FlyerTalk Forums - View Single Post - Slightly OT: How to Handle an Ulruly Passenger

Jan 7, 2012 | 8:50 am

#147

OxonCantab

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Join Date: Jul 2011

Posts: 487

Quote:

Originally Posted by dark_horse

Thank you, OxonCantab, for a well-thought out post. The distinction between legal and philosophical is particularly pertinent.

Leaving aside the specifics of the train incident for the moment, and thinking in a quite general sense, let's think about what it means to be "reasonable". My assumption would be that, given two specific outcomes, any reasonable person would prefer the best option. Or, to put it another way, that they would prefer the lesser of two evils. It is also my assumption that if an offence is committed in order to prevent a worse offence occurring (e.g.: if I assaulted someone to prevent them murdering someone else), then a reasonable person would, ignoring any repercussions from the legal system itself, prefer that outcome.

Is it the case that the prevention of a worse crime justifies the committing of a more minor offence (if not automatically, then at least being a strong indicator), or would that simply be a factor in sentencing for the less-worse crime?

If the latter is, in fact, the case, then I find that particularly bizarre. What that is effectively saying is that a person would be expected to allow the worst option to occur. That to me turns the whole idea of "reasonable behaviour", which I have been repeatedly told underpins a great proportion of British law, on its head.

The example you give of a Virginian shooting a crack-head would obviously play out differently in either an English or Scottish court, but the logic that forms the foundation of the three legal systems is broadly similar. The fact that it is seen to be reasonable to carry a loaded gun in VA while not in Britain is of no surprise. The fact that the Virginian court therefore found for the man with the gun is also not so bizarre. Of course what is reasonable in one place is not reasonable in another, but that does not negate the logic that a person must still behave reasonably in both places - however that may be interpreted there.

For that reason, I do not believe that it is entirely possible to dismiss "reasonable force" in a legal sense - although how one defines the term itself in any given situation might be open to interpretation. Are you saying that, a court might find that a person behaved entirely reasonably in using force, but still exact punishment on that person?

Or are you saying that the use of force is never reasonable? You give a hint that that isn't the case either.

What you are saying is that some force is acceptable in some cases. It may be limited and it may be with consequence, but force is not entirely prohibited. This is why I find comments such as your earlier one quite so dangerous:

Effectively you are making two points here. One is an assertion that physical force is the preserve of state actors; the second is an opinion that this should be the case.

Why I find this sort of sweeping statement so dangerous is that, first, it is not true: the set of circumstances where a person may use force on another may be very limited, but even in an English or Scottish legal system, they exist. That, I believe, is a fact.

Second (although by comparison this is only an opinion) by extolling such beliefs you are effectively discouraging someone from doing The Right Thing when presented with a situation where they could make a positive difference. And why? Not because they would get into trouble, but merely because you believe that they might.

Worse, IMHO it becomes a self-fulfilling prophesy because as more people believe that the system is, in fact, like that, so the system becomes like that - and for no other reason that because people mistakenly believe it is so. The blind are unwittingly following the blind.

I made the point some time ago on this thread that I was involved in a situation aboard a BA aircraft (oooh, relevance!

) whereby I helped subdue a man who was posing a danger to CC and other pax. Had I not done so, it's almost certain that people would have been hurt, and I was thanked by the captain and CC. After the event, it was clear that I had acted legally but it was still irritating to have to listen to the pax concerned try to play the victim. Yet, if I hadn't stepped in other people would have been injured while he would have been more severely punished by the courts.

Who would have benefited had I been afraid of doing The Right Thing?

That is not a healthy situation. That person may not do The Right Thing based solely on fear of the system itself, not because of fear of doing The Wrong Thing. I believe the majority do not believe that is a healthy result for any of us.

Although OxonCantab's point about vigilantism is perfectly valid, I would suggest that it does not appear to be such a problem right now. In a democracy, it is quite easy to differentiate between mob rule and the overall will of the people. Reasonable force should, I suspect in the opinion of the majority, be a last but acceptable resort.

Thank you for your thoughtful response. The second quotation you cited was an ideal that should be espoused rather than the current state of the law in England and Wales. Obviously, there are cases where even English courts have found the use of force to be reasonable. However, in many, many cases that most people would find extreme, English courts have ruled that members of the public should have deferred to state actors to exert force on the body of another. As an example, in London, there are many reported cases of individuals leaving their homes only momentarily to find squatters have come in and locked themselves inside claiming to be tenants when the police are called. It takes approximately 6 months currently to get an eviction order while the squatters are living rent-free whereas you can be out on the street.

If you're really interested in learning about "reasonable force" in this context, most of the reported cases of state actors have to do with police officers and non-state actors have to do with self-defense/castle doctrine issues. There are fewer reported cases of "reasonable force" being defined in the context of civilian use to prevent a crime in progress. Big Man's position is weakened by the fact that the degree of "reasonableness" is a very fact-specific determination. If his attorney does actually argue that he was acting to prevent a crime in progress, the prosecutor would reply that the degree of force must be measured against the crime it is supposed to prevent(ticket jumping being a minor one), exerting force to hurt someone wasn't called for.

The other interesting point that Big Man's attorney would make is that he was acting as an agent of the state and "deputized" by the ticket collector allowing him to act just as a state actor would. Obviously, the railway company would prefer that this line of argument not be accepted as the runt could use it later to sue the railway company for vicarious liability. You'd be surprised at how sensitive english courts are to use of force. In much of the stuff I've read, they often err on the side of not allowing non-state actors to exert force without consequence.