Defences: Public and Private Defence

Question 1

where does the law for public and private defence come from

Answer 1

-s.76 Criminal Justice and Immigration Act 2008

Question 2

what are the 2 main requirements for public/private defence

Answer 2

(i) necessary force (Oraki v CPS)
(ii) reasonable degree of force

Question 3

what happened/ is the legal principle in Oraki v CPS

Answer 3

-use of force is necessary in averting any attack for public/private defence

Question 4

what is s.76(2) CJIA

Answer 4

-V must pose threat to D or a third party or property
-so D must be acting to defend D or a third party or property

Question 5

what happened/ is the legal principle in R v Bird

Answer 5

-force cannot be used out of revenge or retaliation
-D lunged at man, failed defence

Question 6

what happened/ is the legal principle in R v Dadson

Answer 6

-D must be aware of the threat V poses
-D was a security guard who shot thief in the dark
-did not know V was a threat/thief due to darkness so no defence

Question 7

what happened/ is the legal principle in R v Jones (2006)

Answer 7

-threat must be unjustified in some way, even if not a criminal offence

Question 8

give general 5 legal principles/ cases regarding public and private defence

Answer 8

-Oraki v CPS; use of force is necessary in averting any attack
-s.76(2) CJIA; V must pose a threat to D/third party/ property so D must act to defend D/third party/property not out of revenge or retaliation (R v Bird)
-R v Dadson; D must be aware of the threat D poses
-R v Jones (2006); threat must be unjustified in some way even if not a criminal defence

Question 9

give 6 legal principles/cases regarding (i) necessary force (??)

Answer 9

-subjective Q; was force necessary in the circs as D genuinley believed them to be
-R v Williams(Gladstone); provided legal test that was codified in ss.76(3+4)
-s.76(4); still use defence if honest not reasonable mistake made
-s.76(5); if mistake is due to intoxication defence doesnt apply
-R v Beckford; no general duty to retreat
-R v Bird; force shouldnt be used out of revenge or retaliation

Question 10

what happened/ is the legal principle in R v Williams (Gladstone)

Answer 10

• provided legal test that was codified in ss.76(3+4)
  -D assaulted V who had just restrained a robber (D did not see robbery and V lied about being police)
  -conv quashed as D judged in circs as he believed them to be (provided they were based on reasonable grounds)

Question 11

what happened/ is the legal principle in R v Beckford

Answer 11

• no general duty to retreat
  -but if D has a chance to retreat this factors in considering whether force was reasonable
  -right to strike first if harm is imminent

Question 12

what are the two types of cases to be distinguished between

Answer 12

-householder and non-householder cases

Question 13

what is 76(6) CJIA

Answer 13

• force used by D must not be disproportionate
  -non-householder cases

Question 14

give 5 legal principles/cases regarding non-householder cases

Answer 14

-s.76(6); force used by D must not be disproportionate
-R v Owino; D judged on facts as they honestly believed at the time of the offence, in those believed circs was force reasonable (obj)
-R v Martin (2002); personality disorders not considered
-R v Oye; D’s delusions he was being attacked did not entitle him to acquittal
-s.76(7); if D appeared to do something instinctive due to substantial stress they may use the defence

Question 15

what happened/ is the legal principle in R v Owino

Answer 15

• D judged on facts as they honestly believed at the time of the offence
  -in those believed circs was force reasonable (objective test)

Question 16

what happened/ is the legal principle in R v Martin (2002)

Answer 16

-personality disorders not considered

Question 17

what happened/ is the legal principle in R v Oye

Answer 17

-D’s delusions he was being attacked did not entitle him to acquittal

Question 18

what is s.76(5A) CJIA

Answer 18

-force used by D must not be grossly disproportionate
(to be reasonable force)
-Householder cases

Question 19

give 4 legal principles/ cases regarding householder cases

Answer 19

-s.76(5A); force isnt automatically unreasonable, it is unreasonable if it is grossly disproportionate in the circs
-R v Martin; shot teenage burglar as he ran away
-R (Collins) v Sectretary of State for Justice; HH was not prosecuted as use of force was not grossly disproportionate, jury found injuring trespaser was reasonable
-^^ confirmed in R v Ray (2017)

Question 20

what happened/ is the legal principle in R v Martin regarding householder cases

Answer 20

-shot teenage burglar as he ran away

Question 21

what happened/ is the legal principle in R (Collins) v Sectrtary of State for Justice and R v Ray (2017)

Answer 21

-HH was not prosecuted as use of force was not grossly disproportionate -jury found injuring trespaser was reasonable
-confirmed in R v Ray (2017)