Joyce Lee Malcolm, quote doctor

Earlier, I wrote how Joyce Lee Malcolm had doctored a quote from the Textbook of Criminal Law to make it appear that self-defence was illegal in Britain. She wrote:

Now everything turns on what seems to be “reasonable” force against an assailant, considered after the fact. As Glanville Williams notes in his Textbook of Criminal Law, that requirement is “now stated in such mitigated terms as to cast doubt on whether it [self-defense] still forms part of the law.”

The word “it” does not refer to self-defence as Malcolm’s addition to the quote indicates, but to the requirement that the defender’s belief that his actions were necessary had to be a reasonable belief. If this requirement is no longer part of the law it makes it easier to plead self-defence.

On the firearmsregprof list Clayton Cramer disputed this, arguing:

I spent a bit of time reading the full quote, and I don’t think “doctored” is the right word. In fact, I am not even sure that Malcolm has it wrong. The pronoun “it” could be read as referring to either the requirement of “reasonableness” or self-defense. Part of why I suspect that Malcolm has correctly identified what “it” refers to, and that you have not (a easy mistake to make considering the text), is some other text that Malcolm quotes from Glanville Williams in Guns and Violence: The English Experience at p. 187. She quotes Williams at considerable length, without anything bracketed or ellipsed, in which Williams gives examples such as this:

Unfortunately, Malcolm had also doctored this quote to alter its meaning, this time without even indicating the alterations with brackets or ellipses. The table below compares Malcolm’s altered quote with the correct version. Malcolm makes it appear that it was illegal for Shannon to defend himself and that he escaped conviction on a technicality, when, in fact, the Court of Appeal had expanded the right of self-defence by removing the proportionality rule.

Correct version Malcolm’s version

The facts of Shannon were that the deceased, a heavily built man who had convictions for violence, had been making threats against Shannon for having (as he believed) “grassed” him. Shannon, who had no history of violence or aggression, must have been living in fear of an attack for some time. When the attack came he fought back, the fight (though evidently largely one-sided) being described by a bystander as “pretty frightening.” Shannon’s evidence was that he was being held very tightly by the neck and was being dragged down and “kneed;” he feared that if he fell while in the grip of his attacker he would have “got beat up by his feet.” He lashed out with a scissors and inflicted a fatal blow. On the issue of self-defence the judge left the case to the jury with the bald question: Did the defendant use more force than was necessary in the circumstances?” On this the jury, surprisingly, returned a conviction of manslaughter. The conviction was quashed, as already said, for inadequate direction to the jury; but the Court of Appeal expressed no other criticism of the verdict. We are left with the impression that if in a similar case the judge reads out Lord Morris’s dictum to the jury, who nevertheless convict, the conviction will stand.

On the dictum, it is not easy to see how “what the defendant thought” could be evidence of what it was reasonable for him to do. The usual opinion is that the question what is reasonable, in the multifarious applications of that word, is for the unaided vote of the jury, and is not a matter for “evidence” in the ordinary way. It looks very much as though the dictum is a way of escaping from the test of reasonableness without acknowledging the fact. This conclusion is strengthened by the above-quoted remark of the Court of Appeal, which (epitomising a lengthy statement of Lord Morris) distinguishes sharply between “necessary self-defence” on the one hand and “angry retaliation or pure aggression” on the other. The dichotomy allows no place in between for unnecessary but putative self-defence. All putative self-defence, it seems, falls into the category of “necessary self-defence.” In this part of the judgment, the idea that the defendant’s belief is merely evidence of reasonableness has suddenly vanished; indeed, the very word “reasonable” is dropped. It seems, therefore, that the decision makes a radical change in the law. At least where the defender fears death or serious injury, there is no proportionality rule any longer; and a good thing too—in view of the jury’s verdict in Shannon. German law, it seems, gets on without a proportionality rule, and so could we, where the facts are similar to those in Shannon. The reasoning in the decision is fudged, but that is the price one pays for a beneficial change in the law.

In 1980 Shannon was attacked by a bully—a heavily built man who had previous convictions for violence and had threatened Shannon’s life. Shannon fought back and witnesses described the fight (evidently one-sided) as “pretty frightening.” Shannon testified he was held by the neck and was being dragged down and “kneed.” He lashed out with a pair of scissors and inflicted a fatal blow. The jury heard a great deal of questioning about how Shannon happened to be carrying scissors, an issue irrelevant to the charge. In the event the jury found him guilty of manslaughter. The Court of Appeal reversed the decision, not because of the verdict, but because of a fault in the judge’s charge.

I pointed this problem out. In Malcolm’s reply she continued to insist that Glanville Williams was saying that self-defence had been narrowed. And that false quote from Glanville Williams? It was a paraphrase that she “accidently” formatted so that it looked like a quote:

Thanks for sending me the debate with Lambert and your refutation. Of course I never “doctored” anything. To begin with the entire section in which the comments I cited are found is labeled “The Necessity for Defence.” The first sentence reads: “The defence of private defence resembles that of preventing crime in the twin requirements that the act must be immediately necessary…and proportional to the harm feared.” p. 503. He then goes on to say that the requirement of reasonableness “is unhappy.” He cites Holmes about how detached reflection cannot be demanded in the presence of an uplifted knife. He notes the requirement in England is now stated in such mitigated terms….” Self-defence seems the main subject, not reasonableness because in fact the issue of reasonableness is still the touchstone. But it is the expectation, unlike that in Holmes, that great precision is expected in self-defence, and such expected precision is, in fact, unreasonable under extreme circumstances. It is the requirement of reasonableness in self-defence and self defence has been thereby narrowed.

On Shannon I was not quoting, but paraphrasing, to provide a concise example and brief description of the case. I did not use quotation marks although I suppose setting the example apart might, accidently, have made that seem the case. But I summarized the example accurately.

Note, on the subject of William’s intent in his comment on self-defence as I presented it, he adds immediately after the discussion of the Shannon case, p. 507, “For some reason that is not clear, the courts occasionally seem to regard the scandal of the killing of a robber (or of a person who is feared to be a robber) as of greater moment than the safety of the robber’s victim in respect of his person and property…The jury’s verdict in Shannon is a standing warning to all defenders of the legal danger of killing an adversary, even in self-defence.” All of this seems to me to make it clear that it is self-defence that, in Williams’ view, no longer seems to be allowed in practice.

Notice the ellipsis in her quote in the previous paragraph? Malcolm removed a sentence that made it clear that Shannon had expanded the right of self-defence:

Possibly, if the matter were fully argued, the court would apply the same rule as in Shannon, but one does not know.

To help settle the issue, I asked Jim Lindgren to comment:

I reviewed the long sections from Glanville Williams that you posted.

Having not reviewed the entire online exchange (which I hadn’t seen before now), I will confine my comments almost entirely to my own readings of Williams’s passage and Joyce Malcolm’s comment (as you quoted it).

In these sections, Williams is at times crystal clear and at other time, quite opaque. He also has an annoying habit of adding parentheticals or asides that don’t fully match the concept, such as:

“The force used in defence must be not only necessary for the purpose of avoiding the attack but also reasonable, i.e. proportionate to the harm threatened;”

This passage conflates reasonableness with proportionality, which I view as closely related but distinguishable. I might unreasonably view a man as dangerous, but respond proportionally to that perceived threat. Or I might reasonably view a man as dangerous, but respond disproportionately strongly to that real threat. I make this point in part because I think that his writing is indirect enough that it is possible to miss Williams’s main points. Sometimes he is making a legal point, sometimes he is evaluating a result or argument with which he disagrees.

In his discussion of the Shannon case, Williams appears (1) to think that the jury overstepped in not finding self-defense on the facts, (2) to agree with the result of the appeal overturning the conviction, (3) to disagree with the test (dictum) enunciated by the appellate court since (in making self-defense easier to meet) the Court muddles some distinctions, but then (4) to say that if juries are going to be so hostile to what he believes to be legitimate self-defense, then a rule making self-defense easy in one respect (gutting the reasonableness requirement) may prevent bad verdicts such as the trial jury’s in Shannon. For example, he concludes a discussion of Shannon with these words:

“It looks very much as though the dictum is a way of escaping from the test of reasonableness without acknowledging the fact. This conclusion is strengthened by the above-quoted remark of the Court of Appeal, which (epitomising a lengthy statement of Lord Morris) distinguishes sharply between “necessary self-defence” on the one hand and “angry retaliation or pure aggression” on the other. The dichotomy allows no place in between for unnecessary but putative self-defence. All putative self-defence, it seems, falls into the category of “necessary self-defence.” In this part of the judgment, the idea that the defendant’s belief is merely evidence of reasonableness has suddenly vanished; indeed, the very word “reasonable” is dropped. It seems, therefore, that the decision makes a radical change in the law. At least where the defender fears death or serious injury, there is no proportionality rule any longer; and a good thing too, in view of the jury’s verdict in Shannon.”

I have tried to give a taste for just how nuanced Williams’s argument is, which is by way of explaining that it would be quite easy for someone to misread him innocently. Indeed, I had to read the relevant sections three times to get the main moves in his back-and-forth argument (assuming that I have captured them even now).

What situation falls in the “place in between for unnecessary but putative self-defence”? There are two distinguishable situations that Williams might have had in mind: (1) where some self-defense is necessary, but the actions taken (though honestly pursued for defense purposes) are not proportional; and (2) where self-defense is honestly pursued, but unnecessary. Williams appears to think that the court comes close to eliminating the reasonableness requirement, by presenting a choice “between ‘necessary self-defence’ on the one hand and ‘angry retaliation or pure aggression’ on the other. By not requiring explicitly that the force be reasonable (which Williams takes to mean proportional), Williams argues that the defense for self-defense has been expanded by the Court of Appeals in Shannon so that reasonableness/proportionality may have been in effect read out of test. Then he adds the fillip: “It seems, therefore, that the decision makes a radical change in the law. At least where the defender fears death or serious injury, there is no proportionality rule any longer; and a good thing too—in view of the jury’s verdict in Shannon.”

This is all a long way around to explain the passage that Joyce Malcom quoted:

“That willingness was further undermined by a broad revision of criminal law in 1967 that altered the legal standard for self-defense. Now everything turns on what seems to be “reasonable” force against an assailant, considered after the fact. As Glanville Williams notes in his Textbook of Criminal Law, that requirement is “now stated in such mitigated terms as to cast doubt on whether it [self-defense] still forms part of the law.”

Here is the Williams quote, where he foreshadows his Shannon argument (which I discussed above in detail):

The requirement of reasonableness is unhappy. Enough has been said in criticism of it, and the CLRC has recommended that it should be expunged from the law. In practice, as we have seen, the requirement may be construed indulgently to the defendant, for, as Holmes J memorably said in the United States Supreme Court, “detached reflection cannot be demanded in the presence of an uplifted knife.” As we shall see in the next section, the requirement is now stated in such mitigated terms as to cast doubt on whether it still forms part of the law. [emphasis added]

As I read it, the antecedent of “the requirement” is “The requirement of reasonableness,” not “self-defense.” This inference is strongly supported by Williams’s long discussion of Shannon in the “next section,” where Williams writes:

“the dictum is a way of escaping from the test of reasonableness without acknowledging the fact,” and “the very word ‘reasonable’ is dropped,” and “At least where the defender fears death or serious injury, there is no proportionality rule any longer; and a good thing too . . . .”

Since Williams treats reasonableness and proportionality as the same thing, I read him as restating that the reasonableness “requirement is now stated in such mitigated terms as to cast doubt on whether it still forms part of the law.” Williams is saying, not that it is doubtful that self-defense exists, but that it is doubtful that defendants who use force will have to overcome a full-fledged reasonableness requirement. In short, I agree with Tim Lambert’s basic reading of the Williams’s passage (and disagree with Joyce Malcolm’s). Overall, however, Williams appears to see the scope of self-defense in England as not broad enough, a point that I believe Malcolm notes in her response. Williams does not see self-defense as so weak as to be doubtful whether it exists.

Of course, I could be wrong in my interpretation because the Williams passages are so obliquely written, and, even if I am right, it is understandable to miss on first reading what I see as Williams’s main points.

James Lindgren
Northwestern University

Unfortunately, Malcolm has continued to repeat her misrepresentation of Glanville Williams, most recently two days ago. This isn’t just an academic argument. By misinforming the British about the law on self-defence she may succeed in dissuading people from defending themselves. Disgraceful.

Comments

  1. #1 jre
    November 2, 2004

    On reading the most recent piece in the Telegraph, I was surprised to see that Malcolm herself had framed Williams’ statement on the reasonableness requirement more or less correctly (without “self-defense” in brackets) , but presented it as if it meant just the opposite:

    Finally, in 1967, tucked into an omnibus revision of criminal law, approved without discussion, was a section that altered the traditional standards for self-defence. Everything was to depend on what seemed “reasonable” force after the fact. It was never deemed reasonable to defend property with force. According to the Textbook of Criminal Law the requirement that an individual’s efforts to defend himself be “reasonable” is “now stated in such mitigated terms as to cast doubt on whether it still forms part of the law”.

    Is it possible that Joyce Lee Malcolm is so immersed in this debate that, when she sees “reasonable” and “mitigated” in the same paragraph, she just skips automatically to the conclusion she wants to reach?

  2. #2 ben
    November 2, 2004

    in Britain, or Australia while I’m at it, is a person required by law to leave their home during a break in if they can safely do so, wrather than physically confront the invader?

  3. #3 Tim Lambert
    November 2, 2004

    Ben, no, there is no such requirement. To quote Glanville Williams:

    There is no duty to retreat, as such

  4. #4 ChrisPer
    November 2, 2004

    I am an Australian gun nut. As a population we are probably less well-informed about the details of self-defence in Australia than in the US and UK.

    I cannot speak to the law on self-defense, except to say that during the hate years of 1996-1999 there were calls in the media to make self-defense per se illegal. These were basically ignored as PC extremism. There followed in some states (WA and NSW at least) actual new laws increasing the clarity on self-defense in a ‘home invasion’. My poor understanding is that these new laws allow the occupier’s perceived level of danger to be the measure of reasonable response, as opposed to what Malcolm asserts is the rule in the UK, a fully-informed hindsight view of ‘reasonable’.

    However, the National Agreement on Firearms denies absolutely any firearm licence for the purpose of self-defense and requires storage so as to make the firearm useless for that purpose – you cannot even have rounds in a magazine, separately located from the gun.

    Much better you be dead than use a gun to save life, in Australian law.

  5. #5 Agricola
    November 4, 2004

    Malcolm is wrong when you say “hat Malcolm asserts is the rule in the UK, a fully-informed hindsight view of ‘reasonable’”. The jury is required to view the question of self defence from the same set of circumstances as the defendant faced – differences in age, height, strength, where the defence took place etc. Its because of this that almost all cases of genuine self defence (as opposed to Martin and Barry Lee Hastings) are recognized as such, which at the end of the day is the best proof of how deeply wrong Malcolm is. That and Lambert’s pointing out how her editing of quotes thing works.

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