Far be it from me to intervene when a government minister is getting a good kicking, as the unfortunate Tony McNulty has been for his performance when Jeremy Vine asked him about what to do if you see an old lady being assaulted in the street — call the police and attempt to take ‘distractive action’, such as jumping up and down, apparently — but I think I’d better, since some people seem to have misunderstood his — admittedly lamentable — performance. Janet Daley, for example, is apparently under the impression that ‘This Government won’t let you take action against criminals,’ but I don’t think this is quite what he meant. Certainly you can legally use reasonable force to defend yourself or another, and a jury decides what’s reasonable given your apprehension, in the heat of the moment, of the circumstances you face.
Mr McNulty’s caution, I think, wasn’t particularly to do with the possible legal consequences you might face so much as the possible physical ones; he might, I suppose, have phrased his advice on the lines of ‘you may, of course, use reasonable force to defend yourself or the old lady but you might also wish to consider whether you may be starting something you can’t finish and, in the event the assailant is on drugs and has a knife, whether you have any dependents and how adequate your life cover may be’.
In the real world, of course, few people would actually need advising what to do — while your physical courage, ability and natural prudence might be issues, I doubt many of us would stop to worry about the legalities of the situation. I certainly didn’t on the one occasion I found myself in such circumstances, when I saw two young men suddenly, and for no apparent reason, rush out of an alleyway and attack a young man, wrestling his to the ground, in broad daylight. Fortunately, and to my considerable relief (since I wasn’t really in the mood for a fight), before I’d made it across the road to help him, one of them produced a badge and started yelling ‘Plain clothes police — you’re under arrest!’ while his colleague handcuffed the man and radioed for backup. But I’m not sure what the effect of a government minister spelling out for us the physical risks might be, nor, actually, am i sure how much a prudent minister would be willing to risk the headlines when someone did follow his advice to use reasonable force to protect someone else and ended up dead.
In his Telegraph article on the programme, Jeremy Vine discusses the travails of various people like Nicholas Tyers and his son, who recently had charges of kidnap brought against them, and dismissed by Hull Crown Court, when they’d carried out what turned out to be a perfectly legal citizen’s arrest on a 12-year-old boy after the window of their chip-shop had been smashed.
Clearly the judge thought the CPS went OTT on this one, but perhaps not so OTT as at first appears. The arrest seems to have taken place the day after the window was smashed, they took the boy back to their chip shop to call the police, as opposed to taking him direct to the police station or detaining him while the police arrived, and, by the judge’s comment that ‘that the “balance of probability” suggested the boy was responsible for breaking the chip shop window’, it’s not wholly clear that he actually did break it.
There was a not dissimilar case in my part of the world a year or so ago, where someone — clearly willing but not too bright — thought he recognised, while driving home from work, two lads aged about 11 or 12 who were playing on some waste-ground near the builders’ yard where he worked as being the same young lads whom his employer had described as having chased off when he spotted them throwing stones at, and smashing, some glass panes in the yard. He accordingly bundled the terrified boys into his car and drove them back to work, only to be told that he’d got the wrong children (he got community service for the kidnapping, which the boys’ parents probably thought was unduly lenient, given their sons had done nothing wrong). And, of course, a public-spirited adult, passing by, might well feel constrained to use reasonable force in what he honestly believed to be the circumstances if he saw an adult bundling protesting children into a car or van.
Again, the law’s quite clear; any member of the public may arrest someone if a crime’s been committed and he has reasonable grounds to believe the chap’s committed it, but for obvious reasons the ACPO guidance (Word doc, p 47) stresses members of the public are discouraged from so doing, partly for their own safety and partly because if a crime hasn’t been committed, or if they haven’t got reasonable grounds for suspecting their chap did it, they’re in danger of both criminal and civil penalties. Quite right, too; I don’t want, when I’m peacefully going about my lawful business, to have to fight off idiots who think I look like someone who tried to break into their car a couple of days ago. In those circumstances, I’m very likely not only to use reasonable force to defend myself but to pursue all manner of civil remedies. And, if I had children, I certainly wouldn’t want complete strangers taking them off heaven knows where if they suspected them of committing an offence; in those circumstances, call the police . They’ll turn up soon enough if you explain you’re detaining the children, and if you’re not sure a jury — whose members doubtless share your (and Tony Blair’s) frustration at reading about children getting away with behaving anti-socially but some of whom may well themselves have children — would agree your grounds for detaining the children are reasonable, maybe you ought to think twice before acting
What puzzles me rather is why people think this is anything new; the leading case on citizen’s arrest is from 1992 (R v Self, where Mr Self was cleared of assault when he defended himself against a misguided citizen’s arrest) and nothing new has happened recently in the way of the law on self-defence. The Tony Martin case merely restated what we knew anyway — that lying in wait for burglars so you can shoot them (which is what the jury, by their verdict, found on the facts he’d done) isn’t reasonable self-defence. John Reid complicated matters last year by telling the public to ‘stop moaning and take action‘ against anti-social behaviour, but surely no one in their right minds takes the Home Secretary seriously when he’s in tabloid mode. Janet Daley, in her article, blames it all on what she calls ‘”Children’s rights” legislation,’ but I don’t see it; the right not to be dragged off the streets by perfect strangers without a very good reason isn’t a particularly new one for either children or adults, and one worth protecting, I’d have thought.