review).

193.

Armani

Da

Silva

v.

United

Kingdom,

App.

No.

5878/08,

1$

12-19,

35-36

(Eur.

Ct.

H.R.

Mar.

30, 2016),

available

at

https://www.echr.coe.int.

194.

Id.

1

18.

195.

Id.

¶

30.

196.

Id.

¶

30.

411

2018]1

COLUMBIA

HUMAN

RIGHTS

LAW

REVIEW

lethal

threat.

97

Subsequently,

the

victim's

cousin,

Armani

Da

Silva

submitted

a

complaint

to

Strasbourg

alleging

that

the

United

Kingdom

had

violated

Article

2

by

failing

in

its

state

duty

to

prosecute

the

police

officers,

and

also

submitted

that

the

definition

of

self-defense

in

the

United

Kingdom

was

inadequate

as

it

does

not

require

an

honest

and

reasonable

belief."1s

The

Grand

Chamber

in

Armani

Da Silva

held

that

there

was

no

duty

for

the

Crown

Prosecution

Service

to

prosecute

the

case,

as

the

current

state

of

English

self-defense

law

was

that

an honest

and

genuine

belief

and

there

was

insufficient

evidence to

persuade

a

jury

that

there

was

no

such

honest

belief.'

9 9

It

also

ruled,

as

mentioned

in

Part

I,

that

U.K.

self-defense

law

is

similar

to

the

standard

used

by

Strasbourg

in

McCann.2

0

This

is

a

very

problematic

decision.

Strasbourg

was

requested

to

consider

whether

self-defense

law

in

the

United

Kingdom

was

inadequate,

and

it

failed

to

do

just

that.

In making

this

ruling

and

dismissing the

case

on

the

basis

that

the

Crown

Prosecution

Service

had

no

duty

to

prosecute,

Strasbourg

took

domestic

English

law

as

it

stands,

with

little

analysis

into

whether

the

law

itself

was

effective

enough

to

satisfy

the

positive

obligations

in

Article

2

of

the

ECHR.2

1

While

there

was

a

brief

discussion

on

the

law

itself,

it

was

done

through

an

incorrect

interpretation

of

the

in

McCann,

without assessment

into

whether

English

law

served as

an

effective

deterrence and

was

consistent

with

Article

2.202

As

mentioned

previously,

in

McCann,

Strasbourg

indicated

that

lethal

force

used

by

state

agents

must

be

based

on

an

"honest

belief

which

is

perceived,

for

197.

Id.

1

35.

198.

Armani

Da

Silva

v.

U.K.,

App.

No.

5878/08,

(Eur.

Ct.

H.R.

Mar.

30,

2016),

available

at

https://www.echr.coe.int.

199.

Human

Rights

Europe,

United

Kingdom:

Court

Ruling

on

Jean

Charles

de

Menezes

Fatal

Police-Shooting

Complaint,

COUNCIL

OF

EUROPE

(Mar.

30,

2016),

http://www.humanrightseurope.org/2016/03/united-kingdom-

court-ruling-on-jean-charles-de-menezes-fatal-police-shooting-complaint/

[https://perma.cc/LKV9-HL6J].

200.

See

generally

McCann

v.

United

Kingdom,

21

Eur.

Ct.

H.R.

97

(1995)

(finding

that

the

principal

question

to

be

addressed

is

whether

the

person

had

an

honest

and genuine

belief

that

the

use

of

force

was

necessary);

see

also

supra

Part

I.

201.

See

generally

Armani

Da Silva

v.

U.K.,

App.

No.

5878/08,

(Eur.

Ct.

H.R.

Mar.

30,

2016),

available

at

https://www.echr.coe.int

(finding

that

the

UK

authorities

had

not

failed

in

their

procedural

obligations

under

Article

2

of

the

Convention

to

conduct

an

effective

investigation

into

the

shooting).

202.

Id.

412

[49.3:1

As

Long

as

They

Honestly

Believe

good

reasons,

to

be

valid

at

the

time"-which

clearly

means

that

the

Court

is

employing

a

"honest

and

reasonable"

test.

The

Court

in

Armani

Da

Silva

applied

the

test

in

McCann,

but

interpreted

it

as

a

"honest

and

genuine"

belief

that

was

completely

contradictory

with

its

original

textual

conception-stating

that

the

"existence

of

'good

reasons'

should

be

determined

subjectively"-and

subsequently

concluded

that

the

"honest

belief'

doctrine

in

English

law

was

not

significantly

different

from

the

test

applied

by

Strasbourg

in

McCann.

At

no

point

was

the

Angelova

and

Iliev

v.

Bulgaria

assessment-the

test

of

whether

existing

law

would

be

an

effective

deterrence-employed,

and

Strasbourg

failed

to

make

a

proper

assessment

as

to

whether

the

United

Kingdom

has

met its

positive

obligations

under

Article

2

to

implement

laws

sufficient

to

protect

the

right

to life

of

individuals

within

its

jurisdiction

even

when

expressly

asked

to

make

this

assessment.

20 3

As

seen

from

the

facts,

Armani

Da

Silva

was

an

opportunity

for

Strasbourg

to

finally

analyze

the

sufficiency

of

the

"honest

belief'

doctrine

in

U.K.

self-defense

law

and

whether

it

effectively

deters

unnecessary

deprivations

of

life

that

would

be

in

violation

of

Article

2.

The

fact

that

it

did

not

is

very

regrettable.

CONCLUSION

In

conclusion,

there

are

many

ways

in

which

English

self-

defense

law

is

problematic

and

in

clear

need

of

reform.

Its

"honest

belief'

doctrine

creates

serious

unfairness

that

cannot

be

justified,

authorizes

and

encourages

instinctive

violence

based

on

racist

beliefs,

and

is

also

doctrinally

inconsistent

with

the

existing

laws

of

homicide.

Despite

this,

the

United

Kingdom

has

yet

to

make

any

changes

and

even

legislative

codification

in

2008

simply

upheld

the

existing

common

law

on

a

document

that

had

supremacy

over

subsequent

common

law

developments.

2 04

However,

the

United

Kingdom

cannot

ignore

the

ECHR

forever,

as

a

state

that

tries

to

keep

up

its

reputation

as

an "upholder

and

promoter

of

fundamental

rights.""'

A

203.

Angelova

and

Iliev

v.

Bulgaria,

App.

No.

55523/00,

¶

93

(Eur.

Ct.

H.R.

July

26,

2007),

available

at

http://www.echr.coe.int..

204.

Criminal

Justice

and

Immigration

Act

2008,

c.4,

§

76

(Eng.)

("The

question

whether

the

degree

of

force

used

by

D

was

reasonable

in

the

circumstances

is

to

be decided

by

reference

to

the

circumstances

as

D

believed

them

to

be

....

).

205.

London

School

of

Economics

European

Institute,

The

Implications

of

Brexit

for

Fundamental

Rights

Protection

in

the

UK

1,

5

(Feb.

25,

2016),

413

2018]

COLUMBIA

HUMAN

RIGHTS

LAW

REVIEW

Strasbourg judgment

that

finally

answers

the

question

of

whether

U.K.

law

is

a violation

of

the

ECHR can

be

the

trigger

for

Parliament

to

make

the

legislative

changes

that

the

United

Kingdom

needs.

It

seems

very

likely

that

English

law

as

it

stands

is

in

fact

inconsistent

with

the

United

Kingdom's

positive

obligations

under

Article

2,

as

it

does

not

serve as

an

effective

deterrent

for

police

officers

to

act

on

grossly

unreasonable

beliefs

or

reckless

indifference.

Ultimately,

whether

or

not

U.K.

self-defense

law

is

incompatible

with

the

positive

obligations

within

the

ECHR

should

be

a

decision

made

by

Strasbourg, not

this

Note.

However,

the

fact

remains

that

Strasbourg

should

make

that

decision,

especially

given

that

it has

been

prompted

to

do

so,

instead

of

deliberately

avoiding

the

question

as

it

did

in

Armani

Da

Silva.

We

do

not

know

when

the

will

occur

that

will

bring

the

same

question

on

the

adequacy

of

English

self-defense

law

before

Strasbourg

once

again,

but

when

it

does,

this

Note

finds

it

crucially

important

that

the

question

be

addressed.

206

http://www.1se.ac.uk/europeanInstitute/LSE-Commission/Hearing-6---The-

implications-of-Brexit-for-fundamental-rights-protection-in-the-UK.pdf

[https://perma.cc/A62B-LFLA].

206.

Id.

414

[49.3:1