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A-G Ref No 2 of 1983 [1984] QB 456 Court of Appeal


The defendant was a shopkeeper. His shop was in the centre of extreme riots which were taking place. On the night of the 11th/12th July 1981, £600 worth of damage was done to his shop and £400 worth of his goods were stolen. After this attack he remained in his shop without sleep and in fear of further attack from 1.30 a.m. until the morning of 14th July. He was in fear that he and his property might be the subject of further attack. He made 10 petrol bombs to protect himself in case he was subject to further attacks. He was charged with offences under section 4 of the Explosive Substances Act 1883. He raised the defence of self defence and the jury acquitted him. The Attorney General referred a question on a point of law to the Court of Appeal as to whether the defence of self defence could be used to cover preparing for attack.

Held:

The defence could be allowed for offences based on possession in preparation of attacks provided the possession ceases when the danger of attack is no longer imminent.

Lord Lane CJ:

The defendant in this case said that his intentions were to use the petrol bombs purely to protect his premises should any rioters come to his shop. It was accordingly open to the jury to find that the defendant had made them for the reasonable protection of himself and his property against this danger. The fact that in manufacturing and storing the petrol bombs the defendant committed offences under the Act of 1875 did not necessarily involve that when he made them his object in doing so was not lawful. The means by which he sought to fulfil that object were unlawful, but the fact that he could never without committing offences reach the point where he used them in self-defence did not render his object in making them for that purpose unlawful. The object or purpose or end for which the petrol bombs were made was not itself rendered unlawful by the fact that it could not be fulfilled except by unlawful means. The fact that the commission of other offences was unavoidable did not result in any of them becoming one of the defendant's objects.

In our judgment a defendant is not left in the paradoxical position of being able to justify acts carried out in self-defence but not acts immediately preparatory to it. There is no warrant for the submission on behalf of the Attorney General that acts of self-defence will only avail a defendant when they have been done spontaneously. There is no question of a person in danger of attack "writing his own immunity" for violent future acts of his. He is not confined for his remedy to calling in the police or boarding up his premises.

He may still arm himself for his own protection, if the exigency arises, although in so doing he may commit other offences. That he may be guilty of other offences will avoid the risk of anarchy contemplated by the Reference. It is also to be noted that although a person may "make" a petrol bomb with a lawful object, nevertheless, if he remains in possession of it after the threat has passed which made his object lawful, it may cease to be so. It will only be very rarely that circumstances will exist where the manufacture or possession of petrol bombs can be for a lawful object.
 
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