Self-Defence Against the Police
James Leavy *
The State of Northern Ireland
On August 12, 1969 the Apprentice Boys of Derry I held their
annual parade. While the form of the demonstration is peaceful its
purpose is not by any means conciliatory. The commemoration of the
Protestant victory over the Stuart besiegers of Derry in 1689 has for
its object a manifestation of the power which the Protestant minority
holds in a city which is 70% Catholic. The Economist aptly described
Derry in the following terms:
If Belfast is a tough place, Londonderry
is something else again.
Londonderry’s electoral system is set up to ensure that the one-third of
its inhabitants who are Protestants and loyal to the British Crown will
keep control in the City Council over the two thirds who are Roman
Catholic and seek unity with the Irish Republic.2
Since October, this hegemony had been subject to serious pres-
sures from a coalition of political and social groupings forming the
Northern Ireland Civil Rights Association (N.I.C.R.A.) which includ-
ed the political wing of the Republican Movement, Sinn Fain (whose
military wing, the Irish Republican Army, was then quiescent),
various members of Socialist and Communist movements in North-
ern Ireland and members of the conservative Nationalist Party.
After the police had forcibly broken up a civil rights demonstration
in October, 1968, the protests grew as did the reaction from militant
Protestants, among whom Mr William Craig and the Reverend Ian
Paisley were prominent. A general election had been held in Northern
Ireland in February, 1969 which divided the hitherto monolithic
Unionist Party and provided the Civil Rights Movement with parlia-
mentary representation. Shortly thereafter, Captain Terence O’Neill,
the reformist Prime Minister, was compelled to resign and by a one-
vote majority the now bitterly divided Unionist Party chose his
cousin, Major James Chichester-Clark, as his successor.
As the political manoeuverings increased in tempo the social
climate steadily worsened. By the time the Apprentice Boys’ parade
* LL.B. (McGill), B.C.L. (McGill).
‘The Apprentice ‘Boys’ are in fact grown men and generally citizens of
substance in Derry.
2 The Economist, 12 October 1968, 16.
McGILL LAW JOURNAL
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was organised, the city of Derry was in an extremely tense mood.
However, the influence of the Orange Order (of which the Apprentice
Boys are a sub-movement) was sufficiently great to overcome the
obvious need to reduce tension by banning political demonstrations.
In the words of the London Sunday Times the parade:
… therefore assumed on August 12 its normal form of 5,000 men wearing
bowler hats … marching along the walls of Derry which enclose the old
Protestant town and look down upon the impoverished Catholic Bogside.
They were accompanied by bands and banners and sang “The Boyne”
and other blood-curdling anti-Catholic songs. As they went some people
in the parade threw pennies down into the Bogside.3
During the course of the parade the pennies were replaced by
stones and fighting broke out between the Bogsiders and the Ap-
prentice Boys. The Catholics quickly erected barricades in their
ghettoes and the police were summoned to bring an end to the
disorders. In most democratic societies the intervention of the police
force should have a calming effect and should have been welcomed
by those like the Bogsiders who were quite literally besieged. The
police of Northern Ireland are not, however, a normally constituted
or conventionally organised civil force. Unlike policemen else-
where in the United Kingdom, members of the Royal Ulster Consta-
bulary are permanently armed – not just with pistols but with troop
carriers, scout cars, Sterling sub-machine guns and armored cars
mounted with heavy machine guns. 4 The regular police force, 3,200
strong, which is in composition almost totally Protestant, was supple-
mented by the ‘Special Constabulary’ –
the so-called ‘B Specials’,
10,000 in number.’ The Cameron Commission appointed to inquire
into the disturbances in Northern Ireland described the composition
of the Specials as follows:
Theoretically recruitment is open to both Protestant and Roman Catholic;
in practice we are in no doubt that it is almost if not wholly impossible for
a Roman Catholic recruit to be accepted.6
3The Sunday Times “Insight Team”, Ulster (1970), 114.
4 Cf. Hastings, Barricades in Belfast (1970), 28.
5 Constantine Fitzgibbon in Red Hand – The Ulster Colony (1972) describes
the B Specials as follows at page 328:
The B Specials were recruited from the Ulster Volunteer force as well as
from the extremist Protestant riff raft.. and were the nearest thing to
Nazi Storm Troopers that the British Isles have ever produced behaving
much as the SA. did once Hitler had come to power.
A more favourable judgment is rendered on the ‘Specials’ by an ex-member of
that force, Mr Wallace Clark, in an appendix to Mr Fitzgibbons’ book.
IsCmd. 532. Quotations from the Report of the Commission are taken from
the text published in the Irish Times (Dublin) of 12 September 1969.
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SELF-DEFENCE AGAINST THE POLICE
In fact recruitment was open to members of the Orange Order
only. These 10,000 half-trained men were allowed permanent access
to automatic weapons and as members of the Orange Lodges were
left in no doubt that their r6le was the maintenance of Unionist
supremacy in Northern Ireland by any means, including the use of
those weapons at their disposal.
The police force was armed with a legal authority that is unex-
ceeded anywhere in the non-totalitarian world. That authority is
principally derived from the Civil Authorities (Special Powers) Act7
which is so wide ranging in the powers it accords to the police that
Mr B.S Vorster, when Minister of Justice, said of the infamous
Terrorism Act 8 in South Africa that he would gladly have exchanged
the whole of that legislation for one section of the Northern Ireland
Special Powers Act.9 He was probably referring to section 2(4)
which reads:
If any person does any act of such a nature as to be calculated to be
prejudicial to the preservation of the peace or maintenance of order in
Northern Ireland and not specifically provided for in the Regulations, he
shall be deemed guilty of an offence against the Regulations.
The police force was armed with these powers to deal specifically
with attempts to overthrow the constitutional order imposed in 1920
by a British government desperate for some means of extricating
itself from the quagmire of Irish politics. Those powers left at the
unchecked disposition of the Unionist Party were used to suppress
all effective manifestation of anti-Unionist opinion. The police, espe-
cially the ‘B Specials’, were regarded by Catholics as a quasi-military
wing of an Orange controlled Unionist Party.10 From the beginning
of the civil rights agitation in 1968 both the regular and the special
constabulary had manifested physical hostility towards those with
whose views they disagreed. On at least three occasions between
7 N.I. 12 & 13 Geo. V, c. 5. This act, annually renewed, was made a permanent
measure in 1936.
The Cameron Commission admitted that this legislation was probably
in violation of the Universal Declaration of Human Rights and its application
has obliged Britain to remove Northern Ireland from the operation of the
European Convention on Human Rights and Fundamental Freedoms.
8 S.A. Statutes 1967, no. 83.
9 Cf. Bernadette Devlin, The Price of My Soul (1969), 113.
10The Sunday Times “Insight Team”, Ulster (1970), 33. “The two have
been in effect the military arm of the Unionist Party. Both forces carried
arms and had very little compunction about using them.”
Cf. Hastings, Barricades in Belfast (1970), 29. “Some outside observers
coming to Northern Ireland found themselves watching a force in action that
at times looked to be –
as certain persons undoubtedly intended – neither
more nor less than the military arm of the Unionist Party.”
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October 4, 1968 and August 12, 1969 the police force had given
grounds for severe concern to British authorities.
The Cameron Commission described the police handling of the
October 4, 1968 demonstration in Derry as ill-coordinated and inept,
saying:
There was use of unnecessary and ill-controlled force in the dispersal of
the demonstrators, only a minority of whom acted in a disorderly and
violent manner. The wide publicity given by press, radio and television to
particular episodes inflamed and exacerbated feelings of resentment
against the police which had been already aroused by their enforcement of
the ministerial ban.”
At the beginning of January, 1969 members of the Peoples Demo-
cracy (a student group) marched from Belfast to Derry to support
civil rights demands. Outside the Village of Burntollet they were
attacked by about 200 men under the command of Major Ronald
Bunting, an ally of the Rev. Ian Paisley. One hundred of these men
were later identified as members of the Special Constabulary. The
arrival of the marchers created much tension in Derry since Paisleyite
crowds attempted to interfere with the marches and meetings. On
January 4, 1969 the R.U.C. was called into Derry to restore law
and order. They went into the Bogside in their accustomed manner
as described by the Cameron Commission:
We have to record with regret that our investigations have led us to the
unhesitating conclusion that, on the night of the 4th/5th January 1969,
a number of policemen were guilty of misconduct which involved assault
and battery, malicious damage to property in streets in the predominantly
Catholic Bogside area giving reasonable cause for apprehension of personal
injury among other innocent inhabitants, and the use of provocative secta-
rian and political slogans.12
On April 19, 1969 a civil rights meeting was held inside the walls
of Derry – an action which in Protestant eyes amounted to sacrilege.
Paisleyite crowds attacked the meeting and the police were called
upon. “The police response was to drive the Catholics back into the
Bogside and the result was a battle which lasted until midnight.”‘ 3
Commenting on police activities on this night the Cameron Com-
mission noted:
We were presented with a considerable body of evidence to establish
further acts of grave misconduct among members of the R.U.C. including,
“Irish Times (Dublin), 12 September 1969, 4.
12The Sunday Times “Insight Team”, Ulster (1970), 68. “This was a cool
legal description of a night in which groups of burly R.U.C. men roamed
through the Bogside crashing from time to time into the tiny terrace houses
and even into a department store, dealing out arbitrary punishment with their
baton. After that weekend 163 people were treated in hospital.”
13 Sunday Times (London), 14 November 1971, 16.
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SELF-DEFENCE AGAINST THE POLICE
on this occasion also, personal injury and malicious damage to property.
We regret to say that there appears to us to be ample prima facie
evidence to support such charges. 14
Among those who fell victims to the police were the family of one
Samuel Devenney, a Bogside Catholic. In chasing some youths
who had been throwing stones at them, the police:
… burst into the house and fell upon the Devenney family with batons
and boots … Samuel Devenney was taken to hospital with a badly cut
scalp.’5
Devenney died of his injuries. This fact was disturbing enough for
the Bogsiders. What was perhaps more disturbing was the fact that
it was found impossible to trace the policemen who had committed
the assault. On the night of April 19 senior police officers in Derry
were not in control of their men. Police from other forces poured
into Derry. No one knew who had sent them, where they were from
nor what orders, if any, they had received. The desk log at the
police station nearest the Bogside was not kept properly and no
duty roster of any sort was maintained.
Records are one essential element of a police force which is restrained by
law but in Derry on the night of April 19, 1969 large segments of the
R.U.C. had turned into a sectarian mob. The forces of law and order had
themselves surrendered to lawlessness and to borrow the language of a
famous American inquiry, the Devenney family were victims of a police
riot.16
Five months later the R.U.C. and the ‘B Specials’ were ordered to
restore law and order to the Bogside. The police drew up at the
perimeter of the area and made repeated charges at the barricades:
They were shouting ‘I.R.A. scum’ and ‘Fenian bastards’ as they began
their charge and they batoned several bystanders … including a uniformed
first aid man.17
As well as batons the police were armed with C.S. gas –
the first
time this product had been used in the United Kingdom.’8 Each
14Irish Times (Dublin), 12 September 1969, 4.
15 The Sunday Times “Insight Team”, Ulster (1970), 75-76.
16 Ibid., 76.
17 Ibid., 116.
18 bid., 111. “The [British] Ministry of Defence had been against any idea
of the R.U.C. having C.S. but had caved in a few days earlier when, to their
horror, they discovered that the R.U.C. already had C.N. C.S. is technically a
smoke, but the Ministry view was that C.N. was a gas as defined and forbidden
by the Geneva Convention. To remove the C.N., the Ministry had to pro-
vide C.S.”
Russell Stetler, The Battle of Bogside (1972) describes in detail the use of
C.S. gas by the R.U.C. during the incidents in question and its effects on the
Bogsiders.
McGILL LAW JOURNAL
(Vol. 19, No. 3
charge was repulsed by the Bogsiders armed with stones and petrol
bombs.
Samuel Devenney had died three weeks earlier: with his example in mind
it was not necessary to be radical but only an ordinary family man to
want to make sure that there was not another R.U.C. “punitive expedition”
into the Bogside.19
The street fighting which began in Derry spread to Belfast and
continued for three days until the British Government ordered its
soldiers to assume the task of restoring order. The soldiers’ arrival
was considered a victory in the Bogside and the troops were greeted
by the Catholics of Derry,20 among whom Bernadette Devlin, elected
M.P. for the Westminster Constituency of Mid-Ulster in April, 1969,
had played a prominent r6le.
The intervention of the British Army was considered by most
Unionist elements a major defeat 21 for it implied increased British
involvement in the political situation – an involvement whose results
could only be detrimental to the Unionist position.
Charges were brought against Miss Devlin, who had taken part in
the disturbances and had telephoned the British Home Secretary to
request despatch of the troops. The prosecution was in the name of
Francis Irvine Armstrong, a member of the Royal Ulster Consta-
bulary.
The Right of Self-Defence
Miss Devlin was charged with two counts of riotous behaviour
(contrary to section 9(1) of the Criminal Justice (Miscellaneous
Provisions) Act 22) and with two counts of inciting persons unknown
to riotous behavior (contrary to section 69(1) of the Magistrates
Courts Act 23). It was testified that on at least three occasions Miss
Devlin had urged the Bogsiders to resist any police incursion into the
Bogside with remarks such as “keep the barricades manned. If you
fall back the black bastards will over-run the Bogside.” It was also
testified that Miss Devlin had herself thrown a stone in the direction
19 Sunday Times (London), 14 November 1971, 16.
20 The Sunday Times “Insight Team”, Ulster (1970), 141.
21 Sunday Times (London), 14 November 1971, 17. “If it hadn’t been for the
ing British Army, complained one Unionist statesman to the former
–
–
Prime Minister, now Lord O’Neill, we would have killed a thousand of them
by Saturday.”
–
22 N.I. 1968, c.28.
23 N.L. 1964, c21.
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SELF-DEFENCE AGAINST THE POLICE
of the police cordon.24 She was found guilty on all four counts and
was sentenced to six months imprisonment on each count, the senten-
ces to run concurrently. Miss Devlin appealed from these convictions
_ composed
in the Magistrates Court to the Court of Appeal 24a
exclusively of Protestants. (Since the inception of Northern Ireland
in 1921 no Catholic has been found worthy to sit as a judge in the
Court of Appeal. 25)
The substance of Miss Devlin’s defence (and of her grounds for
appeal) was the existence of a personal right and of a right belong-
ing to the collectivity of which she was a member at the relevant time
(August 12-15, 1969) to take such measures as were necessary for
protection against the police force. Both the assertion of her per-
sonal right of self-defence and the claim of the right of collective
self-defence were founded on a common law and on a statutory
basis.2 6
The case which Miss Devlin sought to present involved the con-
tention, based on the incidents referred to in this note, that the
Royal Ulster Constabulary and, in particular, the ‘B Specials’, consti-
tuted a direct threat to the lives, safety and property of the inhabi-
tants of the Bogside and that the measures adopted by her and
counselled by her to members of the Bogside Community were justi-
fied as measures of self-defence. The Crown’s case, in substance, was
that no justification of self-defence could prevail against the opera-
tion of a lawfully constituted police force in the exercise of its duty.
It was also contended that even if Miss Devlin’s apprehensions
regarding the hostility of the R.U.C. to the population of the Bogside
4 “[Ilt landed short. From the position in which the appellant was standing
when she threw the stone, there was little or no likelihood of it hitting a
policeman”: per Lord McDermottL.C.J. [1971] N.I. 13, 19.
24aDevlin v. Armstrong, [1971] N.I. 13
25Cf. Andrew Boyd, Holy War in Belfast (1969) who also notes that only
two Catholics have been appointed to the High Court since 1921.
26 The Statutory defence is provided by section 3 of the Criminal Law Act,
15 & 16 Eliz. II, c.58:
1) A person may use such force as is reasonable in the circumstances in
the prevention of crime, or in effecting or assisting in the lawful arrest of
offenders or suspected offenders or of persons unlawfully at large.
This argument was turned around by the Court which relied on the Common
Law obligation, as explained in the Bristol Riots case (1832), 3 St.Tr., N.S. 1, 4,
of aiding the police in the suppression of a riot as making it impossible “for
her to find any legal justification for her conduct in aiding and encouraging
the rioters as she undoubtedly did”: [1971] N.I. 13, 36.
This aspect of the decision is dealt with in the note by Professor Leigh, in
(1972) 35 M.L.R. 543. He also considers other secondary issues raised in the
case.
McGILL LAW JOURNAL
[Vol. 19, No. 3
could be legally justified, her reaction and her advice to the Bogside
went far beyond what her apprehensions would reasonably require
by way of self-defence.
The Court was thus invited to pronounce on two very important
questions, one of fact and one of law: (1) were Miss Devlin’s appre-
hensions regarding the Royal Ulster Constabulary correct, i.e. were
her fears that the police would attack persons and property in the
Bogside reasonable; and (2), if such reasonable fears existed, were
Miss Devlin and the Bogsiders entitled to resort to violence as a
means of self-protection. Any pronouncement by the highest judicial
authority in Northern Ireland on these two points would of course
have had significant political as well as legal repercussions. A deci-
sion in Miss Devlin’s favour would effectively paralyse any police
efforts in Catholic districts of the province and increase the already
existing pressure in London for the abolition not only of the ‘B Spe-
cials’ (which was recommended by the Hunt Report and subsequently
effected) but also of the regular constabulary. Given the links
between the police and the governing Unionist Party,27 a decision
unfavourable to the R.U.C. would undoubtedly have severely compro-
mised the Government of Northern Ireland in its dealings with the
English authorities.2
The Court of Appeal, however, avoided any consideration of the
question of fact and accorded only a passing reference to the question
of law. Their Lordships (per Lord McDermott,C.S) accomplished
this by confirming the Magistrate’s decision that the evidence of
previous police conduct tending to support Miss Devlin’s apprehen-
sions was irrelevant and inadmissible and by a confused interpre-
tation of the defence of necessity and more particularly the justi-
fication of self-defence in English law.
Self-defence is a factor of justification 29 of an otherwise illegal
act:
27 Cf. Irish Times (Dublin), 12 September 1969, 4: “[T]he nature of the rela-
tionship of the R.U.C. to the Minister of Home Affairs makes it easy for the
criticism to be put forward that the R.U.C. is essentially an instrument of
party government” (quotation from Cameron Commission Report).
28Subsequent political events culminating in the abolition of Stormont and
the assumption by London of direct control of the R.U.C. have tended to
confirm the view that the R.U.C. as constituted at the time of the incidents
in question had ceased to be an effective police force.
29 The distinction between a legal justification and a legal defence is explain-
ed by Winn, LJ. in Kenlin v. Gardiner, [1967] 2 W.L.R. 129, 135: “It must always
be borne in mind that it is for the prosecution to exclude justification and
not for the defendant to establish it.”
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SELF-DEFENCE AGAINST THE POLICE
… if the accused can show that it was done only in order to avoid conse-
quences which could not otherwise be avoided and which, if they had been
followed, would have inflicted upon him and upon others, whom he was
bound to protect, inevitable and irreparable evil, and no more was done
than was necessary for that purpose, and the evil inflicted by it was not
disproportionate to the evil avoided.30
It
is thus founded upon the apprehension of an imminent danger
by the actor and the taking of reasonable measures to counter the
apprehended danger. While the apprehension of an imminent danger
must be a reasonable one, “…
reasonable grounds for such belief
may however exist though they are founded on a genuine mistake
of fact”.8 1
The reasonableness of the measures taken in self-defence will
depend on the degree of danger reasonably apprehended. The Court
must therefore decide on the basis of the test in R. v. Chisam and
the degree of apprehended danger whether reasonable grounds exist-
ed for the belief that an attack was imminent. It is only when these
questions have been answered that the Court can properly address
itself to the question of the reasonableness of the defence.
The Court of Appeal in Devlin v. Armstrong did not, however,
choose to proceed in this fashion. Instead it decided that the meas-
ures taken in self-defence were unreasonable as being exercised
against a police force in the exercise of its duty.
The police were then in the throes of containing a riot in the course of
their duty, and her interventions at that juncture were far too aggressive
and premature to rank as justifiable efforts to prevent the prospective
danger of the police getting out of hand and acting unlawfully which, as
I have assumed, she anticipated.32
The argument which Miss Devlin was proposing was, however,
that this particular police force constituted even while acting in the
course of its duty an imminent danger to the Bogsiders. Any consider-
ation of the reasonableness of her measures in self-defence required
that the Court consider the reasonableness of the apprehensions just
mentioned. Yet the evidence proffered by Miss Devlin going pre-
cisely to this question was not admitted and the question itself was
deliberately avoided by the assumption that a police force acting
under orders cannot as such constitute a threat to individuals justi-
fying recourse to measures of self-defence.
30 R. v. Mahomed, [1938] A.D. (S.A.) 30. The quotation is from the headnote
to the Report.
31 R. v. Chisam (1963), 47 CrApp.R. 130, per Parker, L.C.T., quoting from the
judgment of Lord Normand in Owens v. H.M. Advocate, [1946] S.C.(.) 119,
125. This decision was cited in Devlin v. Armstrong, [1971] N.I. 13, 33.
32 [1971] N.I. 13, 33.
McGILL LAW JOURNAL
[Vol. 19, No. 3
It is clear from the judgement of Lord McDermott that the Court
of Appeal felt itself on secure ground in rejecting a plea of self-
defence not only on the part of Miss Devlin but on the part of the
Bogside Community to which she belonged at the time in question.
Sir Dingle Foot, Miss Devlin’s counsel, had suggested that English
law admitted the right of a collectivity in danger to take such measu-
res as were reasonably necessary to protect itself. For this proposi-
tion he could find only one real authority: a passage from Lord Mans-
field’s judgment in R. v. Stratton in which the eminent judge declar-
ed that a collectivity may be justified in resorting to extreme measu-
res:
… but in that case it must be imminent extreme necessity; there must be
no other remedy to apply for redress … and in the whole they must appear
clearly to do it with a view of protecting the society and themselves –
with a view of preserving the whole. 3
The Court refused to pronounce on the correctness of Lord Mans-
field’s remarks, preferring instead to note that the requisite condi-
tions for such collective action could not be said to exist in the
Bogside because:
It is one thing to act for the best in some case of extreme necessity,
where the forces of law and order are absent or have ceased to act in
that capacity. It is quite another to fight against and seek to expel a law-
fully constituted constabulary while acting in the execution of its proper
functions.44
It is understandable that a court should feel some reluctance
about considering the possibility that a legally constituted police
force is in fact considered a threat by a substantial segment of the
population which it ostensibly serves. Apart from the broader policy
implications of a decision to that effect, the courts of Common Law
jurisdictions face a jurisprudence which impliedly assumes that a
policeman acting in the course of his duty may not be resisted.P5 The
3 (1779), 21 St.Tr. 1045, 1224.
34 [1971] N.I. 13, 35.
35 This jurisprudence was reviewed in Donnelly v. Jackman, [1970] 1 W.L.R.
562, which upheld the view noted. Cases such as Davis v. Lisle, [1936] 2 K.B.
434 and Kenlin v. Gardiner, [1967] 2 Q.B. 510 were distinguished on the basis
that in the former the policeman had become a trespasser and in the latter
that the officers had committed an assault –
in each case the officers had
ceased to act “in the course of their duty” as defined in R. v. Waterfield,
[1964] 1 Q.B. 164, 171, using two criteria:
whether a) such conduct falls within the general scope of any duty imposed
by statute or recognised at common law and b) whether such conduct,
albeit within the general scope of such a duty, involved an unjustifiable
use of powers associated with the duty.
Miss Devlin might have argued that policeman who, according to the accounts
of observers, charged into the Bogside shouting ‘I.R.A. scum’ and ‘Fenian
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SELF-DEFENCE AGAINST THE POLICE
courts admit the right to resist an unlawful arrest 3 6 but the justifica-
tion of self-defence based on a reasonable mistake of fact cannot
apparently prevail against a lawful arrest which the resister imagin-
ed to be unjustified.37 The South African case of R. v. Mahomed 3 8
already referred to appears to constitute a limited exception to this
absolute rule –
an exception which English Courts have never
apparently confronted. In that case the Appellate Division of the
Supreme Court upheld a defence of necessity as justification for
resisting police officers who were making a lawful arrest because
the officers were accompanied by a mob which the resisters reason-
ably suspected would attack them were they to venture out of their
house and offer themselves to the police. The majority view in that
case made it clear that had no mob accompanied the officers, no
grounds for resistance would have existed, while the dissenting judge
insisted that even in the circumstances aforementioned the defend-
ants could not justify resistance to police officers in the course of
their duty.39
In France the tendency of the jurisprudence has been similar to
that observed in the Common Law jurisdictions. Though article 11
of the Declaration of the Rights of Man states quite categorically
that:
… tout acte exerc6 contre tn homme hors les cas et dans les formes que
la loi determine est arbitraire et tyrannique: celui contre lequel on vou-
drait l’exdcuter par la violence a le droit de le repousser par la force,
the Cour de Cassation has consistently favoured the view that an
absolute presumption of legality must attach to the actions of police
officers in the course of their duty, a presumption which excludes
any right of resistance.
bastards’ and batoning a uniformed first-aid man had placed themselves
beyond the criteria of R. v. Waterfield and thus were outside the course of their
duty. This line of argument was not, however, adopted and neither R. v.
Waterfield nor Donnelly v. Jackman were cited to the Court.
36 Kenlin v. Gardiner, [1967] 2 W.L.R. 129.
-7 R. v. Fennell, [1970] 3 All E.R. 215.
38 [1938] A.D. (SA.) 30.
39 The circumstances of this case contain many similarities to those in
Devlin v. Armstrong:
When the police on foot went through the barricade a crowd hostile to
those behind the barricade went through at the same time. This crowd ran
along Rossville Street, threw stones which broke some windows, made
offensive sectarian remarks -and threw stones towards the crowd which had
been behind the barricade. This incursion and these actions were not
restrained by the police. At all material times the police were heavily out-
numbered by those opposing them: [1971] N.I. 13, 17.
However, R. v. Mahomed was not cited to the Court.
McGILL LAW JOURNAL
[Vol. 19, No. 3
However, both in France and in the United States, an evolution in
doctrinal thinking is discernible. Professor Vidal, for instance,
argues eloquently in support of Ihering’s view 40 that self-defence is
not merely a right but a duty whose observance is an essential ele-
ment of any legal system41 and while Professor Donnedieu de Vabres
is not entirely satisfied with the Hegelian aphorism that “an attack
is a negation of the law, defence is a negation of the negation and
therefore an affirmation of law”, he concedes that the French Courts
have been too reticent in the application of the principles of self-
defence to resistance to police power.4 2 In a recent and comprehen-
sive survey of the question of legitimate resistance to authority,
Professor Verhaegen not only argues that the law should acknowl-
edge the right of resistance against policemen and other functionaries
acting in the course of their duty but asserts that the existing Penal
Code, if properly interpreted (and as explained in an impressive line
of jurisprudence), would be found to provide for such a right.4 8
In the United States, the American Law Institute’s Model Penal
Code which dates from the early 1960’s maintains the general propo-
sition that:
… the use of force is not justifiable under this section
1) to resist an arrest which the actor knows is being made by a peace
officer although the arrest is unlawful 44
However, the drafters are careful to state in their commentary on
this article that:
… it has no application when the actor apprehends bodily injury as
when the arresting officer unlawfully employs or threatens deadly force
unless the actor knows that he is in no peril greater than arrest if he
submits to the assertion of authority.45
4o Cf. Ihering, Lutte pour le droit (trad. 0. de Meulenaere) (1893), 32:
[L]a lutte est le travail dternel du droit: le degr6 d’6nergie avec lequel le
sentiment juridique rdagit contre une lesion du droit est une mesure cer-
taine de la force avec laquelle un individu, une classe ou un peuple com-
prend pour lui et pour le but spdcia de sa vie ‘importance du droit.
41 Cours de Droit Criminel et de Science pdnitentiaire (1949), 358.
42 Traitg de Droit Criminel (1947), 229 and following.
43 La Protection penale contre les Excs de Pouvoir et la Rdsistance ldgitime
& l’autoritg (1969). Verhaegen recommends an addition to the 209th article of
the French Penal Code which makes an act of rebellion any violent resistance
to the police in the execution of their duty. The addition would provide:
Ii n’y a ni crime ni d6lit lorsque les violences ou menaces 6taient comman-
ddes par la n~cessit6 actuelle prudemment appr~cide de ddtourner d’un bien
appartenant hi soi-m~me ou h autrui les effets graves d’un flagrant exc~s
de pouvoir.
44 Para. 3.04, 47.
45 Tentative Draft No. 8 (1958), 19.
1973]
SELF-DEFENCE AGAINST THE POLICE
Furthermore, the Proposed New Federal Criminal Code, part of the
Final Report of the National Commission on Reform of Federal
Criminal Laws, qualifies the right of self-defence with regard to
police officers in this way:
… a person is not justified in using force for the purpose of resisting
arrest, execution of a process or other performance of duty by a public
servant under colour of law, but excessive force may be resisted. 46
It is suggested that if either of these statements represented the
law in Northern Ireland, then the Court would have been compelled
to examine the question of whether Miss Devlin reasonably appre-
hended danger to herself and the people of the Bogside from the
use of ‘excessive force’ by the police or of ‘bodily injury’ resulting
from their actions. The Court would not be able to escape such an
examination by the simple affirmation that the law does not counten-
ance any violent resistance to a police force in the exercise of its
lawful functions.
Just what the law in Northern Ireland is on this subject is dif-
ficult to determine because the justification of self-defence reposes
largely on the Common Law and not on a statutory basis. If the
interpretation of the rule in the case of resistance to police activity
given in Devlin v. Armstrong be a correct statement of the law, then
an enormous power is given to police forces whose actions are not
subject to restraint so long as they can be said to have been in the
course of duty –
even where that duty consists in periodically terror-
izing large elements of the community politically opposed to those
in control of the constabulary. The common sense of the Common
Law can hardly be supposed to countenance such a position. If an
adequate policy basis for such a rule does exist it was not explained
in Devlin v. Armstrong. It is suggested that no credible policy reason
could be found for so wide an immunity and that an amendment of
United Kingdom law along the lines of the American proposals noted
should be undertaken.
The decision of the Court in dismissing Miss Devlin’s appeal
because she had used unreasonable force can also be interpreted in
the following manner. Though Miss Devlin’s case reposed essentially
on the justification of self-defence there are grounds for supposing
that the court treated the defence as one of necessity. Lord McDer-
mott spoke in his judgement of self-defence being an alternative plea
to that of justification which he considered as embracing both the
Common Law plea of self-defence and the Statutory defence provided
for in Section 3 of the Criminal Law Act. More particularly, in dis-
cussing the argument of a collective right of self-defence, the Lord
46 (1971), Para. 603.
McGILL LAW JOURNAL
[Vol. 19, No. 3
Chief Justice specifically considered it as a plea of what Lord Mans-
field in R. v. Stratton refers to as ‘civil necessity’.
Whether a general defence of necessity exists in the law of En-
gland (or that of Canada, given the wording of article 7(2) of the
Criminal Code) is still a disputed point. Professor Glanville Williams
in his textbook on Criminal Law states that:
… notwithstanding the doubts that have been expressed it will here be
submitted somewhat confidently that the defense exists in English law,47
an assertion which is backed by an impressive array of citations
from jurists such as Bracton, Bacon, Coke and Hale and numerous
judgments including the famous decision in Manby and Richards v.
Scott.45 This view has the quite recent support of Lord Denning 4′
but it is by no means unchallenged. In an exhaustive article Mr
Glazebrook has argued that apart from specific cases of statutory
defences based on necessity, no such general defence is recognized
in the law of England. 0 Even among those who are inclined to
Professor Williams’ view, there is a recognition that the courts are
not enthusiastic about pleas based on concepts of necessity.5 1
Two reasons, at least, exist for this reticence. In the first place
the legal distinction between ‘necessity’ and ‘self-defence’ is by no
means clear. While French law distinguishes self-defence from ne-
cessity on the ground that in the former case it is the aggressor
who is attacked while in the latter an innocent third party is made
the victim 52 (the classic case is that of the storekeeper from whom
a starving mother steals to feed herself and her child), no such sharp
distinction is drawn in English law. Those who support the existence
of a general defence of necessity tend to regard self-defence as one
element of this justification –
albeit one subject to fairly definite
rules.53 But, because a plea of self-defence exists as part of a defence
of necessity rather than as a separate justification, a court faced
with a general defence of necessity may in fact be dealing with what
is properly a case of self-defence.
47 Criminal Law – The General Part 2d ed. (1961), 724.
48 (1672), 1 Lev. 4, 83 E.R. 268.
49 Southwark London Borough Council v. Williams, [1971] Ch. 736. Lord
Denning admitted the existence of a general defence of necessity not only as
regards criminal prosecutions but also in tort actions.
50 Glazebrook, The Necessity Plea in English Criminal Law, (1972) 30 Camb.
L.J. 87. The author of Russell on Crime, 12th ed. (1964) shares Mr Glaze-
brook’s view, while the author of Kenny’s Outlines of Criminal Law, 19th ed.
(1966) appears to side with Williams –
though the only authority cited for
the existence of a general defence of necessity is Stephens’ Digest of the
Criminal Law.
51 Gordon, The Criminal Law of Scotland (1967), 372.
52 Bourat and Pinatel, Traitd de Droit pdnal et de Criminologie (1963), 277.
53 Williams, op. cit., 733.
1973]
SELF-DEFENCE AGAINST THE POLICE
This procedural difficulty is however relatively unimportant in
explaining the reluctance of the courts to accept a general defence of
necessity. Much more significant is the consideration of what the
process involves on the part of the defendant and on the part of the
courts themselves. For the defendant:
… in situations of necessity the agent is faced with a choice between two
courses of action and he is required to choose by reference to the relative
values attached by the law to the two courses and their results.54
But as Glanville Williams points out:
It is for the courts to decide whether, on the facts as they appeared to
the defendant, a case of necessity was in law made out, and this in turn
involves deciding whether, on a social view, the value assisted was greater
than the value defeated.f5
In some cases the relative values are so clear both to the defendant
and to the court, that a judge need feel no hesitation in justifying or
condemning a defendant’s conduct. But in cases where the relative
values are not so clear, the defendant’s conduct poses an unwelcome
problem for the court which, in effect, has to decide ex post facto,
whether the defendant’s decision was legally correct, in a situation
where the law ceases to be what is written in the Statute book but
the observance of a higher value –
a value whose assessment is left
to the court itself. The judge has to decide, not whether the letter of
the law was complied with but whether the defendant’s conduct
could be supported by a social value outweighing that of breaking
the law. Such famous decisions as R. v. Dudley and Stephens 56 and
U.S. v. Holmes 5
involved precisely this type of analysis, one for
which judges are not especially well-ecuipped.
If, however, Ihering’s proposition that self-defence is not merely
a right but a duty be accepted (as the courts of the Common Law
seem to –
though with reservations in cases involving policemen)
then the judge is not faced with the task of weighing the relative
values of resistance to the attack and of not injuring another person.
Provided that the response to the attack was reasonable, the judge
can rest content in the knowledge that the right to self-defence is
itself a value which the law regards as almost absolute. He is not
required to agonise over the moral or social implications of the
defendant’s conduct. His only task is to determine whether the
requisite elements for the justification of self-defence were present
in the particular case. It is therefore understandable that judges
5 4 Gordon, op. cit., 368.
55Williams, op. cit., 746.
56 (1884), 14 Q.B.D. 273.
5726 Fed. Cas. 360 (1842).
McGILL LAW JOURNAL
[Vol. 19, No. 3
should be hesitant about accepting general defences of necessity
where a plea of self-defence is possible.
Yet in Devlin v. Armstrong the appellant pleaded self-defence
quite specifically. The Court, however, as we have seen, did not
attempt to discover whether the requisite elements for such a plea
existed but declared that Miss Devlin’s actions were unreasonable in
the circumstances given that there can be no justification for violent
resistance to a police force in the exercise of its duty. It is the
submission of this note that such a proposition does not (or at least
should not) represent the law of England or Northern Ireland. It
does, however, represent a weighing by the court of the relative
values of Miss Devlin’s conduct and that of the Royal Ulster Consta-
bulary. In the eyes of the Court the value of ‘law and order’, as re-
presented by the police, had to prevail over the Bogsiders’ fear of
and antipathy towards that same force.
This type of judgement is proper in response to a plea of necessity
but not to one of self-defence. What is interesting to note is that the
‘weighing of values’ was not done openly but was (whether inten-
tionally or not) disguised under an interpretation of the existing law
relating to self-defence. In other words the Court considered Miss
Devlin’s plea of self-defence as one of necessity and rendered its
decision on the basis of necessity but in the language of a judgement
dealing with a plea of self-defence. If nothing else, this sort of
judgement indicates the need for an elaboration in Common Law
jurisdictions of the distinction between the pleas of self-defence and
necessity –
an elaboration which will probably have to await the
codification of the Criminal Law of England. 8
However, the refusal of the Court to examine the relationship
between the police and the people of the Bogside (a relationship
which had been the subject of critical comments not only in the
report of the Cameron Commission but also in those of the Hunt
Committee and the Scarman Tribunal) and the obvious unwillingness
to consider that the police might have provided any motive for the
resistance of the Bogsiders tends to justify the criticism of political
partisanship levelled at the judiciary in Northern Ireland and sug-
gests that the courts are in need of the same reform which the
British Government has imposed on the legislature, the executive
and the police.
58Both the American Law Institute’s Model Penal Code (Para. 3.02) and
the Proposed New Federal Criminal Code of the National Commission on
Reform of Federal Criminal Laws (Para. 601) specifically admit a general
defence of necessity.
