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“[…] An individual is not precluded from raising self-defence merely because he/she has not retreated; rather, a failure to retreat will simply be one factor to take into account when deciding whether the use of force was necessary and whether such force was reasonably exercised.
“[…] It is evident that the existing law on self-defence is quite comprehensive; it affords protection to the citizens of this country, including homeowners… Therefore, any postulation that stand your ground legislation is ‘necessitated’ should be put into context…”
The following Letter to the Editor on the possible introduction of stand your ground legislation in Trinidad and Tobago was submitted to Wired868 by Alexander Dolsingh, who is a second-year law student:
As crime continues to subsist within Trinidad and Tobago, there has been an increasing public concern in relation to the issue of home invasions. Flowing from this, the topic of ‘stand your ground’ legislation has sparked attention in the public domain – as both politicians and attorneys weigh in on the issue.
In essence, stand your ground legislation allows for a person to exercise force, including deadly force, as a means of protection in the face of an actual or imminent attack.
A common feature of stand your ground legislation is that there is no ‘duty to retreat’, meaning no obligation to make reasonable efforts to withdraw or retreat from the assailant before resorting to the use of force.
Accordingly, stand your ground laws are underpinned by the long-established “castle doctrine”, which effectively states that a person should have the right to use deadly force against an unlawful intrusion into their home, i.e. their “castle”.
In Trinidad and Tobago, whilst there is no stand your ground legislation, there is the common law defence of self-defence. In that regard, the desire to pass any stand your ground legislation may be looked at in two different ways.
On one hand, it may be deemed as being totally unnecessary since the law of self-defence provides homeowners with sufficient legal protection (which will be soon discussed).
On the other hand, the introduction of stand your ground legislation could serve to codify (i.e. put into statute) the existing common law, thereby allowing for a greater sense of clarity and simplicity to the law.
In fact, a situation like this was seen in the United Kingdom, whereby legislation was passed in 2008 to bring greater clarity to the law on self-defence (s.76 of the Criminal Justice and Immigration Act 2008).
Such legislation was introduced a few years after an English farmer, Tony Martin, was convicted of manslaughter after he shot and killed a teenager who broke into his property. His conviction created public concern and division, with calls to clarify the law on self-defence.
Regardless of which position is favoured, the reality is that – as it stands – persons within Trinidad and Tobago enjoy protection under the common law defence of self-defence. A brief outline on this area of law would, therefore, be useful.
The case of Palmer v The Queen [1971] 1 All E.R. 1077 is instructive in this respect and the relevant legal principles are as follows:
- A person who is under attack is entitled to defend himself;
- In defending himself, he may do what is reasonably necessary having regard to the particular circumstances;
- The defensive action must not be disproportionate to the attack;
- A person defending himself, especially in a moment of crisis, cannot be expected to “weigh to a nicety the exact measure of his defensive action”;
- In a moment of anguish, a person may do what he honestly and instructively thought was necessary.
Furthermore, it is not necessary for an individual to be first attacked before exercising self-defence. In Beckford v R [1988] AC 130, it was stated that –
“… a man about to be attacked does not have to wait for his assailant to strike the first blow or fire the first shot; circumstances may justify a pre-emptive strike.”
The law goes further to protect individuals who may have mistakenly believed that they were under attack and as a consequence of this mistaken belief, exercised self-defence. In such situations, a person will be judged subjectively, i.e. based on their mistaken view of the facts, or, in other words, what he/she perceived to be happening.
Another important consideration is that under the common law of self-defence, there is no duty to retreat. As discussed, this essentially means that there is no duty for a person to withdraw or retreat from the assailant before using force.
Put simply, therefore, an individual is not precluded from raising self-defence merely because he/she has not retreated; rather, a failure to retreat will simply be one factor to take into account when deciding whether the use of force was necessary and whether such force was reasonably exercised: Jhardat v The State Criminal Appeal No. 1 of 2014.
Based on the foregoing, it is evident that the existing law on self-defence is quite comprehensive; it affords protection to the citizens of this country, including homeowners.
Another area of protection exists by virtue of the law on “defence of property”, which similarly prescribes that only reasonable force must be used in the given circumstances: The State v Gayah TT 2002 HC 82.
Therefore, any postulation that stand your ground legislation is ‘necessitated’ should be put into context. That is to say, such legislation (if passed) may merely serve to bring further clarity and simplicity to the existing common law.
Separately and for avoidance of doubt, it is not being suggested that homeowners have an unfettered licence to use force, including deadly force, against an intruder. As highlighted, there must be a sense of proportionality, having regard to what is reasonably necessary in the given circumstances. These are questions to be determined on a case by case basis.
(Copyright Office of the Parliament)
Against this background, it is incumbent on the state to ensure that the population is properly informed as to their legal rights and responsibilities. Such a discussion will require for two major themes to be counterbalanced: the ability for one to exercise force, and the legal ramifications which may arise if excessive force is used.
Ultimately, that balance must be struck in light of the fact that an individual cannot be expected to weigh to a nicety the exact measure of his defensive action.
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I am not surprised. Appeals for these types of criminal cases are difficult. Common cited case here is R. v. John McAughey, 2002 Ontario Superior Court of Justice (ONSC) 2863, you can look it up online.