Since the reported RAF drone strike on organic Islamic State export Reyaad Khan in Syria last month, there is a certain fascination in beholding the alacrity with which various media outlets have manned their respective positions on the morality of the killing, each bolstering their post with an assurance that the attack was completely lawful/monstrously illegal as respectively befits their moral assessment.
Those seeping queasiness at the notion of secret state-sanctioned slaughter are fortunate enough to have landed on an analysis that the government’s actions were not only immoral but unlawful, whilst those who think the quisling guttersnipe, to quote from the Mail, “got what he deserved”, are confident that, fortuitously, his evisceration is endorsed as pre-emptive self-defence under Article 51 of the UN Charter.
Notably, there were few tabloid editorials contemplating whether the killing might have been moral but unlawful. The Sun’s front-page splash (“Wham! Bam! Thank you Cam!”) was not accompanied by a sober leading article inviting its readers to meditate on the proportionality or necessity of lethal force.
And so, again, we are treated to a (unwitting) media re-enactment of the great jurisprudential scrap between natural law and positivism, as the doctrine of self-defence, lovingly honed in common law before being codified in section 76 of the Criminal Justice and Immigration Act 2008, is redefined for public approval as the doctrine of “the b*stard had it coming”.
Reyaad Khan is but the latest in a production line of tabloid-friendly newsbites where the doctrine of TBHIC is applied by extra-judicial tabloid overlords to bypass any thoughtful consideration of the legal position. When Jeremy Corbyn is recorded describing the failure to put Osama Bin Laden through the judicial process as a “tragedy”, the spluttering protestations are channelled through a megaphone into a one-note honk – TBHIC. John Prescott “subdues” an egg-wielding civilian by charging into a crowd to punch him and he’s clasped to the pop culture bosom as a cult hero. Why? TEgg-ThrowingBHIC.
What is depressing is that this unwillingness to distinguish between law and morality not only gnaws at the fabric of public rationality, but makes my everyday slog in court that much harder.
Rare, and adored, is the client who instructs: “I’m glad I whacked him, he fully deserved it, it felt magnificent but I accept that there is no basis in law for what I did and will plead guilty accordingly. Will I get my knuckleduster back?” Instead, when self-defence springs up in the police interview, the defence hack steels themselves for a client who maintains that jumping on the prostrate complainant’s head until he lost consciousness represented reasonable self-defence.
Because, taking their cue from popular culture, they are unable to reconcile the dissonance between the moral certainty that the complainant deserved a thrashing and the legal prescription that self-defence be subjectively necessary and objectively reasonable. Hence the disproportionate number of cases involving assaults in bars where the defence are instructed, contrary to the conclusive CCTV footage, to plead pre-emptive self-defence, where the truth is that the thrashee spilled the defendant’s Stella or looked at his missus, and the defendant is internally applying the TBHIC doctrine.
For an optimistic pleading of pre-emptive self-defence, I must take off my wig to the defendant of whom I once asked in cross-examination: “So your case is that the blind man on crutches was about to hit you first?” His response – “You don’t know what he’s been like” – closed my case for me. His counsel told me afterwards that the defendant was no different in conference. He genuinely believed, because of the history between the parties, that pummelling a blind man to the ground while his seven year-old child looked on and sobbed was justifiable as lawful self-defence.
Being grateful, as the Criminal Bar must, for any small mercies, it is at least rare that such defendants indulge in publicly glorifying the bloodshed post-facto, as per the inimitable style of The Sun. It would take a closing speech from the archives of Rumpole to rescue the defence case where the client opened his examination-in-chief by swivelling to the jury, shouting “Wham! Bam!” and delivering a 300-word diatribe on how much better the world is now that old Mrs Peterson has had her nose bashed in. The jury might be inclined to conclude, upon proper legal direction, that this falls somewhat short of lawful self-defence. Even if she did have it coming.
This article was first published in Solicitors Journal