Cross v Kirkby [2000] EWCA Civ 426 (1 8 February 2000)

A hunt saboteur, Mr Cross, was injured when a farmer, Mr Kirkby, struck him with a baseball bat during a confrontation. Mr Kirkby claimed self-defence. The court found Kirkby's actions were not grossly disproportionate, allowing the defence and clarifying principles of self-defence.

Facts

The claimant, Mr Cross, was a hunt saboteur who, with others, was attempting to disrupt the Longstone Edge Hunt. The defendant, Mr Kirkby, was a farmer and a member of the hunt staff. The saboteurs trespassed onto Mr Kirkby’s land. Mr Kirkby, holding a baseball bat, confronted Mr Cross and a fellow saboteur. An altercation ensued in which Mr Cross attempted to wrest the bat from Mr Kirkby. After regaining control of the bat, Mr Kirkby struck Mr Cross on the side of the head, causing a fractured skull and subdural haematoma. Mr Cross brought a civil claim for damages for assault and battery. The trial judge found for Mr Cross, rejecting Mr Kirkby’s defences of ex turpi causa non oritur actio (illegality) and self-defence. Mr Kirkby appealed to the Court of Appeal.

Issues

The Court of Appeal considered two primary legal issues:

1. Whether the defence of ex turpi causa should have succeeded, barring the claim on the grounds that Mr Cross was engaged in illegal activity (trespass and disruption of a lawful activity) at the time he was injured.
2. Whether the trial judge erred in rejecting the defence of self-defence, specifically in his assessment of whether the force used by Mr Kirkby was reasonable in the circumstances.

Judgment

The Court of Appeal unanimously allowed the appeal, overturning the trial judge’s decision. The leading judgment was given by Judge LJ.

Ex Turpi Causa

The court held that the defence of illegality was not applicable. Judge LJ reasoned that while Mr Cross’s actions were unlawful, to deny him a claim for the injuries he sustained would be an ‘affront to the public conscience’. The court found that the injury was not a direct consequence of the illegal joint enterprise in a way that would engage the defence. The assault by Mr Kirkby was a separate act, not something for which Mr Cross could be said to have implicitly accepted the risk by his own wrongdoing.

Self-Defence

This was the determinative issue. The court found that the trial judge had misdirected himself on the law of self-defence. The correct test for self-defence in a civil action for battery is that the defendant may use such force as is reasonable in the circumstances as he honestly believes them to be. Judge LJ emphasised that the assessment of reasonableness must account for the context of the incident. He criticised the trial judge for dissecting the fast-moving events with excessive hindsight and for failing to appreciate the pressure the defendant was under. The court restated a long-established principle:

In a moment of unexpected anguish a person defending himself is not to be expected to weigh to a nicety the exact measure of his necessary defensive action.

Applying this principle, the court concluded that the incident was a single, fast-moving affair. Mr Kirkby honestly believed he was under attack from two men and was entitled to take measures to defend himself. While the blow to the head was a ‘violent response’, it was not grossly disproportionate in the circumstances as Mr Kirkby perceived them. Judge LJ stated:

His use of the bat to strike the respondent’s head was, on any view, a forceful, indeed a violent response. That is not the same as a grossly disproportionate response. For the purposes of self defence, a defendant is not required to show that the force used was no more than was necessary… In my judgment the lesson of the authorities is that in these cases the court should not be astute to find for the claimant.

Beldam LJ, concurring, added:

I do not believe that in the circumstances the appellant can be said to have used a degree of force that was unreasonable. It was not a case for weighing in golden scales the exact amount of force which a person is justified in using in self-defence.

The court concluded that Mr Kirkby’s actions were a lawful exercise of his right to self-defence.

Implications

This case is a leading modern authority on the defence of self-defence in the tort of battery. It strongly reaffirms the principle that a defendant acting in the ‘heat of the moment’ is not expected to measure the precise level of force required. The judgment provides a clear guideline that the force used in self-defence does not have to be exactly proportionate, but rather must not be ‘grossly disproportionate’ to the threat perceived by the defendant. The decision underscores that courts should judge the defendant’s actions based on the facts as the defendant honestly believed them to be, rather than through detached, ‘golden scale’ analysis with the benefit of hindsight.

Verdict: Appeal allowed.

Source: Cross v Kirkby [2000] EWCA Civ 426 (1 8 February 2000)