Appeal Court hunts out real victim

The Appeal Court found a hunter was acting in self defence when he retaliated against a saboteur, writes Roger Pearson.

A recent Appeal Court ruling has given new guidelines on the approach courts should take when a defendant claims that they were acting in self defence when they injured a personal injury claimant.

The case of Cross v Kirkby centres on a hunt saboteur who suffered brain damage leading to epilepsy after a hunt supporter he was attacking with a baseball bat managed to get hold of the bat and hit him back.

The High Court awarded the saboteur Harry Cross £52,000 damages last year. But the Appeal Court found that former hunt follower and North Lincolnshire farmer Bill Kirkby was acting in self defence.

During the incident Cross hit Kirkby twice on the arm with the bat and attempted to hit him on the head after telling him “you are fucking dead Kirkby”.

After being hit for the third time, Kirkby, who Lord Justice Beldam said feared serious injury, managed to grab the baseball bat from Cross and hit him with it.

The court stripped Cross of the damages awarded to him by the High Court, finding that it would be wrong for Cross to receive compensation for injuries which stemmed from his own illegal action in assaulting Kirkby.

Lord Justice Beldam said that Kirkby had taken every reasonable step to avoid becoming involved with the defendant who had been goading him. He said that during the incident Cross committed a number of criminal offences, including having a weapon in a public place, causing an affray, assault causing actual bodily harm and making a threat to kill, which could have resulted in him being jailed for several years.

The court ruled that Cross had been guilty of determined and persistent “aggressive and threatening behaviour”.

Michael McNally of Kent firm Knights, which specialises in representing hunting and field sports enthusiasts, says that the case sends a “clear message” to saboteurs that if they attack hunt supporters in such a way, they would be hard put to then seek compensation for any injuries they receive at the hands of their victim.

“In the heat of the moment it is unfair to judge with what the court described as ‘jeweller’s scales’ or to weigh up too nicely the degree of force which a person can be reasonably expected to use when defending himself,” says McNally.

“The court has made it clear that in terms of self defence the person who has defended himself must not be judged too harshly, too clinically and from too detached a point of view in respect of the force he uses under attack.

“One must allow a reasonable degree of leeway when looking at the force he uses in self defence. This case has clarified the position.”

McNally adds that the case clarifies the ex turpi causa defence that the courts will not assist a claimant who sues and relies on his own unlawful act in support of his claim.

He says: “The court took the view that Cross’ attack was part of one transaction or sequence of events. There was no real break between Cross’ attack and Kirkby’s defensive act. Consequently when Cross sued, ex turpi applied because the injuries he sued over arose from his own unlawful act.”

This case differs from the recent case of Revill v Newberry in which a burglar was shot by a property owner who sat up waiting for intruders with a shot gun.

“All Kirkby did was to turn his assailant’s own weapon on him. Consequently the claim-ant’s own conduct was inextricably linked with his claim.

“The case also confirmed that, for ex turpi to be applicable, there is no need for the claimant to have pleaded his own unlawful act in support of his claim. It is sufficient if, de facto, he is relying on his own unlawful act in support of his claim.”