Self Defence Flashcards
Self Defence Overview
Justificatory.
Need to consider separately to other partial defences in problem question
Criminal Law Act 1967, s.3: To clarify the law
Criminal Justice and Immigration Act 2008, s.76: clarifies legal rules
R v Cousins: Held that threat of force was still covered in CL definition of self defence.
Statute and CL run concurrently so need to use both.
Self Defence: Need to repel a physical attack?
NO.
R v Hussey: Protecting home. Can defend against the commission of an offence, not necessarily a physical offence.
Self Defence: Elements of defence
1) D believes the use of force is necessary (the trigger)
- Can be subjective
2) The amount of force used must be reasonable (the response)
- Objective
Self Defence: Force must be necessary
R v Hussain: must not be acting our of revenge
R v Gladstone Williams: Thinks person apprehending the thief was the thief. Subjectively believed he was stopping a crime.
CJIA 2008, s.76(4): If found that D genuinely held a believe, they are entitled to rely on the defence whether or not the belief was mistaken.
R v O’Grady: If the mistake was due to voluntary intoxication, the defence must fail
- also in statute
Self Defence: Amount of force must be reasonable
Force must be objectively reasonable in the circumstances that D subjectively believed to exist.
Crime and Courts Act 2013: gave distinction between householder and non-householder cases.
R v Palmer: recognises the proportionality of force won’t always be equal due to quick decision making.
R v Clegg: a defence of self-defence that fails only through excessive force still fails.
Self Defence: Responding to a Response
If the person relying on the defence instigated the trigger originally.
R v Rashford: Can still be a defence provided the response was so excessive to the instigation.
R v Harvey: Who started the fight is irrelevant. What matters is if D genuinely believed he had to use force to get out of the situation
Self Defence: D’s characteristics
R v Canns: The D’s psychiatric condition could not excuse excessive force.
Using a knife against a fist is disproportionate, but what about for women?
Edwards: Women who use weapons do so in order to arm themselves against the disproportionate force of men in order to achieve a notional equality between unequals.
Still not allowed though. Would open the door to weak vs strong men.
Self Defence: Householders
Has to be grossly disproportionate rather than disproportionate. Higher threshold.
Crime and Courts Act 2013
However, as it is still a reasonableness test, just because it is short of grossly disproportionate, doesn’t mean the defence will automatically succeed. (R v Ray)
Should battered women be able to use disproportionate force as well? Or is this all in response to political pressure?
Self Defence: Article 2 ECHR
Right to Life.
